Court of Appeal for Ontario

Docket: C63035

Judges: Strathy C.J.O., Juriansz and Roberts JJ.A.

Between

Her Majesty the Queen Respondent

and

Dexter Peters Appellant

Counsel

Najma Jamaldin and Paul Genua, for the appellant

Chris Walsh, for the respondent

Heard

May 22, 2018

Appeal Information

On appeal from the conviction entered on April 5, 2016, by Justice Fletcher Dawson of the Superior Court of Justice, sitting with a jury, and from the sentence imposed on August 2, 2016, with reasons reported at 2016 ONSC 4906.

Reasons for Decision

[1] Nature of Appeal

The appellant appeals from his conviction and seeks leave to appeal his sentence for smuggling almost three kilograms of cocaine from Jamaica into Canada.

[2] Facts – Secondary Inspection

The appellant was the subject of a "lookout" on the Canadian Border Services Agency ("CBSA") computer and was sent to a secondary customs inspection at Pearson Airport on his return to Toronto. At the secondary inspection, the CBSA officer ("border officer") asked the appellant and elicited his answers to a number of questions about the contents of the appellant's luggage while he searched them. As a result of his search, the border officer found several sealed plastic bags containing a dried food product.

[3] Facts – Discovery of Cocaine

Upon x-ray inspection, each plastic bag revealed round denser areas of organic material in the middle of each bag. The border officer asked the appellant several additional questions and obtained his responses about the provenance of the bags and how much he paid for them. When the border officer slit open the bags, he found a round puck-like object wrapped in brown packing tape inside each of the bags. He asked the appellant what it was and the appellant answered he did not know. The border officer cut into one of the pucks and found white powder. He conducted a narcotics field test which indicated the presence of cocaine. He thereupon arrested the appellant for importation of cocaine and provided him with his rights to counsel and a caution.

[4] Trial Judge's Detention Finding

In his April 1, 2016 ruling[1] dismissing the appellant's pre-trial application to exclude his statements made to the border officers, the trial judge held that the appellant was not detained until the border officer cut into the plastic bags and found the pucks because it was then that "a reasonable person placed in the position of the border services officer would conclude that there was such a strong particularized suspicion connecting the accused to a specific crime that the questioning and customs examination had changed from one of routine to a focused investigation of a specific offence". The trial judge concluded that the question and answer following detention could be subject to exclusion; however, in response to the trial judge's inquiry, the appellant's position was that he did not wish to have this question and answer excluded.

[5] Conviction Appeal – Appellant's Submissions

With respect to his conviction appeal, the appellant submits that the trial judge erred in determining that his s. 7 and 10(a) and (b) Charter rights had not been infringed. He argues that he was detained upon the x-raying of his luggage but that in breach of his rights, he was not immediately provided with his rights to counsel, and the border officer continued to ask him incriminating questions. He maintains that his answers should have been excluded from the evidence at trial.

[6] Appellant's Arguments on Detention Test

According to the appellant, in considering the issue of detention, the trial judge erred by applying a higher standard, conflating the required "reasonable suspicion" test for detention in the border context with reasonable and probable grounds for arrest. The appellant also argues that the trial judge erred by placing too much emphasis on the border officer's subjective belief that he did not have a sufficiently strong particularized suspicion that the appellant was smuggling illegal drugs when he x-rayed the food bags, which was not objectively reasonable.

[7] Court's Response

We disagree.

[8] Correct Legal Test for Detention at Border

The trial judge adverted to and applied the correct analysis to determine detention in an international border context, namely, whether the border officer has "decided, because of some sufficiently strong particularized suspicion, to go beyond routine questioning of a person and to engage in a more intrusive form of inquiry". Where the officer has made that decision, the individual may be detained, even when subject to that routine questioning: see R. v. Jones (2006), 81 O.R. (3d) 481 (C.A.), at para. 42.

[9] Objective Reasonableness Assessment

The trial judge properly considered the factual circumstances of the case before him, including the objective reasonableness of the border officer's subjective belief, "through the lens of a reasonable person 'standing in the shoes of the [border] officer'": see R. v. MacKenzie, 2013 SCC 50, [2013] 3 S.C.R. 250, at para. 63. The trial judge concluded that he was unable to say "either that [the border officer who questioned the appellant] had grounds to arrest at that point or that he had such particularized suspicion in relation to a specific offence that the [appellant] was detained".

[10] No Confusion of Tests

The trial judge did not confuse the test for detention in a customs context with the test for arrest. As already noted in the preceding paragraph, the trial judge's conclusion did not depend solely on whether the border officer had "grounds to arrest" the appellant. The reference to "grounds to arrest" continued the earlier discussion in the trial judge's reasons as to circumstances where there could be no doubt that if the border officer had subjectively harboured grounds to arrest, the appellant would have been detained.

[11] Findings of Fact – Particularized Suspicion

Moreover, the trial judge weighed all of the evidence to determine that the border officer's subjective belief did not rise to a particularized suspicion that the appellant may be involved in the illegal importation of drugs, and that this subjective belief was objectively reasonable in the circumstances of this case. In particular, the trial judge accepted the border officer's testimony of his past experience that x-ray anomalies seen in food products often yield innocent results. The officer was not certain whether the anomalies in the plastic bags were due to the bulking of the food product, and the entire constellation of factors he was dealing with had not resulted in such a level of particularized suspicion to take his questioning out of the routine. These were conclusions open to the trial judge to make on the record before him.

[12] No Appellate Error

We see no error permitting appellate intervention in the trial judge's application of the pertinent legal principles or in his findings of fact.

[13] Sentence Appeal – Appellant's Submissions

Turning to the appeal from sentence, the appellant submits that the trial judge erred in imposing a 6.5 year sentence (less 359 days of credit for pre-trial custody, for an effective sentence of 5 years, 6 months and 6 days). Specifically, the appellant says that the sentence is harsh and excessive, and the trial judge failed to take into account as a mitigating factor the elimination of accelerated parole review.

[14] Court's Response to Sentence Appeal

We do not accept these submissions.

[15] Sentencing Range and Mitigating Factors

The trial judge carefully considered the relevant mitigating and aggravating factors and imposed a sentence at the lower end of the applicable range of 6 to 8 years set out by this court in R. v. Cunningham (1996), 104 C.C.C. (3d) 542 (Ont. C.A.), at para. 20.

[16] Accelerated Parole Review – Distinguishing Whaling

Moreover, the principle of parity does not mean that this court should depart from that well-established range. Accelerated parole review was abolished more than two years before the appellant's arrest. We agree that Canada (Attorney General) v. Whaling, 2014 SCC 20, [2014] 1 S.C.R. 392, is distinguishable. That case dealt with the constitutionality of the retrospective application of the abolition of early parole in relation to incarcerated offenders who were already serving their sentence when the Abolition of Early Parole Act, S.C. 2011, c. 11, came into force.

[17] Disposition

Accordingly, while we grant leave to appeal sentence, the appeals from conviction and sentence are dismissed.

"G.R. Strathy C.J.O."

"R.G. Juriansz J.A."

"L.B. Roberts J.A."

Footnote

[1] The trial judge's reasons on his ruling are reported at 2016 ONSC 2230.