WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486(1), (1.1), (2), or (3) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486(1) Any proceedings against an accused shall be held in open court, but the presiding judge or justice may, on application of the prosecutor or a witness or own his or her own motion, order the exclusion of all or any members of the public from the court room for all or part of the proceedings, or order that the witness testify behind a screen or other device that would allow the witness not to be seen by members of the public, if the judge or justice is of the opinion that such an order is in the interest of public morals, the maintenance of order or the proper administration of justice or is necessary to prevent injury to international relations or national defence or national security.

(1.1) The application may be made, during the proceedings, to the presiding judge or justice or, before the proceedings begin, to the judge or the justice who will preside at the proceedings or, if that judge or justice has not yet been determined, to any judge or justice having jurisdiction in the judicial district where the proceedings will take place.

(2) In determining whether the order is in the interest of the proper administration of judge, the judge or justice shall consider

(a) society’s interest in encouraging the reporting of offences and the participation of victims and witnesses in the criminal justice process;

(b) the safeguarding of the interests of witnesses under the age of 18 years in all proceedings;

(c) the ability of the witness to give a full and candid account of the acts complained of if the order were not made;

(d) whether the witness needs the order for their security or to protect them from intimidation or retaliation;

(e) the protection of justice system participants who are involved in the proceedings;

(f) whether effective alternatives to the making of the proposed order are available in the circumstances;

(g) the salutary and deleterious effects of the proposed order; and

(h) any other factor that the judge or justice considers relevant.

(3) If an accused is charged with an offence under section 151, 152, 153, 153.1, 155 or 159, subsection 160(2) or (3) or section 163.1, 171, 171.1, 172, 172.1, 172.2, 173, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 286.1, 286.2 or 286.3 and the prosecutor or the accused applies for an order under subsection (1), the judge or justice shall, if no such order is made, state, by reference to the circumstances of the case, the reason for not making an order.

(4) No adverse inference may be drawn from the fact that an order is, or is not, made under this section.

R.S., 1985, c. C-46, s. 486; R.S., 1985, c. 27(1^st Supp.), s. 203, c. 19 (3rd Supp.), s. 14, c. 23 (4^th Supp.) s. 1; 1992, c. 1, s. 60(F), c. 21, s. 9; 1993, c. 45, s.7; 1997, c. 16, s. 6; 1999, c. 25, s. 2(Preamble); 2001, c. 32, s. 29, c. 41, ss. 16, 34, 133; 2002, c. 13, s. 20; 2005, c. 32, c.43, ss. 4,8,; 2010, c.3, s. 4; 2012, c. 1, s. 28; 2014, c. 25, s. 21; 2015, c. 13, s. 13, c. 20, s. 21.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Jackman, 2016 ONCA 121

DATE: 20160211

DOCKET: C57678

Hoy A.C.J.O., Laskin and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Sarah Jackman

Appellant

Charles Granek, for the appellant

Ian Bell, for the respondent

Heard: October 28, 2015

On appeal from the conviction entered on March 8, 2013 and the sentence imposed on July 15, 2013 by Justice G. Lemon of the Superior Court of Justice, sitting with a jury.

Hoy A.C.J.O.:

1. OVERVIEW

[1] Approximately four kilograms of cocaine were found in the lining of the appellant’s luggage after a sniffer-dog “alerted” on her at Toronto’s Pearson International Airport. She was subsequently charged with importing cocaine into Canada, contrary to s. 6(1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19.

[2] The appellant brought a pre-trial application to exclude the evidence against her under s. 24(2) of the Charter, on the basis of several alleged Charter breaches. The application judge excluded some, but not all, of the challenged evidence. After a trial by a different judge and jury, the appellant was convicted and sentenced to five years and nine months’ imprisonment, less two months’ credit for pre-trial custody.

