R. v. Niemi

R. v. Niemi Collection Decisions of the Court of Appeal Date 2006-05-02 Docket numbers C41545 Judges Cronk, Eleanore Ann; LaForme, Harry Smith; Juriansz, Russell G. Subject Criminal Decision Content DATE: 20060502 DOCKET: C41545 COURT OF APPEAL FOR ONTARIO CRONK, LAFORME and JURIANSZ JJ.A. B E T W E E N : HER MAJESTY THE QUEEN Appellant Nicholas Devlin and Fergus O’Donnell, for the appellant - and - LYLE NIEMI Respondent Gregory Lafontaine and Vincenzo Rondinelli, for the respondent Heard: December 20, 2005 On appeal from acquittals entered by Justice Alfred J. Stong of the Superior Court of Justice dated February 24, 2004. JURIANSZ J.A.: Overview [1] On November 7, 2001 a private jet landed at Lake Simcoe Regional Airport (“Simcoe Airport”) carrying 263 bricks of cocaine weighing 269 kg and 17 bricks of hashish weighing 16.4 kg. While taxiing back from the end of the runway after landing, the pilot executed a 180° turn and stopped at a point where the runway intersects the Oro-Medonte 6th Line. The plane’s door was opened and the drugs, in hockey bags, were tossed to several men who were waiting on the 6th Line in a pickup truck and an SUV. One of the passengers on the jet jumped out of the plane. The plane, with its pilot, co-pilot and one remaining passenger, then proceeded to the terminal for customs inspection. [2] The RCMP who were observing the entire operation, arrested everybody on the plane, as well as the men who were waiting with the pickup truck and SUV. [3] The pilot of the jet, Mr. Lyle Niemi, was tried by judge alone on charges of importing, trafficking, and possession of the drugs for the purpose of trafficking, and was acquitted on all counts. The Crown appeals the acquittals on the basis of errors of law allegedly made by the trial judge. I would allow the Crown’s appeal and order a new trial for the following reasons. [4] First, the trial judge committed several errors in analyzing the Crown’s position that Niemi was a member of a conspiracy to import drugs into Canada from Jamaica. He erred by holding that Niemi’s own statements (recorded on wiretaps in conversation with the alleged co-conspirators) were inadmissible against him. Niemi’s statements were admissions and therefore properly receivable into evidence irrespective of his membership in any conspiracy. The trial judge also erred by concluding that evidence that Niemi was a member of the broad conspiracy to import drugs from Jamaica alleged by the Crown was inadmissible because the drugs were not brought into Canada by that conspiracy, but by a faction of conspirators acting independently. Finally in this area, the trial judge erred by considering irrelevant factors in concluding that Niemi was not a member of the alleged conspiracy. [5] Second, the trial judge’s finding that the Crown had not proved that Niemi was wilfully blind is incompatible with his earlier finding that the Crown had proved beyond a reasonable doubt that Niemi was not acting under duress when he flew the plane back to Canada from Jamaica. Facts [6] Alfredo Malanca and Dean Roberts were the principals in an ongoing conspiracy to import drugs into Canada from Jamaica. [7] Wiretap and surveillance evidence established that Niemi met with and had telephone conversations with Malanca. On August 22, 2001, Malanca left a telephone message for Niemi with the receptionist of Executive Edge Air (the company Niemi worked for) using the fictitious name “John”, and declined to leave a surname when asked. Niemi returned the call that evening. That telephone conversation was oblique. Malanca indicated that he wanted to meet Niemi, but declined to specify why, other than to say “I just want to talk to you about something.” Niemi was angry with Malanca for leaving a message without leaving a last name because, according to Niemi, his receptionist was “getting awfully fuckin’ nosey.” When Malanca protested that he only called once, Niemi explained that the receptionist was “getting snoopy” because he was receiving calls from “Magician...from you [without a last name]…from another guy and it’s just a name or, he knows who I am call me.” [8] Although he indicated that the call was personal, Malanca did remark “and if it’s work you, you know, always like work anyway don’t ya?” Niemi replied, “Well I usually work out pretty well I think.” [9] The trial judge found that these calls demonstrated that there was a relationship between Niemi and Malanca and that it was “hard to imagine” that this was a legitimate business relationship. The trial judge specifically referred to the reference to meeting places and the use of code names, such as “Buddy” and “Magical”. In addition, the trial judge felt that Niemi’s statements revealed that he was clearly familiar with the furtive terminology and understood the code names and words being used. [10] Niemi also had a relationship with Roberts, the other principal in the conspiracy to import drugs. On September 19, 2001, Niemi had flown Roberts and Roberts’ wife to Nassau, Bahamas from Montréal, and then had flown