nunavuumi iqkaqtuijikkut

NUNAVUT COURT OF JUSTICE

La Cour de justice du Nunavut

Citation: R v QRUNNGNUT, 2014 NUCJ 22

Date of Judgment: 20140813
File Number: 08-11-115
Registry: Iqaluit


Prosecutor: Her Majesty The Queen

-and-

Accused: Stephen Qrunngnut


________________________________________________________________________

Before The Honourable Mr. Justice E. Johnson

Counsel (Applicant): M. Girard
Counsel (Respondent): M. Christie

Location Heard: Iqaluit, Nunavut
Date Heard: January 30-31, 2013
Matters: Controlled Drugs and Substances Act S.C. 1996, c.
19 s. 5(4)


REASONS FOR JUDGMENT


(NOTE: This document may have been edited for publication)








I. INTRODUCTION

[1] The accused is charged with unlawfully possessing less than 3
kilograms of cannabis marijuana for the purpose of trafficking
contrary to section 5(4) of the Controlled Drugs and Substances
Act S.C. 1996, c. 19. (CDSA).

[2] In a voir dire ruling found at 2013 NUCJ 08 [voir dire judgment], I
found the evidence seized by the police was admissible at trial
despite breaches of the accuseds Charter rights.

[3] Both Crown and Defence agreed that the evidence called at the
voir dire was admissible at the trial. The voir dire evidence
establishes that the accused checked two bags at the Ottawa
airport. One was his bag and the other was a bag he received
from a person known as Shawn (Shawns suitcase). When the
RCMP searched the two bags at the Iqaluit airport they found a
large panda bear in Shawns suitcase. Sewn into the panda bear
were 1649 grams of marijuana in five separate vacuum packed
bags that had a street value of $100,000.

[4] The Crown did not call any additional evidence at the trial and
the accused testified.

[5] I set a timeline for the filing of written submissions and reserved
judgment to August 13, 2014.

[6] Defence counsels written argument raised an issue on whether
the Crown had proved that the substance seized was cannabis
marijuana and I gave the Crown until July 11, 2014 to respond.
Attached to the written submissions of the Crown was a
certificate of analysis dated April 19, 2011 confirming that the
substance seized was cannabis marijuana (Certificate).

II. Issues

[7] Did the Crown prove that the substance seized was cannabis
marijuana?

[8] Was the accused in possession of cannabis marijuana?

Did the Crown prove that the substance seized was cannabis
marijuana?

A. Defence Argument

[9] Defence counsel argues that the Crown provided no evidence as
to the nature of the substance seized and the substance was not
admitted at trial. He argues the accused would have no way of
knowing what the substance was as he was never in possession
of it and only glimpsed it briefly.

B. Crown Argument

[10] The Crown provided a transcript of the June 14, 2013 court
appearance when the voir dire judgment was released and the
matter was adjourned to set a trial date. That transcript indicates
that Defence counsel admitted that there was no issue about the
nature of the substance and as a result the Crown did not tender
the Certificate.

C. Analysis

[11] Lines 22-24 of the Transcript reveal that Defence counsel agreed
there was no issue about the nature of the substance. It states:

Mr. Lane. Is there any dispute over the nature of the
substance?
Mr. Christie. No, substance no.

[12] I am satisfied that the Crown relied on this statement by Defence
counsel in deciding not to enter the Certificate as an exhibit in
the trial.

[13] I am satisfied that this statement by Defence counsel was an
admission under section 655 of the Criminal Code. It states:

655. Where an accused is on trial for an indictable offence, he or his
counsel may admit any fact alleged against him for the purpose of
dispensing with proof thereof.

[14] I am satisfied that the Crown would have tendered the Certificate
if Defence counsel had not made the admission.

[15] In the future counsel should use formal admissions under section
655 to avoid any misunderstandings.

Was the accused in possession of cannabis marijuana?

A. Crown Argument

[16] As held in R v Clouden 2011 ABQB 285, the Crown
acknowledges that it must prove three things to establish the
accused had possession of the 1649 grams of marijuana. First,
the Crown must prove that the accused had actual possession of
the marijuana. Second, that the accused knew he had actual
possession of the marijuana. Finally, that the accused exerted
control over the marijuana.

