Court of Appeal for Ontario

Date: 2018-01-24

Docket: C62327

Judges: Watt, Epstein and Brown JJ.A.

Between

Her Majesty the Queen Respondent

and

Simone Foster Appellant

Counsel:

• Cate Martell, for the appellant
• Xenia Proestos and Yael Pressman, for the respondent

Heard: September 6, 2017

On appeal from the conviction entered on February 10, 2016 and the sentence imposed on June 3, 2016 by Justice Jennifer Woollcombe of the Superior Court of Justice, sitting with a jury.

Reasons for Decision

Watt J.A.:

Introduction

[1] Simone Foster decided to visit some relatives in Jamaica.

[2] Simone Foster boarded a plane at Pearson International Airport in Toronto. The plane landed in Kingston, Jamaica. Ms. Foster took a taxi van to her aunt's home in Ocho Rios. She visited with her aunt, her sister and her cousins for a few days before she returned to Canada.

[3] Upon her return to Canada, Simone Foster was interviewed at primary inspection at Pearson International Airport. She was instructed to proceed to baggage claim. Between primary inspection and baggage claim, an officer of the Canadian Border Services Agency approached her and struck up a conversation. Simone Foster's answers to the officer's queries prompted the officer to refer Ms. Foster to secondary inspection.

[4] Things did not go well for Ms. Foster at secondary. A clothing oddity led to her detention. A pat-down search led to her arrest. Her arrest led to her strip search. And her strip search revealed that the bra Ms. Foster was wearing contained 1.2 kg of cocaine.

[5] Simone Foster admitted that she imported cocaine into Canada in her bra. At her trial, she advanced the excuse of duress. The jury rejected her testimony, the sole evidentiary foundation for the excuse. The trial judge sentenced her to imprisonment for a term of three years.

[6] Simone Foster appeals both her conviction and her sentence. She asks that her conviction for importing be quashed and further proceedings against her be stayed because of the number of trials she has already undergone. If the appeal from conviction fails, she asks that her sentence be reduced.

[7] These reasons explain why I would dismiss the appeal from conviction, grant leave to appeal sentence but dismiss the appeal from sentence.

The Background Facts

[8] The single ground of appeal against conviction relates to one aspect of the trial judge's charge to the jury on the excuse of duress. It requires some reference to the circumstances relied on to found the excuse.

[9] At trial, it was uncontested that, apart from the availability of the excuse of duress, the Crown had proven the essential elements of the offence charged – importing – beyond a reasonable doubt.

The Trip to Jamaica

[10] In early spring, 2012, Simone Foster had received an income tax refund and decided to use part of it for a trip to Jamaica to visit relatives. It would be only her third trip out of Canada. She planned to stay with her relatives for a week.

[11] On May 4, 2012, Ms. Foster flew to Kingston, Jamaica. There, she took a taxi van to Ocho Rios, a trip of about two and one-half hours. When she arrived, she stayed with her aunt, her aunt's children and Ms. Foster's sister.

The Early Days: D.J. Makes Nice

[12] The day after her arrival, Ms. Foster and some of her relatives walked to a plaza not far from her aunt's home. As she stood outside a restaurant, a man who said his name was D.J. approached her and began to talk to her. Ms. Foster explained that she was visiting from Toronto and staying with family.

[13] The conversation with D.J. turned to Ms. Foster's plans for the evening. Ms. Foster said that she and her relatives planned to go by cab to a club called "Amnesia". D.J. volunteered to drive them to the club. Around 10:30 p.m. that evening, D.J. picked up Ms. Foster, her sister and her cousin and took them to Amnesia. D.J. spent the evening with Ms. Foster and her relatives, socializing with them and buying them drinks before driving them back home when the club closed.

[14] Two days later, another casual encounter with D.J. ended with a second evening at Amnesia and a return to Ms. Foster's aunt's home after closing time.

[15] A further two days later, Ms. Foster encountered D.J. outside his barber shop. He asked about her return home. She told him that she was returning home on the Friday of that same week. D.J. asked her to drop by his barber shop on Thursday so he could say goodbye to her.

The Barber Shop Visit: D.J. Turns Nasty

[16] On Thursday afternoon, Simone Foster and her sister walked to D.J.'s barber shop. Ms. Foster's sister and D.J.'s brother left the shop to get some food.

[17] D.J. invited Ms. Foster into an office at the rear of the barber shop. He closed the door and sat down on the desk. The office had no window. D.J. told Ms. Foster that he wanted her to bring something to his friend in Canada. The "something" was cocaine. Ms. Foster told D.J. that she would not do it. D.J. pointed out that he had done favours for her all week. He asked why she would not do as he had asked.

[18] Simone Foster tried to leave the office at the rear of the barber shop. D.J. slammed the door. He reached into a drawer and pulled out a gun. He told Ms. Foster that she had no choice. He produced a bra and asked Ms. Foster to try it on. She told him that it didn't fit. So he adjusted it, then took it back. D.J. told Ms. Foster that he would take her to the airport the next day to ensure that she told no one about their conversation.

[19] D.J. told Simone Foster that he knew where her family lived in Ocho Rios. He also had family in the area where she lived in Toronto. He said he had "people" who would watch her on the way back to Toronto. He claimed to know the Jamaican police. He warned her that he or his "people" would kill her family if she tried to go to the airport without him, or said anything to anyone.

[20] Simone Foster and her sister walked back to their aunt's house after they left the barber shop. Ms. Foster was too afraid to tell her sister about D.J.'s threat. Although telephones were available at her aunt's house, Ms. Foster did not try to call her mother in Toronto. She did not ask anyone in Ocho Rios for help. She was afraid to call her mother in Toronto for fear that her mother would contact the Toronto Police, who would contact Jamaican authorities.

The Trip to the Airport

[21] D.J. picked up Ms. Foster at her aunt's home at 8:00 a.m. the following morning. They drove to the barber shop. There, D.J. told her to put on the bra. It was loose. He gave her a second bra to wear over it and a shirt for outerwear. He also told her what to say to the Canadian Border Services Officers in Toronto.

[22] En route to the airport in Kingston, D.J. told Ms. Foster that someone would meet her at Pearson International Airport in Toronto. He made a telephone call and described the colour of the shirt Ms. Foster would be wearing. He repeatedly warned her not to say anything to anyone, reminding her that he knew people at the airport in Jamaica; that "people" would be watching her on the plane and at the Toronto airport; and that it was not hard to figure out where she lived. As long as she did as she had been told, everything would be alright. But if anything happened to him, D.J. said, Ms. Foster's family would be killed.

