Court of Appeal for Ontario

Date: 2019-11-14 Docket: C64647

Judges: Simmons, Watt and Miller JJ.A.

Between

Her Majesty the Queen Respondent

and

Karamjit Kaur Gill Appellant

Counsel

Mindy Caterina, for the appellant

Howard Piafsky, for the respondent

Heard: October 25, 2019

On appeal from: The conviction entered on June 9, 2017 and the sentence imposed on November 9, 2017 by Justice J. Michal Fairburn of the Superior Court of Justice, sitting without a jury.

Reasons for Decision

[1] After a trial before a judge of the Superior Court of Justice sitting without a jury, the appellant was convicted of attempting to possess heroin for the purpose of trafficking. She was sentenced to a term of imprisonment of 9 years less credit of 36 days for time spent in pre-trial custody. She appeals both conviction and sentence.

[2] At the conclusion of the appellant's submissions in this court, we dismissed the appeals from conviction and sentence. At that time we indicated that we would provide reasons for our decision. Those reasons follow.

The Background Facts

[3] Thirty boxes, destined for a commercial address in Brampton, arrived at Pearson International Airport. The point of origin was Pakistan. Alerted by CBSA/Customs officials that one of the boxes contained a large fabric belt with several pockets in which were contained 18 packets of a white substance, the RCMP took charge of the shipment. On examination, the packets were found to contain heroin weighing 3.3 kilograms. The police replaced the heroin with a control sample of heroin and an inert substance.

[4] The RCMP released the boxes to a cargo forwarding company that disseminated cargo to the consignee or persons designated by the consignee to take delivery of the Customs-cleared cargo. Over the next several days several inquiries were made about the shipment by callers who identified themselves by names including that of the consignee. But no one came to pick up the shipment.

[5] About 12 days after the shipment arrived, the appellant appeared at the cargo forwarding company at about 10:00 p.m. She was driving a mini-van and produced a document authorizing her to pick up the shipment on behalf of the consignee. The 30 boxes, including the box with the control sample, were loaded into the appellant's mini-van. She drove off. Unmarked police vehicles followed. She was arrested 18 minutes later.

[6] The evidence at trial consisted of an Agreed Statement of Facts together with the testimony of two police officers who followed the appellant after she picked up the boxes and arrested her.

[7] The contested issue at trial was the knowledge of the appellant that the shipment she picked up contained a controlled substance. The appellant did not testify at trial.

The Appeal from Conviction

[8] The appellant advances two grounds of appeal against conviction. She says that the trial judge erred by materially misapprehending the evidence at trial in three respects:

i. by failing to consider relevant evidence;

ii. by failing to resolve material inconsistencies in the evidence; and

iii. by reaching speculative conclusions rather than drawing reasonable inferences from established facts.

She further contends that the trial judge's conclusion that the appellant's knowledge of the controlled substance in the shipment was the only reasonable inference available on the evidence, considered as a whole, was unreasonable.

Discussion

[9] We are not satisfied that, whether considered individually or cumulatively, the grounds of appeal advanced warrant setting aside the appellant's conviction.

Misapprehension of Evidence

[10] The standard applied when misapprehension of evidence is said to warrant reversal of a conviction is a stringent one. The misapprehension of the evidence must relate to the substance of the evidence, not simply a matter of detail. It must be material, rather than peripheral to the reasoning of the judge. But that is not all. The errors alleged must also play an essential part, not just in the narrative of the judgment, but in the reasoning process resulting in the conviction: R. v. Lohrer, 2004 SCC 80, at para. 2. Misapprehensions of evidence amount to a miscarriage of justice only if striking the misapprehension from the judgment would leave the judge's reasoning on unsteady ground: R. v. Sinclair, 2011 SCC 40, at para. 56.

[11] In this case, the misapprehensions alleged all relate to the trial judge's use of testimony about the appellant's vehicular movements after leaving the airport as an item of circumstantial evidence to assist in proof of the knowledge that the boxes she picked up contained a controlled substance.

[12] In our view, considered as a whole, this evidence of frequent lane and direction changes; cutting across lanes of traffic; and the like, could ground the inferences upon which the trial judge relied. The trial judge acknowledged that, considered separately and taken out of context, individual manoeuvres could give rise to other inferences. But, as the trial judge recognized, that is not the manner in which we assess the probative force of circumstantial evidence. It is the cumulative effect of the evidence, each item considered in relation to the others, and the evidence as a whole, that matters.

[13] In the end, we simply cannot say that the trial judge:

i. was mistaken as to the substance of the evidence;

ii. failed to consider evidence relevant to a material issue; or

iii. failed to give proper effect to the evidence.