[17] The Crown argues that the accuseds evidence establishes that
he was in physical possession of Shawns suitcase and exerted
control over it until he gave it to his brother-in-law Silas
Kadlutsiak in Igloolik. From this fact and other evidence, the
court can infer that the accused actually knew he was
transporting the marijuana or that he was wilfully blind to that
possibility.

[18] As held in R v Jorgensen [1995] 4 SCR 55 [Jorgensen] wilful
blindness is not determined by applying an objective test but
rather by deciding whether the accused shut his eyes because
he knew or strongly suspected that looking would fix him with
knowledge.

[19] The Crown relies on the following facts to establish that the
accused was wilfully blind.

(a) He made no attempt to check with Silas to see if he was
expecting a suitcase from Shawn.

(b) The accuseds explanation to justify bringing a suitcase to
Igloolik to help people from Igloolik staying at Larga Baffin is
suspect because Shawn was not an Inuk, did not reside in
Nunavut and was not staying at Larga Baffin for medical
treatment. He was also a person that the accused had only met
once briefly in Igloolik.

(c) The explanation is further suspect because the accused knew
that Silas had supplied him with marijuana regularly over a four-
year period and that he was trafficking in marijuana.
Furthermore, the accused testified that when Shawn met him at
the airport he did not tell him the name of the person to whom
the suitcase was to be delivered.

(d) As the court has already held, the accused was not an
unsophisticated person and he gave conflicting versions about
the number of meetings he had with Shawn that undermine his
credibility. There is no commonality between Shawn and the
average patient residing at Larga Baffin and the accused was
aware of it.

[20] The inconsistencies in the accuseds evidence raise the very real
possibility that he was not being truthful and had actual
knowledge of the content of the suitcase. Cst. Allen testified that
that the one key he was given opened the padlocks on both
suitcases while the accused testified that he intended Shawns
suitcase to be checked under his daughters name. Furthermore,
Shawn asked the accused not to use the key to open the
suitcases. This evidence cannot be explained rationally or
culturally if the accused was not aware of the presence of drugs
in the suitcase.

[21] The accuseds explanation that he thought he was bringing up
Christmas presents and candies for Silas children is not
credible. Firstly, the accused never testified that the proximity to
Christmas made Shawns story more believable to him even
though it makes a perfect cover story for the delivery of drugs.
Secondly, the accused attempted to check Shawns suitcase
under his daughters name and he was told to bring the suitcase
to Silas immediately upon his arrival in Igloolik. If the request to
bring the suitcase was a legitimate favour to a Larga Baffin
resident that commonly occurred there would have been no
urgency to deliver it immediately. The accused did not mention
the proximity to Christmas because he knew the actual content
of the suitcase.

[22] The Crown does not have to prove actual knowledge and can
establish mens rea through wilful possession. There is a
significant amount of evidence that the accused made a
concerted effort not to become aware of the practicalities around
Shawns drug use. He testified that he did not ask Shawn if there
were drugs in Shawns suitcase because he did not expect him
to tell the truth. This evidence proves that the accuseds mind
was addressed to these possibilities. He should have been
suspicious when Shawn did not ask him until three days into his
stay at Larga Baffin to carry the suitcase. What is more telling is
that the accused attempted to have Shawns suitcase checked
under his daughters ticket and consented to the search thinking
that only his bag would be searched. He was not concerned
about a search of his bag because Cst. Allen had told him that
he would not be charged for a small amount of marijuana.

[23] If these facts do not lead to an inference that the accused
actually knew about the presence of drugs in his suitcase they
should convince this court that the four aspects described in
Sansregret v The Queen [1985] 1 SCR 570 [Sansregret] have
been satisfied. Those aspects are:

(a) Awareness of the need to make an inquiry;

(b) Declining to make the inquiry;

(c) Not wishing to know the truth;

(d) Preferring to remain ignorant.

[24] The accused became worried enough about Shawns suitcase
that he decided to check it under his daughters ticket. He also
did not ask Shawn about the contents of the suitcase or open it
with the key. These facts made him wilfully blind to the fact that
he was in possession of illicit drugs for the purpose of trafficking.