[23] Simone Foster believed what D.J. told her. She was afraid. As a result, she did not approach or speak to anyone at the airport in Kingston.

The Return Flight

[24] Ms. Foster did not approach anyone on the aircraft for help. She believed D.J.'s threats that there would be people on the plane watching her. She did not know who those people were.

The Toronto Airport

[25] When the flight landed in Toronto, Ms. Foster passed through the primary inspection area. Her fellow passengers were all around her. There was no privacy at the primary inspection booths. Each was staffed by two Border Services Officers. Nearby passengers were able to hear anything Ms. Foster said. She said nothing.

The Baggage Claim

[26] As Ms. Foster proceeded to the baggage claim area, an officer of the Canadian Border Services Agency approached her. The officer asked whether Ms. Foster had been around any drugs in Jamaica. Ms. Foster "shut down". However, she did say that she had smoked marijuana two nights earlier. She said that she was willing to be searched. The officer directed Ms. Foster to attend secondary inspection after collecting her baggage.

The Secondary Inspection

[27] At secondary inspection, the officer asked Ms. Foster about her trip, employment and income. When the officer searched her baggage, she noticed a difference between some bras in the bag and the one Ms. Foster was wearing. Ms. Foster explained that she was wearing two bras, a second over her last clean one that was "not pretty". The officer considered Ms. Foster's explanation for the two bras unusual. She sought permission from a supervisor to detain Ms. Foster on the basis that she suspected Ms. Foster of being in possession of contraband.

The Detention, Arrest and Strip Search

[28] After the officer told Ms. Foster she was being detained and explained why, the officer performed a pat-down search. Ms. Foster's bust area felt hard to the touch. The officer believed that Ms. Foster had narcotics in her bra; arrested her; advised her of her right to speak to a lawyer and facilitated a call to duty counsel.

[29] The officer then conducted a strip search of Ms. Foster. She found a substance inside the bra, which tested positive for cocaine. The bra and its contents weighed 1.4 kilograms. The officer found no other contraband on Ms. Foster's person or in her baggage and turned her over to the custody of the RCMP.

The Appeal from Conviction

[30] Simone Foster ("the appellant") advances a single ground of appeal against conviction. This ground has to do with the trial judge's instructions to the jury on an element of the excuse of duress. This instruction concerned one basis upon which the jury could conclude the excuse was unavailable to the appellant.

The Additional Background

[31] To better appreciate the nature of the complaint, it is helpful to recall some aspects of the evidence adduced at trial and the specific passages in the final instructions to which objection is taken.

The Timing of the Threats

[32] The appellant was the only witness who testified about the threats attributed to D.J.

[33] According to the appellant, D.J. made the threats in a small office at the rear of his barber shop during the afternoon of the day before the appellant was to leave Jamaica. The barber shop was in Ocho Rios, where the appellant's family lived. The threats included harm to the appellant, and to her relatives in both Jamaica and Toronto. D.J. also warned the appellant that his associates would be watching her at the airport in Jamaica, during the flight to Canada and at the airport in Toronto. When the threats were first made, the appellant was not in possession of any of the drugs she would be bringing into Canada.

[34] The next day, D.J. provided the appellant with the bra in which the cocaine was secreted, as well as a second bra and a shirt to wear over it. He drove her to the airport. He reiterated his threats and reminded the appellant that she would be under surveillance during and after the return flight to Toronto.

The Opportunities to Notify Authorities

[35] After the first threats were made at the barber shop, the appellant returned to her relatives' home in Ocho Rios. Several relatives were there. Telephones were available. She said nothing. She did nothing.

[36] At the airport in Kingston, Jamaica, the appellant did not alert anyone to her predicament. She said nothing to anybody about the threats. Or about the cocaine hidden in her bra.

[37] On the return flight to Toronto, the appellant said nothing to the flight crew about her quandary. Not during boarding. Not during the flight. And not on disembarking.

[38] The appellant continued her silence at the primary and secondary inspections during her exchanges with officers of the Canadian Border Services Agency.

The Jury Instructions on Duress

[39] At trial, it was common ground that the case for the Crown established every essential element of importing cocaine beyond a reasonable doubt. The issue for the jury to determine was whether the appellant was to be excused from liability on the basis of duress. And that depended entirely on the jury's assessment of the appellant's testimony, which provided the sole evidentiary support for the excuse.

[40] In her charge to the jury, the trial judge divided up the excuse of duress into its essential elements, converted each essential element into a question for the jury to consider and explained the legal requirements of each element.

[41] The third question posed by the trial judge for the jury's consideration was this:

Would a reasonable person in Ms. Foster's circumstances have believed that there was a safe way to avoid the harm that was threatened, other than by importing cocaine?

As the trial judge explained, this question required the jury to consider whether there was some other way in which the appellant could have safely got out of the situation in which she found herself, other than by committing the offence. In other words, was there a safe means of escape from the harm or consequences threatened by D.J., other than by importing the cocaine into Canada.

[42] After summarizing the essential features of the appellant's testimony about the conduct from the time at which she claimed D.J. uttered the threats until the flight landed at Pearson International Airport, the trial judge then turned to what the appellant did after she disembarked from the flight:

Finally, you have been told that Ms. Foster said nothing to anyone at Pearson International Airport, including the border services officer at the primary inspection, Officer Morgan when she was roving, anyone during the time she was collecting her baggage, and Officer Morgan or anyone else in the secondary area prior to her detention. Again, you have Ms. Foster's evidence as to why she decided to say nothing. While the offence of importing was completed at the time Ms. Foster arrived in Canada, it continued as she made her way through the airport stages from the primary inspection, to the baggage hall and then to the secondary inspection area. You must decide whether a reasonable person would have found that there was a safe way to get out of the situation prior to being detained, rather than continuing with the offence. You are left with many suggestions made by the Crown as to what options Ms. Foster might have availed herself of to avoid the harm. And you have the evidence of Ms. Foster that she did not feel that any of these options was viable because she feared that none of them would actually avoid the harm threatened by [D.J.]. It will be for you to determine whether Ms. Foster's belief was one that was reasonably held by a person in her circumstances.

The Arguments on Appeal

[43] In this court, the appellant takes up an argument advanced by trial counsel, but rejected by the trial judge. The submission focuses upon the relationship between the time at which the crime of importing is complete and the disentitling effect of a safe avenue of escape on the availability of the excuse of duress.

[44] The appellant says that the offence of importing was complete once the cocaine secreted in her bra entered Canada. Importing is not a continuing offence. In other words, importing does not continue, unlike some offences such as possession, beyond the time at which it is completed. This is not a case in which the appellant had to pick up the drugs at the baggage carousel where a plausible argument could be made that the offence remained inchoate until the contraband has been reclaimed.