them back to Montreal on September 21. However, there is no evidence that Niemi was aware of the relationship between Roberts and Malanca. [11] On October 10, 2001, Roberts and Malanca discussed what appeared to the trial judge to be a plan to import drugs from Jamaica that had been delayed. Roberts indicated in that call that he had a pilot, referred to by the codename “Patrick One”, on standby, and complained about owing Patrick One more money because of the delay. The trial judge was satisfied that Niemi was Patrick One, though there was no evidence that Niemi himself was aware of this codename. Malanca had been dealing with a pilot codenamed “Patrick Two”, and wanted Roberts to wait for that pilot to be available. The trial judge found, “[I]t is clear that both pilots are anticipated by the main conspirators, Malanca and Roberts, to be resources for their enterprise.” [12] The next day, Niemi called the Roberts’ home in Montréal and left a message for Roberts with his wife. Roberts then called Malanca and a man named Blewitt. In that call, Roberts angrily complained that Patrick One had called Roberts at home, despite having been told never to do so unless it was “life and death”. [13] Later that day, Roberts spoke with Malanca and told him that he had arranged for Patrick One to “go immediately... instead of waiting that long you know”. [14] It is unnecessary for the purpose of this appeal to describe the additional calls between Niemi and Roberts. They were considered by the trial judge to demonstrate clearly that Niemi and Roberts were familiar enough in their dealings together that they could speak in vague, coded terms and still understand one another. The trial judge also noted that throughout their conversations, names, places and times were not used. [15] On October 13, 2001, Niemi and his co-pilot Ross flew Roberts, Roberts’ wife and daughter, and two other men to Jamaica. The two men were André Villareul and Jose Sousa. Roberts, Villareul, and Sousa remained in Jamaica when the plane returned to Canada. Arrangements were made to pick them up about two weeks later. Villareul was on parole at the time and was not allowed to leave Canada. As the trial judge noted, “his re-entry into Canada would have to be accomplished in a clandestine manner”. [16] Subsequent events make it apparent that Roberts, Villareul and Sousa remained in Jamaica to obtain the drugs and get them ready for shipment to Canada. [17] In intercepted call number 11, on October 15, 2001, Niemi instructed the receptionist at Executive Edge Air to fax the confirmation for the trip just completed to Roberts, but to use the name Dean Riley on it instead of Dean Roberts. He also instructed her to draw up quotes for two further flights: another trip to Nassau to drop off Roberts’ wife, and the flight to Jamaica to pick up Roberts. He instructed the receptionist not to send the two quotes yet. [18] The intercepted calls show that in the next two weeks, Roberts, Malanca and their cohorts discussed arrangements involving Patrick Two and a possible Patrick Three. On October 31, 2001, a flight with a different pilot left to fly to Jamaica to pick up Roberts. The flight was aborted. The trial judge commented that it was turned back, “either for security measures because the United States was on a terror alert after 9/11, or because of the weather”. [19] Following the aborted flight, there were intercepted phone calls between Malanca and Blewitt in which Roberts was angry about not having been picked up yet and, according to Blewitt, “was freaking out”. Roberts did not believe that the scheduled pickup flight had been turned back, and he wanted to speak to the pilot, but no one would provide him with the pilot’s number. [20] On November 1, 2001, Malanca told Blewitt to contact Roberts and tell him not to contact anyone. In particular, Malanca wanted to ensure that Roberts did not call “my Patrick”, that is Patrick Two, as a call from Jamaica could bring his existence to the attention of the authorities and it would, as Malanca put it, “burn him for nothing”. [21] Roberts then called Executive Edge Air himself to arrange to be picked up in Jamaica by Niemi. The trial judge found that: Niemi appears genuinely surprised that Roberts called him again and he clearly wants to go on this particular flight and is so anxious to go to Jamaica to pick up Roberts he leaves instructions to cancel other flights he had booked on the jet. [22] On November 1, 2001, Niemi left a message for Roberts indicating that he was willing to go down and pick him up but wanted to know if his associates would be coming back as well. [23] Subsequent calls between Malanca, Blewitt and Roberts make clear that at this point, Roberts was acting unilaterally and furtively. However, Malanca knew that Roberts had arranged that Niemi would pilot the flight and was certain that it was for the drug run. Malanca was livid. The trial judge found that, “it is clear that Malanca mistrusts Roberts and thinks that Roberts is not only going to try to sneak Villareul back