Court of Appeal for Ontario

Date: 2017-10-16 Docket: C63504

Judges: van Rensburg, Pardu and Fairburn JJ.A.

Between

Her Majesty the Queen Respondent

and

Michelle-Ann Downey Appellant

Counsel

Michelle-Ann Downey, acting in person Erika Chozik, appearing as duty counsel Jessica Smith Joy, for the respondent

Heard: October 2, 2017

Appeal Information

On appeal from the conviction entered by Justice Scott K. Campbell of the Superior Court of Justice on August 10, 2016, and the sentence imposed on January 26, 2017.

Reasons for Decision

The Conviction

[1] The appellant was convicted of various firearm related offences arising from having imported three guns into Canada. The guns were found secreted in the vehicle she drove across the border from Detroit, Michigan.

[2] As the appellant was clearly in control of the guns located within her vehicle, the real issue in this judge alone trial was knowledge. In lengthy reasons, the trial judge concluded beyond a reasonable doubt that the appellant was wilfully blind about what she was transporting.

[3] Duty counsel argues that the trial judge erred in his application of the doctrine of wilful blindness. The error is said to have arisen from his failure to look for evidence from which the inference could be drawn that the appellant suspected that she had guns (as opposed to some other criminal contraband) in her vehicle. Duty counsel argues that there was no such evidence and that the Crown failed in its proof.

The Wilful Blindness Doctrine

[4] We disagree that the trial judge erred in the manner suggested. Wilful blindness acts as a substitute for actual knowledge, when knowledge is a component of mens rea. As Charron J. put it in R. v. Briscoe, 2010 SCC 13, [2010] 1 S.C.R. 411, at para. 21:

Wilful blindness does not define the mens rea required for particular offences. Rather, it can substitute for actual knowledge whenever knowledge is a component of the mens rea. The doctrine of wilful blindness imputes knowledge to an accused whose suspicion is aroused to the point where he or she sees the need for further inquiries, but deliberately chooses not to make those inquiries. [Emphasis in original.]

[5] Wilful blindness involves a state of what has been described as "deliberate ignorance" that involves "an actual process of suppressing suspicion". It does not involve a failure to inquire, but an active decision not to inquire so as to avoid being fixed with knowledge: Briscoe, at para. 24, citing Don Stuart, Canadian Criminal Law: A Treatise, 5th ed. (2007), at p. 241.

[6] The trial judge did not have to find that the appellant knew or suspected there were guns, as opposed to another form of criminal contraband, in the car. To the contrary, wilful blindness was met by finding beyond a reasonable doubt that the appellant had her suspicion aroused to the point that she thought there was a need for inquiry, but she deliberately chose not to inquire because she did not want to know the truth.

Trial Judge's Findings

[7] The trial judge carefully articulated the evidentiary basis upon which he came to this finding. He gave reasons for rejecting the appellant's testimony that she thought she was only transporting $4,000 in cash across the border, including that:

• her evidence was inconsistent with text messages located on her phone;
• she knew it was not illegal to bring $4,000 into the country, yet she told the customs officials she was not carrying cash;
• it was implausible that she thought she would be paid $1,000 for smuggling $4,000 into the country; and
• the appellant admitted that her conscience was telling her she was doing something wrong.

[8] After conducting a thorough review of the appellant's evidence, the trial judge concluded that "she made a conscious decision not to become infused with knowledge that she believed would make her culpable". We see no error in his approach.

The Sentence Appeal

[9] The appellant also seeks leave to appeal sentence and, if leave is granted, seeks a reduction in sentence. The appellant's trial counsel sought a two year less a day conditional sentence. The Crown sought a three to four year sentence. The trial judge concluded that a fit sentence was two years less a day. He parted company with the appellant's submission at trial only to the extent that he declined to allow her to serve the sentence in the community.

[10] It is argued on the appellant's behalf that the trial judge erred by failing to take into account what is described as a lesser form of mens rea, that being wilful blindness, as a factor in mitigation of sentence. We do not agree. The elements of the offence were made out, resulting in the appellant's conviction. In the circumstances of this case, the appellant's wilful blindness did not act as a factor in mitigation of sentence. We note that the trial judge had specific regard to the fact that the appellant was a courier and that there was an absence of evidence that she was behind the scheme to bring the guns into Canada.

[11] We acknowledge that the appellant has taken responsibility for her conduct and has expressed remorse for her actions. She appears to have committed herself to a course of improving her life skills while in custody. The Crown does not dispute any of these facts. This should serve her well on her path to rehabilitation.

[12] That said, we can see no basis upon which to interfere with the sentence imposed. It only differs from trial counsel's position to the extent that the trial judge imposed a custodial term. He correctly articulated the basis upon which a conditional sentence could be imposed and the factors supporting and opposing such a disposition. He did not err. His exercise of discretion must be shown deference.

Disposition

[13] The conviction appeal is dismissed. While leave to appeal sentence is granted, the sentence appeal is dismissed.

K. van Rensburg J.A. G. Pardu J.A. Fairburn J.A.