Confusing Jury Instructions Result in Successful Appeal of Importation Case

In a recent British Columbia Court of Appeal decision convictions for unlawful importation of a controlled substance and possession of a controlled substance for the purpose of trafficking were set aside.

In R v Subramaniam, 2022 BCCA 141, the accused attempted to cross the Pacific Highway border crossing from the United States into British Columbia He was ultimately arrested with packages in a car compartment, a BlackBerry device, paystubs, and receipts. The packages were later confirmed to contain 14.79 kilograms of methamphetamine, with an approximate wholesale value of $375,000 or a street value of $1.5 million.

At the trial, both the Crown and the defence agreed that the key issue was whether the accused knew of the secret compartment and that it contained a controlled substance. The accused testified that he had no knowledge of the secret compartment where the drugs were located, or the methamphetamine.

In closing submissions, the defence argued that the accused had unwittingly trafficked methamphetamine across the border, as he had no knowledge of the drugs and did not notice anything unusual about the vehicle. The defence theory was that other individuals were involved in the drug scheme.

The jury was provided with both oral and written instructions by trial judge. The jury convicted the accused.

On appeal the accused argued that the judge made a mistake in his instructions on the fact-finding process by telling the jury that it “must” convert the evidence they found to be “probably true” into proof of that fact.

The accused claimed that that this instruction usurped the fact-finding independence of the jury and created a real risk that the jury would convict the appellant on a standard of probability, instead of proof beyond a reasonable doubt.

The Court of Appeal agreed, and a new trial was ordered.

In response to the Supreme Court of Canada decisions that s. 33.1 Criminal Code violates the Charter of Rights and Freedoms and is of no force or effect, the federal government enacted new law for ext

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