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CONTROLLED DRUGS AND SUBSTANCES - Importing or exporting substances

Wednesday, January 16, 2019 @ 8:13 AM  

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Appeal by Miller from his conviction, by jury, of importing cocaine and possession of cocaine for the purpose of trafficking. The appellant, who operated a motorcycle business, returned to Canada from the United States driving a truck carrying several motorcycles. After a sniffer dog detected the presence of drugs, border agents detained the appellant and advised him of his right to counsel. He indicated he did not wish to speak with counsel. Within several minutes, the appellant was cautioned again and declined to speak with counsel again. The appellant’s truck was seized, and 100 kg of cocaine was found in the bed of the truck. Immediately after being cautioned a third time, the appellant gave an incriminating statement whereby he effectively admitted he knew he was importing cocaine. The agents asked questions during the appellant’s statement, which was not recorded. Almost an hour later, the appellant was given access to a telephone to contact counsel. The trial judge found the appellant’s right to counsel was not violated. The trial judge instructed the jury on the possibility of convicting the appellant on the basis of wilful blindness.

HELD: Appeal dismissed. The appellant’s statement was a spontaneous utterance made with full knowledge of his right to remain silent and speak to counsel. The border agents endeavoured to comply with their obligation to advise the appellant of his rights. The appellant would have made the statement, notwithstanding any subsequent breaches such as the delay in providing him access to a telephone or asking clarifying questions. The impact on the appellant’s rights was at the lowest end of the spectrum. It was open to the trial judge to conclude there was a basis for a finding of wilful blindness. The trial judge repeatedly and properly instructed the jury on the presumption of innocence and that the burden of proof rested with the Crown.

R. v. Miller, [2018] O.J. No. 6342, Ontario Court of Appeal, R.J. Sharpe, C.W. Hourigan and G.T. Trotter JJ.A., November 26, 2018. Digest No. TLD-January142019006