into Canada, but he is going to sneak the drugs in and steal his (Malanca’s) portion of the shipment.” However, Malanca did not indicate to Roberts that he knew of Roberts’ plan, nor did he take any steps to stop Roberts. He relied on Blewitt to protect his interests. [24] Before Niemi departed to go to Jamaica to pick up Roberts and his cohorts, he left detailed written instructions for Darcy Roy to meet the plane at the intersection of the concession road and runway and to pick up a man there. Roy was Niemi’s salesman at Executive Edge Air and a co-accused at trial. Roy was acquitted and the Crown has not appealed that verdict. The description of the man Roy was to pick up matched Villareul. [25] In intercepted call number 31 at 12:55 p.m. on November 6, 2001, Niemi called Roy from Jamaica and explained that, contrary to the written instructions he had left, Roy was to meet the plane and pick up “two hockey players” and “their bags”. Niemi indicated that he would call Roy on his cell phone as the plane approached. He instructed Roy to drive his silver Corvette and wear his orange Maple Leaf cap. He further instructed Roy to call Canada Customs and rebook their attendance at Simcoe Airport for the next day, and not to change the passenger manifesto, even though there was going to be an extra person on board. Finally, Niemi instructed Roy that if Canada Customs asked where the plane was coming from, Roy should not say Jamaica. [26] On November 7, 2001, the police observed Roy drive to the end of the 6th Line where it intersects the runway, which point is out of sight from the main terminal. When the plane was in the air flying towards the Simcoe Airport, the police observed Roy, wearing his orange Maple Leaf cap, meet with the men who met the plane later when it stopped on the runway. In intercepted call numbered 32 on November 7, 2001 at 3:16 p.m., one of those men, Bertucci, told Malanca that Roy was in contact with Niemi and was keeping them informed as to the plane’s progress. Bertucci told Malanca that Roy was telling Bertucci what was going on and where to go. Finally, Bertucci also told Malanca that the drugs were arriving on the plane. [27] As the police emergency response team arrived to takedown the SUV and the pickup truck, they observed Roy parked in his Corvette at the corner of 6th Line and Highway 11 with his parking lights on. He did not leave the area and there is no evidence that he took any steps to alert anyone to the police presence. From where Roy was parked, one could not see what was happening at the end of the 6th Line near the runway. Roy was arrested as he sat in his vehicle, and he cooperated with the police. In the trunk of his sports car, the police found a hockey bag with hockey equipment inside. The police also found in Roy’s possession a handwritten note from Niemi, directing Roy to attend in the area to pick up someone who would be walking with his bags. [28] Niemi was arrested and gave a statement to the police at that time. However, he did not testify at trial. Ross and Roy were also arrested and charged. Ross was tried separately and had already been acquitted before the trial of Niemi and Roy began. Ross was called as a Crown witness at the trial of Niemi and Roy. [29] Ross testified that Niemi and he left Buttonville Airport on November 6, 2001 at approximately 4:00 or 5:00 a.m. and flew to Jamaica. It was Ross’ understanding that the purpose of the trip was to pick up Roberts and his associates. The plan was to return to Toronto to refuel and then transport the passengers to Montréal. Niemi and Ross did not plan to stay overnight in Jamaica. On arriving in Jamaica, they found that the clients were not ready to leave and wanted to stay another day because they had not finished their business. Roberts arranged for a hotel room for Niemi and Ross under false names. Roberts summoned them to a meeting in his hotel room at about midnight. [30] According to Ross, Roberts told Niemi that Niemi knew why he was down there and Roberts made reference to Niemi ensuring that Villareul was returned safely to Canada. Niemi assured Roberts he would do so. There was a handgun on the table in front of Roberts. Ross testified Niemi asked what it was for, and Roberts indicated, “to make sure people do what he wants” and “he gets what he wants done”. Niemi produced for Roberts a rough drawing of the airport. Roberts continued to press Niemi to call his (Niemi’s) friend and confirm that Niemi’s “guy” would be at the Simcoe Airport to meet Roberts’ friend. Niemi used his cell phone, and Ross understood that he had confirmed with Roy that Roy would meet Roberts’ friend. The time Ross saw Niemi use his cell phone matches the intercepted call in which Niemi told Roy he was to pick up two hockey players and their bags. [31] Roberts wanted Niemi to leave Ross behind in Jamaica as insurance for the safe return to Canada of Villareul. Niemi refused to do so, saying he could not fly the plane without a co-pilot. [32] Roberts demanded a contact number for Niemi’s guy (who was supposed