COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Ashley, 2012 ONCA 576

DATE: 20120907

DOCKET: C55329

Rosenberg, Blair and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Dawn Marie Ashley

Appellant

Dawn Marie Ashley, acting in person

Danielle Robitaille, as duty counsel

Jeremy Streeter, for the respondent

Heard: August 14, 2012

On appeal from the conviction entered and the sentence imposed on March 16, 2012 by Justice Fletcher Dawson of the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1] Ms. Ashley appeals from her conviction by Dawson J. of the Superior Court of Justice on a charge of importing a controlled substance contrary to the Controlled Drugs and Substances Act. If unsuccessful, she seeks also to vary her sentence from one of 18-month imprisonment to a sentence to be served in the community.

[2] In August, 2008, Ms. Ashley was returning home from a trip to Jamaica. She was accompanied by her 2½-year old daughter and a number of pieces of luggage. Upon arrival at Toronto’s Pearson International airport, she declared an overage of alcohol products and several agricultural products, and as a result was routed to a secondary inspection. On that inspection Canadian Border Services authorities found six balls of compressed cocoa wrapped in cellophane and, upon further examination, discovered that each ball contained plastic wrapped marihuana which in total weighed 20.2153 kg with a value of between $51,175 and $57,850.

[3] Ms. Ashley was arrested and charged with importing. The Crown alleged that she was acting as a courier in the situation.

[4] We would not give effect to either request.

Conviction Appeal

[5] Ms. Ashley had a long and highly improbable story to explain why it was that she had no knowledge of the contents of her luggage. The trial judge flatly rejected this evidence, and was entitled on the record to do so.

[6] Duty Counsel, Ms. Robitaille, submitted that the trial judge improperly took judicial notice of two matters in the course of assessing Ms. Ashley’s credibility, thus undermining that assessment and requiring a new trial. Those matters were (a) that “the declaration of an alcohol overage is not uncommon in cases where drugs are found expertly hidden in a traveller’s belonging” in drug importing cases from Pearson airport (Ms. Ashley had argued that her declaration of alcohol overage was an indicia of innocence), and (b) that “the almost last minute cash payment for the ticket [was] out of the ordinary and consistent with what is often seen in drug importation cases”.

[7] We do not agree. In our view, the trial judge did not improperly take judicial notice. The trial judge is an experienced trial judge in criminal matters and was presiding in a jurisdiction in which prosecutions for drug-related offence are numerous and common, given its proximity to Pearson airport.

[8] The appellant’s position at trial was that as a matter of common sense it was unlikely a drug importer would knowingly make a declaration that would send her to secondary inspection. The trial judge, based on his extensive experience with similar cases, was simply unable to draw this conclusion. The appellant’s position was not a common sense inference. The trial judge made it clear later in his reasons that the declaration of overage “[did] not translate into evidence against Ms. Ashley”.

[9] As to the last minute cash purchase of the ticket, the important observation was that the last minute payment was out of the ordinary. We agree with this observation. The appellant’s story was that she had been planning to take this trip for some time and to take her daughter. Common sense suggests that in those circumstances the tickets would have been purchased during the planning process not last minute and in cash. It was certainly open to the trial judge to conclude that this conduct was inconsistent with the appellant’s story and consistent with what is often observed in drug importing cases. As the Supreme Court of Canada observed, in R. v. R.D.S., 1997 CanLII 324 (SCC), [1997] 3 S.C.R. 484 at para. 44:

An understanding of the context or background essential to judging may be gained from testimony from expert witnesses in order to put the case in context … from academic studies properly placed before the Court; and from the judge's personal understanding and experience of the society in which the judge lives and works.

[10] In any event, given the abundance of other factors, which were far more devastating to the appellant’s credibility as set out in the trial judge’s extensive and careful reasons, we do not think the trial judge’s reliance on the above two factors played a significant role in his assessment of her credibility.

[11] We would not interfere with the trial judge’s conviction on the importing charge.

Sentence

[12] Nor would we interfere with the sentence imposed.

[13] The trial judge imposed a sentence of 18 months incarceration. In doing so, he considered all of the relevant principles of sentencing, and balanced those in light of Ms. Ashley’s personal situation, her lack of a prior criminal record, her family status, the fact that she had good prospects for rehabilitation, the nature of the offence and the circumstances surrounding the offence. But he balanced those factors against the need for deterrence and denunciation, and the lack of mitigating remorse or other mitigating considerations (except the lack of a prior criminal record). The trial judge recognized that an 18-month sentence was “a significant one for a woman with no criminal record,” but concluded that “[t]he imposition of a sentence of 18 months for a first offence for importing marijuana should be sufficient to have a deterrent effect on those customarily selected to be drug couriers – persons without prior criminal records”.

[14] Duty counsel argues that the trial judge erred in failing to impose a conditional sentence. We do not agree. The trial judge carefully and fully addressed his mind to this option and rejected it. We see no error in his decision in this regard.

[15] Acknowledging “the significant difference between the importation of marijuana and hard drugs must have some impact when it comes to sentencing,” the trial judge correctly observed nonetheless that the large quantity of marijuana involved (more than 24 grams, with a value in excess of $50,000) – indicating, as it did, the presence of a commercial criminal enterprise – was the principal aggravating factor that rendered the imposition of conditional sentence inappropriate. Nor did he err in considering, as an additional ancillary factor, the border-crossing nature of this offence and in concluding that the granting of a conditional sentence in the circumstance would send the wrong message in terms of protecting the integrity of the Canadian border from serious criminality.

Disposition

[16] For the foregoing reasons, the appeal against conviction is dismissed and, while leave to appeal sentence is granted, the appeal against sentence is dismissed as well.

“M. Rosenberg J.A.”

“R.A. Blair J.A.”

“M. Tulloch J.A.”