[45] The appellant contends that once she entered Canada carrying the cocaine, the offence was complete. Law enforcement officials had no discretion to release her. Their only option was to arrest her. She had no means of escape at the airport because, to be availing, the legal means of escape must precede the crystallization of the offence. It follows, the appellant continues, that the trial judge's instruction that the appellant could have sought help from Canadian Border Services Agency officers at the airport as a safe avenue of escape was wrong in law and deprived her of a proper adjudication of the excuse of duress. This error, the appellant says, entitles her to a new trial.

[46] The respondent advances three arguments in support of the trial judge's instructions on safe avenue of escape:

i. that a safe avenue of escape may be available after an offence has been completed;

ii. that the importation of drugs was, as a practical matter, ongoing as the appellant made her way through the airport; and

iii. that, in any event, in determining whether the appellant had a safe avenue of escape, the jury was entitled to consider her entire course of conduct, from the time the threats were first made until she was detained at Pearson International Airport, including her failure to seek assistance from the Canadian Border Services Agency officers who questioned her at the airport.

[47] According to the respondent, duress, an excuse grounded on moral involuntariness, does not operate to negate any essential element of the offence. It functions as an excuse in law for an offence that has already been committed, thus can excuse a person from criminal responsibility even after the actus reus, accompanied by the requisite mens rea, has concluded. The underlying purpose of the excuse is to relieve from criminal responsibility those who had no real choice but to commit the offence. As a practical matter, this may entail an examination of the entire time until the harm threatened is carried out, which may frequently extend beyond completion of the essential elements of the offence.

[48] Second, the respondent says that, in practical terms, the importing offence was ongoing as the appellant made her way through the airport. As a result, it was open to the jury to consider her failure to seek available assistance from domestic authorities in assessing whether she lacked a safe avenue of escape. This conclusion follows from the decision of this court in R. v. Valentini (1999), 43 O.R. (3d) 178 (C.A.), at para. 54.

[49] Third, the respondent submits, irrespective of how the offence of importing is framed, the appellant's conduct at Pearson International Airport until she was detained is relevant to her claim of duress. Her failure to seek any assistance from domestic authorities is relevant to an assessment of her capacity to escape the threats of harm made in Jamaica if she failed to import the cocaine.

The Governing Principles

[50] Several principles exert an influence on a determination of this ground of appeal. Some are of general application to the essential elements of offences and excuses. Others are specific to the offence charged and the excuse advanced in response.

The Elements of an Offence

[51] Expressed in the Latin maxim, actus non facit reum nisi mens sit rea, it is a fundamental principle of our criminal law that a person may not be convicted of a crime unless the Crown proves beyond a reasonable doubt that the person:

i. engaged in conduct in circumstances forbidden by the criminal law (the actus reus or external element); and

ii. had a defined state of mind in relation to the prohibited conduct (the mens rea or mental or fault element).

See, David Ormerod, ed., Smith and Hogan's Criminal Law, 13th edition (New York: Oxford University Press, 2011), at p. 46.

[52] The external element or actus reus includes all the elements of the offence except for the mental or fault element. As a result, the external element or actus reus can include:

i. conduct (act or omission);

ii. circumstances or state(s) of affairs; and

iii. result.

Sometimes, this element requires proof that the conduct, which occurred in required circumstances, yielded or caused a certain result. On other occasions, less frequent in their occurrence, proof of conduct alone is sufficient: Smith and Hogan, at pp. 50-51.

[53] Identifying the starting and ending point of the actus reus of an offence is important for at least two reasons. The first is the substantive requirement that, at some point, the actus reus and mens rea must coincide: see, for example, R. v. Cooper, [1993] 1 S.C.R. 146. The second has to do with procedural issues, such as the time frame of the charge and territorial jurisdiction over the offence: Smith and Hogan, at p. 51.

[54] Sometimes, the conjunction or concurrence of the actus reus and mens rea, which makes the offence complete, does not terminate the offence. The conjunction of the two elements essential for the commission of the offence continues. As a result, an accused remains in what might be described as a state of criminality so long as the offence continues: Bell v. The Queen, [1983] 2 S.C.R. 471, at p. 488. We describe these offences, such as possession, as continuing offences: Bell, at p. 488.

The Offence of Importing Controlled Substances

[55] Section 6(1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 ("CDSA") creates the offence of importing into Canada a substance included in any of Schedules I-VI under the Act. Neither the offence-creating section, any other provision of the Act, the Interpretation Act, nor other related statute defines the term "import". The same was true of the predecessor of the CDSA, the Narcotic Control Act, R.S.C. 1970, c. N-1.

[56] In its ordinary sense, "import" means to bring something into a country, or to cause something to be brought into a country: Bell, at pp. 488-489. But the ordinary meaning of "import" tells us little about when the offence is complete, and whether it continues beyond its completion, as for example, is the case with the related offence of possession. A careful examination of the decision in Bell provides assistance on both issues.

[57] In Bell, four footstools were shipped on an Air Canada flight from Jamaica to Canada. The final destination of the footstools was St-Hubert, Québec. The footstools first arrived in Toronto, where a customs inspector examined them and found cannabis secreted in them. The inspector notified the RCMP, who instructed customs officers to forward the stools to Mirabel, Québec. At Mirabel, the stools were taken apart, and the cannabis removed. The stools were then re-assembled, re-packaged and returned to Mirabel to await pick up by Bell, the consignee. Bell arrived, paid the duty and took the stools home to St-Hubert. There he was arrested and charged with three offences under the Narcotic Control Act:

i. importing cannabis (at Mirabel);

ii. possession of cannabis for the purpose of trafficking (at Mirabel); and

iii. possession of cannabis (at St-Hubert).

[58] At the end of the Crown's case at trial, Bell sought a directed verdict on the importing count. He advanced two arguments:

i. that the importing was complete at Toronto, thus there was no evidence that it had been committed at Mirabel as alleged in the indictment; and

ii. that the RCMP broke the chain of possession and the act of importing was complete before Bell received the goods.

The trial judge directed a verdict of acquittal on the second ground. The Crown did not continue the prosecution on the remaining counts. Bell was found not guilty.

[59] The Crown appealed Bell's acquittal on the importing count to the Québec Court of Appeal. That court allowed the appeal, set aside the acquittal and ordered a new trial on the ground that importing was a continuing offence that continued until Bell picked up the stools at Mirabel. The intervention of the RCMP was irrelevant to Bell's liability.

