DATE: 20060804

DOCKET: C44263

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – KARRION ROACHE (Appellant)

BEFORE:

SIMMONS, ARMSTRONG AND ROULEAU JJ.A.

COUNSEL:

Mark Halfyard

for the appellant

Anya Weiler

for the Crown respondent

HEARD & RELEASED ORALLY:

July 25, 2006

On appeal from the conviction entered by Justice Thomas M. Dunn of the Superior Court of Justice sitting with a jury on August 9, 2005 and from the sentence imposed by Justice Dunn on September 12, 2005.

E N D O R S E M E N T

[1] Following a jury trial the appellant was convicted of importing 2.97 kilograms of cocaine into Canada. She was subsequently sentenced to seven years imprisonment. The appellant raises two issues on appeal concerning the jury selection process. She also seeks leave to appeal sentence.

[2] In our view, the trial judge did not improperly restrict the Parks[^1] question that could be asked on the challenge for cause by eliminating the attitudinal component of the question. During the colloquy concerning defence counsel’s application to modify the Parks question, the trial judge stated that defence counsel could put the Parks question in this way:

As His Honour will tell you, you must decide this case without bias, prejudice or partiality.

Would your ability to judge the evidence of this case be affected by the fact that the accused is black.

[3] In our view, in making the above comments, the trial judge was not restricting defence counsel from asking the Parks question precisely as it is framed in the Parks decision.

[4] However, even assuming that the trial judge intended to eliminate any reference to the words “without bias, prejudice or partiality” from the second part of the question, he did not thereby eliminate the attitudinal component of the Parks inquiry. The permitted question directs a prospective juror’s attention to the duty of a juror to decide the case without bias, prejudice or partiality and, in that context, asks whether the prospective juror’s ability to judge the case would be affected by the fact that the accused is black. Viewed in its entirety, we are satisfied that this question encompasses both the attitudinal and the behavioural components of the Parks inquiry.

[5] We reject the appellant’s submission that the trial judge misdirected the triers as to their ultimate function in deciding the challenge for cause. Reading the trial judge’s instructions as a whole, we are satisfied that there was no realistic possibility that the triers would have been misled into thinking that their function was to determine whether the evidence provided by a potential juror would assist counsel in determining the issue of partiality. Rather, it would have been clear to the triers that it was their function to determine the issue of partiality.

[6] The conviction appeal is therefore dismissed.

[7] Turning to the sentence appeal, in our view, the trial judge erred in principle by failing to give the appellant any credit for her cooperation in providing information to the police. In particular, the appellant provided the police with the first name, description and telephone number of the person she alleged sent her to Curacao and who was to receive the bag containing the drugs. The appellant cannot be faulted for the information not having led to an arrest, as the police took no steps to follow up on the telephone number that was provided. In sentencing submissions at trial, the Crown agreed that the appellant should receive one year of credit for her cooperation. In these circumstances, we consider that the trial judge erred by failing to give the appellant any credit.

[8] Taking account of the appellant’s circumstances and the circumstances of the offence, we would substitute a sentence of six years imprisonment.

[9] Accordingly, leave to appeal sentence is granted, the sentence appeal is allowed, the sentence imposed by the trial judge is set aside and a sentence of six years imprisonment is substituted.

“Janet Simmons J.A.”

“Robert P. Armstrong J.A.”

“Paul Rouleau J.A.”

[^1]: R. v. Parks (1993), 15 O.R. (3d) 324 (C.A.), leave to appeal to S.C.C. refused, [1994] 1 S.C.R. x.