DATE: 20030124

DOCKET: C35067

COURT OF APPEAL FOR ONTARIO

McMURTRY C.J.O., CRONK AND ARMSTRONG JJ.A.

B E T W E E N:

HER MAJESTY THE QUEEN

Anthony Paas

for the appellant

Respondent

• and -

JANICE WILSON

Rick Visca

for the respondent

Appellant

Heard: November 29, 2002

On appeal from the conviction imposed by Justice C. M. Speyer of the Superior Court of Justice dated February 3, 2000 and from the sentence imposed by Justice Speyer on April 25, 2000.

BY THE COURT:

OVERVIEW

[1] The appellant was convicted on February 3, 2000 by the Honourable Justice Speyer of the offence of importing cocaine into Canada on February 18, 1999. On April 25, 2000, she was sentenced to three years in prison. The appellant appeals her conviction and seeks leaves to appeal her sentence. If leave is granted, she submits that the three year period of incarceration should be replaced by a conditional sentence.

FACTS

[2] The appellant agreed that she had travelled out of Canada to Jamaica and returned on February 18, 1999. She was referred to secondary customs inspection and two bottles of rum containing cocaine were found in the appellant’s possession, as well as a third bottle of rum which did not contain any cocaine.

[3] The appellant testified that shortly before she boarded the aircraft for her return trip to Toronto she went to the duty free shop where she took two bottles of dark rum off the shelf and brought them to the cashier’s desk. She then went back to obtain a bottle of white rum. The appellant then paid for all three bottles, was given a receipt and told to take the bottles to the packing area which was about twelve feet from the cashier’s desk.

[4] When the appellant returned to the packing area, the two bottles of dark rum were already packed in a box and the white rum was placed in the same box. The bottles of dark rum which had been placed in the box contained the cocaine.

[5] The two bottles of the dark rum were purchased by her at the request of a friend of her fiancée in Jamaica for a man named Sugar in Toronto. She did not know his last name or how to contact him. The appellant had expected Sugar to meet her at the airport to pick up the two bottles of dark rum. She did not know whether Sugar had come to the airport or not. The appellant denied that she brought bottles of rum filled with cocaine to the airport and switched them with the duty free bottles.

[6] The appellant also testified that the bottles of dark rum that she purchased were not out of her sight for longer than thirty seconds when she was bringing the bottle of white rum from the cashier’s desk.

CONVICTION APPEAL

[7] The appellant submits that the trial judge failed to appreciate the significance of the fingerprint evidence which showed that the appellant’s fingerprints were found on the bottle of white rum and on the duty-free box but not on the rum bottles which contained the cocaine. She submits that the fingerprint evidence supports her evidence that she had not handled the bottles of rum which contained the cocaine.

[8] The trial judge in his reasons made specific reference to the fact that the fingerprints on the bottles of dark rum did not match those of the appellant. The trial judge found as a fact that the appellant put the bottles of rum containing the cocaine in the box after leaving the duty free shop. Given the importance of the trial judge’s analysis of the evidence that led to his finding of guilt, it is important to set out in some detail the trial judge’s review of the evidence and his findings of fact, as follows:

After considering all of the evidence, I have concluded that I do not believe the testimony of Ms. Wilson, nor am I left in a state of reasonable doubt by her evidence. I find that Ms. Wilson knew that she was bringing cocaine into Canada. It is the cumulative effect of many aspects of Ms. Wilson’s evidence that form the basis of my disbelief of her testimony. For example, it is Ms. Wilson’s testimony that she agreed to bring back to Toronto two bottles of Appleton Rum as a favour to a person she casually met in Jamaica by the name of “Plumber”, to be delivered to “Sugar”, another person she barely was acquainted with. Ms. Wilson does not know the surnames of either Plumber, nor Sugar. Sugar, the intended recipient, was to pick up two bottles of rum at Pearson International Airport sometime around midnight after Ms. Wilson’s flight had arrived from Jamaica. Ms. Wilson told the Court that she would never have Sugar, a person she was barely acquainted with, pick up the liquor at her own residence in Toronto. Each bottle cost $8.00 American.

It strikes me as exceedingly unusual that a person would go out to the airport at midnight merely to pick up two bottles of rum valued at approximately $16.00. This area of the accused’s evidence simply does not have a ring of truth.

Ms. Wilson testified that the only time the bottles of Appleton Rum she purchased at the duty free shop in Montego Bay were out of her sight was for the brief period it took to retrieve the third bottle of white rum for packaging after the three bottles had been paid for. The distance between the cashier and the packing area is about 12 feet. The theory of the defence is that the male individual working in the duty shop as a packer was in league with Plumber to plant the rum containing the cocaine in place of the genuine bottles of rum purchased by Ms. Wilson at the duty free. Counsel for Ms. Wilson contends that she was an innocent dupe. I ask myself in a drug importing scheme in which Plumber, Sugar and the packaging employee in the duty free shop were participants, how possibly would the duty free employee recognize Ms. Wilson as the person designated by Plumber to bring the liquid cocaine back to Toronto. On the evidence, I cannot see how Plumber could communicate to the packer in the duty free shop that Ms. Wilson was the dupe, as Plumber had already left the airport and wouldn’t have been permitted within the security area in any event. The point is the packer could have no way of identifying Ms. Wilson. As well, it is equally difficult to envisage the timing of such a switch without the accused becoming aware that it was occurring.