[60] Bell appealed as of right to the Supreme Court of Canada. There he argued that the offence of importing was complete when the goods entered Canada. This occurred on a date that fell outside the date alleged in the indictment and was prior to Bell's involvement with the goods. He also submitted that if the offence had been committed, it occurred in Toronto where the plane landed on entry into Canada, not at Mirabel as alleged and thus not within the jurisdiction of the courts of Québec.

[61] The Crown contended that the entire offence was not terminated in Ontario, rather continued until Bell picked up the parcels in Québec and was not interrupted by the RCMP's removal of the cannabis.

[62] The Supreme Court of Canada unanimously dismissed Bell's appeal and affirmed the decision of the Québec Court of Appeal ordering a new trial on the count of importing alleged to have occurred at Mirabel. Despite unanimity on the result, the judges who delivered reasons differed on when the offence of importing terminated.

[63] For the majority of four judges, McIntyre J. acknowledged that there was significant support for the view that importing was a continuing offence which extended beyond the arrival of the contraband in Canada. He described a continuing offence as one in which the conjunction of the actus reus and mens rea, which makes the offence complete, does not, as well, terminate the offence. The conjunction of the two essential elements continues, and the accused remains in a state of criminality while the offence continues. McIntyre J. described possession of stolen property as a continuing offence: Bell, at p. 488.

[64] The majority rejected the submission that importing was a continuing offence. McIntyre J. expressed his conclusion in this way:

It is apparent, in my view, that importing a narcotic cannot be a continuing offence. I do not find it necessary to make extensive reference to dictionaries in order to define the word "import". In my view, since the Narcotic Control Act does not give a special definition of the word, its ordinary meaning should apply and that ordinary meaning is simply to bring into the country or to cause to be brought into the country. With the utmost respect for judges who have taken a different view, I am of the opinion that the characterization of importing a narcotic as a continuing offence is misconceived. The offence is complete when the goods enter the country. Thereafter the possessor or owner may be guilty of other offences, such as possession, possession for the purpose of trafficking, or even trafficking itself, but the offence of importing has been completed and the importer in keeping or disposing of the drug has embarked on a new criminal venture.

Bell, at pp. 488-489.

[65] Later, McIntyre J. added:

The Narcotic Control Act forbids the importation of narcotics into Canada. The offence of importation may be committed anywhere in Canada and one offence may occur in whole or in part at more than one location in Canada. As in the case of the honest merchant, the drug importer may from one part of Canada make all the arrangements and do all the acts necessary to bring about the importation of narcotics at another point. In so doing, it may be said he has committed an offence which has occurred at two places, or commenced in one jurisdiction and completed in another. Either the courts of the jurisdiction where the goods entered the country or those of the province where the acts or arrangement leading to the importation occurred will have jurisdiction to deal with the case: see s. 432(b) of the Criminal Code.

Bell, at p. 491.

[66] In a separate judgment, Dickson J., as he then was, described the main question to be decided as whether the act of importing a narcotic terminated upon the narcotic crossing the border into Canada, or whether the act of importing carried on until the narcotic reached its final destination in Canada. Dickson J. considered that to import into Canada meant to bring in goods from anywhere outside Canada to anywhere inside Canada. He saw no reason in principle or precedent to restrict the relevant location within Canada to the actual point of border-crossing. He described importing as a process, which necessarily included the act of crossing the border, but extended to the point of the intended final destination: Bell, at p. 477.

[67] Turning to the circumstances of the case, Dickson J. concluded:

The elements of an offence of importing are present as soon as the goods cross the border, but the offence is not over and done with until the goods have reached their intended final destination within Canada. Accordingly, a charge could be laid relating to the point of entry or of destination or anywhere in between. In this case there was evidence that the intended and actual destination within Canada was St-Hubert, but there were stops along the way at Toronto and Mirabel. In my view it was open to the Crown to charge importing at Toronto or at Mirabel or at St-Hubert.

Bell, at p. 481. In Dickson J.'s view, it was not necessary to decide whether importing was a continuing offence: Bell, at pp. 481-482.

[68] In the result, the Supreme Court of Canada confirmed the decision of the Québec Court of Appeal ordering a new trial on the count of importing alleged to have occurred at Mirabel. It would seem logically to follow from this disposition that all members of the court concluded that there was some evidence upon which a properly instructed trier of fact, acting reasonably, could find that Bell imported the cannabis at Mirabel.

[69] Three decades after Bell was decided, the Supreme Court of Canada considered whether another crime – kidnapping – was a continuing offence. In Bell, McIntyre J. had given kidnapping as an example of a crime that was not a continuing offence. Like importing under the CDSA, kidnapping is not statutorily defined.

[70] In R. v. Vu, 2012 SCC 40, [2012] 2 S.C.R. 411, the Supreme Court of Canada unanimously held that kidnapping is a continuing offence. Moldaver J., who delivered the judgment of the court, found the reasoning of the New South Wales Court of Criminal Appeal in Davis v. R., [2006] NSWCCA 392, persuasive.

[71] In Davis, the New South Wales Court of Criminal Appeal held that the subsequent confinement of the victim formed part of the offence of kidnapping, an offence in which the taking begins with the detention and asportation of the victim and only ends when the victim is released or ceases to withhold consent to the detention: Davis, at para. 64.

[72] The Davis court also drew a distinction between the completion of an offence in law, on the one hand, and its completion in fact, on the other:

The offence might at that moment be complete in law, because the taking has been completed for the purposes of proving the offence, but it is not necessarily complete in fact.

Davis, at para. 64.

[73] In Vu, Moldaver J. rejected the argument that McIntyre J.'s observation in Bell that kidnapping is not a continuing offence was controlling. He wrote:

In my view, Bell does not assist the appellant. Much as the appellant seeks to rely on McIntyre J.'s observation that kidnapping is not a continuing offence, that observation is not authoritative. The offence of kidnapping was not before the Court. McIntyre J. did not discuss the essential features of kidnapping, nor did he cite any supporting case law. McIntyre J. merely used the offence of kidnapping as an example. As such, this observation is obiter. (See R. v. Henry, 2005 SCC 76, [2005] 3 S.C.R. 609, at para. 57).

Vu, at para. 55.

[74] Provincial appellate courts have struggled to apply the bright line rule of the Bell majority that importing is not a continuing offence and is complete once the contraband enters the country.

[75] In R. v. Miller (1984), 12 C.C.C. (3d) 54, the British Columbia Court of Appeal considered a case in which the contraband was transported into Canada by ship, then off-loaded on an island off the coast of British Columbia. In affirming the convictions of those who assisted in the off-loading on the island (and who would not have been liable if the importing were complete when the ship crossed the international boundary and entered Canada in the course of its voyage), the British Colombia Court of Appeal concluded that under Bell the offence was complete by the time the vessel arrived at its first stop in Canada and the contraband had been unloaded: Miller, at p. 83.

