



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Beckford, 2021 ONCA 56

DATE: 20210127

DOCKET: C67382

Fairburn A.C.J.O., Watt and
    Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Kayon Beckford

Appellant

Jessica Zita, for the appellant

Victoria Rivers, for the respondent

Heard: January 25, 2021 by
    video conference

On appeal from the conviction entered by
    a jury presided over by Justice J. Ramsay of the Superior Court of Justice,
    dated October 11, 2018, and the sentence entered on May 9, 2019.

REASONS FOR DECISION

[1]

The appellant was convicted of both importing cocaine and
    possession of cocaine for the purpose of trafficking. The cocaine was found in
    four hot chocolate containers, located in the trunk of a rental car as she
    tried to cross into Canada at Fort Erie.

[2]

This is an appeal from conviction and sentence. At the end of the
    hearing, we dismissed the appeals with reasons to follow. These are those
    reasons.

[3]

The appellant contends that the jury charge was unfair in a few
    respects.

[4]

First, the appellant suggests that the trial judge improperly used
    rhetorical questions in the jury charge to convey his view of the case. We do
    not agree these questions were rhetorical or improper. While the use of
    questions in jury charges has the potential to create unfairness and, therefore,
    should only be used with caution, the questions in this case did nothing more
    than focus the jurys attention on the central issue to be decided: whether the
    appellant knew that there was cocaine in her trunk.

[5]

In any event, even if the questions could be seen as an expression of
    opinion, which suggestion we reject, the trial judge clearly brought home to
    the jury that they were the sole triers of fact and should not feel bound by
    any opinion or fact he expressed.

[6]

We also note the absence of any objection to what is now said to
    constitute deep unfairness in the charge. The defence silence on this point at
    trial is telling, especially given that trial counsel would have been in the
    best position to assess the overall fairness of the charge within the context
    of the entire trial and the issue to be decided.

[7]

Second, the appellant claims that the trial judge erred in failing to
    present the defence position fully and fairly to the jury. It is correct to
    observe that the trial judge said little about the defence position, other than
    that the Crown had failed to prove knowledge beyond a reasonable doubt.
    Importantly, though, the trial judge summarized the Crown position with equal
    brevity.

[8]

This was a short trial and the jury had just heard the closing submissions
    of counsel. Brevity can be a virtue in situations such as these. The defence
    position could not have been lost on the jury and, in these circumstances,
    there was no need for the trial judge to repeat what the jury had just heard.

[9]

The appellant also seeks leave to appeal from her 5.5-year sentence. She
    says that a three-year sentence should have been imposed. She points to three
    alleged errors in the sentencing reasons.

[10]

First,
    the appellant contends that the trial judge did not consider her full rehabilitative
    potential by failing to take into account her personal circumstances, including
    her history of physical and sexual abuse, as well as her employment history.
    Importantly, the appellant did not choose to have a pre-sentence report
    prepared. While she wished to pursue a different type of report, in the seven
    months between verdict and sentencing, she did not do so. In the end, the
    appellants personal circumstances were conveyed to the court through counsels
    submissions and not through evidence. Despite this fact, the trial judge was
    prepared to accept some of the things that [he had] been told. We see no
    error in his approach.

[11]

Second,
    the appellant contends that the trial judge erred by failing to address many of
    the sentencing decisions he had been provided. The trial judge was under no
    obligation to address every authority provided to him. He grappled with the
    central authorities, specifically referring to this courts decisions in
R. v.
Madden
,
    1996 CanLII 10212 (Ont. C.A.)
and
R. v.
Cunningham
, 1996 CanLII 1311 (Ont. C.A.)
.
In
Madden
,
the sentencing range for first-time offenders importing
    more or less one kilogram of cocaine was three to five years. In
Cunningham
,

the court referred to the
    sentencing range for importing multiple kilograms of cocaine to be six to eight
    years.

[12]

The
    trial judge specifically noted that in this case, he considered the around 1.5
    kilograms of cocaine, found in the four hot chocolate containers, to be a
    little more than 1 kilo more or less. In his view, this drove the range to
    somewhere between the
Madden

and
Cunningham

ranges.
    We see no error in this approach.

[13]

Finally,
    the appellant argues that the trial judge erred by failing to apply the
    principle of restraint when sentencing a first-time offender. While the trial
    judge did not specifically advert to the principle of restraint, he was well
    alive to the fact that the appellant was a first-time offender. He was also
    alive to the fact that the
Madden

and
Cunningham

ranges
    are set for first-time offenders.

[14]

Sentencing
    is an individualized process. We see no legal error in the trial judges
    approach. The sentencing decision is owed deference.

[15]

The conviction appeal is dismissed. Leave to appeal sentence is
    granted and the sentence appeal is dismissed.

Fairburn
    A.C.J.O.

David
    Watt J.A.

Grant
    Huscroft J.A.


