



WARNING

The
    President of the panel hearing this appeal directs that the following should be
    attached to the file:

An order
    restricting publication in this proceeding under ss. 486(1), (1.1), (2),
    or (3) of the
Criminal Code
shall
    continue.  These sections of the
Criminal Code
provide:

486(1)          Any proceedings against
    an accused shall be held in open court, but the presiding judge or justice may,
    on application of the prosecutor or a witness or own his or her own motion,
    order the exclusion of all or any members of the public from the court room for
    all or part of the proceedings, or order that the witness testify behind a
    screen or other device that would allow the witness not to be seen by members
    of the public, if the judge or justice is of the opinion that such an order is
    in the interest of public morals, the maintenance of order or the proper
    administration of justice or is necessary to prevent injury to international
    relations or national defence or national security.

(1.1) The application may be made, during
    the proceedings, to the presiding judge or justice or, before the proceedings
    begin, to the judge or the justice who will preside at the proceedings or, if
    that judge or justice has not yet been determined, to any judge or justice
    having jurisdiction in the judicial district where the proceedings will take
    place.

(2)     In determining whether the order
    is in the interest of the proper administration of judge, the judge or justice
    shall consider

(a) societys interest in encouraging the
    reporting of offences and the participation of victims and witnesses in the
    criminal justice process;

(b) the safeguarding of the interests of
    witnesses under the age of 18 years in all proceedings;

(c) the ability of the witness to give a
    full and candid account of the acts complained of if the order were not made;

(d) whether the witness needs the order
    for their security or to protect them from intimidation or retaliation;

(e) the protection of justice system
    participants who are involved in the proceedings;

(f) whether effective alternatives to the
    making of the proposed order are available in the circumstances;

(g) the salutary and deleterious effects
    of the proposed order; and

(h) any other factor that the judge or
    justice considers relevant.

(3)     If an accused is charged with an
    offence under section 151, 152, 153, 153.1, 155 or 159, subsection 160(2) or
    (3) or section 163.1, 171, 171.1, 172, 172.1, 172.2, 173, 271, 272, 273,
    279.01, 279.011, 279.02, 279.03, 286.1, 286.2 or 286.3 and the prosecutor or
    the accused applies for an order under subsection (1), the judge or justice
    shall, if no such order is made, state, by reference to the circumstances of
    the case, the reason for not making an order.

(4) No adverse inference may be drawn
    from the fact that an order is, or is not, made under this section.

R.S., 1985, c. C-46, s. 486;
    R.S., 1985, c. 27(1
st
Supp.), s. 203, c. 19 (3rd Supp.), s. 14, c.
    23 (4
th
Supp.) s. 1; 1992, c. 1, s. 60(F), c. 21, s. 9; 1993, c. 45,
    s.7; 1997, c. 16, s. 6; 1999, c. 25, s. 2(Preamble); 2001, c. 32, s. 29, c. 41,
    ss. 16, 34, 133; 2002, c. 13, s. 20; 2005, c. 32, c.43, ss. 4,8,; 2010, c.3, s.
    4; 2012, c. 1, s. 28; 2014, c. 25, s. 21; 2015, c. 13, s. 13, c. 20, s. 21.




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Jackman, 2016 ONCA 121

DATE: 20160211

DOCKET: C57678

Hoy A.C.J.O., Laskin and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Sarah Jackman

Appellant

Charles Granek, for the appellant

Ian Bell, for the respondent

Heard:  October 28, 2015

On appeal from the conviction entered on March 8, 2013
    and the sentence imposed on July 15, 2013 by Justice G. Lemon of the Superior
    Court of Justice, sitting with a jury.

Hoy A.C.J.O.:


1.

OVERVIEW

[1]

Approximately four kilograms of cocaine were found in the lining of the
    appellants luggage after a sniffer-dog alerted on her at Torontos Pearson
    International Airport. She was subsequently charged with importing cocaine into
    Canada, contrary to s. 6(1) of the
Controlled Drugs and Substances Act
,
    S.C. 1996, c. 19.

[2]

The appellant brought a pre-trial application to exclude the evidence
    against her under s. 24(2) of the
Charter
, on the basis of several
    alleged
Charter

breaches. The application judge excluded some,
    but not all, of the challenged evidence. After a trial by a different judge and
    jury, the appellant was convicted and sentenced to five years and nine months
    imprisonment, less two months credit for pre-trial custody.