B. Defence Argument

[25] The Defence acknowledges that for the accused to be found in
possession of the marijuana, he would have to have knowledge
of the drugs. That knowledge could come from either actual
knowledge or wilful blindness about the drugs.

[26] The accused had no actual knowledge of the drugs. He testified
that he never opened the suitcase, had no idea what was in it
and only saw the marijuana at the airport after the search.
Furthermore, even if he opened up the suitcase he would not
have seen the drugs because they were sewn into the panda
bear.

[27] The accused relies on the statements about wilful blindness at
para 26 in R v Lagace [2003] OJ No 4328, 181 CCC (3d) 12
[Lagace] and at para 25 of R. v Bakos 2008 ONCA 712, [2008]
OJ No 4067 to argue that the test is subjective. Therefore this
court must be satisfied that the accused had a real or aroused
suspicion in his mind and then failed to make further inquiries.

[28] The following evidence from the accused that emerged after a
thorough cross-examination demonstrates that his suspicion was
not aroused.

(a) Shawn told the accused at the first meeting at the airport that
he wanted him to take toys and candies with him when he
travelled to Igloolik;

(b) Shawn told the accused that the toys and candies were going
to Silas who he had known for many years and who had three
young children;

(c) The accused believed that there were toys and candies in the
suitcase and that his belief was reasonable;

(d) The accused had no suspicion that there were drugs in the
suitcase;

(e) The accused did not think that it was strange for someone to
ask him to take a suitcase to give to Silas in Igloolik because he
has done it before and knew that many other people had done it
as well;

(f) The accused did not find it strange that someone would give
him money to carry the suitcase because others had paid him in
the past to do the same thing;

(g) The accused was not suspicious because he knew the family
to whom the suitcase was going;

(h) The accused was not interested in what was inside the
suitcase because Shawn had told him what was inside;

(i) The accused thought that people asked him to bring items to
the north because he was a nice guy.

[29] The accuseds pre-charge conduct supports his testimony that
he had no knowledge that there were drugs in the suitcase. As
Cst. Allen testified up to the point he was arrested, the accused
did not appear scared or afraid and remained polite. A person
with knowledge of the drugs or who was being wilfully blind
would have been nervous from the very first contact with the
RCMP. The accuseds demeanor was not consistent with
someone who knew or had a suspicion that they were
transporting 3.63 pounds of marijuana.

[30] It was only when the police brought in both suitcases that the
accused became worried. His worry at this point is reasonable
even though he never suspected the presence drugs in the
suitcase. He was in the presence of the RCMP who had been
found by this court in the voir dire judgment to have breached
some of his most important Charter rights and he viewed the
RCMP through Inuit eyes as being all-powerful and to be feared.
If the police said there were drugs in the suitcase it was
reasonable at that time for the accused to be worried.

[31] The accused was not much of a drug user and was not in a
position where he needed to be involved in drug trafficking to
obtain his drugs. He did not even smoke the six joints that
Shawn gave him despite having them in his possession for a few
days.

[32] The accuseds lack of a criminal record gives credence to his
claim of non-involvement.

[33] Defence counsel argues that the accused had no idea that there
were drugs in the suitcase and believed he was simply taking
toys and candy to children he knew in Igloolik as he and others
had done in the past.

[34] The accused repeated many times in his testimony that he was
not in the habit of prying into other peoples lives. The test for
wilful blindness is a subjective test and this evidence supports
his claim that he was not suspicious about the content of the
suitcase.

[35] Defence counsel submits that the accused was an innocent
helpful and descent person who was preyed upon because of
those attributes.

[36] In applying the test from R v W(D) [1991] 1 SCR 742 [R v W(D)],
Defence counsel submits that this court should find the
accuseds evidence was believable and trustworthy. The court
preferred his evidence on the Charter motion and he was
consistent even when pushed hard and repeatedly by Crown
counsel on the issue of wilful blindness. Alternatively, if this court
does not prefer the accuseds testimony to the Crown theory the
court should be left with a reasonable doubt and should acquit
the accused.

