COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Downes, 2015 ONCA 674

DATE: 20151006

DOCKET: C55711

Strathy C.J.O., MacPherson J.A. and Speyer J. (ad hoc)

BETWEEN

Her Majesty the Queen

Respondent

and

Royan Downes

Appellant

Maria Gaspar, for the respondent

John J. Navarette, for the appellant

Heard: September 28, 2015

On appeal from the conviction entered on February 16, 2011, and the sentence imposed on September 1, 2011, by Justice Peter Daley of the Superior Court of Justice, sitting with a jury.

ENDORSEMENT

[1] The appellant was convicted by a jury of importing cocaine. He was sentenced to six years imprisonment. The appellant appeals both conviction and sentence.

The Mistrial Application

[2] The single ground of appeal in respect of conviction arises out of the trial judge’s refusal to declare a mistrial after a complaint from one or more jurors. On the third day of the trial, immediately following the morning health break, the trial judge, in the absence of the jury, advised counsel of a concern expressed to a court services officer that one or more members of the jury had observed the appellant looking at them from the second level of the front lobby area of the Brampton court house. The circumstances of this encounter are straight forward. The jury had been instructed by court staff to assemble on the lower level of the court house near the front entrance. The specific concern expressed to the court officer was that having seen the appellant looking at them from an upper tier, the jurors did not wish to encounter the appellant during the trial in the hallways or in the building.

[3] Appellant’s trial counsel, not Mr. Navarette, apologized to the trial judge, explaining she had arranged to meet her client prior to court at the place where he was observed by jury members. The trial judge told trial counsel there was no need to apologize, and requested that any future meeting with her client take place in a more discrete area of the court house. The trial continued.

[4] Later in the morning, just prior to lunch, trial counsel requested a jury instruction clarifying the earlier encounter between the appellant and jury. The trial judge agreed. He explained to the jury the circumstances of what had occurred; that is, that counsel had made an earlier, planned arrangement with her client to meet at the designated spot on the second level. However, in order to assuage the jury of any concern about a breach of the no-contact order in respect of participants in the trial, as provided in his opening instructions, the judge told the jury that future arrangements had been made between counsel and the appellant to meet elsewhere in the court house. No objection was taken to this clarifying instruction and the trial continued.

[5] Following the luncheon recess, after consulting with the appellant over the break, counsel brought a mistrial application. The basis for the application was the appellant’s concern that the jury “has placed him in a bad light as a result of that interaction, albeit innocent on his part,” and that in the circumstances, the jury could not decide the case fairly.

[6] The trial judge declined to order a mistrial. In his reasons, the trial judge reviewed the circumstances giving rise to the issue, and stated he took the jury’s concern to have arisen from his instructions to the jury “that they avoid contact with any person involved in the trial and not to wait in the hallways in the court house building”. He then referred to the governing principles relating to mistrials as set out in the leading case of R. v. Burke, 2002 SCC 55, [2002] 2 S.C.R. 857 at para. 75, and concluded that in the circumstances, there was no real danger of prejudice to the appellant or of a miscarriage of justice.

[7] The appellant argues he was denied a fair trial on the basis that there existed a reasonable apprehension of bias on the part of a juror or jurors. He asserts that the trial judge erred by not conducting an inquiry of all the jurors to flesh out their concerns. It is contended it was speculation on the judge’s part that the concern arose from his order not to have contact with any person involved in the trial.

[8] We disagree with appellant’s submissions for three reasons. First, the incidental and innocuous encounter of the appellant with the jurors did not give rise to a need that an inquiry be held. Nor did trial counsel for the appellant request an inquiry. Second, the clarifying instruction provided by the trial judge clearly explained to the jury the innocent reason for the proximity of the appellant to jury panel members. Again, trial counsel took no issue with it. Third, the trial judge was in the best position to assess the impact of the incident on the jury. He accurately stated the law in respect to mistrials and concluded there was no real danger of prejudice, or prospect of a miscarriage of justice. The exercise of his discretion in arriving at this conclusion is entitled to deference.

Sentence

[9] The appellant was sentenced to six years imprisonment for his role in an enterprise to smuggle 2.1 kilograms of cocaine into Canada. The appellant concedes that that the appropriate range of sentence for a first time offender, absent exceptional circumstances, is six to eight years. See R. v. Cunningham, 1996 CanLII 1311 (ON CA), [1996] O.J. No. 448 (Ont. C.A.) at para. 29. The appellant’s complaint is that the sentence he received violates the principle of parity of sentencing. It is contended it does so because two other offenders involved in the same cocaine smuggling scheme were given conditional sentences following pleas of guilty. In each case, the sentence imposed followed a joint recommendation by crown and defence counsel.

[10] The parity principle is a principle of fairness. Its purpose is designed to ensure a sentence is similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. However, as this court stated in R. v. Courtney, 2012 ONCA 478 at para. 4:

The parity principle does not require that all co-accused be subject to the same sentence, or even that they be treated similarly for sentencing purposes. On the contrary, disparate sentences for different offenders, for the same offence, do not violate the parity principle so long as they are warranted by all the circumstances. See R. v. Ipeelee, 2012 SCC 13, [2012] S.C.J. No. 13, at paras. 78 to 79, per LeBel J.

[11] We are of the view that the sentence imposed on the appellant does not violate the parity principle. Indeed, the sentence imposed on the overseer of this drug smuggling enterprise was 10 years imprisonment for his role in the operation following a plea of guilty. The other two participants who received conditional sentences played a more subordinate role than the appellant in the criminal enterprise. In the case of the courier, Nicola Morgan, she co-operated with authorities, pled guilty, and testified as to the appellant’s participation. Similarly, the second individual who received a conditional sentence played a more limited role with respect to the drug importation scheme.

[12] In assessing the appropriate sentence, the trial judge took into account the major role played by the appellant, the significant amount of cocaine imported and the detrimental impact of the importation of cocaine on society. We see no error in the sentence.

[13] The appeal from conviction and sentence is therefore dismissed.

“G.R. Strathy C.J.O.”

J.C. MacPherson J.A.”

“C.M. Speyer J. (Ad Hoc)