Court File and Parties

Court: COURT OF APPEAL FOR ONTARIO Date: 2023-10-27 Docket: COA-22-CR-0194 & C70699

Judges: Gillese, Brown and Nordheimer JJ.A.

Between: His Majesty the King, Respondent and Jennifer Pyne, Appellant

Counsel: Jeffery Couse, for the appellant Lisa Csele, for the respondent

Heard: In writing

On appeal from: The convictions entered on December 13, 2021, and the sentence imposed on February 3, 2022, by Justice Kathryn A. Fillier of the Ontario Court of Justice.

Reasons for Decision

Overview

[1] The appellant, Jennifer Pyne, appeals her convictions on several drug‑related charges: possession of fentanyl for the purpose of trafficking; possession of methamphetamine for the purpose of trafficking; possession of Dilaudid for the purpose of trafficking; possession of cocaine; and failure to comply with a release order (the “September 2020 Offences”).

[2] On February 3, 2022, Ms. Pyne was sentenced to four years for the September 2020 Offences. At the same time, she was sentenced to an additional one year on other charges to which she pleaded guilty (the “February 2021 Offences”).

[3] Ms. Pyne also seeks leave to appeal her sentence, requesting that this court rectify what she contends is an error on the warrant of committal. In support of her sentence appeal, Ms. Pyne seeks leave to file fresh evidence consisting of correspondence with Correctional Service Canada regarding the accuracy of the warrant of committal.

Convictions Appeal

[4] Ms. Pyne submits that her convictions were based on the trial judge’s misapprehension of the evidence of Officers O’Connor and Dickson, a K9 officer, regarding the location of the discarded tampon and bag of illegal drugs found by the police sniffer dog not too far from where the police found Ms. Pyne in a pickup truck. As a result of this alleged error, Ms. Pyne seeks a new trial.

[5] We see no misapprehension of evidence by the trial judge.

[6] The reasons of the trial judge must be read fairly and as a whole. The undisputed sequence of events disclosed by the evidence was: on the afternoon of September 12, 2009, officers came upon a pickup truck stuck in a mud pit in the middle of Enfield Road in Clarington, just south of Concession Road 10; the driver and Ms. Pyne were in the truck; the officers determined the truck was stolen; at that point, the driver ran away, with some officers in pursuit; Officer O’Connor remained with Ms. Pyne; she told the officer she needed to urinate and change her tampon; the officer permitted her to go to a nearby bush area; while he did not watch her urinate, he heard a lot of rustling in the area; that prompted him to call the K9 unit; when it arrived he pointed out the general area he wished searched; and the dog found a tampon and showed interest in an area under a tree branch, where a bag of drugs was found.

[7] The key finding of the trial judge can be found in the following portion of her reasons:

Officer O’Connor’s evidence was virtually uncontested in that what he heard made him suspicious as to what [Ms. Pyne] was actually doing. I accept that when the K9 officer arrived, Officer O’Connor directed him to the area of where Ms. Pyne had been generally, and that is indeed where the drugs were located. I do not accept that it is even a remote possibility that someone else, unconnected to these two, just so happened to bury a bag of illegal drugs in the middle of nowhere, which also just happened to be proximate to the exact same location. Ms. Pyne was given privacy and heard to be doing something that generated a rustling sound. I am satisfied beyond a reasonable doubt, that Ms. Pyne was in possession of the bag of drugs and buried them in the dirt, in an effort to conceal them from police. [Emphasis added.]

[8] Ms. Pyne submits that this finding was the product of the trial judge’s misapprehension of the evidence of Officers O’Connor and Dickson, who provided different estimates of the distance from Enfield Road to the area where Ms. Pyne urinated and to where the sniffer dog located the tampon and bag of drugs.

[9] That passage must be read in its proper context: R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 48. The trial judge’s reasons do not reflect a misunderstanding of the evidence of Officers O’Connor and Dickson: the trial judge’s description that Officer O’Connor directed the K9 officer to the area where Ms. Pyne had been “generally” deals fairly and accurately with the evidence of both officers.

[10] Given the sequence of events disclosed in the evidence, we see no reversible error in the trial judge’s rejection of the Ms. Pyne’s contention that there existed a reasonable possibility that the presence of the bag of drugs could be explained by its burial by another person fearful of police, who had gone into the area to enforce off-road vehicle rules. That contention was speculative: Villaroman, paras. 37 and 38.

[11] Ms. Pyne’s appeal from her convictions is dismissed.

Rectification of the Warrant of Committal

[12] Ms. Pyne seeks leave to appeal her sentence on the ground that the warrant of committal does not reflect accurately the sentence imposed by the court. We have considered her fresh evidence.

[13] In her reasons, the sentencing judge stated:

On the September 2020 offences, I sentence you to four years and for the February 2021 offences, there will be a one-year sentence consecutive. From that five-year sentence I will deduct 435 days. It leaves you with three years and seven months.

[14] In the final sentence of that passage, the sentencing judge made a simple calculation error. When the 435 days are deducted from the five-year global sentence, one is left with more than three years and seven months to serve: specifically, 3 years, 9 months, and 3 weeks.

[15] Notwithstanding that calculation error, the warrant of committal accurately records the sentencing judge’s imposition of four years for the September 2020 Offences, plus one year consecutive for the February 2021 Offences, for a total of five years, from which credits of 435 days are to be deducted. There is nothing to rectify.

[16] While we would grant leave to appeal, the appeal from sentence is dismissed.

Disposition

[17] The appeals from convictions and sentence are dismissed.

“E.E. Gillese J.A.”

“David Brown J.A.”

“I.V.B. Nordheimer J.A.”