[76] In R. v. Tan (1990), 44 O.A.C. 324, Tan travelled from Hong Kong to Toronto via Vancouver. At Vancouver, his luggage was taken off for customs inspection. Delayed at immigration, Tan missed his connecting flight to Toronto. No one claimed his luggage. It remained "in bond", then was reloaded on a Toronto-bound flight before Tan departed on a later flight. In Toronto, customs officials found heroin in Tan's luggage. When Tan claimed his bags, he was arrested on a charge of importing.

[77] This court rejected an argument that the courts of Ontario had no jurisdiction because, under Bell, the offence was complete in Vancouver. The court pointed out that the baggage remained in bond in Vancouver and did not pass through customs officers. Since Ontario was the real target for the importation of the heroin, the place in which the purchaser was to pick it up for distribution, the courts of Ontario had jurisdiction to try the offence: Tan, at para. 8.

[78] In R. v. Hayes (1996), 105 C.C.C. (3d) 425 (Man. C.A.), the appellant was charged in Winnipeg with importing heroin. Hayes had travelled from Winnipeg to Thailand and then to Germany, where a drug-detecting dog identified Hayes' suitcase as containing drugs. Hayes picked up his suitcase, passed through customs and disappeared. A day later, a parcel was mailed from Germany to a relative of Hayes in Winnipeg. The parcel arrived in Winnipeg three weeks later. When the curious relatives opened the package, they found it contained a white substance. They called the police. The white substance was heroin.

[79] The package had been marked with a customs stamp in Ontario. The evidence at trial did not reveal whether the package had come to Ontario directly from Germany or to some other port of entry. On appeal from a conviction of importing entered at trial, Hayes argued that no province had jurisdiction to try him.

[80] Huband J.A. delivered the unanimous judgment of the Manitoba Court of Appeal. After acknowledging his attraction to the reasoning of Dickson J. in Bell, Huband J.A. described the effect of the reasons of the Bell majority:

I think there is much to be said in favour of the decision in R. v. Tan except that the statement by McIntyre J. in the Bell case says nothing about where the drugs passed through customs, or what the ultimate destination may be. It is hard to circumvent the plain, blunt statements that the importing of a narcotic cannot be a continuing offence, and that it is complete when the goods enter the country. If these statements of the law are to be changed, the change should come at the highest level.

See, Hayes, at p. 431.

[81] Turning his attention to another portion of McIntyre J.'s reasons in Bell, Huband J.A. picked up on two additional points. First, the observation that the majority's interpretation of what constituted importing was "not a narrow one". And second, the majority's conclusion that it was not necessary to prove that an accused actually carried the contraband or was present at the point of entry to establish guilt of importing. The planning of the importation could take place in one province, and the contraband enter though another province. In such a case, both provinces would have jurisdiction to try the case: Hayes, at p. 432. In the result, the ground of appeal failed. The court confirmed the jurisdiction of the Manitoba courts to try the case.

[82] In Valentini, the appellants Bonin and Tepsa advanced the common law excuse of duress in response to counts of importing and trafficking in cocaine, and possession of cocaine for the purpose of trafficking. The appellants travelled together from Aruba. On arrival at Pearson International Airport, both were referred to secondary inspection where officers found cocaine secreted in false-bottomed duffel bags.

[83] On appeal, the appellants contended that the trial judge erred in instructing the jury on the "safe avenue of escape" element of the excuse of duress. The error alleged was an instruction that the appellants could have sought assistance from the Canadian authorities:

Miss Tepsa and Mr. Bonin basically said that they were too scared to take advantage of the opportunities that they both acknowledged that they had to contact the police in Toronto and Aruba, Mr. Bonin, prior to the trip the customs people and police, on the aircraft to Toronto and in Toronto both the customs officers and police; for Miss Tepsa, the customs people in Aruba, on the plane, in Toronto, the customs people and the police. [Emphasis added.]

See, Valentini, at para. 52.

[84] The appellants argued, as the appellant does here, that contacting the authorities in Toronto did not constitute a safe avenue of escape because, as Bell holds, the offence of importing was complete prior to the appellants having the opportunity to seek assistance from the customs agents and the police. On behalf of the court, Rosenberg J.A. rejected this argument. He wrote:

Nothing turned on the technical meaning of importing in this case and, in my view, the appellants were not prejudiced by this part of the charge to the jury for at least two reasons. First, this alleged error has no impact on the convictions for trafficking and possession for the purpose of trafficking, which are continuing offences. Second, as a matter of fact, the appellants could have sought the assistance of the authorities immediately upon entering the airport before they physically took possession of the contraband. The importing offence was at least not complete until that point: R. v. Miller et al. (1984), 12 C.C.C. (3d) 54 (B.C.C.A.) at 82-4; Re Martin and The Queen (1973), 11 C.C.C. (2d) 224 (Ont. H.C.J.) at 228. The fact that neither appellant sought the assistance of the police or customs officials even after they had taken possession of the bags containing the drugs was compelling evidence that the reason for completing the importation was not the lack of a safe avenue of escape. Accordingly, I have not been persuaded that the jury was misdirected on the duress defence.

See, Valentini, at para. 54.

[85] A similar issue has emerged in other jurisdictions.

[86] In Australia, the Criminal Code Act, 1995 (Cth.), creates several offences of importing a border controlled substance with maximum punishments linked to the quantity of the substance imported. For example, it is an offence under Division 307.1(1) to import a commercial quantity of a border controlled drug, and under Division 307.2(1) to import a marketable quantity of the same drug.

[87] Division 300.2 defines "import" exhaustively as "import the substance into Australia" and includes:

(a) bring the substance into Australia; and

(b) deal with the substance in connection with its importation.

[88] In Campbell v. The Queen, [2008] NSWCCA 214, the New South Wales Court of Criminal Appeal considered that, in the context of a criminal code dealing with a wide range of drug offences, the term "imports" should be assigned a precise, rather than an expansive meaning. Spigelman C.J., with whom the other members of the court agreed, suggested the following meaning:

In my opinion, the purpose of the Act requires the border controlled drugs and precursors "to arrive in Australia from abroad" and to be delivered at a point which, in the words of Isaacs J in Wilson v Chambers, would "result in the goods remaining in Australia". That occurred when the goods were picked up by the appellant's agent or, at the latest, when the container arrived at her premises and before it was unpacked.

