Court of Appeal for Ontario

Date: 2022-04-20 Docket: C66162

Rouleau, Nordheimer and George JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Natalia Safronii Appellant

Counsel: Etai Hilzenrat, for the appellant Sandy Thomas, for the respondent

Heard: March 4, 2022 by video conference

On appeal from the conviction entered on August 16, 2018 and the sentence imposed on May 21, 2019 by Justice Leonard Ricchetti of the Superior Court of Justice.

Rouleau J.A.:

[1] The appellant appeals her conviction for importing opium, a Schedule 1 controlled substance, contrary to s. 6(1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19. She also applies for leave to appeal against the one year and 359-day sentence imposed.

FACTS

[2] On August 7, 2014, the appellant and her seven year old daughter landed at Toronto Pearson International Airport on a flight from Turkey. Upon arrival they were referred to the Canada Border Services Agency (CBSA) secondary inspection area. As part of this inspection, the CBSA agent emptied out the appellant’s black nylon carry-on bag and took a swab of the bag. The scan of the swab returned a positive result for trace amounts of opium and heroin. The CBSA officer also noted that the bag, although empty, was unusually heavy. He therefore passed the bag through an x-ray machine and noted anomalies in the x-ray. As a result, he made an incision in the bag’s lining and discovered a brown plastic wrapped moist material with a distinctive earthy smell.

[3] The appellant was then arrested. Upon inspection of the appellant’s checked baggage, a second similar black nylon bag was found inside the checked baggage. An x-ray of that bag revealed the same anomalies as found in the x-ray of the carry-on bag. In the lining of the second bag, further plastic wrapped moist brown material with an earthy smell was recovered.

[4] The material extracted from the lining of the two bags consisted of several panels of felt-like material. That material weighed 3,181 grams whereas the bags themselves, once emptied of the felt-like material weighed only 2,008 grams.

[5] Two samples from each of the two bags were sent to Health Canada for testing. Certificates of analysis were returned confirming the presence of opium in two of the samples and the presence of codeine, Schedule 1 morphine, didehydro-epoxy methylmorphinan, and narcotine in the remaining two samples. Health Canada did not opine on the quantity of opium in the sample of the felt-like materials that had been sent to them.

[6] At trial, Crown counsel sought to introduce the evidence of Sgt. Rodney Gray. On a voir dire Sgt. Gray testified that he carried out an experiment to extract the opium from the felt-like material. He rinsed the felt cloth twice in hot tap water, collected all the rinsed water and boiled it until the water evaporated. He explained that the residue looked and smelled like opium and in his opinion was about three kilograms of opium. Sgt. Gray had not, however, conducted such an experiment before. As a result, the trial judge ruled that Sgt. Gray could not testify at trial as an expert to certify that the residue was in fact opium. The evidence Sgt. Gray sought to give could only be given by an expert. Having ruled Sgt. Gray’s testimony inadmissible at trial, there was no admissible evidence as to the specific weight of the opium imported.

[7] The appellant testified in her defence. She explained that she had been in a romantic relationship with a man named Mr. Ali Arapour for about a year. They had travelled together to Turkey on at least three previous occasions. On each of those occasions, Mr. Arapour had paid all of the expenses.

[8] In August of 2014, Mr. Arapour arranged for another trip. He made all the arrangements and paid for the plane tickets and accommodation in Turkey. Although they had planned to travel together, a couple of days before the trip, Mr. Arapour told the appellant that he could not accompany her. In order not to waste the tickets, the appellant decided to take her daughter on the trip. The day before or on the morning of departure, Mr. Arapour dropped off the tickets and travel information. This was the last time she saw him or anyone from his family here in Canada.

[9] According to the appellant, her luggage was lost in transit. It was later found and delivered to her hotel three or four days later. While in Turkey, members of Mr. Arapour’s family, including his aunt and her husband met with her and took her to the central bazaar. There she purchased clothing, toys, as well as the two black nylon bags to store her purchases as her luggage had not, at that point, been located. These are the bags in which the opium was ultimately found. Mr. Arapour’s family members initially retained the black nylon bags. The day before the appellant was to return to Canada, she and her daughter were at the beach when Mr. Arapour’s relatives visited her. They borrowed her hotel room key and delivered to her room the two black nylon bags that the appellant had purchased at the bazaar. Mr. Arapour’s relatives then helped her place gifts and clothing into the nylon bags. The appellant surmised that the drugs must have been inserted into the bags at some point before they were delivered to her room by Mr. Arapour’s relatives.