[3] The appellant appeals her conviction and seeks leave to appeal sentence. She alleges that the application and trial judges made multiple errors and requests that the finding of guilt be quashed and an acquittal entered or, in the alternative, that a new trial be ordered. For the reasons that follow, I would dismiss the conviction appeal, grant leave to appeal sentence, but dismiss the sentence appeal.

2. BACKGROUND

[4] The appellant arrived at Toronto’s Pearson International Airport on a flight from Guyana. A border services officer (“BSO”) was roaming with his sniffer-dog in the pre-primary inspection area line up. The dog was trained to detect the odour of firearms and a number of illegal drugs, including marijuana. The BSO walked the dog by all of the passengers arriving on the flight from Guyana to Toronto because it was a flight known to carry drugs.

[5] Unknown to the appellant, the dog “alerted” on her by sitting down. As a result, a BSO working in the post-primary inspection area spoke to the appellant and coded her customs declaration card so that she would be referred for a secondary customs inspection once she retrieved her checked baggage. In the course of the secondary customs inspection, her suitcase was x-rayed and a BSO saw that something was hidden inside the lining. Approximately four kilograms of cocaine were found inside.

[6] At that point, a BSO advised the appellant that she was under arrest. The BSO administered a form of caution to the effect that the appellant was not obligated to say anything and that, if she did, her statements could be used in evidence, and advised the appellant of her right to counsel. The appellant made several post-arrest statements to the BSO before speaking to counsel.

[7] The appellant brought a pre-trial application, seeking exclusion of the cocaine and all other evidence against her on the basis of a number of alleged Charter violations and common law principles.

[8] In a careful and detailed ruling, described below, the application judge, Dawson J., rejected the appellant’s arguments that the use of the sniffer-dog constituted an unreasonable search in violation of s. 8 of the Charter and that she was detained from the time of the dog alert: R. v. Jackman, 2012 ONSC 3557. The application judge accepted that the appellant’s s. 10(b) right to counsel had been violated because of an approximately one hour and forty minute delay in the implementation of that right following the appellant’s arrest. He also found that a BSO violated the appellant’s s. 8 rights when she conducted a post-arrest strip search as a matter of routine policy and without consideration of whether there were sufficient grounds to do so in this particular case. However, he concluded, a second strip search conducted by the RCMP after the appellant was transported to the cells at the Toronto Airport detachment did not violate her s. 8 rights.

[9] The application judge then conducted a s. 24(2) Charter analysis to determine whether the evidence against the appellant should be excluded. Except for one statement made very close to the time of her arrest that he characterized as “spontaneous”, he excluded all other statements made by the appellant between the time of her arrest and the time she was re-arrested and given her rights again by the RCMP.

[10] The application judge then considered whether the Crown had proven that the remaining pre- and post-arrest statements – that is, those not excluded pursuant to s. 24(2) – were voluntary. He was ultimately satisfied beyond a reasonable doubt that most of the statements were voluntary and therefore admissible.

[11] At trial, the appellant testified that someone had given her a new suitcase in Guyana, which she accepted because her old bag was damaged. She said that she did not know or suspect that cocaine was concealed in the suitcase and believed she had been set up.

[12] The jury returned a verdict of guilty and a conviction was entered.

3. THE ISSUES ON APPEAL

[13] This appeal raises the following issues:

1. Did the application judge err in concluding that the dog sniff was not a search because it occurred in the context of a border crossing and, in any event, did not violate s. 8 of the Charter?

2. Did the application judge err in concluding that the appellant was not detained from the time of the dog alert?

3. Did the application judge err in concluding that the second strip search did not violate the appellant’s s. 8 Charter rights?

4. Did the application judge err in concluding that the appellant’s pre-arrest utterances were voluntary and admissible?

5. Did the trial judge err in qualifying the Crown’s expert (Sergeant Napper) to provide evidence of the value of the cocaine seized?