[3]

The appellant appeals her conviction and seeks leave to appeal sentence.
    She alleges that the application and trial judges made multiple errors and
    requests that the finding of guilt be quashed and an acquittal entered or, in
    the alternative, that a new trial be ordered. For the reasons that follow, I
    would dismiss the conviction appeal, grant leave to appeal sentence, but
    dismiss the sentence appeal.

2.

BACKGROUND

[4]

The appellant arrived at Torontos Pearson International Airport on a
    flight from Guyana. A border services officer (BSO) was roaming with his
    sniffer-dog in the pre-primary inspection area line up. The dog was trained to
    detect the odour of firearms and a number of illegal drugs, including marijuana.
    The BSO walked the dog by all of the passengers arriving on the flight from
    Guyana to Toronto because it was a flight known to carry drugs.

[5]

Unknown to the appellant, the dog alerted on her by sitting down. As a
    result, a BSO working in the post-primary inspection area spoke to the
    appellant and coded her customs declaration card so that she would be referred
    for a secondary customs inspection once she retrieved her checked baggage. In
    the course of the secondary customs inspection, her suitcase was x-rayed and a
    BSO saw that something was hidden inside the lining. Approximately four
    kilograms of cocaine were found inside.

[6]

At that point, a BSO advised the appellant that she was under arrest.
    The BSO administered a form of caution to the effect that the appellant was not
    obligated to say anything and that, if she did, her statements could be used in
    evidence, and advised the appellant of her right to counsel. The appellant made
    several post-arrest statements to the BSO before speaking to counsel.

[7]

The appellant brought a pre-trial application, seeking exclusion of the
    cocaine and all other evidence against her on the basis of a number of alleged
Charter
violations and common law principles.

[8]

In a careful and detailed ruling, described below, the application judge,
    Dawson J., rejected the appellants arguments that the use of the sniffer-dog
    constituted an unreasonable search in violation of s. 8 of the
Charter
and that she was detained from the time of the dog alert:
R. v. Jackman
,
    2012 ONSC 3557. The application judge accepted that the appellants s. 10(b)
    right to counsel had been violated because of an approximately one hour and
    forty minute delay in the implementation of that right following the appellants
    arrest. He also found that a BSO violated the appellants s. 8 rights when she
    conducted a post-arrest strip search as a matter of routine policy and without
    consideration of whether there were sufficient grounds to do so in this particular
    case. However, he concluded, a second strip search conducted by the RCMP after
    the appellant was transported to the cells at the Toronto Airport detachment
    did not violate her s. 8 rights.

[9]

The application judge then conducted a s. 24(2)
Charter

analysis
    to determine whether the evidence against the appellant should be excluded.
    Except for one statement made very close to the time of her arrest that he
    characterized as spontaneous, he excluded all other statements made by the
    appellant between the time of her arrest and the time she was re-arrested and
    given her rights again by the RCMP.

[10]

The
    application judge then considered whether the Crown had proven that the remaining
    pre- and post-arrest statements  that is, those not excluded pursuant to s.
    24(2)  were voluntary. He was ultimately satisfied beyond a reasonable doubt
    that most of the statements were voluntary and therefore admissible.

[11]

At
    trial, the appellant testified that someone had given her a new suitcase in
    Guyana, which she accepted because her old bag was damaged. She said that she
    did not know or suspect that cocaine was concealed in the suitcase and believed
    she had been set up.

[12]

The
    jury returned a verdict of guilty and a conviction was entered.

3.

THE ISSUES ON APPEAL

[13]

This
    appeal raises the following issues:

1.

Did the application judge err in concluding that the dog sniff was not a
    search because it occurred in the context of a border crossing and, in any
    event, did not violate s. 8 of the
Charter
?

2.

Did the application judge err in concluding that the appellant was not detained
    from the time of the dog alert?

3.

Did the application judge err in concluding that the second strip search
    did not violate the appellants s. 8
Charter

rights?

4.

Did the application judge err in concluding that the appellants
    pre-arrest utterances were voluntary and admissible?

5.