C. Analysis

[37] At para 22 of Sansregret, the Supreme Court of Canada
approved Glanville Williams definition of wilful blindness that
stated as follows:

The rule that wilful blindness is equivalent to knowledge is
essential, and is found throughout the criminal law. It is, at the
same time, an unstable rule, because judges are apt to forget its
very limited scope. A court can properly find wilful blindness
only where it can almost be said that the defendant actually
knew. He suspected the fact; he realized probability; but he
refrained from obtaining the final confirmation because he
wanted in the event to be able to deny knowledge. This, and this
alone, is wilful blindness. It requires in effect a finding that the
defendant intended to cheat the administration of justice. Any
wider definition would make the doctrine of wilful blindness
indistinguishable from the civil doctrine of negligence in not
obtaining knowledge.


[38] At para 103 of Jorgensen the Court refined the test and stated it
as follows:

A finding of wilful blindness involves an affirmative answer to the
question: Did the accused shut his eyes because he knew or strongly
suspected that looking would fix him with knowledge? Retailers who
suspect that the materials are obscene but refrain from making the
necessary inquiry in order to avoid being contaminated by knowledge
may be found to have been wilfully blind. The determination must be
made in light of all the circumstances. In Sansregret v. The Queen,
[1985] 1 S.C.R. 570, this Court held that the circumstances were not
restricted to those immediately surrounding the particular offense but
could be more broadly defined to encompass, for example, past events.

[39] In Lagace the Ontario Court of Appeal, at para 26, rejected the
Defence argument that wilful blindness required a level of
suspicion that amounted to a probability the vehicles were stolen
as follows:

I would reject this submission. I see no need to quantify the level of
suspicion beyond the recognition that it must be a real suspicion in the
mind of the accused that causes the accused to see the need for
inquiry: R. v. Sansregret (1985), 18 C.C.C. (3d) 223 at 235 (S.C.C.);
R. v. Jorgensen (1995), 102 C.C.C. (3d) 97 at 135 (S.C.C.); R. v.
Duong (1998), 124 C.C.C. (3d) 392 at 401-402 (Ont. C.A.).

[40] In Bakos the Ontario Court of Appeal, at para 25, approved the
trial judges charge on wilful blindness. He stated:

On this issue, the trial judge correctly charged the jury when he
described wilful blindness as comprising aroused suspicions on the
part of the appellants and deliberate omission to make further
inquiries.

[41] The Crown argues that the accused had actual knowledge that
the drugs were in his possession. This argument is based on the
inconsistencies in the accuseds evidence that undermine his
credibility and because he was a smart man. Additional facts that
suggest knowledge are the implausibility of the toys and candies
story, the fact that the accused did not ask Shawn what was in
the suitcase and that the accused attempted to check the
suitcase under his daughters name.

[42] I am satisfied that I cannot infer that the accused actually knew
there were illegal drugs in Shawns suitcase. I did not find that
the accused was a sophisticated man. In fact, at para 72 of the
voir dire judgment I stated that the accused was
unsophisticated although I also found that he had more
knowledge of English than suggested by Defence counsel.

[43] The Crown attacks the credibility of the accused because of his
divergent versions of his meeting with Shawn. I am satisfied that
the accuseds evidence was not inconsistent. He simply provided
more evidence at the trial than at the voir dire because he was
cross-examined more thoroughly.

[44] The story about the toys and candies is more plausible given the
proximity to Christmas even if the accused never mentioned it.

[45] The evidence obtained from the accused in the voir dire about
his intentions when he checked the two suitcases in Ottawa does
raise some suspicions that he knew Shawns suitcase might
contain drugs. He was thoroughly cross-examined by Mr. Lane at
the voir dire about it. The accused explained that he intended to
check his suitcase on his boarding pass and Shawns suitcase
on his daughters boarding pass. He did that because he was
concerned about the weight of the bags. He put his bag under
his name because his bag had a tag with his name on it. When
the accused consented to the search he thought the police would
only bring his bag and got worried when they brought both bags.
The accused denied he knew there were drugs in the bag he
received from Shawn when confronted by Mr. Lane. That is when
he became worried because the police had told him that they
thought there were drugs in the bag. He then thought they might
find something. The accused then confirmed again that he
thought the bag contained toys and candies and did not know
there were drugs in the bag.

