A cocaine smuggler has been denied reprieve from his conviction by Justice M.J. Lucille Shaw and a jury in a recent ruling issued by the Ontario Court of Appeal. Justice S.A. Gomery held that Samuel Osei-Tutu’s right to a fair trial was not prejudiced by the failure of Justice Shaw to give the jury a fabrication instruction about his statements to a Canadian Border Security officer when he landed in Toronto on a flight from the Bahamas. There was ample independent evidence of fabrication and the jury could not have been led to infer guilt simply because it disbelieved his testimony.

1. Introduction

On October 7, 2017, officers with the Canadian Border Security Agency at Pearson International Airport in Toronto, Ontario, found approximately three kilograms of cocaine in the false bottom of Samuel Osei-Tutu’s carry-on suitcase. He was selected for secondary screening after arriving on a flight from the Bahamas. His responses to questions from a CBSA officer appeared to contradict the information in his passport. A jury convicted him of importing cocaine. He was sentenced to 5 1/2 years imprisonment. He appealed. The issue on appeal was whether the trial judge erred by failing to instruct the jury on the difference between disbelieved evidence and fabricated evidence and what, if anything, they could infer if they concluded that Mr. Osei-Tutu lied to the officer or during his testimony in court.

2. Background

There were three specific events, accompanied by verbal exchanges between the officer and Mr. Osei-Tutu, that led up to a search of his carry-on luggage. I will condense the three incidents as follows.

The first exchange occurred when the officer approached him in the customs area. She asked where he was coming from and he replied, “Bahamas”. She asked whether he had traveled anywhere else and he said, “No”. She asked a second time and he gave the same answer. The officer testified she referred him to the secondary screening area for further examination because she saw “stamps” in his passport indicating he entered Trinidad in late September and the Bahamas on October 6, 2017.

The second exchange happened after Mr. Osei-Tutu put his carry-on bag and laptop bag on a counter in the secondary screening area. When asked whether they were the same bags he brought from Canada, he responded, “Yes”. At trial, however, he explained that he replied this way without thinking he bought a new bag in Trinidad and should have clarified it was just the laptop top bag that he had brought from Canada.

The third exchange took place during the secondary screening area when the officer asked Mr. Osei-Tutu to empty his pockets. He did not remove Trinidadian currency he was carrying. He testified that the currency was in the pockets of his shorts underneath his pants and he forgot it was there. The officer then asked again whether he traveled anywhere else and he acknowledged for the first time that he had been to Trinidad. During cross-examination at trial, he denied the suggestion he was trying to hide his trip to Trinidad.

The officer then emptied the carry-on bag and saw a space between the inner lining at the bottom of the bag and the outer shell. An x-ray showed the presence of organic material in the space at the bottom of the bag. A further search revealed a false compartment containing a plastic bag with 2.8 kilograms of cocaine. When the officer told Mr. Osei-Tutu he was under arrest for importing cocaine, he said, “What the -“. He testified that he was surprised because he had no idea the bag had a false bottom or that he was carrying drugs.

The sole issue at trial was whether Mr. Osei-Tutu knew he was carrying drugs when he returned to Canada. In closing argument to the jury, his trial counsel suggested he was duped by an acquaintance who organized the trip and two Trinidadian friends. The Crown argued his denial of knowledge was implausible based on cellphone messages, the false bottom in the carry-on bag, his statements to the CBSA officer, and the weight and value of the cocaine.

3. The Fabrication Issue

The issue on appeal may be framed this way. In closing submissions to the jury, the prosecutor contended that Mr. Osei-Tutu’s interaction with the CBSA officer was evidence that he knew about the drugs in his suitcase. Mr. Osei-Tutu’s counsel argued that the trial judge should have explained to the jury that, even if they disbelieved his explanation for his responses to the CBSA officer, they could not infer his guilt from this evidence unless they were satisfied there was independent evidence on which they could find he deliberately lied.

On July 8, 2026, the Ontario Court of Appeal released the unanimous opinion of a three member panel indexed as R. v. Osei-Tutu dismissing the appeal. (here) The reasons of the panel, delivered by Justice S.A. Gomery, raised the ruling of the court in R. v. Iqbal where it was held that a judge or jury cannot use the rejection of an accused’s testimony as a piece of circumstantial evidence to convict in the absence of independent evidence that the testimony was deliberately fabricated or concocted to avoid culpability. (here) “It is the accused’s attempt to deceive, rather than the disproved statement itself, that supports an inference of guilt,” Justice Gomery said. “Fabrication must therefore be proved by evidence that is independent of the evidence that contradicts or disproves the exculpatory statement.”

Justice Gomery specifically acknowledged that it would have been appropriate for the trial judge to caution the jury it could not infer Mr. Osei-Tutu’s guilt simply because it disbelieved his explanation for his conduct and statements during the CBSA screening. But that did not end the inquiry. Justice Gomery went on to state that, “[e]ven where a fabrication instruction is required […] its absence is not necessarily reversible error.” The fundamental question on appeal was whether, in the context of the case as a whole, the instruction prejudiced Mr. Osei-Tutu’s right to a fair trial. Where a trial judge fails to refer to independent evidence of fabrication, “an appellate court may assess whether the record reveals sufficient such evidence to show that the trial judge’s omission did not prejudice the appellant,” Justice Gomery said.

4. Conclusion

The ruling spotlights the thorny tactical position defence lawyers find themselves in when deciding how to handle inaccuracies in a client’s statements during closing argument. As the Ontario Court of Appeal said in R. v. Polimac, dwelling on the statements may only emphasize “the powerful case to be made for fabrication in the circumstances”. (here) “Had the trial judge given a fabrication instruction, she would have had to highlight the inconsistencies in and implausibility of Mr. Osei-Tutu’s explanation of his conduct during the CBSA screening,” Justice Gomery concluded. “This may explain why no fabrication instruction was requested by his trial counsel.”