6. Did the trial judge err by failing to correct his jury charge to clarify a point of evidence?

7. In imposing sentence, did the trial judge fail to consider the appellant’s challenging personal circumstances?

4. ANALYSIS

4.1. Did the application judge err in concluding that the dog sniff was not a search because it occurred in the context of a border crossing and, in any event, did not violate s. 8 of the Charter?

4.1.1. The Application Judge’s Reasons

[14] The application judge found that it is clear from the cases relied on by the appellant – R. v. Kang-Brown, 2008 SCC 18, [2008] 1 S.C.R. 456 (the use of a sniffer-dog in a Calgary bus terminal) and R. v. A.M., 2008 SCC 19, [2008] 1 S.C.R. 569 (the use of a sniffer-dog in an Ontario high school) – that, within Canada, a sniff by a detector dog constitutes a search within the meaning of s. 8 of the Charter because it impinges on a person’s reasonable expectation of privacy.

[15] However, relying on R. v. Simmons, 1988 CanLII 12 (SCC), [1988] 2 S.C.R. 495; Dehghani v. Canada (Minister of Employment and Immigration), 1993 CanLII 128 (SCC), [1993] 1 S.C.R. 1053; R. v. Jacques, 1996 CanLII 174 (SCC), [1996] 3 S.C.R. 312; R. v. Monney, 1999 CanLII 678 (SCC), [1999] 1 S.C.R. 652; R. v. Hudson (2005), 2005 CanLII 47233 (ON CA), 77 O.R. (3d) 561 (C.A.); and R. v. Jones (2006), 2006 CanLII 28086 (ON CA), 81 O.R. (3d) 481 (C.A.), the application judge concluded that a dog sniff when a person is crossing an international border to enter Canada does not constitute a search for the purposes of s. 8 because there is no interference with a reasonable expectation of privacy in those circumstances. He held that, in a border crossing context, Kang-Brown and A.M. do not apply: persons crossing borders expect to be subject to such scrutiny. Indeed, he wrote, the appellant testified that she expected to be questioned and to perhaps have her luggage searched, as it had been in the past.

[16] The application judge cited the following paragraph from Simmons, at pp. 516-17, where Chief Justice Dickson, writing for the majority, categorized three types of searches that take place at the border, according to their level of intrusiveness:

It is, I think, of importance that the cases and the literature seem to recognize three distinct types of border search. First is the routine of questioning which every traveller undergoes at a port of entry, accompanied in some cases by a search of baggage and perhaps a pat or frisk of outer clothing. No stigma is attached to being one of the thousands of travellers who are daily routinely checked in that manner upon entry to Canada and no constitutional issues are raised. It would be absurd to suggest that a person in such circumstances is detained in a constitutional sense and therefore entitled to be advised of his her right to counsel. The second type of border search is the strip or skin search of the nature of that to which the present appellant was subjected, conducted in a private room, after a secondary examination and with the permission of a customs officer in authority. The third and most highly intrusive type of search is that sometimes referred to as the body cavity search, in which customs officers have recourse to medical doctors, to X-rays, to emetics, and to other highly invasive means. [Emphasis added.]

[17] The application judge found that the dog sniff in this case fell within the first and least intrusive category of border searches described in Simmons, where no constitutional issues are raised.

4.1.2. The Appellant’s Position

[18] The appellant argues that the application judge err in distinguishing Kang-Brown and A.M., and that the dog sniff in this case constituted a search for the purposes of s. 8. She says that, in R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220, which the application judge did not advert to, the Supreme Court rejected the argument that there is no reasonable expectation of privacy in checked luggage in an airport and refused to revisit Kang-Brown and A.M. She relies on this to assert that, if there is a reasonable expectation of privacy in luggage in an airport, and a dog sniff of the luggage is therefore a search, a dog sniff of a person in an airport is clearly a search. There is an even greater expectation of privacy in the person.