See, Campbell, at para. 128. See also, R. v. Toe, [2010] SASC 39, at paras. 70-71.

[89] In New Zealand, it is an offence to import a controlled drug into the country. As in Canada, the term "import" is not defined. In R. v. Hancox, [1989] 3 NZLR 60, the Court of Appeal of New Zealand assigned the following meaning to "import":

In its statutory setting "import" should in our view be accorded its ordinary meaning of to introduce or bring in from abroad or to cause to be brought in from abroad

"To import" involves active conduct; and the bringing of goods into the country or causing them to be brought into the country does not cease as the aircraft or vessel enters New Zealand territorial limits. Importing into New Zealand for the purposes of s 6(1)(a) is a process. It does not begin and end at a split second of time. The element of importing exists from the time the goods enter New Zealand until they reach their immediate destination. It follows that, as was the case in Saxton v Police, the importer may be convicted under s 6(1)(a) even though the goods are intercepted by customs and never reach the addressee – or are otherwise in transit, that is until any shipping and customs formalities are completed and the consignment is available to the consignee at its immediate destination.

See, Hancox, at p. 62.

Excuses

[90] In the criminal law, excuses, like justifications, are general defences which, if raised successfully, result in a verdict of not guilty. Each operates despite the proven existence of the actus reus and mens rea of the offence in issue. At the risk of oversimplification, an act is justified when it is permitted, and excused when society disapproves of it, but thinks it not right to punish the actor. A justification speaks to the rightness of the conduct. An excuse relates to the circumstances of the actor.

[91] Excuses represent a legal conclusion that conduct is wrong, undesirable in our society, but that criminal liability is inappropriate because some characteristic of the actor vitiates society's desire to punish him. Excuses do not destroy blame, rather shift it from the actor to the excusing conditions. Excuses focus on the actor, justifications on the acts. Acts are justified, actors excused.

The Excuse of Duress

[92] Duress is an excuse built upon the principle of moral involuntariness: R. v. Ryan, 2013 SCC 3, [2013] 1 S.C.R. 14, at para. 23; R. v. Ruzic, 2001 SCC 24, [2001] 1 S.C.R. 687, at para. 47. The concept that underpins the excuse of duress is normative involuntariness, said differently, that there is no legal way out: Ryan, at para. 23; R. v. Hibbert, [1995] 2 S.C.R. 973, at para. 55.

[93] The excuse of duress consists of several elements. Among those elements, and of importance here, is the absence or non-existence of a safe avenue of escape for the person charged. This element is evaluated on a modified objective basis, that is to say, a reasonable person similarly situated: Ryan, at paras. 55 and 65; Ruzic, at para. 61. A trier of fact must take into account the particular circumstances in which an accused found herself and her ability, with her background and essential characteristics, to perceive a reasonable alternative to committing a crime. What is involved is a pragmatic assessment of the position of the accused, tempered by the need to avoid negating criminal liability on the basis of an excuse which is at once wholly subjective and unverifiable: Ruzic, at para. 61.

[94] The "safe avenue of escape" analysis involves a reasonable person in the same situation as the accused and with the same personal characteristics and experience as the accused. The issue is whether such a person would conclude that there was no safe avenue of escape or legal alternative to committing the offence. If a reasonable person, similarly situated, would think that there was a safe avenue of escape, this element or requirement has not been met. The excuse of duress would fail because the accused's commission of the crime cannot be considered morally involuntary: Ryan, at para. 65.

[95] A final point about the "safe avenue of escape" or "evasive action" element of the excuse. This could be seen as part of a broader question or inquiry, that is to say, whether the prior threat remained effective when the accused engaged in the conduct that is the external element or actus reus of the offence: Smith and Hogan, at p. 353. See also, R. v. Hasan, [2005] UKHL 22, at paras. 25-26.

The Principles Applied

[96] As I will explain, I would not give effect to this ground of appeal. In the circumstances of this case, I am not satisfied that the challenged instruction reflects prejudicial error.

When Was the Offence of Importing Complete?

[97] Central to our decision on this ground of appeal is a determination of when the offence of importing was complete. That determination is critical because if the offence was complete prior to the appellant's contact with ground personnel at Pearson International Airport, in particular members of the Canadian Border Services Agency, then the jury should not have been told to consider their availability in assessing whether the appellant had a safe avenue of escape.

[98] I approach my determination of this issue in a series of steps bearing in mind that the contraband was brought into Canada concealed in the clothing of its courier, the appellant, and discovered on a search while the appellant was detained on a secondary inspection by agents of the Canadian Border Services Agency.

[99] As the majority in Bell teaches, the enabling legislation, now s. 6(1) of the CDSA, does not define the offence of importing a controlled substance. What we learned from the Bell majority is that the term "import" means to bring into Canada from elsewhere, or cause to be brought into Canada from elsewhere, a controlled substance.

[100] We also learned from the Bell majority that the offence of importing is complete when the contraband "enters the country". The offence is complete when the actus reus and mens rea are conjoined. Thereafter, a person in possession of the contraband may commit another offence, such as possession or possession for the purpose of trafficking, but is not then guilty of importing. In other words, the coalescence of actus reus and mens rea terminates the importing offence. What occurs thereafter is no longer importing, but something else.

[101] The final point that emerges from the majority's reasons in Bell is that importing is not a continuing offence. The offence is complete with the conjunction of actus reus and mens rea. And this happens when the contraband "enters the country", a phrase that says nothing definitive about when the offence begins or ends.

[102] Were I free to do so, I would follow the reasoning of Dickson J. in his minority opinion in Bell. Importing contraband is a process. It begins elsewhere with procurement of the contraband, followed by its transport, by some means or other to a point of entry, and ultimately to a domestic destination or recipient. To posit its completion upon entry seems at odds with what importing is all about.

[103] Despite my preference for the minority's reasoning in Bell, I reach my conclusion by applying not only what the majority said in Bell, but also the disposition it made of the appeal. I add some ingredients from some post-Bell authorities to reach a conclusion that the importing offence in this case was not complete until the secondary inspection ended.

[104] Recall that the Bell court was concerned with an allegation of importing said to have taken place at Mirabel, Québec. The package entered Canada at Toronto, where it was off-loaded, inspected and found to contain cannabis. It was then forwarded to Mirabel where it was taken apart, the contraband removed, the footstools reassembled and Bell notified of its availability for pick-up.

[105] In confirming the judgment of the Québec Court of Appeal setting aside the acquittal and ordering a new trial on importing, the majority of the Supreme Court of Canada must have been satisfied that there was some evidence on the basis of which a reasonable trier of fact, properly instructed and acting judicially, could conclude that importing occurred at Mirabel. If the importing were complete on entry at Toronto, no offence of importing occurred at Mirabel and a court in that district had no jurisdiction to try Bell for that offence. If the offence occurred in part at least in both jurisdictions, then, contrary to what the majority said, importing is a continuing offence.

