



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Downey, 2017 ONCA 789

DATE: 20171016

DOCKET: C63504

van Rensburg, Pardu and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Michelle-Ann Downey

Appellant

Michelle-Ann Downey, acting in person

Erika Chozik, appearing as duty counsel

Jessica Smith Joy, for the respondent

Heard: October 2, 2017

On appeal from the conviction entered by Justice Scott K.
    Campbell of the Superior Court of Justice on August 10, 2016, and the sentence
    imposed on January 26, 2017.

REASONS FOR DECISION


[1]


The appellant was convicted of various firearm
    related offences arising from having imported three guns into Canada. The guns were
    found secreted in the vehicle she drove across the border from Detroit,
    Michigan.

[2]

As the appellant was clearly in control of the guns
    located within her vehicle, the real issue in this judge alone trial was
    knowledge. In lengthy reasons, the trial judge concluded beyond a reasonable
    doubt that the appellant was wilfully blind about what she was transporting.

[3]

Duty counsel argues that the trial judge erred
    in his application of the doctrine of wilful blindness. The error is said to
    have arisen from his failure to look for evidence from which the inference
    could be drawn that the appellant suspected that she had guns (as opposed to
    some other criminal contraband) in her vehicle. Duty counsel argues that there
    was no such evidence and that the Crown failed in its proof.

[4]

We disagree that the trial judge erred in the
    manner suggested. Wilful blindness acts as a substitute for actual knowledge,
    when knowledge is a component of
mens rea.
As
    Charron J. put it in
R. v. Briscoe,
2010 SCC
    13, [2010] 1 S.C.R. 411, at para. 21:

Wilful blindness does not define the
mens rea
required
    for particular offences. Rather, it can substitute for actual knowledge
    whenever knowledge is a component of the
mens rea
. The doctrine of
    wilful blindness imputes knowledge to an accused whose suspicion is aroused to
    the point where he or she sees the need for further inquiries, but
deliberately
    chooses
not to make those inquiries. [Emphasis in original.]

[5]

Wilful blindness involves a state of what has
    been described as deliberate ignorance that involves an actual process of
    suppressing suspicion. It does not involve a failure to inquire, but an active
    decision not to inquire so as to avoid being fixed with knowledge:
Briscoe,
at para. 24, citing Don Stuart,
Canadian
    Criminal Law: A Treatise
, 5th ed. (2007), at p. 241.

[6]

The trial judge did not have to find that the
    appellant knew or suspected there were guns, as opposed to another form of
    criminal contraband, in the car. To the contrary, wilful blindness was met by
    finding beyond a reasonable doubt that the appellant had her suspicion aroused
    to the point that she thought there was a need for inquiry, but she
    deliberately chose not to inquire because she did not want to know the truth.

[7]

The trial judge carefully articulated the
    evidentiary basis upon which he came to this finding. He gave reasons for
    rejecting the appellants testimony that she thought she was only transporting
    $4,000 in cash across the border, including that:

·

her evidence was inconsistent with text messages
    located on her phone;

·

she knew it was not illegal to bring $4,000 into
    the country, yet she told the customs officials she was not carrying cash;

·

it was implausible that she thought she would be
    paid $1,000 for smuggling $4,000 into the country; and

·

the appellant admitted that her conscience was
    telling her she was doing something wrong.

[8]

After conducting a thorough review of the
    appellants evidence, the trial judge concluded that she made a conscious
    decision not to become infused with knowledge that she believed would make her
    culpable. We see no error in his approach.

[9]

The appellant also seeks leave to appeal
    sentence and, if leave is granted, seeks a reduction in sentence. The
    appellants trial counsel sought a two year less a day conditional sentence.
    The Crown sought a three to four year sentence. The trial judge concluded that
    a fit sentence was two years less a day. He parted company with the appellants
    submission at trial only to the extent that he declined to allow her to serve
    the sentence in the community.

[10]

It is argued on the appellants behalf that the
    trial judge erred by failing to take into account what is described as a lesser
    form of
mens rea,
that being wilful blindness,
    as a factor in mitigation of sentence. We do not agree. The elements of the
    offence were made out, resulting in the appellants conviction. In the
    circumstances of this case, the appellants wilful blindness did not act as a
    factor in mitigation of sentence. We note that the trial judge had specific
    regard to the fact that the appellant was a courier and that there was an
    absence of evidence that she was behind the scheme to bring the guns into
    Canada.

[11]

We acknowledge that the appellant has taken
    responsibility for her conduct and has expressed remorse for her actions. She
    appears to have committed herself to a course of improving her life skills
    while in custody. The Crown does not dispute any of these facts. This should
    serve her well on her path to rehabilitation.

[12]

That said, we can see no basis upon which to
    interfere with the sentence imposed. It only differs from trial counsels
    position to the extent that the trial judge imposed a custodial term. He
    correctly articulated the basis upon which a conditional sentence could be
    imposed and the factors supporting and opposing such a disposition. He did not
    err. His exercise of discretion must be shown deference.

[13]

The conviction appeal is dismissed. While leave
    to appeal sentence is granted, the sentence appeal is dismissed.

K.
    van Rensburg J.A.

G.Pardu
    J.A.

Fairburn
    J.A.