Ms. Wilson states that the bottom of the box became undone after leaving the duty free shop. She says that she put the roll of two inch wide clear adhesive tape in her bag prior to leaving Toronto. It strikes me as most unusual, although not impossible, that Ms. Wilson would conveniently have a roll of two inch tape to remedy the problem with the box. It is far more probable, in my view, that Ms. Wilson had the tape to affix the receipt and secure the top of the box from opening as well as the bottom of the box.

Ms. Wilson stated that she planned her February 11th trip as early as Christmas of 1998. The trip was to be an engagement celebration. Nevertheless, she did not purchase her ticket until the day before her departure. She purchased it in cash. The explanation that she was “shopping around for the best price” strikes me as improbable. This was the second trip to Jamaica for a single mother of five having just very modest means.

That portion of Ms. Wilson’s evidence that she saw Sugar after the events of February 18th on different occasions at fashion shows, but that he alluded her when she wanted to talk to him, just simply strikes me as contrived.

It is not one of these factors, it is the cumulative effect of all of this improbable evidence which has led me to the ineluctable conclusion that Ms. Wilson was not telling the truth. In arriving at this decision, I have considered the fact that Ms. Wilson’s fingerprints were not on the two rum bottles containing the narcotic but were on the bottle of white rum which did not contain the cocaine. I have taken into account the fact that the duty free receipt is genuine. As previously indicated, I do not accept that the rum box became insecure immediately after Ms. Wilson left the duty free shop, nor do I accept that Ms. Wilson serendipitously just happened to have a large two inch wide roll of adhesive tape in her carry-on baggage. I find that Ms. Wilson put the contraband bottles in the rum box after leaving the duty free and sealed not only the bottom of the box, but also the top and that portion of the box to which the receipt was affixed. While it is true that one might expect Ms. Wilson’s fingerprints on the bottles containing the drugs, I am nevertheless convinced on all of the evidence beyond a reasonable doubt as to her guilt. A finding of guilt will be entered.

[9] While the trial judge does not express his view as to why the appellant’s fingerprints were not found on the bottles containing the drugs, in our opinion, this does not represent any error in relation to his finding of guilt. The totality of the evidence, including the appellant’s own testimony, provide a reasonable basis for the trial judge’s conclusion. The absence of the appellant’s fingerprints is neither inconsistent with the trial judge’s conclusion nor does it detract from his ultimate finding of guilt. The appeal as to conviction is therefore dismissed.

SENTENCE APPEAL

[10] The street value of the cocaine brought into the country by the appellant was $112,000.00 if sold in individual grams.

[11] At trial, the appellant’s trial counsel appeared to concede that a minimum penitentiary term was necessary when he made the following submission on sentence:

I know that in the normal course of events, this much cocaine is going to be getting, on a lot of people I can see three or four years.… I think that it’s probable that a penitentiary sentence for this quantity of cocaine is appropriate.

[12] In R. v. Turcotte (2000), 144 C.C.C. (3d) 139 (Ont. C.A.) at para. 16, Catzman J.A. summarized the well-established standard of appellate review of sentence:

The limitations on an appellate court in considering an appeal against sentence have been stated and recently restated by the Supreme Court of Canada. The sentencing judge’s disposition must be “not fit” or “clearly unreasonable”: R. v. Shropshire, [1995] 4 S.C.R. 227, 102 C.C.C. (3d) 193 at para. 46. It must fall “outside the acceptable range”: Shropshire, at para. 50. In the absence of “an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, a court of appeal should only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit”: R. v. M.(C.A.), [1996] 1 S.C.R. 500, 105 C.C.C. (3d) 327, at para. 90.

[13] In R. v. Madden (1996), 104 C.C.C. (3d) 548 (Ont. C.A.) and R. v. Cunningham (1996), 104 C.C.C. (3d) 542 (Ont. C.A.), this court established guidelines for sentencing first offender couriers engaged in cocaine importation. Where the importation involved quantities similar to that imported by the appellant, absent exceptional circumstances, the recognized range of sentence is three to five years.

[14] In R. v. Wellington (1999), 132 C.C.C. (3d) 470 (Ont. C.A.), this court again repeated its view that given the serious nature of drug importation, the continued principle of general deterrence in sentencing drug couriers remains a preferable option. Writing for the court, Feldman J.A. stated as follows at para. 11-13:

In a brief endorsement after Wismayer, supra, in R. v. Berbeck, [1997] O.J. No. 2434 (QL) (C.A.), which dismissed an appeal by the Crown from a conditional sentence imposed at trial in a drug importing case, this court stated: “We are not to be taken, however, as indicating that conditional sentences are ordinarily appropriate for drug importing offences. See R. v. Nguyen”. The court there was reconfirming its concern that although conditional sentences are not prohibited for drug importation, courts must be cautious in imposing conditional sentences for such offences.

This court has made it clear that in cases involving the importation of drugs into Canada, sentences must be significant in order to send a message to those who would not otherwise be involved but who may be tempted by the payment promised to act as a drug delivery service, that they will be subject to being sentenced harshly and severely for their role. The reason of course is that because it is the otherwise innocent person who will raise less suspicion at the border and who is more likely to successfully import the drugs, the courier role is crucial to drug dealers who do not wish to take the risk themselves, and who would receive even more substantial sentences upon conviction.

This court has not changed its policy of significant sentences for importing drugs into Canada with the advent of conditional sentences.

[15] We are of the view that there was no error of principle in the sentencing of the appellant and the sentence imposed is not demonstrably unfit. Leave to appeal the sentence is granted but the appeal is dismissed.

“R. Roy McMurtry C.J.O.”

“E. A. Cronk J.A.”

“Robert P. Armstrong J.A.”

RELEASED: January 24, 2003

“RRM”