[19] The appellant also argues that the application judge erred in finding that the dog sniff in this case was analogous to the first, and least intrusive, of the three distinct types of border searches described in Simmons. The Supreme Court explained that no stigma attaches to this first type of search, and “no constitutional issues are raised”. The appellant says that a dog sniff is not like a search of baggage or pat or frisk of outer clothing, which Simmons includes in the first type of border search. She says that stigma attaches to a dog sniff because an “alert” by the dog can tell all watching that the person smells of contraband. A dog sniff is therefore more intrusive than a search of baggage or pat or frisk of outer clothing. She submitted in oral argument that a dog sniff is analogous to a forced drug test or the taking of a bodily sample.

4.1.3. Analysis

[20] I reject the appellant’s arguments. I agree with the application judge that the dog sniff did not violate the appellant’s s. 8 Charter rights.

[21] Section 8 does not protect against all encroachments on an individual’s privacy interests: Chehil, at para. 22. Only where state examinations constitute an intrusion upon some reasonable privacy interest of individuals does the government action in question constitute a “search” within the meaning of s. 8: R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432, at para. 18. If there is no reasonable expectation of privacy, s. 8 will not be engaged. An individual’s reasonable expectation of privacy must be assessed contextually, and may vary depending on the nature of the circumstances: Chehil, at para. 59.

[22] I agree with the application judge that a person’s reasonable expectation of privacy when entering Canada at an international border crossing is different from when travelling within Canada. In my view, the application judge did not err in distinguishing Kang-Brown and A.M. in the circumstances of this case.

[23] The Supreme Court in Simmons and Monney and this court in Hudson and Jones have recognized that border searches should be distinguished from searches occurring in other circumstances in which the security of Canada’s interior is not engaged. As Doherty J.A. explained, at paras. 30 and 31 of Jones:

No one entering Canada reasonably expects to be left alone by the state … [T]ravellers reasonably expect that they will be questioned at the border and will be expected to answer those questions truthfully. Travellers also reasonably expect that Customs authorities will routinely and randomly search their luggage. … The state is expected and required to interfere with the personal autonomy and privacy of persons seeking entry to Canada. Persons seeking entry are expected to submit to and co-operate with that state intrusion in exchange for entry into Canada. …

Nothing is more fundamental to nationhood and national sovereignty than the ability to control national borders. Effective border control serves a myriad of crucial social interests ranging from national self-defence to public health, to the enforcement of Canada’s fiscal policies and its penal statutes.

[24] The dog sniff in this case was conducted as part of a routine border inspection, intended to prevent and control the importation of illicit substances into the country. Such routine border searches, when carried out in a reasonable manner, cannot be said to encroach on a traveller’s reasonable expectation of privacy and therefore do not violate s. 8.

[25] I disagree with the appellant that the dog sniff in this case did not constitute a routine border search of the first type identified in Simmons.

[26] A dog sniff is minimally invasive on an individual’s privacy interests: Chehil, at paras. 1, 24, 57. Here, the dog sniff was deployed by a BSO as part of a routine check of passengers entering Canada on a flight known to carry drugs and the appellant was not even aware of the dog alert. No stigma attached to the search. I agree with the application judge that the dog sniff was even less invasive than a search of baggage or pat or frisk of outer clothing included in the first type of searches described in Simmons. Moreover, there was no suggestion that the sniff was not conducted reasonably.

[27] Chehil does not assist the appellant. In that case, a drug detector dog was deployed in the secure area of the Halifax airport to sniff the checked bag of a suspected drug trafficker who had flown to Halifax from Vancouver. Unlike in this case, the dog sniff was not part of a routine border inspection. RCMP officers had analyzed the passenger manifest for the appellant’s overnight Vancouver-Halifax flight and noticed that the appellant was one of the last passengers to purchase a ticket, paid for his ticket in cash and checked one bag. The officers testified that, in their experience, those characteristics were indicators of the illegal traffic of narcotics. As a result, the drug detector dog was deployed to sniff the appellant’s bag before he collected it. The dog indicated that he detected the scent of drugs, and the appellant was arrested for possession of a narcotic. Chehil is therefore distinguishable from this case, where the dog sniff was part of a routine customs inspection at an international airport and the appellant was not specifically targeted by the police for investigation.

