When the Crown alleges importation or possession of a specific illegal drug, it only needs to show that the accused knew she was in possession of an illegal drug in a generic sense to meet the mens rea criteria. It does not have the burden of demonstrating knowledge of the particular drug named in the accusation.

« When applied to cases of possession of an illegal drug, recklessness should be understood to mean that an individual is aware of a risk of being in possession of an illegal drug and of persisting despite this risk. As long as this risk is not implausible, negligible or minimal, but “unjustified and significant [1]

Narinesingh c R, 2021 QCCA 396

The Facts

Narinesingh was arrested in Pierre-Elliot Trudeau Airport with 7.6 kilograms of heroin in her suitcases. At the time of her arrest, Narinesingh collaborated with the police and made several statements. In particular, when asked about her knowledge of the contents of her suitcases, she replied that she “was thinking it’s either a device or has something to do with drugs.”

The Crown charged the accused with one count of importing drugs and one count of possession for the purpose of trafficking. The crown specifies that the charges relate to heroin trafficking.

In the first instance, Narinesingh gave a confused and inconsistent testimony, which the Court of Appeal says damaged her credibility. In response to questions from the jury members, the trial judge clarified that they should only find Narinesingh guilty if they are satisfied that the Crown has proved beyond a reasonable doubt that Narinesingh had subjective knowledge of the presence of heroin, specifically. The trial judge also instructed the jury that they may rely on willful blindness or recklessness to prove subjective knowledge. Following these instructions, the jury found Narinesingh guilty. Narinesingh appealed the verdict rendered.


The Judgment

The Court of Appeal dismissed the appeal and upheld the guilty verdict.

First, Narinesingh argued that her statement to the effect that she thought the suitcase “had something to do with drugs” was inadmissible and that the trial judge erred in admitting it. She argued that she was acting out of fear and that the police used her fear to extract information. The Court rejected this argument, finding that Narinesingh had failed to prove a palpable and overriding error in the judge’s factual findings and, therefore, intervention by the Court was not warranted. The trial judge properly considered all of the evidence, which led him to a conclusion that the statement was voluntarily made.

The appellant also argued that the judge erred in instructing the jury that a guilty verdict should only be given if she had specific knowledge of the heroine. In addition, Narinesingh alleges that the trial judge did not give clear instructions concerning the knowledge of the nature of the drug. The Court reiterates that it is indisputable that the prosecution must prove the details brought to an accusation. It introduces the distinction between the material element and the element of mens rea, and asserts that the specific drug is relevant to the material element, but not necessarily for mens rea. Based on an analysis of previous case law, the Court concluded that only knowledge of a drug in a generic sense is necessary to meet the mens rea test.

In this case, the trial judge erred in indicating that subjective knowledge of the presence of the heroin specifically was necessary. However, this error was to the benefit of the accused and, even in these circumstances, she was found guilty.

Finally, Narinesingh alleges that the trial judge erred in telling the jury that recklessness can substitute subjective knowledge to prove the mens rea element of the offence. The Court of Appeal acknowledges that there appears to be doctrinal and jurisprudential debate as to the distinction between recklessness and willful blindness, if one even exists. The Court of Appeal maintains the following distinction: while willful blindness would be the refusal “to learn more about what the suitcases contained so as to remain in ignorance” (para 45), recklessness would be awareness of “a risk of being in possession of an illegal drug and of persisting despite this risk” (para 55). In this case, the evidence demonstrated willful blindness, which implies recklessness, and, therefore, subjective knowledge.

1 Narinesingh c R, 2021 QCCA 396, at para 55.

Published on 30/04/2021