The Standard of Proof

[14] The appellant also submitted that the trial judge's conclusions that the appellant's knowledge of the controlled substance in the consignment was the only reasonable inference emerging from the evidence as a whole was unreasonable.

[15] It is fundamentally for the trier of fact to assess the cumulative effect of the evidence adduced at trial. In each case, this assessment involves drawing the line that separates reasonable doubt from speculation. We are entitled to set aside the trier of fact's assessment only where it is unreasonable: R. v. Villaroman, 2016 SCC 33, at para. 71. A verdict is unreasonable if it is one that no properly instructed jury acting judicially could reasonably have rendered: R. v. Jackson, 2007 SCC 52, at para. 2.

[16] In our view, when the evidence adduced at trial, which consisted of the Agreed Statement of Facts and the testimony of the surveilling and arresting officers, is taken or considered as a whole, the finding of guilt entered by the trial judge was a verdict that a properly instructed trier of fact acting judicially could reasonably have rendered.

[17] The appeal from conviction is dismissed.

The Appeal from Sentence

[18] The appellant also appeals sentence. She tenders for admission fresh evidence of what she has done since sentence to repair her relationship with various members of her family, as well as about her employment history and achievements since her release on bail pending appeal. She was 38 years old when she committed the offence of which she was convicted, and 45 at the time of sentence. She is now 47 years old and without prior convictions apart from the present.

[19] At trial, the Crown sought a sentence of imprisonment for 15 years. The appellant's trial counsel submitted that the applicable range of sentence was 6-12 years and advocated for a sentence at the lower end of that range, more specifically, a sentence of 6-8 years.

[20] The trial judge considered the predominant sentencing objectives to be deterrence, both specific and general, and denunciation. She characterized the appellant's role in the drug importation scheme as one at the lower end, but nonetheless critical to the success of the venture.

[21] In determining the sentence she would impose, the trial judge was also mindful of the appellant's circumstances:

i. the absence of previous convictions;

ii. a lengthy history of gainful employment in positions involving increasing responsibility;

iii. her medical condition requiring accommodation at her place of employment and during the sentencing hearing; and

iv. the physical and emotional abuse she suffered during a previous arranged marriage.

[22] The appellant asserts three errors in principle warrant reduction of the sentence to a term of imprisonment of six years. Those errors are:

i. a failure to consider the significant concessions the appellant made at trial to reduce the length of trial proceedings to one day from an original estimate of eight days;

ii. misidentification of the applicable range of sentence; and

iii. failure to apply the principle of parity.

[23] As Lacasse teaches, an error in principle, a failure to consider a relevant factor or the erroneous consideration of an aggravating or mitigating factor justifies our intervention only where it appears from the sentencing judge's decision that the error alleged had an impact on the sentence imposed: R. v. Lacasse, 2015 SCC 64, at para. 44. We are disentitled to intervene simply because one, two or all of us, would have weighed the relevant sentencing factors differently: Lacasse, at para. 49. Further, the choice of a sentencing range or of a category within a range falls within the discretion of the trial judge and does not, in itself, constitute a reviewable error. Thus, we are enjoined from interfering on the ground that we would have put the sentence in a different range or located it in a different category within that range. Our intervention is confined to cases in which the sentence imposed is demonstrably unfit: Lacasse, at para. 51.

[24] Our inquiry must fasten on the fundamental principle of sentencing – proportionality – expressed in s. 718.1 of the Criminal Code. A sentence is demonstrably unfit if it constitutes an unreasonable departure from the fundamental principle of proportionality. And proportionality is determined not only on an individual basis, that is to say, in relation to the individual accused and offence being considered, but also by comparison with sentences imposed on similar offenders for similar offences committed in similar circumstances: Lacasse, at para. 53.

[25] Tested against the fundamental principle of proportionality and mindful of the scope of appellate review, we ascertain no basis upon which to interfere with the sentencing judge's conclusion.

[26] This was a very serious offence involving the importation of 3.3 kilograms of a highly addictive drug. The appellant, although not a directing mind of the scheme, was an essential link in the chain from source to street. She was a mature adult, well beyond the naivete of youth. Her involvement was not for the purpose of fuelling her addiction, rather for financial reward, however meagre it may have been when held up against the penal consequences.

[27] We are not persuaded on the basis of the record of proceedings or the fresh evidence that there was any error in principle, a failure to consider a relevant factor or the erroneous consideration of an aggravating or mitigating factor. The sentence imposed pays heed to the fundamental principle of proportionality and is fit for this offence and the offender who committed it.

[28] Leave to appeal sentence is granted, but the appeal from sentence is dismissed.

Janet Simmons J.A.

David Watt J.A.

B.W. Miller J.A.