to meet the plane) and said that things had changed; he now wanted his own people to meet the plane and pick up the person who was being brought back into Canada. [33] In the midst of more arguing back and forth, Roberts demanded the keys to the plane and Niemi gave them to him. Roberts passed Niemi an envelope from which a photograph fell to the floor. There was evidence that the picture was of a house that looked similar to Niemi’s home. When Niemi saw the picture, he began muttering profanities at Roberts. Roberts responded by saying, “don’t be a hero, don’t contact anybody”. Ross described the discussion between Roberts and Niemi as concerned with whether Roberts could trust Niemi. [34] When they were back in their room, Niemi explained to Ross that he had learned from Roberts that they had brought someone to Jamaica on the earlier flight who was breaching his parole, and that now Roberts was pressuring them to return the man to Canada and to ensure that he was not seen by Customs. [35] Ross testified that there was no discussion of any drugs or of narcotics in his presence. [36] In the morning, Niemi asked Ross for Ross’ keys to the airplane. Niemi went to the plane while Ross went to file their flight plan. Ross saw Villareul and Sousa in the terminal with a considerable number of bags with them, more than he would have expected for two people. He proceeded through airport security with them. Villareul was travelling under the name André Reeda. Ross testified that Jamaican airport officials did not even look at the x-ray screens as the bags went through security. [37] Ross testified that once onboard the plane, Niemi asked either “what’s with these bags?” or “whose bags are these?” Sousa replied in an aggressive tone: “Don’t worry about it, just do as you’re told.” [38] The plane stopped to refuel in Nassau before returning to Canada. During the descent to the Simcoe Airport, Ross noticed a pickup truck near the side of the runway. Once they landed, they slowed the plane and taxied along the runway before turning around. As they passed the pickup truck, Sousa yelled at Niemi to stop and go back. Niemi turned the plane around and travelled back toward the direction of the pickup truck. In the area of the pickup truck, he did another 180° turn and stopped. Someone in the cabin opened the door. Niemi got out of his seat for a brief moment, but did not leave the plane. [39] As they continued towards the terminal, Ross began to retract the flaps. Niemi blocked Ross’ hand in a movement that Ross understood as directing him to leave the flaps in the extended position. He immediately understood the purpose of Niemi’s direction, as leaving the flaps down is an international sign of distress signalling that a plane has been hijacked. There was no evidence that anyone at the airport saw the flaps extended. [40] Ross testified that at no time did he hear any discussion about drugs and he did not know they were flying drugs into Canada from Jamaica. [41] The trial judge stated that he accepted Ross’ evidence as truthful without reservation and relied upon it, but in his reasons he questioned some elements of that testimony. [42] In his statement to the police, Niemi did not recount any of the threats against him by Roberts. He denied flying Villareul and Sousa to Jamaica and said he had not seen them before. He was evasive as to whether he had flown anybody from Roberts’ company before. He did not tell the police he was forced to give up the keys to his plane to Roberts. He professed to have no knowledge of how the passengers had access to the plane to load their bags on it. He gave an unsatisfactory account to the police about stopping on the runway. He told the police he had no idea what Roy was doing in the area and made no mention of the written instructions he had left with Roy or his phone call to Roy the night before. [43] As the evidence clearly demonstrated that Niemi had transported the drugs into Canada from Jamaica, the only question before the trial judge was whether Niemi had the requisite mens rea. The defence argued that the Crown had failed to prove that Niemi had actual or imputed knowledge that the bags on his plane contained illegal drugs, and that even if he had such knowledge, the evidence did not establish beyond a reasonable doubt that he was not acting under duress. [44] The trial judge concluded that Niemi was not acting under duress, he was not a member of the conspiracy to transport the drugs into Canada, he had no actual knowledge that the hockey bags on the plane were full of drugs and, finally, that he did not act in a wilfully blind manner in flying the hockey bags into Canada. Duress [45] The trial judge first considered whether Niemi transported the bags containing the drugs into Canada under duress. He concluded that the evidence did not reveal that Niemi did anything that would support the argument that he was acting out of fear or duress. He found that the Crown had successfully disproved beyond a reasonable doubt that there was a threat of death or serious