[28] Based on the above, I find that, in the circumstances of this case, the dog sniff did not violate the appellant’s s. 8 Charter rights.

4.2. Did the application judge err in concluding that the appellant was not detained from the time of the dog alert?

[29] The application judge concluded that the appellant was not detained in a constitutional sense until the observation of the x-ray demonstrating that something was hidden inside the lining of her suitcase. Until then, he reasoned, nothing had occurred that took the appellant’s case outside the realm of the routine in a border crossing situation. He found that the dog alert, standing alone, did not provide such a particularized level of suspicion that the appellant’s case ceased to be routine.

[30] He recounted that two involved BSOs testified that, to them, the alert did not mean that the appellant was transporting contraband. It simply indicated exposure to something that the dog was trained to detect. One BSO explained that, in the past, he had searched individuals who were the subject of a dog alert and not found contraband. And, the dog was trained to detect odours that included firearms and marijuana. The recreational use of firearms and the possession and use of small amounts of marijuana are legal in some parts of the world from which persons seeking to enter Canada have travelled.

[31] Consequently, the application judge concluded that a dog alert in a border-crossing setting is not objectively capable of providing particularized suspicion that the subject of the alert is transporting contraband. In this case, while the alert may have attracted further scrutiny, it was not enough to support a conclusion that the appellant was detained in a constitutional sense.

[32] The appellant disagrees. She argues that she was detained once the sniffer-dog alerted on her; thereupon, she should have been advised of her right to remain silent and her right to counsel. She asserts that, because she was not so advised, all of her subsequent pre-arrest statements should be excluded from evidence.

[33] I note Justice Karakatsanis’ comment at para. 1 of Chehil that a search by a properly deployed drug detection dog “can be highly accurate”. However, I am not persuaded that there is any basis to interfere with the application judge’s finding, based on the evidence of the BSOs, that the dog alert, standing alone, did not provide such a particularized level of suspicion that the appellant’s case ceased to be routine. Routine border searches of the first type described in Simmons do not result in a detention and therefore do not give rise to any right to counsel or the right to remain silent: Simmons, at pp. 516-17; Jones, at paras. 36-37. Accordingly, the dog alert in this case did not result in a detention or engage the appellant’s ss. 7 or 10(b) Charter rights.

[34] Furthermore, because I have found that the use of a sniffer-dog in this case did not raise any constitutional issues, I would not give effect to the argument that the appellant’s pre-arrest statements should have been excluded under s. 24(2).

4.3. Did the application judge err in concluding that the second strip search did not violate the appellant’s s. 8 Charter rights?

[35] The appellant argues that the trial judge erred in finding that the second strip search, conducted after she was transferred to the RCMP, did not constitute an unreasonable search. She asserts that the search was conducted as a matter of policy and without reasonable grounds. I reject this argument.

[36] The application judge found that the RCMP officers “carefully considered the need for a further strip search and formed the subjective view that one should be conducted for purposes which I find to be objectively reasonable in the circumstances.”

[37] The officers’ reasons included that, when the RCMP assume custody and responsibility for a prisoner who has been searched by another agency, they need to be satisfied that the prisoner does not have any evidence, weapons or means of escape on their person. They knew that the appellant was considered to be suicidal and had made statements that she was thinking of hurting herself. Constable Sheedy testified that he was aware that the appellant had been in different locations while in custody at customs and was concerned that she may have picked something up that could be used to harm herself, to open handcuffs or as a weapon of opportunity. Corporal Ferguson explained that the appellant would be going to a detention facility and that it was therefore important to ensure that she did not have anything on her person that would pose a danger in a facility where other inmates were present.

