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| John L. Hill |
Henry’s luggage was searched after he arrived home from visiting Curaçao. He claimed no knowledge that the cocaine had been hidden inside. He said he had purchased the suitcase at a Toronto flea market shortly before going on vacation. At trial, he testified that a friend had swapped suitcases with him before he returned home. He continued to maintain no knowledge of the cocaine.
Superior Court Justice Jamie K. Trimble disbelieved Henry, concluding that the only reasonable inference was that he knew what he was doing. On Jan. 27, 2020, he sentenced Henry to six years imprisonment. Henry appealed (R. v. Henry, [2024] O.J. No. 5049).
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The Court of Appeal accepted the view expressed by Justice John Laskin in R. v. Laird, 2015 ONCA 414, which discussed what constitutes spontaneity. Justice Laskin had accepted that a “spontaneous” statement is probative, justifying its admission into evidence. However, once an accused has an opportunity to “think things through,” the spontaneity is diminished and sometimes eliminated. Whether a statement is spontaneous is a discretionary call for the trier of fact, and the trial judge’s determination that the video recorded after a long duration was not spontaneous attracts the usual appellate deference. Moreover, what Henry said about the origins of the suitcase he was found with was not subject to the spontaneous exculpatory statement exception because the first time that explanation was raised was at trial.
Henry’s counsel further argued that the trial judge had not adequately instructed himself on the principles contained in W. (D.) v. The Queen (1991), 63 C.C.C. (3d) 397 (S.S.C.) because the trial judge had quoted a summary from R. v. DaCosta, 2015 ONSC 1478 rather than from the W. (D.) decision directly. The trial judge’s reasons, read as a whole, show clearly that he was satisfied beyond a reasonable doubt that the only reasonable conclusion supported by the circumstantial evidence was that the appellant knew about the cocaine hidden in his suitcase.
Defence on appeal also argued that Henry’s good character was given insufficient weight in assessing his credibility or deciding if he likely committed the offence. The Court of Appeal held that the failure to discuss these aspects for his reasons did not show that the trial judge gave improper consideration to that aspect of the case.
In deciding if there were other reasonable inferences other than the appellant knew of the cocaine stash, the trial judge did not look simply to indicia of possession such as Henry’s name on the luggage tag; the trial judge correctly concluded that on the evidence, it was proven that Henry was aware of what he was bringing into the country.
Henry’s position is that the trial judge reversed the onus of proof by stating that Henry intended to take the suitcase he had exchanged in Curaçao home with him after he left the airport. However, the trial judge was required to consider other possibilities inconsistent with guilt (R. v. Villaroman, 2016 SCC 33). Henry testified that the friend who gave him the suitcase in exchange had not arranged for anyone else to retrieve it. If Henry were innocent and unaware of the $100,000 worth of cocaine in the luggage, it would be more likely that the friend would have arranged for an accomplice to retrieve the bag. It is not reversing the onus for the judge to have asked the defence to suggest other possibilities of how an innocent accused could be tricked into surrendering the bag. The only idea presented was that thieves could break into Henry’s home and seize the suitcase. But this is highly unlikely. There is no suggestion of how the friend or his confederates would know where and how the suitcase would have been stored. The trial judge was entitled to conclude as he did that the circumstantial evidence as a whole supported the inference that the appellant knew what was in the suitcase and was inconsistent with any other reasonable possibilities.
A range of six to eight years is appropriate for the importation of 1.9 kilograms of cocaine for a first-time offender with favourable antecedents (R. v. Cunningham (1996), 27 O.R.(3d) 768 (C.A). The trial judge’s reasons show proper consideration of the mitigating factors relied on by the appellant, in combination, and decided that although they justified imposing a sentence at the low end of the Cunningham range, they were not “extenuating enough as mitigating factors to take the appropriate sentence below [this] range.” As a result, both conviction and sentence appeals were dismissed.
John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and an LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.
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