COURT OF APPEAL FOR ONTARIO
Fairburn A.C.J.O., Watt and Huscroft JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Kayon Beckford
Appellant
Jessica Zita, for the appellant
Victoria Rivers, for the respondent
Heard: January 25, 2021 by video conference
On appeal from the conviction entered by a jury presided over by Justice J. Ramsay of the Superior Court of Justice, dated October 11, 2018, and the sentence entered on May 9, 2019.
REASONS FOR DECISION
1The appellant was convicted of both importing cocaine and possession of cocaine for the purpose of trafficking. The cocaine was found in four hot chocolate containers, located in the trunk of a rental car as she tried to cross into Canada at Fort Erie.
2This is an appeal from conviction and sentence. At the end of the hearing, we dismissed the appeals with reasons to follow. These are those reasons.
3The appellant contends that the jury charge was unfair in a few respects.
4First, the appellant suggests that the trial judge improperly used rhetorical questions in the jury charge to convey his view of the case. We do not agree these questions were rhetorical or improper. While the use of questions in jury charges has the potential to create unfairness and, therefore, should only be used with caution, the questions in this case did nothing more than focus the jury’s attention on the central issue to be decided: whether the appellant knew that there was cocaine in her trunk.
5In any event, even if the questions could be seen as an expression of opinion, which suggestion we reject, the trial judge clearly brought home to the jury that they were the sole triers of fact and should not feel bound by any opinion or fact he expressed.
6We also note the absence of any objection to what is now said to constitute deep unfairness in the charge. The defence silence on this point at trial is telling, especially given that trial counsel would have been in the best position to assess the overall fairness of the charge within the context of the entire trial and the issue to be decided.
7Second, the appellant claims that the trial judge erred in failing to present the defence position fully and fairly to the jury. It is correct to observe that the trial judge said little about the defence position, other than that the Crown had failed to prove knowledge beyond a reasonable doubt. Importantly, though, the trial judge summarized the Crown position with equal brevity.
8This was a short trial and the jury had just heard the closing submissions of counsel. Brevity can be a virtue in situations such as these. The defence position could not have been lost on the jury and, in these circumstances, there was no need for the trial judge to repeat what the jury had just heard.
9The appellant also seeks leave to appeal from her 5.5-year sentence. She says that a three-year sentence should have been imposed. She points to three alleged errors in the sentencing reasons.
10First, the appellant contends that the trial judge did not consider her full rehabilitative potential by failing to take into account her personal circumstances, including her history of physical and sexual abuse, as well as her employment history. Importantly, the appellant did not choose to have a pre-sentence report prepared. While she wished to pursue a different type of report, in the seven months between verdict and sentencing, she did not do so. In the end, the appellant’s personal circumstances were conveyed to the court through counsel’s submissions and not through evidence. Despite this fact, the trial judge was “prepared to accept some of the things that [he had] been told.” We see no error in his approach.
11Second, the appellant contends that the trial judge erred by failing to address many of the sentencing decisions he had been provided. The trial judge was under no obligation to address every authority provided to him. He grappled with the central authorities, specifically referring to this court’s decisions in R. v. Madden, 1996 CanLII 10212 (Ont. C.A.)and R. v. Cunningham, 1996 CanLII 1311 (Ont. C.A.). In Madden, the sentencing range for first-time offenders importing “more or less” one kilogram of cocaine was three to five years. In Cunningham, the court referred to the sentencing range for importing multiple kilograms of cocaine to be six to eight years.
12The trial judge specifically noted that in this case, he considered the around 1.5 kilograms of cocaine, found in the four hot chocolate containers, to be “a little more than 1 kilo more or less”. In his view, this drove the range to somewhere between the Madden and Cunningham ranges. We see no error in this approach.
13Finally, the appellant argues that the trial judge erred by failing to apply the principle of restraint when sentencing a first-time offender. While the trial judge did not specifically advert to the principle of restraint, he was well alive to the fact that the appellant was a first-time offender. He was also alive to the fact that the Madden and Cunningham ranges are set for first-time offenders.
14Sentencing is an individualized process. We see no legal error in the trial judge’s approach. The sentencing decision is owed deference.
15The conviction appeal is dismissed. Leave to appeal sentence is granted and the sentence appeal is dismissed.
“Fairburn A.C.J.O.”
“David Watt J.A.”
“Grant Huscroft J.A.”