[106] The conclusion I have reached also finds support in the later case of Vu, where the Supreme Court of Canada acknowledged a distinction between an offence completed in law and one completed in fact. While importing may be legally complete on entry into Canada, it is not factually complete until the contraband and its carrier have cleared customs and thereby become available to their ultimate recipient.

[107] Further, to the extent that the majority seems to suggest that importing does not continue because an accused's conduct thereafter amounts to another offence, this would seem no longer sustainable after Vu. There, the same argument was advanced but rejected in connection with kidnapping, a crime that the Bell majority had said was not a continuing offence. The analysis in Vu would seem to provide sustenance for the minority opinion of Dickson J. in Bell.

[108] Finally, looked at in a functional way, the importing offence in this case was complete in law but not in fact when the contraband was seized on the appellant's arrest at secondary inspection. While it is true that the courier and the contraband entered Canada at Pearson International Airport, both remained in limbo at the time of the appellant's arrest. Since the appellant did not clear customs undetected, the object of the importation – to bring cocaine from Jamaica to a Canadian recipient – had not concluded. The importing was not factually complete.

Was There a Safe Avenue of Escape?

[109] Once we accept that the offence of importing was not complete until the appellant and the contraband cleared customs, it follows that a safe avenue of escape was or remained open with the Canadian Border Services Agency or other law enforcement officers at the airport. Despite the factual differences between this case and Valentini, the decision of this court in Valentini shutters the argument advanced here.

[110] For these reasons, I would dismiss the appeal from conviction. As a result, it is unnecessary to consider whether a stay should be entered rather than a new, and fourth, trial ordered.

The Appeal from Sentence

[111] The appellant seeks a reduction of six months in the sentence imposed at trial – three years – on account of state misconduct during the investigation. Some additional background is essential to an understanding of the argument advanced.

The Additional Background

[112] The additional background relates to two strip searches conducted of the appellant on and after her arrest by members of the Canadian Border Services Agency and a female RCMP officer, and the characterization by the trial judge of those searches for sentencing purposes.

The First Strip Search

[113] The first strip search occurred following the appellant's detention at secondary inspection after a Border Services Officer detected an unusual firmness along the appellant's bust. When the appellant's outer clothing and one of two bras were removed, the officer found a substance secreted in the bra. The substance was cocaine.

[114] In accordance with the usual practice, the Canadian Border Services Agency officers turned over the appellant, along with the bra containing cocaine, to the RCMP to continue the investigation.

The Second Strip Search

[115] The appellant was taken to the RCMP detachment at Pearson International Airport where she was placed in a holding cell. There, the only female officer on duty conducted a second strip search in the holding cell. The search was captured on surveillance video. A second officer, a male, was within earshot. The cell door faced a hallway and remained open during the search. The search was visible on a monitor. The officer who conducted the search sought no authorization from a supervisor. She made no notes of the search. During the search, the appellant was required to change her sanitary pad in full view of the camera.

The Ruling on the Second Strip Search

[116] At a prior trial, the presiding judge excluded a statement given by the appellant to the RCMP under s. 24(2) on the ground that it had been obtained by a breach of s. 8 of the Charter. The breach was the strip search of the appellant by the RCMP, which the Crown had sought to justify on two grounds:

i. the "one plus one" rule followed by the RCMP (that drug couriers who were found to have secreted drugs in one place upon their persons would likely do so in another); and

ii. that the appellant would be transferred to the custody of Peel Regional Police for a bail hearing the following day, and Peel Regional Police would expect that the RCMP would have conducted a strip search.

[117] In the earlier proceedings, the trial judge found that the strip search not only lacked reasonable grounds, but also had been conducted in an unreasonable manner. He excluded the appellant's subsequent statement under R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, reasoning that the extreme seriousness of the breach, aggravated by institutional or systemic ignorance of the RCMP about the requirements for a lawful strip search, overwhelmed the other Grant factors. The judge considered the impact of the breach on the Charter-protected interests of the appellant to be of less significance because it had no impact on the appellant's decision to provide a statement to investigators.

The Sentencing Submissions at Trial

[118] At trial, it was common ground that the appropriate range of sentence for importing cocaine in the amounts involved here was a penitentiary sentence of three to five years.

[119] Defence counsel (not Ms. Martel) sought a sentence of two years less one day to be served in the community. Counsel emphasized, as mitigating factors, that the appellant had been subjected to duress, albeit not sufficient to excuse the offence, and had been the victim of a very serious constitutional infringement which entitled to her to a reduction in sentence below the usual range.

[120] The trial Crown (not Ms. Proestos or Ms. Pressman) advocated for a sentence at the low end of the three to five year range.

The Reasons of the Trial Judge

[121] The trial judge accepted the joint position of counsel about the usual range of sentence and imposed a sentence at the bottom end of that range: three years. She declined to impose a sentence below the usual range because of the mitigating effect of evidence of compulsion short of duress. The trial judge acknowledged the potential mitigating effect of such evidence, but rejected its influence here because of the lack of credible evidentiary support for the claim of duress.

[122] The trial judge also rejected the submission that an out-of-the-range sentence was appropriate because of the mitigating influence of unlawful state conduct. The trial judge expressed the view that, as a general rule, an offender was entitled to one remedy per Charter breach. It followed that if, as here, an offender obtained an order excluding evidence under s. 24(2) of the Charter, she would not be entitled to the additional remedy of sentence reduction if later convicted of the offence. Even if two remedies for the same breach were permissible, the trial judge continued, this should only occur in unusual cases and where the s. 24(2) remedy would not be sufficient. That was not this case.

[123] The trial judge accepted the finding of a s. 8 violation made at the prior trial, a violation the judge presiding there had described as "very serious" and sufficient to warrant evidentiary exclusion. Yet the trial judge here listed several factors that tended to "lessen" the seriousness of the breach.

The Arguments on Appeal

[124] The appellant says that the trial judge erred in failing to reduce the sentence imposed by six months due to the unlawful strip search conducted by the RCMP.

[125] The error involved a mischaracterization of the request for sentence reduction as a request for two remedies for the same constitutional infringement. No principle forecloses multiple remedies for the same infringement, provided the requisite conditions precedent have been satisfied. But more importantly, sentence reduction is available without demonstration of a Charter-infringement predicate. This is made clear by the decision in R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206.

