DATE: 20020325 DOCKET: C34658

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) and KIMBERLY BRISSETT (Appellant)

BEFORE:

MACPHERSON, SHARPE AND SIMMONS JJ.A.

COUNSEL:

Anthony Moustacalis

For the appellant

Rick Visca

For the respondent

HEARD:

March 20, 2002

On appeal from her conviction by Justice Thomas Dunn on December 8, 2000 and the sentence imposed on January 31, 2001.

E N D O R S E M E N T

[1] The appellant was convicted of importing narcotics into Canada and sentenced to eighteen months imprisonment to be served in the community conditionally. She appeals against conviction and sentence.

[2] The appellant was arrested in the customs secondary area of Pearson International Airport after arriving on a flight from Jamaica. Customs officers discovered four body packs containing 3818 grams of cannabis resin strapped to her body. At trial, the appellant raised the defence of duress, claiming that she carried what she knew to be contraband only because of threats to her life.

[3] It is apparent from his reasons that the trial judge essentially rejected the testimony of the appellant. We accept the respondent’s submission that the trial judge’s finding that the appellant failed to avail herself of an obvious safe avenue of escape by seeking assistance from Canadian authorities following her arrival in Canada related to his assessment of her credibility. Although it may have been preferable for the trial judge to set out the ingredients of the common law defence of duress, and to make specific reference to the subjective/objective element of this ingredient, he did not err by failing to do so. Further, the trial judge’s reasons indicate he was alive to the issue of the appellant’s right to silence. The appellant had opportunities to seek assistance from Canadian authorities prior to the time when her right to silence was triggered. The trial judge’s finding does not undermine that right.

[4] Although the trial judge did not make a specific finding that the appellant knew the body packs contained narcotics, that inference is available on the evidence relating to the drugs being strapped to her body. The trial judge is presumed to know the law, including the necessary elements of the offence.

[5] As to sentence, the trial judge was entitled to require the appellant to remain within Ontario unless otherwise ordered by the court under s. 742.3(2)(f) of the Criminal Code, R.S.C. 1985, C. c-46. He did not modify the mandatory statutory conditions of a conditional sentence “illegally” in so doing.

[6] The appeal against conviction is accordingly dismissed. Leave to appeal against sentence is granted, but the appeal against sentence is dismissed.

"J.C. MacPherson J.A."

"Robert J. Sharpe J.A."

"Janet Simmons J.A."