bodily harm to Niemi and that Niemi had no obvious safe means of escape. [46] In making these findings, the trial judge noted that in Niemi’s statement to the police, he did not make any mention of having been threatened. The only evidence of threats came from the testimony of Ross, who did not hear the entire conversation in the hotel room between Roberts and Niemi and did not recount specifically the words used or threats made. Moreover, as Niemi did not discuss the threats with Ross when they were alone, Ross’ testimony could shed no light on the effect of any threats on Niemi. [47] The trial judge’s finding on the duress issue was not challenged on appeal and I need not review it in detail here. Some of the underlying facts are relevant to the issue of wilful blindness, and I will refer to those facts in the analysis of that issue. Admissibility of Evidence [48] The Crown argued before this court that the trial judge made several errors in his rulings on the admissibility of two categories of evidence. The first category includes Niemi’s own statements, which were recorded pursuant to the wiretap authorizations. The second class of evidence consists of the statements made by other parties to the importation, which were also recorded pursuant to the wiretap authorizations. Though the trial judge treated the recordings as one class of evidence, I will deal with each category independently. It is important to keep in mind that Niemi was not charged with conspiracy to import and traffic in the drugs, but only with the substantive offences. (i) Niemi’s statements [49] As noted above, the trial judge ruled that Niemi’s own statements were inadmissible against him. The trial judge stated: The evidence before this Court supports the conclusion that Mr. Niemi was not a member of that conspiracy, and therefore the co-conspirators’ exception is inapplicable to the case against Niemi. The conversation between Malanca and Niemi on August 22nd, 2001 then becomes completely inadmissible for any purpose at this trial. [50] This ruling is in error. In focusing on whether Niemi was a member of the conspiracy, the trial judge failed to appreciate that Niemi’s own statements were admissible evidence as admissions: see R. v. Pleich (1980), 55 C.C.C. (2d) 13 (Ont. C.A.) at 35. Whether Niemi was or was not a member of the conspiracy, does not affect the admissibility of Niemi’s own statements. His alleged membership in a conspiracy is only relevant, as I will discuss later in these reasons, to the admissibility of the statements made by the other parties under the co-conspirators’ exception to the hearsay rule. [51] Counsel for Niemi submitted that when the remarks of the trial judge quoted above are considered in the context of the rest of his reasons, it is clear that he did not exclude Niemi’s own words. [52] I cannot agree. Immediately after stating that the August 22 conversation between Malanca and Niemi was completely inadmissible for any purpose at the trial, the trial judge reviewed the incriminating statements that Niemi made in that conversation. The trial judge referred to Niemi’s remark that the receptionist was becoming suspicious, his urging of Malanca to use a last name when he called, and his claim of having been a useful pilot in the past. After alluding to these matters, the trial judge said, “however, this evidence is inadmissible against him and any inference that this Court is asked to draw from that evidence is likewise inadmissible”. [53] In my view, the trial judge erred by ruling Niemi’s own statements to be inadmissible against him. (ii) The rest of the recorded statements [54] I now turn to the admissibility of the statements of the other members of the alleged conspiracy. [55] In R. v. Carter, [1982] 1 S.C.R. 938, the Supreme Court of Canada stated the test for admitting a hearsay statement of a conspirator against a co-conspirator. Hearsay statements of co-conspirators are admissible under this exception where: (1) it has been established beyond a reasonable doubt that a conspiracy existed; (2) the evidence directly admissible against the accused establishes, on a balance of probabilities, that the accused was a member of the conspiracy; and, (3) the statements were made in furtherance of the conspiracy. [56] The trial judge found that the Crown had proved that there was a conspiracy to import illicit narcotics into Canada and that Blewett, Malanca, and Roberts were members. The trial judge then ruled that hearsay statements of the members of this conspiracy were not admissible against Niemi because the substantive offences did not flow from this conspiracy. Rather, the importation of the drugs resulted from Roberts’ plan to bring the drugs to Canada independently and rip-off his co-conspirator Malanca. The trial judge stated: The actual importation was not a function of the conspiracy between Malanca, Blewett and Roberts. The substantive offence was the result of Dean Roberts’ late-night decision in Jamaica on November the 7th to attempt to accomplish the importation contrary