Did the trial judge err in qualifying the Crowns expert (Sergeant
    Napper) to provide evidence of the value of the cocaine seized?

6.

Did the trial judge err by failing to correct his jury charge to clarify
    a point of evidence?

7.

In imposing sentence, did the trial judge fail to consider the
    appellants challenging personal circumstances?

4.

ANALYSIS

4.1.

Did the application judge err in concluding that the dog sniff was not a
    search because it occurred in the context of a border crossing and, in any
    event, did not violate s. 8 of the
Charter
?

4.1.1.

The Application Judges Reasons

[14]

The
    application judge found that it is clear from the cases relied on by the
    appellant 
R. v. Kang-Brown
,
2008 SCC 18, [2008] 1 S.C.R. 456 (the use of a sniffer-dog in a Calgary bus
    terminal) and
R. v. A.M.
, 2008 SCC 19, [2008] 1 S.C.R. 569 (the use of
    a sniffer-dog in an Ontario high school)  that,
within
Canada, a
    sniff by a detector dog constitutes a search within the meaning of s. 8 of the
Charter
because it impinges on a persons
    reasonable expectation of privacy
.


[15]

However,
    relying on
R. v. Simmons
, [1988] 2 S.C.R. 495;
Dehghani v. Canada
    (Minister of Employment and Immigration)
, [1993] 1 S.C.R. 1053;
R. v.
    Jacques
, [1996] 3 S.C.R. 312;
R. v. Monney
, [1999] 1 S.C.R. 652;
R.
    v. Hudson
(2005), 77 O.R. (3d) 561 (C.A.); and
R. v. Jones
(2006), 81 O.R. (3d) 481 (C.A.), the application judge concluded that a dog
    sniff when a person is crossing an international border to enter Canada does not
    constitute a search for the purposes of s. 8 because there is no interference
    with a reasonable expectation of privacy in those circumstances. He held that, in
    a border crossing context,
Kang-Brown

and
A.M.
do not
    apply: persons crossing borders expect to be subject to such scrutiny. Indeed,
    he wrote, the appellant testified that she expected to be questioned and to
    perhaps have her luggage searched, as it had been in the past.

[16]

The
    application judge cited the following paragraph from
Simmons
, at pp.
    516-17, where Chief Justice Dickson, writing for the majority, categorized
    three types of searches that take place at the border, according to their level
    of intrusiveness:

It is, I think, of importance that the cases and the literature
    seem to recognize three distinct types of border search. First is the routine
    of questioning which every traveller undergoes at a port of entry, accompanied
    in some cases by a search of baggage and perhaps a pat or frisk of outer
    clothing.
No stigma is attached to being one of the
    thousands of travellers who are daily routinely checked in that manner upon
    entry to Canada and no constitutional issues are raised
.
It would be
    absurd to suggest that a person in such circumstances is detained in a
    constitutional sense and therefore entitled to be advised of his her right to
    counsel. The second type of border search is the strip or skin search of the
    nature of that to which the present appellant was subjected, conducted in a
    private room, after a secondary examination and with the permission of a
    customs officer in authority. The third and most highly intrusive type of
    search is that sometimes referred to as the body cavity search, in which
    customs officers have recourse to medical doctors, to X-rays, to emetics, and
    to other highly invasive means. [Emphasis added.]

[17]

The
    application judge found that the dog sniff in this case fell within the first
    and least intrusive category of border searches described in
Simmons
,
    where no constitutional issues are raised.

4.1.2.

The Appellants Position

[18]

The
    appellant argues that the application judge erred in distinguishing
Kang-Brown
and
A.M.
, and that the dog sniff in this case constituted a search for
    the purposes of s. 8. She says that, in
R. v. Chehil
, 2013 SCC 49,
    [2013] 3 S.C.R. 220, which the application judge did not advert to, the Supreme
    Court rejected the argument that there is no reasonable expectation of privacy
    in checked luggage in an airport and refused to revisit
Kang-Brown
and
A.M.
She relies on this to assert that, if there is a reasonable
    expectation of privacy in luggage in an airport, and a dog sniff of the luggage
    is therefore a search, a dog sniff of a person in an airport is clearly a
    search. There is an even greater expectation of privacy in the person.