[38] The application judge also accepted the evidence of Corporal Ferguson that the search was conducted quickly, with sensitivity and in complete privacy. He was alert both to the privacy concern about multiple strip searches and to the appellant’s emotional instability.

[39] I see no basis to interfere with the application judge’s conclusion that, on the facts of this case, the second strip search did not violate s. 8.

4.4. Did the application judge err in concluding that the appellant’s pre-arrest utterances were voluntary and admissible?

[40] The appellant argues that, in the absence of a complete record of the pre-arrest exchanges between the appellant and the BSO, the application judge erred in concluding that the appellant’s pre-arrest utterances were voluntary and admissible. She further argues that the utterances should have been excluded because, in the absence of a complete record providing the necessary context for the statements, their prejudicial effect outweighed their probative value.

[41] The BSO made notes of the appellant’s pre-arrest statements approximately three hours after the statements were given. She did not record the statements verbatim and acknowledged that she did not write down her own questions preceding the statements.

[42] I reject the appellant’s argument that, because the pre-arrest exchange between the BSO and the appellant were not recorded verbatim, the application judge was not in a position to determine whether the appellant’s pre-arrest utterances were voluntary. A verbatim recording is not an absolute requirement to demonstrate the voluntariness of a statement.

[43] The application judge specifically considered the appellant’s argument that he could not determine voluntariness because the BSO’s notes were incomplete. The Crown called extensive evidence regarding the circumstances in which the pre-arrest utterances were made. The application judge noted that, in the circumstances, it would have been practically impossible for the BSOs to have made notes of every detail that transpired. In all of the circumstances, the application judge was satisfied as to the voluntariness of the pre-arrest utterances. The appellant offers no explanation of how the BSO’s failure to record the conversation verbatim could have affected the application judge’s ability to assess voluntariness. There is no basis to interfere with the application judge’s determination.

[44] It is unclear whether the appellant argued before the application judge that the prejudicial effect of the appellant’s pre-arrest utterances exceeded their probative value because of the absence of a complete record of the exchanges. In any event, a probative value versus prejudicial effect analysis of a statement made by an accused is often made in the absence of complete, written and nearly contemporaneous notes of the applicable exchange. While a statement may be excluded if its meaning is so speculative – and its probative value so tenuous – that its probative value is outweighed by its prejudicial effect, that is not the case here. Here, there was no ambiguity with respect to any of the appellant’s utterances to the BSO and the appellant had the opportunity to cross-examine the BSO on the context in which all of the utterances were made. Their probative value was not outweighed by their prejudicial effect.

4.5. Did the trial judge err in qualifying the Crown’s expert (Sergeant Napper) to provide evidence of the value of the cocaine seized?

[45] The appellant argues that the trial judge’s ruling that Sergeant Napper was qualified to give opinion evidence as to the value of the seized cocaine was founded on a misapprehension of the evidence. The trial judge wrote that Sergeant Napper’s “opinion in this case was based on his own experience and the RCMP 2008/2009 illicit drug price lists. He also spoke to one other officer for confirmation of his estimate.”

[46] The appellant argues that Sergeant Napper did not ascribe his opinion to his own experience and, while he testified that it was his practice to consult with another expert, he could not recall whether he did so in this case. She asserts that the trial judge therefore erred by qualifying Sergeant Napper on the basis of incorrect factual findings.

[47] I disagree. In my view, the statement that Sergeant Napper’s opinion was based on his own experience and the RCMP price list accurately summarized the evidence at the voir dire. This provided a sufficient basis to qualify Sergeant Napper to provide an opinion. As the respondent asserts, while the trial judge overstated the evidence in saying that Sergeant Napper had consulted another officer in this case, this error is of no consequence.

4.6. Did the trial judge err by failing to correct his jury charge to clarify a point of evidence?

[48] The appellant argues that the trial judge erred by mischaracterizing a point of evidence in his charge to the jury. She says this error adversely affected the jury’s assessment of her credibility and obscured an important piece of evidence that should have been put to the jury for consideration.