to the operating plan at the heart of the conspiracy. [57] Having taken the view that the offences resulted from the narrower conspiracy involving the Roberts group only, the trial judge reasoned that Niemi’s membership in the wider conspiracy was not relevant and so concluded that the intercepted calls involving Malanca and Blewett were inadmissible. He said: It is reasonable to infer that Dean Roberts decided to independently bring the drugs to Canada to rip off his co-conspirator Malanca. Thus the substantive offences did not flow from the alleged conspiracy between Malanca, Blewitt and Roberts and as a result the co-conspirators exception is inapplicable therefore the calls, particularly those involving Malanca and Blewitt are utterly inadmissible against Mr. Niemi. [58] The trial judge’s finding that the substantive offence of importing the drugs into Canada was carried out by the Roberts faction is supported by the evidence. However, as I explain, it does not follow that evidence of Niemi’s membership in the broader conspiracy is irrelevant and inadmissible. [59] The only issue in this case was whether Niemi knew that the bags he transported from Jamaica to Canada contained drugs. In my view, evidence of Niemi’s membership in the broader conspiracy was admissible on the issue of his knowledge. Roberts, Villareul and Sousa were in Jamaica as part of the wider conspiracy. It was the wider conspiracy that planned the scheme, and assembled the drugs for transportation to Canada. Niemi’s membership in that conspiracy, if proved, would be relevant to determining whether he had knowledge of what was in the bags that he flew into Canada. [60] Therefore, the Crown could lead evidence of Niemi’s membership in the broad conspiracy on the issue of his knowledge. The hearsay statements of other members of the conspiracy would be admissible to establish his membership in that conspiracy at the third step of the Carter analysis. Conspiracy [61] While the trial judge considered Niemi’s membership in the broad conspiracy to be irrelevant, he did find that the Crown had not proved, even on a balance of probabilities, that Niemi was a member of it. He committed two errors in reaching that conclusion. [62] First, it was an error for the trial judge not to consider Niemi’s own statements, which I have already noted were admissible, in determining whether Niemi was a member of the conspiracy. These statements represent direct evidence of Niemi’s potential involvement and should have been used at the second stage of the Carter analysis. [63] Second, the trial judge erred by placing weight on irrelevant matters in reasoning that Niemi was not a member of the conspiracy. The trial judge listed six factors to support his conclusion. It is important to keep in mind that the only essential elements of conspiracy are an intention to agree, completion of the agreement, and a common design. [64] The first factor relied on by the trial judge was that Niemi had no contact with Malanca after the August 22, 2001 telephone call and any resulting meeting. I see this fact as neutral. The various members of a conspiracy may be expected to play different roles in accomplishing its objective. The Crown’s theory was that Niemi was merely the pilot and there was no need for the conspirators to communicate with him until the drugs were ready to be transported. [65] The second factor relied on by the trial judge is that it seems that Niemi was kept in the dark about the relationship between Malanca and Roberts. While that may be so, in my view, it does not support a finding that Niemi was not part of the conspiracy. The observation is equally consistent with a conspiracy in which the identities and relationships of its members are kept secret to the greatest extent possible. Such a practice could certainly be expected of a conspiracy involving the importation of drugs. [66] The third factor was that Niemi never made any effort to contact Malanca or Blewett during the course of the conspiracy and his only contact was with Roberts. While I am not certain what time period the trial judge had in mind when he referred to the “course of the conspiracy”, Niemi was in communication with Malanca in August 2001. In any event, there is no requirement that a member of a conspiracy have contact with more than one other member. Again, the limiting of communications among its members may be regarded as an expected characteristic of a conspiracy to import drugs. [67] The fourth factor cited by the trial judge was that Niemi’s contact with Roberts was generally initiated by Roberts, and that Niemi’s efforts to contact Roberts were completely ignored from September 19 until just before the October 13 trip. In addition, the trial judge noted that there was no evidence of contact between Niemi and Roberts from October 17 until November 1 when Roberts, acting independently of Malanca, decided that Niemi should pilot the flight out of Jamaica. I fail to see how these observations support a finding that Niemi was not part of the conspiracy. There is