[19]

The
    appellant also argues that the application judge erred in finding that the dog sniff
    in this case was analogous to the first, and least intrusive, of the three
    distinct types of border searches described in
Simmons
. The Supreme Court
    explained that no stigma attaches to this first type of search, and no
    constitutional issues are raised.  The appellant says that a dog sniff is not
    like a search of baggage or pat or frisk of outer clothing, which
Simmons
includes in the first type of border search. She says that stigma attaches to a
    dog sniff because an alert by the dog can tell all watching that the person
    smells of contraband. A dog sniff is therefore more intrusive than a search of
    baggage or pat or frisk of outer clothing. She submitted in oral argument that
    a dog sniff is analogous to a forced drug test or the taking of a bodily
    sample.

4.1.3.

Analysis

[20]

I
    reject the appellants arguments. I agree with the application judge that the
    dog sniff did not violate the appellants s. 8
Charter

rights.

[21]

Section
    8 does not protect against all encroachments on an individuals privacy
    interests:
Chehil
, at para. 22. Only where state examinations
    constitute an intrusion upon some reasonable privacy interest of individuals
    does the government action in question constitute a search within the meaning
    of s. 8:
R. v. Tessling
, 2004 SCC 67,
    [2004] 3 S.C.R. 432, at para. 18
. If there is no reasonable expectation
    of privacy, s. 8 will not be engaged. An individuals reasonable expectation of
    privacy must be assessed contextually, and may vary depending on the nature of
    the circumstances:
Chehil
, at para. 59.

[22]

I
    agree with the application judge that a persons reasonable expectation of
    privacy when entering Canada at an international border crossing is different from
    when travelling within Canada. In my view, the application judge did not err in
    distinguishing
Kang-Brown
and
A.M.

in the
    circumstances of this case
.


[23]

The
    Supreme Court in
Simmon
s and
Monney
and this court in
Hudson
and
Jones
have recognized that border searches should be distinguished
    from searches occurring in other circumstances in which the security of
    Canadas interior is not engaged. As Doherty J.A. explained, at paras. 30 and
    31 of
Jones
:

No one entering Canada reasonably expects to be left alone by
    the state  [T]ravellers reasonably expect that they will be questioned at the
    border and will be expected to answer those questions truthfully. Travellers
    also reasonably expect that Customs authorities will routinely and randomly
    search their luggage.  The state is expected and required to interfere with
    the personal autonomy and privacy of persons seeking entry to Canada. Persons
    seeking entry are expected to submit to and co-operate with that state
    intrusion in exchange for entry into Canada.

Nothing is more fundamental to nationhood and national
    sovereignty than the ability to control national borders. Effective border
    control serves a myriad of crucial social interests ranging from national
    self-defence to public health, to the enforcement of Canadas fiscal policies
    and its penal statutes.

[24]

The
    dog sniff in this case was conducted as part of a routine border inspection,
    intended to prevent and control the importation of illicit substances into the
    country. Such routine border searches, when carried out in a reasonable manner,
    cannot be said to encroach on a travellers reasonable expectation of privacy
    and therefore do not violate s. 8.

[25]

I
    disagree with the appellant that the dog sniff in this case did not constitute
    a routine border search of the first type identified in
Simmons
.

[26]

A
    dog sniff is minimally invasive on an individuals privacy interests:
Chehil
,
    at paras. 1, 24, 57. Here, the dog sniff was deployed by a BSO as part of a
    routine check of passengers entering Canada on a flight known to carry drugs
    and the appellant was not even aware of the dog alert. No stigma attached to
    the search. I agree with the application judge that the dog sniff was even less
    invasive than a search of baggage or pat or frisk of outer clothing included in
    the first type of searches described in
Simmons
. Moreover, there was
    no suggestion that the sniff was not conducted reasonably.

[27]

Chehil
does not assist the appellant. In that case, a drug detector dog was deployed
    in the secure area of the Halifax airport to sniff the checked bag of a
    suspected drug trafficker who had flown to Halifax from Vancouver. Unlike in this
    case, the dog sniff was not part of a routine border inspection. RCMP officers
    had analyzed the passenger manifest for the appellants overnight
    Vancouver-Halifax flight and noticed that the appellant was one of the last
    passengers to purchase a ticket, paid for his ticket in cash and checked one
    bag. The officers testified that, in their experience, those characteristics
    were indicators of the illegal traffic of narcotics. As a result, the drug
    detector dog was deployed to sniff the appellants bag before he collected it.
    The dog indicated that he detected the scent of drugs, and the appellant was
    arrested for possession of a narcotic.
Chehil

is therefore
    distinguishable from this case, where the dog sniff was part of a routine customs
    inspection at an international airport and the appellant was not specifically
    targeted by the police for investigation.

