



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Foster, 2018 ONCA 53

DATE: 20180124

DOCKET: C62327

Watt, Epstein and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Simone Foster

Appellant

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.

Watt J.A.:


[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 aunts 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 Fosters answers to the officers 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 judges 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 aunts children and Ms. Fosters 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 aunts 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. Fosters 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. Fosters aunts 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.
    Fosters 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 didnt 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 aunts 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 aunts 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 aunts 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. Fosters 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. Fosters 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. Fosters 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. Fosters
    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 judges 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 appellants 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 jurys
    assessment of the appellants 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 jurys consideration was this:

Would a reasonable person in Ms. Fosters 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 appellants 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. Fosters
    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. Fosters
    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 judges 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 judges 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 appellants 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 Hogans 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 Crowns 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 Bells 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 Bells 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
    Bells 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 RCMPs removal of the cannabis.

[62]

The
    Supreme Court of Canada unanimously dismissed Bells appeal and affirmed the decision
    of the Québec Court of Appeal ordering a new trial. 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 Tans 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
    majoritys interpretation of what constituted importing was not a narrow one.
    And second, the majoritys 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 appellants 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 societys 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 accuseds 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 appellants 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 majoritys 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 minoritys 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 accuseds 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 appellants 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 appellants 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 appellants detention at secondary inspection
    after a Border Services Officer detected an unusual firmness along the
    appellants bust. When the appellants 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 appellants 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 appellants 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 appellants 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
    appellants 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 judges 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 judges
    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 appellants 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
    judges 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: DW JAN 24 2018

David Watt
    J.A.

I agree. Gloria
    Epstein J.A.

I agree. David
    Brown J.A.


