



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Peters, 2018 ONCA 493
DATE: 20180530

DOCKET: C63035

Strathy C.J.O., Juriansz and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Dexter Peters

Appellant

Najma Jamaldin and Paul Genua, for the appellant

Chris Walsh, for the respondent

Heard: May 22, 2018

On appeal from the conviction entered
    on April 5, 2016, by Justice Fletcher Dawson of the Superior Court of Justice, sitting
    with a jury, and from the sentence imposed on August 2, 2016, with reasons reported
    at 2016 ONSC 4906.

REASONS FOR DECISION

[1]

The appellant appeals
    from his conviction and seeks leave to appeal his sentence for smuggling almost
    three kilograms of cocaine from Jamaica into Canada.

[2]

The appellant was the
    subject of a lookout on the Canadian Border Services Agency (CBSA) computer
    and was sent to a secondary customs inspection at Pearson Airport on his return
    to Toronto. At the secondary inspection, the CBSA officer (border officer)
    asked the appellant and elicited his answers to a number of questions about the
    contents of the appellants luggage while he searched them. As a result of his
    search, the border officer found several sealed plastic bags containing a dried
    food product.

[3]

Upon x-ray inspection,
    each plastic bag revealed round denser areas of organic material in the middle
    of each bag. The border officer asked the appellant several additional questions
    and obtained his responses about the provenance of the bags and how much he
    paid for them. When the border officer slit open the bags, he found a round
    puck-like object wrapped in brown packing tape inside each of the bags. He
    asked the appellant what it was and the appellant answered he did not know. The
    border officer cut into one of the pucks and found white powder. He conducted a
    narcotics field test which indicated the presence of cocaine. He thereupon
    arrested the appellant for importation of cocaine and provided him with his
    rights to counsel and a caution.

[4]

In his April 1, 2016
    ruling
[1]
dismissing the appellants pre-trial application to exclude his statements made
    to the border officers, the trial judge held that the appellant was not
    detained until the border officer cut into the plastic bags and found the pucks
    because it was then that a reasonable person placed in the position of the
    border services officer would conclude that there was such a strong
    particularized suspicion connecting the accused to a specific crime that the
    questioning and customs examination had changed from one of routine to a
    focused investigation of a specific offence. The trial judge concluded that
    the question and answer following detention could be subject to exclusion;
    however, in response to the trial judges inquiry, the appellants position was
    that he did not wish to have this question and answer excluded.

[5]

With respect to his
    conviction appeal, the appellant submits that the trial judge erred in
    determining that his s. 7 and 10(a) and (b)
Charter
rights had not been infringed. He argues
    that he was detained upon the x-raying of his luggage but that in breach of his
    rights, he was not immediately provided with his rights to counsel, and the
    border officer continued to ask him incriminating questions. He maintains that
    his answers should have been excluded from the evidence at trial.

[6]

According to the
    appellant, in considering the issue of detention, the trial judge erred by
    applying a higher standard, conflating the required reasonable suspicion test
    for detention in the border context with reasonable and probable grounds for
    arrest. The appellant also argues that the trial judge erred by placing too
    much emphasis on the border officers subjective belief that he did not have a
    sufficiently strong particularized suspicion that the appellant was smuggling
    illegal drugs when he x-rayed the food bags, which was not objectively
    reasonable.

[7]

We disagree.

[8]

T
he trial judge adverted to and applied the correct analysis
    to determine detention in an international border context, namely, whether the
    border officer has decided, because of some sufficiently strong particularized
    suspicion, to go beyond routine questioning of a person and to engage in a more
    intrusive form of inquiry. Where the officer has made that decision, the
    individual may be detained, even when subject to that routine questioning: see
R.
    v. Jones
(2006),
81 O.R. (3d) 481
(C.A.), at
    para. 42.

[9]

The trial judge properly
considered the factual
    circumstances of the case before him, including the objective reasonableness of
    the border officers subjective belief, through the lens of a reasonable
    person standing in the shoes of the
[
border
]
officer: see
R. v. MacKenzie
, 2013 SCC 50,
[2013] 3 S.C.R. 250,
at para. 63. The trial judge concluded that he was unable to say
    either that
[
the border officer
    who questioned the appellant
]
had grounds to arrest at that point or that he had such particularized
    suspicion in relation to a specific offence that the
[
appellant
]
was
    detained.

[10]

The trial judge did not
    confuse the test for detention in a customs context with the test for arrest. As
    already noted in the preceding paragraph, the trial judges conclusion did not
    depend solely on whether the border officer had grounds to arrest the
    appellant. The reference to grounds to arrest continued the earlier
    discussion in the trial judges reasons as to circumstances where there could
    be no doubt that if the border officer had subjectively
harboured
grounds to arrest, the appellant would have been detained.

[11]

Moreover, the trial
    judge weighed all of the evidence to determine that the border officers subjective
    belief did not rise to a particularized suspicion that the appellant may be
    involved in the illegal importation of drugs, and that this subjective belief was
    objectively reasonable in the circumstances of this case. In particular, the
    trial judge accepted the border officers testimony of his past experience that
    x-ray anomalies seen in food products often yield innocent results. The officer
    was not certain whether the anomalies in the plastic bags were due to the
    bulking of the food product, and the entire constellation of factors he was
    dealing with had not resulted in such a level of particularized suspicion to
    take his questioning out of the routine. These were conclusions open to the
    trial judge to make on the record before him.

[12]

We see no error permitting
    appellate intervention in the trial judges application of the pertinent legal
    principles or in his findings of fact.

[13]

Turning to the appeal
    from sentence, the appellant submits that the trial judge erred in imposing a
    6.5 year sentence (less 359 days of credit for pre-trial custody, for an
    effective sentence of 5 years, 6 months and 6 days). Specifically, the
    appellant says that the sentence is harsh and excessive, and the trial judge
    failed to take into account as a mitigating factor the elimination of
    accelerated parole review.

[14]

We do not accept these
    submissions.

[15]

The trial judge
    carefully considered the relevant mitigating and aggravating factors and
    imposed a sentence at the lower end of the applicable range of 6 to 8 years set
    out by this court in
R. v. Cunningham
(1996), 104 C.C.C. (3d) 542 (Ont. C.A.), at para. 20.

[16]

Moreover, the principle of parity does not mean that this court
    should depart from that well-established range. Accelerated parole review was
    abolished more than two years before the appellants arrest. We agree that
Canada
    (Attorney General)

v. Whaling
, 2014 SCC 20,
[2014] 1 S.C.R. 392,
is distinguishable. That case dealt with the constitutionality of
    the retrospective application of the abolition of early parole in relation to incarcerated
    offenders who were already serving their sentence when the
Abolition
    of Early Parole Act
, S.C. 2011, c. 11, came into force.

[17]

Accordingly,
    while we grant leave to appeal sentence, the appeals from conviction and
    sentence are dismissed
.

G.R. Strathy C.J.O.

R.G. Juriansz J.A.

L.B. Roberts J.A.





[1]
The trial judges reasons on his ruling are reported at 2016 ONSC
    2230.