[49] The appellant testified as follows regarding the point of evidence at issue. Her trip to Guyana was funded by her friend, Mike. Upon arrival at the Toronto airport, she met with Mike’s friend “Auntie,” with whom she traveled to Guyana. Before boarding in Toronto, she saw Auntie with a man who did not join them on the flight. Auntie told the appellant that the man was her husband. When the appellant arrived at the airport in Guyana, Auntie waited for her outside of customs with a different man, whom the appellant thought worked for the airport. After she exited customs, the man asked her some questions about her trip.

[50] At the end of her trip, while waiting at the airport in Guyana for her flight back to Toronto, the appellant saw Auntie’s husband. He was sitting with a man she identified as the airport employee who spoke to her when she first arrived. She later saw Auntie’s husband on the flight to Toronto.

[51] In summarizing his recollection of the evidence in his charge to the jury, the trial judge stated:

[W]hile [the appellant] waited at the airport she saw the same man who spoke with her when she arrived in Guyana. He was sitting with auntie’s husband. They were sitting in the café, she was sitting outside and they were sitting inside. She also saw him on [the] flight back to Toronto. [Emphasis added.]

[52] The appellant submits that, although she testified that the man she saw on the flight was Auntie’s husband, the phrasing of the trial judge’s charge gave the impression that she saw the man who was sitting with Auntie’s husband at the airport in Guyana.

[53] The appellant argues that the trial judge’s failure to correct his charge, despite a request by counsel to do so, undermined her credibility. She says the charge misled the jury into thinking that the appellant made two conflicting statements, stating at one point that she saw Auntie’s husband on the plane and stating at another point that she saw the man who was sitting with Auntie’s husband at the airport in Guyana. She further asserts that the trial judge’s misstatement removed a key part of the appellant’s evidence from the jury’s consideration – namely, that the appellant recognized Auntie’s husband on the flight and possibly suspected that he had been in Guyana to keep an eye on her. I reject these arguments.

[54] The trial judge specifically instructed the jury that, while it was his duty to review the evidence, the jury must decide the case based on their recollection of the evidence. The appellant stated several times in her trial testimony that she had seen Auntie’s husband on the plane. In the context of the trial as a whole, it is unlikely that the jury would have been confused by the trial judge’s charge. In any event, I agree with the respondent that, to the extent that the charge was erroneous, as opposed to ambiguous, the error related to a peripheral point that would not have affected the jury’s assessment of the appellant’s credibility or the ultimate result.

4.7. In imposing sentence, did the trial judge fail to consider the appellant’s challenging personal circumstances?

[55] The appellant’s principal argument is that her challenging personal circumstances warranted a deviation from the six- to eight-year range of custodial sentences for couriers who are first time offenders and smuggle large quantities of cocaine into Canada set out in R. v. Cunningham (1996), 1996 CanLII 1311 (ON CA), 27 O.R. (3d) 786 (C.A.).

[56] The trial judge detailed the appellant’s “sympathetic circumstances and background” in his reasons for sentence and considered them as mitigating factors. He considered the applicable authorities. He concluded that, “[c]hallenging and compelling as [the appellant’s] circumstances may be, they describe a ‘weak and vulnerable’ individual that is to be dealt with in the range stipulated.”

[57] Taking all of the circumstances into account, the trial judge imposed a sentence of five years, nine months, less two months’ credit for pre-trial custody – slightly below the range of six to eight years established in Cunningham. I am not persuaded that he committed any error in principle in his approach or that the sentence imposed is manifestly unfit.

5. DISPOSITION

[58] I would dismiss the conviction appeal, grant leave to appeal sentence but dismiss the sentence appeal.

Released: “AH” “FEB 11 2016”

“Alexandra Hoy A.C.J.O.”

“I agree John I. Laskin J.A.”

“I agree L.B. Roberts J.A.”