[46] If the accused had opened the suitcase he received from Shawn
he would not have seen the drugs unless he did a thorough
search as was carried out by the police. On balance I am
satisfied that I cannot make the inference that the accused knew
there were drugs in the bag. However, I do find that this case
falls into the category described by Williams that it can almost
be said that the defendant actually knew (Sansregret at para
22).

[47] The final issue is whether the accused was wilfully blind to the
possible presence of drugs in the suitcase and then failed to
make further inquiries. The accused does not deny that he was
physically in possession of the suitcase and exerted control over
it. As held in Sansregret, I must now determine whether the
accused shut his eyes because he knew or strongly suspected
that looking would fix him with knowledge?

[48] Both Crown and Defence agree that the test to be applied to
answer this question is a subjective test. I must look at the
knowledge the accused possessed and assess if his suspicions
were aroused enough that he should have made further
inquiries.

[49] The Crown accurately points out that there are a number of
surrounding facts that objectively indicate the accused should
have been suspicious and have made further inquiries. He used
marijuana and received marijuana regularly from Silas including
around the time of the offence but never paid him for it. He had
only met Shawn once in the previous ten years when he showed
up at the airport on his arrival in Ottawa and he told him he had
some candies and toys for him to take to Igloolik. Shawn then
showed up unexpectedly at the hotel where the accused was
staying and gave him the suitcase to take to Igloolik. When he
gave the key to the suitcase he told him not open it up and to
deliver it to Silas immediately after he arrived in Igloolik. Shawn
gave the accused 5 marijuana cigarettes and $200 to deliver the
suitcase.

[50] The Crown relies on the evidence obtained from the accused
that he intended to have Shawns suitcase checked under his
daughters ticket to prove that he suspected there were drugs in
the suitcase. The Crown also points to the accuseds evidence
that he did not ask Shawn if there were drugs in the suitcase
because he did not think he would tell him the truth.

[51] The accuseds first argument is that the evidence summarized at
para 28 above should be believed. If I believe his evidence, I
should be satisfied that his suspicions were not aroused and he
had no basis to make further inquiries.

[52] I am satisfied that the accused suspected that there might be
drugs in Shawns suitcase because his explanation for
attempting to check Shawns suitcase on his daughters ticket
does not make any sense. His initial response was that he was
concerned about the weight of his suitcase but he never weighed
them and had no knowledge of the weight limitation. When the
Crown probed further he then explained that he checked his bag
on his ticket because it had a tag with his name on it.

[53] The accuseds belief that Shawns suitcase was checked under
his daughters ticket would also explain why he did not appear
nervous to the police. He was sure that the police would bring his
bag for a search and when he saw both bags he knew there was
a reason to worry.

[54] Further the accused admitted that he thought about asking
Shawn if there were drugs in the suitcase but did not because he
thought he would lie. The fact that the accused thought that he
would not get a straight answer from Shawn proves his
suspicions were aroused.

[55] I therefore reject the evidence of the accused that he was not
suspicious about the presence of drugs in Shawns suitcase.

[56] Since I do not accept the evidence of the accused I must ask
myself if I am left in reasonable doubt by it. I am satisfied that his
evidence does not leave me with a reasonable doubt.

[57] The final part of the R v W(D) test is to consider whether the rest
of the evidence of the accused that I do accept satisfies me
beyond a reasonable doubt of his guilt. I am satisfied that I am
not left with a reasonable doubt.

[58] I find the accused was wilfully blind to the presence of drugs in
Shawns suitcase and did not make further inquiries because he
knew he would find out that there were drugs in the suitcase. To
once again use the words of Williams he realized probability; but
he refrained from obtaining the final confirmation because he
wanted in the event to be able to deny knowledge.

[59] I therefore convict the accused of possession of cannabis
marijuana for the purpose of trafficking contrary to section 5(4) of
the CDSA.



Dated at the City of Iqaluit this 13th day of August, 2014




_______________________
Mr. Justice Earl D. Johnson
Nunavut Court of Justice