[28]

Based
    on the above, I find that, in the circumstances of this case, the dog sniff did
    not violate the appellants s. 8
Charter
rights.

4.2.

Did the application judge err in concluding that the appellant was not detained
    from the time of the dog alert?

[29]

The
    application judge concluded that the appellant was not detained in a
    constitutional sense until the observation of the x-ray demonstrating that
    something was hidden inside the lining of her suitcase. Until then, he
    reasoned, nothing had occurred that took the appellants case outside the realm
    of the routine in a border crossing situation. He found that the dog alert,
    standing alone, did not provide such a particularized level of suspicion that
    the appellants case ceased to be routine.

[30]

He
    recounted that two involved BSOs testified that, to them, the alert did not
    mean that the appellant was transporting contraband. It simply indicated
    exposure to something that the dog was trained to detect. One BSO explained
    that, in the past, he had searched individuals who were the subject of a dog
    alert and not found contraband. And, the dog was trained to detect odours that
    included firearms and marijuana. The recreational use of firearms and the
    possession and use of small amounts of marijuana are legal in some parts of the
    world from which persons seeking to enter Canada have travelled.

[31]

Consequently,
    the application judge concluded that a dog alert in a border-crossing setting
    is not objectively capable of providing particularized suspicion that the
    subject of the alert is transporting contraband. In this case, while the alert
    may have attracted further scrutiny, it was not enough to support a conclusion
    that the appellant was detained in a constitutional sense.

[32]

The
    appellant disagrees. She argues that she was detained once the sniffer-dog alerted
    on her; thereupon, she should have been advised of her right to remain silent
    and her right to counsel. She asserts that, because she was not so advised, all
    of her subsequent pre-arrest statements should be excluded from evidence.

[33]

I
    note Justice Karakatsanis comment at para. 1 of
Chehil
that a search
    by a properly deployed drug detection dog can be highly accurate. However, I
    am not persuaded that there is any basis to interfere with the application
    judges finding, based on the evidence of the BSOs, that the dog alert,
    standing alone, did not provide such a particularized level of suspicion that
    the appellants case ceased to be routine. Routine border searches of the first
    type described in
Simmons
do not result in a detention and therefore
    do not give rise to any right to counsel or the right to remain silent:
Simmons
,
    at pp. 516-17;
Jones
, at paras. 36-37. Accordingly, the dog alert in
    this case did not result in a detention or engage the appellants ss. 7 or 10(b)
Charter

rights.

[34]

Furthermore,
    because I have found that the use of a sniffer-dog in this case did not raise
    any constitutional issues, I would not give effect to the argument that the
    appellants pre-arrest statements should have been excluded under s. 24(2).

4.3.

Did the application judge err in concluding that the second strip search
    did not violate the appellants s. 8
Charter

rights?

[35]

The
    appellant argues that the trial judge erred in finding that the second strip
    search, conducted after she was transferred to the RCMP, did not constitute an
    unreasonable search. She asserts that the search was conducted as a matter of
    policy and without reasonable grounds. I reject this argument.

[36]

The
    application judge found that the RCMP officers carefully considered the need
    for a further strip search and formed the subjective view that one should be
    conducted for purposes which I find to be objectively reasonable in the
    circumstances.

[37]

The
    officers reasons included that, when the RCMP assume custody and
    responsibility for a prisoner who has been searched by another agency, they
    need to be satisfied that the prisoner does not have any evidence, weapons or
    means of escape on their person. They knew that the appellant was considered to
    be suicidal and had made statements that she was thinking of hurting herself. Constable
    Sheedy testified that he was aware that the appellant had been in different
    locations while in custody at customs and was concerned that she may have
    picked something up that could be used to harm herself, to open handcuffs or as
    a weapon of opportunity. Corporal Ferguson explained that the appellant would
    be going to a detention facility and that it was therefore important to ensure
    that she did not have anything on her person that would pose a danger in a
    facility where other inmates were present.