[10] Pursuant to a search warrant, the appellant’s phone was inspected by the RCMP. Data extracted from the phone showed that calls and texts had been exchanged with a number that the appellant testified was Mr. Arapour’s. This included a call made after the appellant landed in Toronto as well as a message sent after she landed in Toronto in which the appellant was asked to come and meet Mr. Arapour around Square One in Mississauga.

[11] When the appellant was released from custody, she tried but was unable to find or contact Mr. Arapour or anyone from his family.

[12] At trial the appellant maintained that she only learned about the opium in the felt-like material through her lawyer in the course of these proceedings. She admitted the actus reus of the offence of importing a controlled substance. As a result, the only issue was whether the appellant knew about the opium contained in her carry-on bag and her luggage. The jury concluded that she did.

[13] At sentencing, a Gardiner hearing was held to determine the quantity of opium imported. The parties agreed that Sgt. Gray’s voir dire evidence given earlier that was not admitted for trial purposes would be admitted on the Gardiner hearing. Based on Sgt. Gray’s evidence as well as the evidence from the trial, including the evidence as to the weight of the bags and the felt-like material, the manner in which the opium was hidden and the cost of the airline tickets, the trial judge concluded that the amount of opium imported was substantial. He imposed a custodial sentence of one year and 359 days.

ISSUES

[14] The appellant raises three grounds of appeal. She argues that the trial judge:

a) did not properly caution the jury on the admissibility of the evidence as to the weight of the opium; b) erred in his W.(D.) instruction to the jury; and c) imposed an unfit sentence.

ANALYSIS

(1) The trial judge’s caution to the jury with respect to the evidence of the weight of the opium

[15] The appellant argues that the trial judge committed three errors in dealing with the evidence as to the weight of the opium. Before addressing these, I will provide some additional background from the trial.

(a) Background from the trial

[16] There was no issue at trial that the appellant’s bags contained opium. The only issue for the jury was knowledge. The evidence on which the Crown relied to prove that the appellant knew that her bags contained a controlled substance was all circumstantial.

[17] The parties had agreed as a fact that opium would sell for somewhere between $30 and $50 per gram. While the Crown did not need to prove what quantity of opium was imported in order to make out the offence, the Crown sought to support the inference that the appellant knew of the opium by showing that the quantity in the bags was significant. In that regard, the Crown had sought to rely on the evidence of Sgt. Gray. As noted earlier, however, Sgt. Gray’s evidence as to the weight of the opium was not admitted. As a result, the Crown was unable to establish the specific quantity of opium secreted in the bags.

[18] In the course of the trial, the Crown introduced a chain of custody exhibit, Exhibit 24, wherein the movement of the felt-like panels originating from the appellant’s bags was tracked. It also tracked the material extracted by Sgt. Gray. That exhibit indicated that the weight of the material extracted by Sgt. Gray and described as opium was 3,031.7 grams. The exhibit had been marked and left with the jury but, because of the ruling that Sgt. Gray’s evidence from the voir dire would not be admitted at trial, it was agreed by the parties that the references in Exhibit 24 to the weight and identify the material as opium were not evidence that the jury could rely on. There was no expert evidence led at trial from which the quantity of opium contained in the extracted material could be determined. The trial judge decided that because the exhibit had been marked, he would leave it with the jury but would give a clear instruction to the effect that the weight and description of the extracted material as opium were not evidence that the jury could use or rely on. The parties raised no objection with regard to the instruction that was given to the jury.

[19] In the circumstances, the Crown could not, in its closing, refer to the evidence of Sgt. Gray as to the weight of the opium. What the Crown invited the jurors to do, however, was to conclude that the bags contained “a fair bit of opium”.

[20] For its part, the appellant’s trial counsel highlighted for the jury that the Crown had been unable to prove the quantity of the opium imported. Defence counsel also objected to the Crown’s reference to there being “a fair bit” of opium and asked the trial judge to give a corrective instruction.

