



COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Ashley, 2012
    ONCA 576

DATE: 20120907

DOCKET: C55329

Rosenberg, Blair and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Dawn Marie Ashley

Appellant

Dawn Marie Ashley, acting in person

Danielle Robitaille, as duty counsel

Jeremy Streeter, for the respondent

Heard: August 14, 2012

On appeal from the conviction entered and the sentence
    imposed on March 16, 2012 by Justice Fletcher Dawson of the Superior Court of
    Justice, sitting without a jury.

ENDORSEMENT

[1]

Ms. Ashley appeals from her conviction by Dawson J. of the Superior
    Court of Justice on a charge of importing a controlled substance contrary to
    the
Controlled Drugs and Substances Act.
If unsuccessful, she seeks
    also to vary her sentence from one of 18-month imprisonment to a sentence to be
    served in the community.

[2]

In August, 2008, Ms. Ashley was returning home from a trip to Jamaica. 
    She was accompanied by her 2½-year old daughter and a number of pieces of
    luggage.  Upon arrival at Torontos Pearson International airport, she declared
    an overage of alcohol products and several agricultural products, and as a
    result was routed to a secondary inspection.  On that inspection Canadian
    Border Services authorities found six balls of compressed cocoa wrapped in
    cellophane and, upon further examination, discovered that each ball contained
    plastic wrapped marihuana which in total weighed 20.2153 kg with a value of
    between $51,175 and $57,850.

[3]

Ms. Ashley was arrested and charged with importing.  The Crown alleged
    that she was acting as a courier in the situation.

[4]

We would not give effect to either request.

Conviction Appeal

[5]

Ms. Ashley had a long and highly improbable story to explain why it was
    that she had no knowledge of the contents of her luggage.  The trial judge
    flatly rejected this evidence, and was entitled on the record to do so.

[6]

Duty Counsel, Ms. Robitaille, submitted that the trial judge improperly
    took judicial notice of two matters in the course of assessing Ms. Ashleys
    credibility, thus undermining that assessment and requiring a new trial.  Those
    matters were (a) that the declaration of an alcohol overage is not uncommon in
    cases where drugs are found expertly hidden in a travellers belonging in drug
    importing cases from Pearson airport (Ms. Ashley had argued that her
    declaration of alcohol overage was an indicia of innocence), and (b) that the
    almost last minute cash payment for the ticket [was] out of the ordinary and
    consistent with what is often seen in drug importation cases.

[7]

We do not agree.  In our view, the trial judge did not improperly take
    judicial notice.  The trial judge is an experienced trial judge in criminal
    matters and was presiding in a jurisdiction in which prosecutions for
    drug-related offence are numerous and common, given its proximity to Pearson
    airport.

[8]

The appellants position at trial was that as a matter of common sense
    it was unlikely a drug importer would knowingly make a declaration that would
    send her to secondary inspection. The trial judge, based on his extensive
    experience with similar cases, was simply unable to draw this conclusion. The
    appellants position was not a common sense inference. The trial judge made it
    clear later in his reasons that the declaration of overage [did] not translate
    into evidence against Ms. Ashley.

[9]

As to the last minute cash purchase of the ticket, the important
    observation was that the last minute payment was out of the ordinary. We agree
    with this observation. The appellants story was that she had been planning to
    take this trip for some time and to take her daughter. Common sense suggests
    that in those circumstances the tickets would have been purchased during the
    planning process not last minute and in cash. It was certainly open to the
    trial judge to conclude that this conduct was inconsistent with the appellants
    story and consistent with what is often observed in drug importing cases.  As
    the Supreme Court of Canada observed, in
R. v. R.D.S.
, [1997] 3 S.C.R.
    484 at para. 44:

An understanding of the context or background essential to
    judging may be gained from testimony from expert witnesses in order to put the
    case in context  from academic studies properly placed before the Court; and
    from the judge's personal understanding and experience of the society in which
    the judge lives and works.

[10]

In
    any event, given the abundance of other factors, which were far more
    devastating to the appellants credibility as set out in the trial judges
    extensive and careful reasons, we do not think the trial judges reliance on
    the above two factors played a significant role in his assessment of her
    credibility.

[11]

We
    would not interfere with the trial judges conviction on the importing charge.

Sentence

[12]

Nor
    would we interfere with the sentence imposed.

[13]

The
    trial judge imposed a sentence of 18 months incarceration.  In doing so, he
    considered all of the relevant principles of sentencing, and balanced those in
    light of Ms. Ashleys personal situation, her lack of a prior criminal record,
    her family status, the fact that she had good prospects for rehabilitation, the
    nature of the offence and the circumstances surrounding the offence.  But he
    balanced those factors against the need for deterrence and denunciation, and
    the lack of mitigating remorse or other mitigating considerations (except the
    lack of a prior criminal record).  The trial judge recognized that an 18-month
    sentence was a significant one for a woman with no criminal record, but
    concluded that [t]he imposition of a sentence of 18 months for a first offence
    for importing marijuana should be sufficient to have a deterrent effect on
    those customarily selected to be drug couriers  persons without prior criminal
    records.

[14]

Duty
    counsel argues that the trial judge erred in failing to impose a conditional
    sentence.  We do not agree.  The trial judge carefully and fully addressed his
    mind to this option and rejected it.  We see no error in his decision in this
    regard.

[15]

Acknowledging
    the significant difference between the importation of marijuana and hard drugs
    must have some impact when it comes to sentencing, the trial judge correctly
    observed nonetheless that the large quantity of marijuana involved (more than
    24 grams, with a value in excess of $50,000)  indicating, as it did, the
    presence of a commercial criminal enterprise  was the principal aggravating
    factor that rendered the imposition of conditional sentence inappropriate.  Nor
    did he err in considering, as an additional ancillary factor, the
    border-crossing nature of this offence and in concluding that the granting of a
    conditional sentence in the circumstance would send the wrong message in terms
    of protecting the integrity of the Canadian border from serious criminality.

Disposition

[16]

For
    the foregoing reasons, the appeal against conviction is dismissed and, while
    leave to appeal sentence is granted, the appeal against sentence is dismissed
    as well.

M. Rosenberg J.A.

R.A. Blair J.A.

M. Tulloch J.A.