no reason to expect that the principals of the conspiracy would be in continuous communication with Niemi. [68] Fifth, the trial judge observed that Niemi was not a contributor to the planning of the alleged importation, though he did assist in planning the flight back to Canada. I am unclear as to the distinction between the “alleged importation” and the “planning of the flight back to Canada”. Regardless, there is no requirement that a particular member of the conspiracy be involved in any particular step in the plan or in any planning at all. Even without the evidence that Niemi, prior to his departure from Canada, left written instructions for Roy to meet the plane at the junction of the runway and the 6th Line and the evidence of Niemi’s telephone call to Roy on November 6, 2001 telling him that there were two people and their bags to be picked up, this factor provides no support for finding that Niemi was not part of the conspiracy. [69] Finally, the trial judge considered that Niemi was “in no way an essential component to the criminal scheme alleged”. He said that if Patrick Two had piloted the flight, Niemi would not have been part of the completed offence. As I see it, whether Niemi was an essential component of the criminal scheme is irrelevant to whether he was a member of the conspiracy. The telephone communications between Roberts and Malanca indicate they may have had three pilots potentially available to them. None of the pilots would be essential, yet all of them may have been members of the conspiracy. [70] In summary, I do not consider the six factors, regarded individually or cumulatively, to be relevant in determining whether Niemi was part of the conspiracy. Niemi’s Knowledge [71] The trial judge’s view was that Niemi acted not with the intention of importing drugs, but of pursuing lucrative flying contracts with Roberts. Niemi’s pursuit of lucrative flying contracts extended to the point of flying an individual who was on parole out of Canada and devising a plan to fly him back and gain his entry into Canada. The trial judge found that there was no evidence that Niemi had any knowledge up to the time of his arrival in Jamaica on November 6, 2001, that the intention was for him to bring drugs back into Canada. The trial judge observed that the evidence, for example the written instructions that Niemi left with Roy before he departed, was more consistent with a plan to smuggle Villareul back into Canada than a plan to import a volume of drugs that could not fit into Roy’s Corvette. [72] The record provides support for the trial judge’s view that Niemi went to Jamaica on the understanding that he would be smuggling Villareul back into Canada and nothing more, and such a finding was certainly open to him. However, the trial judge arrived at this conclusion regarding Niemi’s state of mind having excluded Niemi’s own incriminating statements, which were admissible, and evidence that Niemi was a member of the broad conspiracy alleged. His finding that Niemi was not a member of the conspiracy and that, therefore, the statements of the alleged co-conspirators were inadmissible, is undermined by his failure to consider Niemi’s own statements, and by his reliance on irrelevant factors. These errors taint the trial judge’s conclusion as to Niemi’s state of mind, thereby making a new trial necessary. Wilful Blindness [73] Given his finding that Niemi intended, on November 6, simply to go to Jamaica and return with passengers, the trial judge concluded that the Crown had not proven that Niemi had actual knowledge that he was transporting illicit drugs. He then turned to the question of whether Niemi acted in a wilfully blind manner. [74] Niemi gave his keys to the plane to Roberts at their meeting on the night of November 6. On the morning of November 7, Niemi discovered bags on the plane, and saw his passengers carrying more bags to the plane. The trial judge found that Niemi’s suspicions were aroused and that if Niemi had deliberately refrained from making further inquiries because he wished to remain in ignorance, he would be deemed to have knowledge of what was in the bags. The judge observed that it was obvious that Niemi’s suspicions were raised in fact because he asked, “[w]hose bags are these?” Sousa responded, “[d]on’t worry, just do as you are told.”