Guns, Drugs and Willful Blindness

Alma McLeod didn’t take the average cross-border trip to visit the United States. Instead, she would transport large quantities of drugs out of Canada, using a rental car, and in exchange for those drugs, return back with firearms: two 9 mm Glock semi-automatic pistols, a Hi-Point .45 calibre semi-automatic pistol, and a .40 calibre semi-automatic pistol, for example.

After her last trip, McLeod got caught. At her trial, she testified that she thought she was transporting money back and forth, for a legitimate business purpose. She also claimed that she never saw what her accomplices were loading or unloading into the trunks of her various rental cars.

McLeod was convicted or six firearm offences, and one drug offence. She appealed both from conviction and sentence: 2014 ONCA 647.

Concerning her conviction, McLeod advanced two arguments.

First, she argued that the jury should not have been instructed as to wilful blindness. She argued there was no evidentiary foundation for the instruction [para 2].

Second, she argued that the Crown was improperly allowed to cross-examine her on her knowledge of guns in the Toronto community, stating it was an irrelevant and prejudicial line of questioning [para 11].

The Court of Appeal dismissed both.

First, in order to establish wilful blindness, there must be evidence of actual suspicion on the part of the accused: R v Briscoe, 2010 SCC 13.

The Court of Appeal concluded that the evidence at trial included facts from which an inference of actual suspicion could be drawn. These included:

  • The location where McLeod would meet her accomplices – strip malls, parking lots and service stations, late at night.
  • McLeod never loaded the car herself.
  • McLeod would provide her rental car to a near stranger to take to a secret location, so that the car could be loaded and unloaded.

The trial judge’s instruction on wilful blindness was error-free. He was correct to put the instruction to the jury [paras 7, 10].

Second, with respect to cross-examination, the Court of Appeal found the trial judge interjected as it became apparent that the Crown intended to ask McLeod about the notorious Boxing Day shooting of Jane Creba. At this point, the trial judge instructed the jury to disregard that particular question, and allowed the Crown to proceed with a “general line of questioning about general awareness of gun violence or drug crime in Toronto.” Any reference to a specific “community” was precluded [para 13].

The Crown was properly permitted to ask McLeod about her knowledge of:

  • Gun violence in Toronto in 2005,
  • Guns coming into Canada from the US, and
  • The relationship between guns and drugs.

The Court of Appeal found that this line of questioning was relevant to the issue of actual suspicion that McLeod was transporting guns, and not money, back into Canada [paras 14-15].

For these reasons, McLeod’s appeal from conviction was dismissed.

The seven year sentence McLeod received was subject to a generous two-for-one credit for pre-trial custody, and one-quarter-to-one credit for house arrest bail conditions. The remaining sentence was 5 years and 9 months. The Court of Appeal concluded this was not outside the range of appropriate sentences for importing firearms and exporting a controlled substance: para 19.

As such, McLeod’s appeal from sentence was also dismissed.