[38]

The
    application judge also accepted the evidence of Corporal Ferguson that the
    search was conducted quickly, with sensitivity and in complete privacy. He was
    alert both to the privacy concern about multiple strip searches and to the
    appellants emotional instability.

[39]

I
    see no basis to interfere with the application judges conclusion that, on the
    facts of this case, the second strip search did not violate s. 8.

4.4.

Did the application judge err in concluding that the appellants
    pre-arrest utterances were voluntary and admissible?

[40]

The
    appellant argues that, in the absence of a complete record of the pre-arrest
    exchanges between the appellant and the BSO, the application judge erred in
    concluding that the appellants pre-arrest utterances were voluntary and
    admissible. She further argues that the utterances should have been excluded
    because, in the absence of a complete record providing the necessary context
    for the statements, their prejudicial effect outweighed their probative value.

[41]

The
    BSO made notes of the appellants pre-arrest statements approximately three
    hours after the statements were given. She did not record the statements
    verbatim and acknowledged that she did not write down her own questions
    preceding the statements.

[42]

I
    reject the appellants argument that, because the pre-arrest exchange between
    the BSO and the appellant were not recorded verbatim, the application judge was
    not in a position to determine whether the appellants pre-arrest utterances were
    voluntary. A verbatim recording is not an absolute requirement to demonstrate
    the voluntariness of a statement.

[43]

The
    application judge specifically considered the appellants argument that he
    could not determine voluntariness because the BSOs notes were incomplete. The
    Crown called extensive evidence regarding the circumstances in which the
    pre-arrest utterances were made. The application judge noted that, in the
    circumstances, it would have been practically impossible for the BSOs to have
    made notes of every detail that transpired. In all of the circumstances, the
    application judge was satisfied as to the voluntariness of the pre-arrest
    utterances. The appellant offers no explanation of how the BSOs failure to
    record the conversation verbatim could have affected the application judges
    ability to assess voluntariness. There is no basis to interfere with the
    application judges determination.

[44]

It
    is unclear whether the appellant argued before the application judge that the prejudicial
    effect of the appellants pre-arrest utterances exceeded their probative value
    because of the absence of a complete record of the exchanges. In any event, a
    probative value versus prejudicial effect analysis of a statement made by an accused
    is often made in the absence of complete, written and nearly contemporaneous
    notes of the applicable exchange. While a statement may be excluded if its
    meaning is so speculative  and its probative value so tenuous  that its
    probative value is outweighed by its prejudicial effect, that is not the case
    here. Here, there was no ambiguity with respect to any of the appellants
    utterances to the BSO and the appellant had the opportunity to cross-examine
    the BSO on the context in which all of the utterances were made. Their
    probative value was not outweighed by their prejudicial effect.

4.5.

Did the trial judge err in qualifying the Crowns expert (Sergeant Napper)
    to provide evidence of the value of the cocaine seized?

[45]

The
    appellant argues that the trial judges ruling that Sergeant Napper was
    qualified to give opinion evidence as to the value of the seized cocaine was
    founded on a misapprehension of the evidence. The trial judge wrote that Sergeant
    Nappers opinion in this case was based on his own experience and the RCMP
    2008/2009 illicit drug price lists. He also spoke to one other officer for
    confirmation of his estimate.

[46]

The
    appellant argues that Sergeant Napper did not ascribe his opinion to his own
    experience and, while he testified that it was his practice to consult with
    another expert, he could not recall whether he did so in this case. She asserts
    that the trial judge therefore erred by qualifying Sergeant Napper on the basis
    of incorrect factual findings.

[47]

I
    disagree. In my view, the statement that Sergeant Nappers opinion was based on
    his own experience and the RCMP price list accurately summarized the evidence
    at the
voir dire
. This provided a sufficient basis to qualify Sergeant
    Napper to provide an opinion. As the respondent asserts, while the trial judge
    overstated the evidence in saying that Sergeant Napper had consulted another
    officer in this case, this error is of no consequence.

4.6.

Did the trial judge err by failing to correct his jury charge to clarify
    a point of evidence?

