COURT OF APPEAL FOR ONTARIO

CITATION: R. v. McLeod, 2014 ONCA 647

DATE: 20140923

DOCKET: C55754

Watt, Tulloch and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Alma McLeod

Appellant

Edward H. Royle and Diana Lumba, for the appellant

Joanne Stuart, for the respondent

Heard: August 26, 2014

On appeal from the conviction entered on December 20, 2011 and the sentence imposed on January 31, 2012 by Justice David L. Corbett of the Superior Court of Justice, sitting with a jury.

ENDORSEMENT

[1] The appellant was convicted of six firearm offences and one drug offence which arose as a result of several road trips she made between Canada and the United States. She was found to have been transporting drugs to the U.S. and returning to Canada with guns. She was sentenced on a global basis to seven years. She appeals both conviction and sentence.

[2] On the appeal from conviction, the appellant alleges two errors made by the trial judge. First, she submits, the trial judge erred by instructing the jury on wilful blindness in the absence of an evidentiary foundation for the instruction. Second, according to the appellant, the trial judge erred in allowing the Crown to cross-examine her on her general knowledge of gun crime in the Toronto community.

[3] The appellant submits that the sentence was unfit because the sentencing judge focused on deterrence and denunciation to the exclusion of the offender’s personal circumstances.

Facts

[4] In 2006 the appellant travelled six to nine times between Canada and the United States in a rental car. She was paid between $1,500 and $2,000 (including $500 for expenses) per trip by Daniel Christie and Gary Roach. The trips followed much the same pattern. The appellant would meet Christie, who would load drugs into the trunk of the car. She would then drive across the border and meet Roach, who would unload the car and replace the drugs with guns. She would then return to Canada. In short, it was drugs on the way to the U.S. and guns on the way back to Canada. On two of the trips, her friend, Tony Spence, accompanied her.

[5] After her last trip, the police recovered a large quantity of ecstasy, four illegal handguns including two 9 mm Glock semi-automatic pistols, one Hi-Point .45 calibre semi-automatic pistol and one .40 calibre semi-automatic pistol as well as magazines and ammunition. These items were found in the car that the appellant had rented and driven across the border.

[6] The appellant testified that she never suspected that there were drugs or guns in the car. She thought only money was hidden in the trunk. She thought that she was transporting $9,000 CAD to the U.S. and returning with $9,000 USD for a legitimate business purpose. She never saw what Christie and Roach were loading and unloading.

Wilful Blindness

[7] The jury charge with respect to wilful blindness is error-free. The issue raised by the appellant is that there was insufficient evidence to support the charge and it should not have been put to the jury at all.

[8] In order to establish wilful blindness, there must be evidence of actual suspicion on the part of the accused: R. v. Briscoe, 2010 SCC 13, [2010] 1 S.C.R. 411. The appellant submits that there was no evidence of actual suspicion. The appellant did not suspect that there were drugs or guns in the car and there was no evidence from which such an inference could be drawn.

[9] We disagree. The evidence included the following facts from which an inference of actual suspicion could be drawn:

• Spence testified that he suspected drugs were in the rental cars and discussed his concern with the appellant.

• Spence refused to drive the car across the border because he was so suspicious.

• The appellant’s meetings with Christie and Roach were usually in strip malls, parking lots or service stations late at night.

• She never loaded the car herself.

• She never saw Christie or Roach with money.

• She provided her rental car to a near stranger to take to a secret location for the purpose of loading and unloading it.

[10] The trial judge was correct to put wilful blindness to the jury.

Cross-examination

[11] The appellant submits that the trial judge erred in allowing the Crown to cross-examine her with respect to her knowledge of guns in the Toronto community. The appellant submits that this line of questioning was irrelevant and prejudicial.

[12] During the appellant’s cross-examination the following exchange took place:

Q. You are aware of the issues in your community?

A. What issues?

Q. Well, you are aware of the fact that in 2005, on December 26…

THE COURT: I am going to ask the jury to leave.

[13] In the absence of the jury, it became clear that the Crown was about to question the appellant about the notorious killing on Boxing Day of Jane Creba. The trial judge ruled that this was inappropriate and he would not allow it. He did allow the “general line of questioning about general awareness of gun violence or drug crime in Toronto.” He specifically precluded reference to any particular community within the GTA and suggested that the Crown avoid the use of the word “community” in her questioning.

[14] When the jurors returned, the trial judge instructed them to disregard the last question excerpted above. The Crown then proceeded to continue the cross-examination with respect to the appellant’s knowledge of gun violence in Toronto in 2005; that guns were coming into Canada from the U.S.; and that there is a relationship between guns and drugs.

[15] In our view the evidence that the jury heard as a result of the Crown’s questioning did not render the proceedings unfair. Any potential prejudice was addressed by the trial judge’s immediate intervention and subsequent instruction to disregard the question. His ruling that cross-examination could seek to establish the appellant’s knowledge of the prevalence of guns in Toronto was relevant to the issue of actual suspicion that she was transporting guns not money. We note that defence counsel did not request the trial judge provide any further instructions to the jury in his final charge even though the trial judge invited the request.

The Sentence Appeal

[16] The appellant’s written submissions focused on the fact that too much emphasis was placed on the principles of deterrence and not enough on the circumstances of the appellant. She was a 50 year old first offender who posed no risk of re-offending. During oral submissions, the issue of parity was raised. Christie, one of the masterminds of the scheme, was sentenced to eight years. The appellant was sentenced to seven years. Spence was sentenced to 34 months.

[17] First, the sentencing judge was aware of appellant’s crime-free life and took it into account. However, he was also was aware that she had been responsible for bringing a total of 25 handguns into Toronto. Denunciation and deterrence were important sentencing principles and they were not over-emphasized.

[18] Second, Christie not only pleaded guilty at the earliest opportunity but also extensively cooperated with the police. He testified in an unrelated murder case, gave evidence in four cases involving drug trafficking and testified against Roach. But for these mitigating factors, his sentence would have been 12-15 years. Spence, whose involvement was less than that of the appellant, would have received 4 ½ years but for his cooperation.

[19] The sentence of seven years was subject to a generous two-for-one credit for pre-trial custody and one-quarter-to-one credit for the house arrest bail conditions. The resulting sentence was 5 years and 9 months. The sentence is not outside of the range of appropriate sentences for the crimes of importing firearms and exporting a controlled substance: R. v. Farrell, 2011 ONSC 6252; R. v. Revizada, [2005] O.J. No. 421; R. v. McKenzie, 2011 ONCA 42; R. v. Tuck, 2007 ONCA 495. The case of R. v. Villella, 2006 CanLII 39324 (ON SC), [2006] O.J. No. 4690 (Ont. Sup. Ct.) relied upon by the appellant is distinguishable on its unique and complex facts. There the sentencing judge was significantly constrained by the joint submission made to another judge in the co-conspirators’ case. He acknowledged as much by referring to the “moral outrage” that may arise as a result of the lenient sentence. That is not this case.

Disposition

[20] For these reasons, the appeal from conviction is dismissed. While leave to appeal the sentence is granted, the sentence appeal is dismissed.

“David Watt J.A.”

“M. Tulloch J.A.”

“M.L. Benotto J.A.”