[1] [75] The trial judge dealt with this evidence in the following way: Niemi did make an inquiry but having received the response he did, his lack of further inquiry must not be a function of a desire to avoid knowledge. I am satisfied that if he had wished to avoid knowledge he would not have asked about the bags in the first place. On the evidence in this case, although I am suspicious of the failure to inquire further, I have a doubt that he wanted to avoid knowing and rather the failure to make further inquiries was a function of the effective inability to make further inquiries. He obviously was being placed in a position of confrontation by Sousa having experienced the events in Roberts’ room, and was thereby effectively rendered unable to make further inquiries without potential jeopardy to himself. [76] There is no doubt that Niemi subjectively had a suspicion that the hockey bags contained illegal drugs. He says so in his statement to the police. He said the movie “Midnight Express” (which involves drug smuggling) sprang to his mind when he saw the bags. He explained to the police, “[s]o I’m just, you know, blinders”. The trial judge seems to have found Niemi was fixed with the duty to inquire when he said, “[h]owever, upon discovering the bags in the plane prior to takeoff and seeing the passengers carrying more bags to the plane, he had an obligation to inquire when he knew there was reason for inquiry.” [77] The respondent conceded that the circumstances were such that there was an obligation on Niemi to make an inquiry, but argued that his failure to make further inquiries was not tantamount to wilful blindness. The trial judge correctly proceeded on the basis that even though Niemi made an inquiry the question remained, after that inquiry, whether he still harboured a real suspicion and refrained from making additional inquiries because he preferred to remain deliberately ignorant of the truth: R. v. Lagace (2003), 181.C.C.C. (3d) 12. [78] Certainly the response, “[d]on’t worry, just do as you are told” would have done nothing to dispel Niemi’s suspicions. If anything, the response would raise his suspicions. However, the trial judge found that Niemi’s failure to make further inquiry was not a function of a desire to avoid knowledge. Rather, he found that Niemi failed to make an additional inquiry because he would be placed in potential jeopardy. [79] In reaching this conclusion, the trial judge seems not to have considered the findings he made when he dealt with the defence of duress. In dealing with duress, the trial judge observed that there was no direct evidence of Niemi’s subjective feelings of jeopardy and fear. He had noted that while Niemi referred to the movie “Midnight Express” in his statement to the police, he did not indicate to the police that he had been the recipient of any threats. The trial judge also observed that Niemi had bargained back-and-forth with Roberts even after Roberts had shown his gun and the picture of a house that resembled Niemi’s. There was no clear specific evidence of duress before the court; rather, the court had only Ross’ interpretation of what had transpired. Ross had heard only part of the conversation and did not give any evidence of words or threats being used or heard. Niemi had successfully held his ground and Roberts had backed down on his stated intention to hold Ross as hostage. The trial judge noted that after the meeting with Roberts, Niemi did not conduct himself in the manner expected of a person facing serious threats. The trial judge indicated it would be reasonable to infer that Niemi and Ross would not simply have gone to bed without further discussion if serious threats had been made during the meeting with Roberts. Finally, Niemi had not adopted the attitude of a person under severe distress in his statement to the police and did not take up the opportunity to tell the police he had been subject to any threats. [80] These were only some of the reasons upon which the trial judge concluded “there is insufficient evidence to support that [Niemi] was under duress when he left Montego Bay” [emphasis added]. These findings are relevant to Niemi’s state of mind as he sat on the runway at the airport of Montego Bay after Sousa told him not to worry about the suspicious bags, but to just do as he was told. The trial judge does not explain how the events that Niemi experienced in Roberts’ room the night before could give rise to legitimate feelings that making further inquiry would place him in “potential jeopardy” when those same events did not give rise to a legitimate fear for his safety if he refused to fly the plane. If anything, Niemi’s feelings of jeopardy after Sousa’s response would be reduced because Roberts, who possessed the gun and allegedly made the threats the night before, was not at the airport on the next morning when Niemi flew the plane from Jamaica. [81] The Crown submits that the facts found by the trial judge in analysing the duress issue would support a conviction if applied to the wilful blindness analysis. That may be, but it is not the function of this court to choose between the trial judge’s findings on the duress issue and his finding of fact that further inquiry would have placed Niemi in jeopardy. In my view, the logical incompatibility of the trial judge’s findings on duress and wilful blindness require a new trial. Conclusion [82] For these reasons I would allow the Crown’s appeal and direct a new trial. “R.G. Juriansz J.A.” “I agree E.A. Cronk J.A.” “I agree H.S. LaForme J.A.” RELEASED: May 2, 2006 [1] Since he excluded Niemi’s own intercepted statements, the trial judge did not assess Ross’ testimony about this exchange in light of Niemi’s phone call to Roy the night before telling him to expect “hockey bags”.