[21] The trial judge determined that a corrective instruction was not required as the Crown had not been specific about the weight of the opium.

(b) The three errors alleged on appeal

[22] The appellant argues that the trial judge made three errors in the way that he dealt with the evidence regarding the weight of the opium resulting in a miscarriage of justice. The three errors alleged are that the trial judge:

i. failed to correct the Crown’s statement as to there being “a fair bit” of opium; ii. left Exhibit 24 with the jury; and iii. failed to give a limiting instruction directed at deterring the jury from making any use of the evidence of the street value of the opium.

[23] In my view, this ground of appeal must be rejected. I will deal with the three errors alleged in turn.

(i) The Crown’s statement as to there being “a fair bit” of opium

[24] The Crown’s reference in his closing to the bags containing a “fair bit” of opium did not require correction by the trial judge. As the trial judge explained, it was acknowledged that the bags contained opium. The evidence at trial established that the felt-like material hidden in the bags weighed approximately three kilograms while the bags themselves weighed only two kilograms. The Crown did not reference any specific amount nor was it necessary that the amount be proven in order to make out the actus reus of the offence. All that is required is a physical and fault element that at some point must coincide: R. v. Okojie, 2021 ONCA 773, at paras. 95-97.

[25] In any event, it is not unreasonable to infer in the circumstances that a person taking the risk of importing opium and hiding it in the manner done in this case would be importing more than trace amounts of opium.

(ii) Exhibit 24

[26] Turning to the concern with respect to Exhibit 24, I disagree that the jury may have used the weight and reference to the material as opium to reason that the appellant must have known of the opium or that there was an error in the jury instruction relating to this evidence. While it may have been preferable to have provided the jury with a redacted version of Exhibit 24 with the weight and identification as opium removed, I consider the trial judge’s instruction to the jury to be adequate in the circumstances. The judge told the jury that Exhibit 24 contained a description of what was extracted from the felt-like material and that it was hearsay evidence from a third party and was untested and unproven. He cautioned the jury to completely disregard the evidence describing what the substance was and the quantity of the substance. The trial judge told the jury that this evidence was to have no place in their discussions or deliberations.

[27] Juries are presumed to follow the trial judge’s instruction: R. v. Suzack (2000), 128 O.A.C. 140 (C.A.), at para. 111. No objection was taken at trial with the language used by the trial judge with respect to Exhibit 24. The appellant was not prejudiced by the trial judge’s failure to have redacted the references to the weight of the extracted material.

(iii) The trial judge’s failure to give a limiting instruction

[28] Finally, as for the use the jury could make of the street value of a gram of opium, I see no basis for requiring that an instruction limiting the jury’s use or consideration of that evidence. The street value of opium as being between $30 and $50 per gram was entered as an agreed fact. The appellant argues that it could have been used by the jury in conjunction with the weight set out in Exhibit 24 to calculate a value. If the jury did so, it would prejudice the appellant. As I have explained, the jury was properly told not to use the weight set out in Exhibit 24. In the charge, the trial judge simply referred to the agreed fact as to value per gram. The trial judge cannot be faulted for how he dealt with that evidence. Nothing further was required. No objection was raised by trial counsel nor was any alternative wording for the charge suggested.

(2) The W.(D.) instruction

[29] In R. v. W.(D.), [1991] 1 S.C.R. 742, the Supreme Court of Canada set out proposed instructions to assist juries in assessing an accused’s evidence. The second prong of the three-part test set out in W.(D.) is to the effect that “if you do not believe the testimony of the accused but you are left with a reasonable doubt by it, you must acquit”: at para. 11.

[30] The appellant argues that her testimony at trial was the focus of her defence and that the instructions to the jury did not clearly convey that, even if they disbelieved her evidence, they should nonetheless acquit if that evidence raised a reasonable doubt as to her knowledge that her bags contained opium.