[48]

The
    appellant argues that the trial judge erred by mischaracterizing a point of
    evidence in his charge to the jury. She says this error adversely affected the
    jurys assessment of her credibility and obscured an important piece of
    evidence that should have been put to the jury for consideration.

[49]

The
    appellant testified as follows regarding the point of evidence at issue. Her
    trip to Guyana was funded by her friend, Mike. Upon arrival at the Toronto
    airport, she met with Mikes friend Auntie, with whom she traveled to Guyana.
    Before boarding in Toronto, she saw Auntie with a man who did not join them on
    the flight. Auntie told the appellant that the man was her husband. When the
    appellant arrived at the airport in Guyana, Auntie waited for her outside of
    customs with a different man, whom the appellant thought worked for the airport.
    After she exited customs, the man asked her some questions about her trip.

[50]

At
    the end of her trip, while waiting at the airport in Guyana for her flight back
    to Toronto, the appellant saw Aunties husband. He was sitting with a man she identified
    as the airport employee who spoke to her when she first arrived. She later saw
    Aunties husband on the flight to Toronto.

[51]

In
    summarizing his recollection of the evidence in his charge to the jury, the
    trial judge stated:

[W]hile [the appellant] waited at the airport she saw the same
    man who spoke with her when she arrived in Guyana. He was sitting with aunties
    husband. They were sitting in the café, she was sitting outside and they were
    sitting inside.
She also saw him on [the] flight back to
    Toronto
. [Emphasis added.]

[52]

The
    appellant submits that, although she testified that the man she saw on the
    flight was Aunties husband, the phrasing of the trial judges charge gave the
    impression that she saw the man who was sitting with Aunties husband at the
    airport in Guyana.

[53]

The
    appellant argues that the trial judges failure to correct his charge, despite
    a request by counsel to do so, undermined her credibility. She says the charge
    misled the jury into thinking that the appellant made two conflicting
    statements, stating at one point that she saw Aunties husband on the plane and
    stating at another point that she saw the man who was sitting with Aunties
    husband at the airport in Guyana. She further asserts that the trial judges
    misstatement removed a key part of the appellants evidence from the jurys
    consideration  namely, that the appellant recognized Aunties husband on the
    flight and possibly suspected that he had been in Guyana to keep an eye on her.
     I reject these arguments.

[54]

The
    trial judge specifically instructed the jury that, while it was his duty to
    review the evidence, the jury must decide the case based on their recollection
    of the evidence. The appellant stated several times in her trial testimony that
    she had seen Aunties husband on the plane. In the context of the trial as a
    whole, it is unlikely that the jury would have been confused by the trial
    judges charge. In any event, I agree with the respondent that, to the extent
    that the charge was erroneous, as opposed to ambiguous, the error related to a
    peripheral point that would not have affected the jurys assessment of the
    appellants credibility or the ultimate result.

4.7.

In imposing sentence, did the trial judge fail to consider the
    appellants challenging personal circumstances?

[55]

The
    appellants principal argument is that her challenging personal circumstances
    warranted a deviation from the six- to eight-year range of custodial sentences
    for couriers who are first time offenders and smuggle large quantities of
    cocaine into Canada set out in
R. v. Cunningham
(1996), 27 O.R. (3d)
    786 (C.A.).

[56]

The
    trial judge detailed the appellants sympathetic circumstances and background
    in his reasons for sentence and considered them as mitigating factors. He
    considered the applicable authorities. He concluded that, [c]hallenging and
    compelling as [the appellants] circumstances may be, they describe a weak and
    vulnerable individual that is to be dealt with in the range stipulated.

[57]

Taking
    all of the circumstances into account, the trial judge imposed a sentence of five
    years, nine months, less two months credit for pre-trial custody  slightly
    below the range of six to eight years established in
Cunningham
.
I am not persuaded that he committed any error in principle in his approach or
    that the sentence imposed is manifestly unfit.

5.

DISPOSITION

[58]

I
    would dismiss the conviction appeal, grant leave to appeal sentence but dismiss
    the sentence appeal.

Released: AH  FEB 11 2016

Alexandra Hoy
    A.C.J.O.

I agree John I. Laskin
    J.A.

I agree L.B. Roberts
    J.A.


