COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Zeisig, 2016 ONCA 845
DATE: 20161110
DOCKET: C59088
Feldman, Gillese and Benotto JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Jessica Zeisig
Appellant
Margaret Bojanowska, duty counsel
Kevin Wilson, for the respondent
Heard: November 1, 2016
On appeal from the conviction entered on December 2, 2013 and the sentence imposed on June 25, 2014 by Justice E.R. Tzimas of the Superior Court of Justice, sitting with a jury.
ENDORSEMENT
[1] The appellant was convicted of importing cocaine and sentenced to 4.5 years’ imprisonment, including credit for pre-sentence custody. She appeals her conviction and sentence.
[2] The appellant was a 19 year old girl when she arrived at Pearson airport on a flight from St. Lucia. Security officers found nearly 2 kg of cocaine in the luggage accompanying her. She told the officers she did not know that there was cocaine in her luggage. She said that she had been offered an all-expense-paid trip to St. Lucia plus $1,000 in return for bringing back diamonds. The issue at trial was whether she had knowledge of the cocaine or was willfully blind as to the fact that it was in her luggage.
[3] The appellant submits that the trial judge’s charge to the jury was flawed in three ways: (1) with respect to out of court statements of the appellant; (2) the W.(D.) instruction; and (3) with respect to the appellant’s criminal record.
[4] The out of court statements of the appellant relate to the testimony of the three security officers. In her charge to the jury, the trial judge said:
Unless you decide that [the appellant] made a particular remark or statement, you must not consider it in deciding this case. Some or all of the statements may help or harm [the appellant] in her defence. You must consider those remarks that may help or harm [the appellant] along with all the other evidence, unless you are satisfied that she did not make them. In other words, you must consider all the remarks that might help or harm [the appellant] even if you cannot decide whether she said them. [Emphasis added.]
[5] Two issues are raised with respect to this portion of the charge. First the words “or harm” should not have been added. They do not appear in the draft charge shown to counsel during the pre-charge conference. Second, the charge did not make it clear that exculpatory evidence does not have to be believed to be a source of reasonable doubt. As this court stated in R. v. Bucik, 2011 ONCA 546, 283 O.A.C. 161, at para 33:
An instruction to the jury to the effect that exculpatory evidence can be the source of reasonable doubt even if not affirmatively believed is particularly important because it is arguably not the kind of common sense reasoning that jurors would apply in making credibility assessments in their day-to-day lives.
[6] We note that in Watt’s Manual of Criminal Jury Instructions (2nd Ed.) the charge is as follows:
Some or all of the statement(s) may help [the accused] in his/her defence. You must consider those remarks that may help [the accused], along with all of the other evidence, even if you do not believe them, unless you are satisfied that s/he did not make them. In other words, you must consider all the remarks that might help [the accused] even if you cannot decide whether s/he said them, or whether you believe them. [Emphasis added.]
[7] While the Crown concedes that the inclusion by the trial judge of the words “or harm” was an error, we have been shown no statements by the appellant that could have been affected by the error.
[8] Moreover, any potential for juror misunderstanding would have been corrected by the trial judge’s W.(D.) charge as follows:
When considering [the appellant’s ] evidence, if you believe [the appellant’s] evidence that she did not know that she was bringing in a controlled substance and that she thought she was bringing diamonds, then you must find her not guilty. Even if you do not believe [the appellant] when she says that she did not know she was bringing back a controlled substance, it leaves you with a reasonable doubt about her guilt, you must find her not guilty of that offence.
[9] The appellant further submits that the W.(D.) charge quoted above was defective in that it did not address willful blindness. We do not accept this submission. The trial judge instructed the jury that “knowledge” can be either actual or imputed. She thoroughly instructed the jury about willful blindness as a means to impute knowledge. The jury would have understood that when she referred to “knowledge”, it included willful blindness.
[10] The appellant had a conviction for impaired driving. The trial judge gave the usual instruction about the use of the appellant’s criminal record and said this:
Convictions involving dishonesty may be more important than others in deciding how much or little you will believe it and rely upon the testimony of that witness.
[11] The appellant argues that the trial judge should have added that the driving offence was not a crime of dishonesty and therefore should not be as important. Again, we do not agree. It was evident to the jury that a driving offence is not a crime of dishonesty.
[12] We turn to the sentence appeal. The sentencing judge identified the correct sentencing principles, referred to the mitigating and aggravating factors and determined that 5 years and 3.9 months, less pre-sentence custody credited at 1.5:1, was the appropriate sentence. In particular, she referred to this court’s decision in R. v. Cunningham (1996), 1996 CanLII 1311 (ON CA), 27 O.R. (3d) 786, at p. 790:
[A]s a general rule, absent exceptional or extenuating circumstances, a sentence in the range of three to five years is warranted for first time offender couriers found guilty of importing a kilogram, more or less, of cocaine for personal gain. … [T]he range of sentence for first offender couriers who smuggle large amounts of cocaine into Canada should be six to eight years in the penitentiary.
[13] Since the amount of cocaine here was over a kilogram, the appellant fell within the longer range of six to eight years. By fixing the sentence at 5 years and 3.9 months before credit for pre-sentence custody, the sentencing judge took into account the youth of the appellant. We see no error in her conclusion.
[14] For these reasons, the appeal as to conviction and sentence is dismissed.
“K. Feldman J.A.”
“E.E. Gillese J.A.”
“M.L. Benotto J.A.”