[31] In that regard, the appellant references the instruction given by the trial judge as to the second prong of W.(D.) and finds it confusing. The trial judge’s instruction to the jury was as follows:

Upon considering all of the evidence, even if you do not believe [the appellant’s] evidence, if based on the evidence you accept or the absence of evidence or cannot determine, it leaves you with a reasonable doubt about [the appellant’s] knowledge that she knew there was a controlled substance in the two nylon bags you must find her not guilty of the offence. [Emphasis added.]

The appellant focusses on the word “it” in that instruction and suggests that it would have confused to the jury.

[32] In my view, the trial judge’s instruction in this case was adequate. The instructions must be considered as a whole to determine whether they adequately equipped the jury to apply the law to the facts, including whether they stressed to the jury that the burden of proof remained on the Crown: R. v. Brown, 2020 ONCA 462, at paras. 48-49. The instructions must also be considered in the context of the case to determine whether there was a reasonable likelihood that the jury misapprehended the standard of proof: R. v. Scott (2001), 140 O.A.C. (C.A.), at para. 9. There is no such reasonable likelihood in this case. In the balance of his charge the trial judge dealt extensively with a reasonable doubt. Although the W.(D.) instruction could have been more clearly worded, when the trial judge’s charge is considered as a whole, the jury would have understood that they were not compelled to choose between the evidence favouring the Crown and evidence favouring the appellant. They also would have understood that the burden of proof rested on the Crown throughout. No objection was taken to the wording of the charge.

(3) Sentence appeal

[33] The appellant makes two arguments on the sentence appeal. She argues that the trial judge erred in finding that the amount of opium imported by the appellant was “substantial”. She further argues that the appropriate sentence in the circumstances is a conditional sentence. She tendered proposed fresh evidence in support of the sentence appeal. In it she outlines difficulties she has had in securing employment, particular challenges she faces as a single parent with her now teenaged daughter, as well as her concerns with respect to being incarcerated during the Covid pandemic.

[34] I see no error in the trial judge’s finding that the amount of opium was “substantial” and see no error in the sentence imposed. The trial judge held a Gardiner hearing where evidence as to the quantity of opium was led. At the hearing, the parties agreed that Sgt. Gray’s evidence would be admitted. At the Gardiner hearing, the trial judge also heard from an expert who explained that opium was water soluble and contained a variety of opioids, including morphine, codeine and heroin. From that evidence, together with the evidence as to the manner in which the opium had been hidden in the lining of the bags as well as the costs and risks involved in importing the drugs, it was, in my view, open to the trial judge to infer that the amount of opium was substantial and he did not err in doing so. The trial judge did not determine or rely on any specific quantity of opium being contained in the three kilograms of residue.

[35] As for the availability of a conditional sentence, the appellant argues that the court’s decision in R. v. Sharma, 2020 ONCA 478, 390 C.C.C. (3d) 1, issued following her sentencing, now makes a conditional sentence possible and appropriate in this case. That decision struck down the provision that made a conditional sentence unavailable. In that case, the court substituted a sentence of imprisonment with a conditional sentence. The appellant submits that the circumstances of the offenders and the offences in Sharma and the present case are comparable.

[36] I reject this ground of appeal.

[37] In this case, the trial judge carefully considered the nature and circumstances of the offence committed by the appellant. Her relative youth, support of family, prospects for rehabilitation and status as a first offender were all recognized to be mitigating factors. However, there were significant aggravating factors including the fact that opium is a hard drug and that the amount was significant. The trial judge determined that a fit sentence was one of imprisonment but at the lower end of the range of sentences for similar offences. Deference is due to the trial judge’s sentencing decision and I see no basis to interfere: see R. v. Gomes, 2022 ONCA 247, at para. 34.

[38] I do not view the Sharma case as being comparable. The offender in that case was an Indigenous mother who lived a life of hardship and had pled guilty to the offence. Even considering the fresh evidence, the appellant’s situation is not comparable to the offender in Sharma and no adjustment to the sentence is, in my view, warranted.

CONCLUSION

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

[40] I would also deny the motion to file fresh evidence as its admission would have no impact on the sentence and, as a result, it does not meet the Palmer v. The Queen, [1980] 1 S.C.R. 759 test.

Released: April 20, 2021 “P.R.” “Paul Rouleau J.A.” “I agree I.V.B. Nordheimer J.A.” “I agree J. George J.A.”