[126] Further, the appellant continues, the trial judge erred in finding that the state misconduct was not sufficiently serious to warrant a reduction in what otherwise would be a fit sentence. The trial judge grounded this finding on her own reworking of the findings of the previous trial judge about the seriousness of the strip search violation of s. 8 of the Charter. She turned several factors the original trial judge characterized as aggravating into mitigating factors. The one plus one rule. The expectations of one police force about the conduct of another. The lack of viewership of the video recording of the strip search. This revisionism, the appellant says, was not open to the trial judge in the circumstances of this case.

[127] The respondent contends that the sentence imposed sits at the lower end of the range appropriate for first time couriers. Absent an error of law or principle that had an impact on the sentence imposed – of which none has been identified – the sentence imposed at trial should be left undisturbed.

[128] The respondent says that the trial judge made it clear that even if she could consider a Charter infringement as a basis to reduce the sentence below the usual range, despite the earlier remedy of evidentiary exclusion granted for the same breach, she would not do so because the circumstances did not warrant it. This determination, the respondent submits, is untainted by any error and is entitled to deference.

[129] According to the respondent, the nub of the appellant's complaint is the weight the trial judge assigned to the Charter infringement as a mitigating factor on sentence. Determining the weight to assign to a mitigating factor is something that falls strictly within the discretion of the sentencing judge. Decisions about the weight of mitigating factors do not provide a gateway to appellate intervention unless the weighing is unreasonable. Simply put, that is not this case.

The Governing Principles

[130] The appellant advances a single ground of appeal in her quest for a variation of the sentence imposed at trial. That ground focuses upon what is said to be the mitigating effect of state misconduct during the investigation which followed the appellant's arrest. To be more specific, it has to do with a second strip search conducted by the RCMP in the absence of proper grounds and in an unreasonable manner.

[131] The complaint is narrowed further because I need not decide whether the trial judge's "one breach-one remedy" rule for Charter breaches is correct. My demur is based on four factors. The trial judge reached the same conclusion without the application of the "one breach-one remedy" analysis. The issue was not fully argued on appeal. The correctness of the rule, if such there be, is not material to my decision. And, as will appear, sentence reduction for state misconduct is not restricted to cases involving Charter infringements.

[132] Well established is the principle that appellate courts do not intervene lightly in sentences imposed by trial judges. This is so because trial judges have a broad discretion to impose the sentence they consider fit within the limits prescribed by law: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 39. Appellate intervention is warranted only where the sentencing judge has erred in principle, failed to consider a relevant factor or erroneously considered an aggravating or mitigating factor and the error has had an impact on the sentence imposed: Lacasse, at paras. 43-44.

[133] Appellate intervention is not warranted simply because the panel, or its individual members, would have weighed the relevant factors differently if occupying the position of the sentencing judge: Lacasse, at para. 49. Further, sentencing ranges are simply that – ranges. They are primarily guidelines, not ossified rules. Deviations from sentencing ranges are not synonymous with errors of law or of principle. And the choice of a sentencing range or a category within that range falls within the discretion of the sentencing judge and does not, on its own, amount to a reviewable error: Lacasse, at paras. 51 and 60.

[134] The sentencing regime in Part XXIII of the Criminal Code furnishes sentencing judges with some scope to take into account not only the conduct of the offender, but also that of state actors in determining a fit sentence. State misconduct relating to the circumstances of the offence or offender is relevant in the determination of a fit sentence, regardless of whether the misconduct amounts to a Charter infringement or falls short of such a standard. Section 24(1) of the Charter need not be mobilized even where the state misconduct amounts to a Charter breach in order for that misconduct to be considered in determining a fit sentence: Nasogaluak, at paras. 3, 5, 55 and 63. See also, R. v. Tran, 2010 ONCA 471, 103 O.R. (3d) 131, at para. 79.

[135] A final point about the relationship between sentencing decisions and the Charter. Sentencing decisions are always subject to Charter scrutiny. To be "fit", a sentence must respect the fundamental values in the Charter. It follows that to be considered in determining a fit sentence, incidents of claimed Charter violations must bear the necessary connection to the sentencing exercise. This means that to be mitigating, the circumstances of the breach must align with the circumstances of the offence or offender as s. 718.2 of the Criminal Code requires: Nasogaluak, at para. 48.

The Principles Applied

[136] As I will explain, I would not give effect to this ground of appeal and would affirm the sentence imposed at trial. In my respectful view, although the trial judge's sentencing decision is cumbered by error, and thus is not entitled to the deference that is usually its due, the errors had no impact on the sentence imposed.

[137] In this case, the parties agreed to be governed by the findings made by the judge presiding in an earlier trial in connection with the second strip search and the admissibility of a statement provided to investigators thereafter. Neither the issue of Charter infringement nor the admissibility of evidence obtained thereby were relitigated before the trial judge. In the earlier proceeding, the presiding judge had found a breach of s. 8 on two bases: the absence of a proper predicate for the strip search and unreasonableness in its execution. The judge characterized the breach as "very serious", sufficient, despite the inclusionary pull of the other lines of inquiry under Grant, to warrant exclusion of the appellant's statement to investigators.

[138] Despite the position of counsel in connection with the previous finding of Charter infringement and its characterization as "very serious", the trial judge proceeded to whittle down its seriousness on the basis of several factors, many of which were irrelevant to the issue. The expectation of the Peel Regional Police that the RCMP would have conducted a strip search for officer and detainee safety and the recovery of evidence. The one plus one rule. The fact that no one viewed the videotape of the search. At the very least, the trial judge should have notified counsel that she proposed to conduct her own analysis of the seriousness of the Charter-infringing state conduct and its impact on the Charter-protected interests of the appellant. This she failed to do.

[139] In addition, the trial judge appears to have considered the range of sentence suggested by counsel as fixed, contrary to the teachings of Lacasse which characterize ranges of sentence as guidelines, not hard and fast rules.

[140] It follows from what I have said that the sentence imposed by the trial judge is not entitled to deference.

[141] Despite the fact that the errors I have identified cause the deference which is the sentencing judge's usual entitlement to melt away, I am not satisfied that the errors had an impact on the sentence imposed. The quantity of drugs involved was significant. The sentence imposed was at the bottom end of the range counsel agreed was appropriate. Put shortly, the sentence was fit.

[142] I would grant leave to appeal sentence, but dismiss the appeal from sentence.

Conclusion

[143] For these reasons, I would dismiss the appeal from conviction, grant leave to appeal sentence, but dismiss the appeal from sentence.

Released: January 24, 2018

"David Watt J.A."

"I agree. Gloria Epstein J.A."

"I agree. David Brown J.A."