



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Anderson, 2020 ONCA 780

DATE: 20201229

DOCKET: C65857 & C67034

Pepall, van Rensburg and Brown JJ.A.

DOCKET: C65857

BETWEEN

Her Majesty the Queen

Respondent

and

Belinda Anderson

Appellant

DOCKET: C67034

AND BETWEEN

Her Majesty the Queen

Respondent

and

Shane Cumberbatch-Agard

Appellant

Marianne Salih, for the appellant Belinda Anderson

Chris Sewrattan, for the appellant Shane
    Cumberbatch-Agard

Xenia Proestos and Anjie Tarek-Kaminker, for the
    respondent

Heard: October 20, 2020 by video conference

On appeal from the convictions entered by Justice Robert
    B. Reid of the Superior Court of Justice, sitting with a jury, on May 17, 2018.

By the Court:

[1]

After a trial by judge and jury, the appellants were convicted of
    importing cocaine and possession of cocaine for the purpose of trafficking. The
    latter convictions were conditionally stayed under
Kienapple.
Shane
    Cumberbatch
[1]
was sentenced to three and a half years in prison, less pre-trial custody and
Downes

credit (
R. v. Downes
(2006), 205 C.C.C. (3d) 488 (Ont. C.A.)),
    while Belinda Anderson was sentenced to two years less a day, less pre-trial
    custody, followed by two years probation.

[2]

The appellants appeal their convictions. They assert that the
    convictions were unreasonable, and that they are entitled to be acquitted of
    all charges. They also argue that knowledge based on wilful blindness should
    not have been left with the jury, and that if this ground of appeal is
    successful, there should be a new trial. If their convictions for importing are
    set aside, but the convictions for possession for the purpose of trafficking
    remain, the appellants request a reduction of their sentences.

[3]

For the reasons that follow, we dismiss the appeals.

A.

Relevant Facts

[4]

On August 9, 2016, the Canada Border Services Agency (CBSA)
    intercepted a package that was addressed to Harley Eckert at an address in St. Catharines,
    Ontario. The package appeared to have been sent from Jamaica and was labelled
    with a customs declaration listing various non-perishable food items as the
    contents. When the package was inspected, balls of suspected cocaine were discovered
    hidden in wrapped chocolate balls and tamarind balls. The Niagara Regional
    Police Service (NRPS) was contacted and removed the suspected cocaine for
    weighing and testing. The substance was confirmed to be cocaine, weighing approximately
    187 grams. The NRPS reassembled the package with the same food items, replaced
    the chocolate balls with substitutes, left one cocaine ball in the package, and
    installed a tracking device that would also trigger and alert the police upon
    the opening of the package. The NRPS obtained a general warrant authorizing a controlled
    delivery of the package and authorizing the police to enter and search the
    place where the package was opened.

[5]

On August 17, 2016 an NRPS undercover officer, disguised as a Canada
    Post employee, attended at the address on the parcel to deliver the package to
    Mr. Eckert. The officer was redirected to an alternate address for Mr. Eckert
    on Abbot St., also in St. Catharines, where he attended on the same day. Mr. Eckert
    identified himself and signed for the package at around 3:30 p.m. He took the package
    to the open trunk of a vehicle that was occupied by a female. At 6:10 p.m. Mr.
    Cumberbatch arrived by car at the Abbot St. address. As he began to drive away
    three minutes later, the tracking device indicated that the package was now in
    his vehicle.

[6]

At 7:23 p.m., Mr. Cumberbatch was seen in a parking lot in a park in
    Jordan Station, where he parked next to a vehicle driven by Ms. Anderson, which
    had arrived at the same time. He transferred the package from his vehicle to
    the rear passenger seat of Ms. Andersons vehicle. The two remained in the
    parking lot, first in Ms. Andersons vehicle and then in Mr. Cumberbatchs
    vehicle, for nearly an hour before they departed. Mr. Cumberbatch drove east
    toward St. Catharines, while Ms. Anderson drove west toward Hamilton. The
    tracking device indicated that the package was in Ms. Andersons car and the
    police followed her.

[7]

At 8:45 p.m., Ms. Anderson arrived at her residence in Hamilton, where
    she carried the package inside. Ten minutes later she left the house in her
    vehicle; the tracking device indicated that the package remained inside the
    house, unopened. Ms. Anderson returned at around 9:39 p.m. with two adult
    males, a teenaged female, and a baby, who all entered the home. At around 9:47
    p.m., the device in the package indicated that it had been opened. The police
    entered the residence and executed a search at 10:00 p.m. Ms. Anderson was
    found in the kitchen, standing next to the opened package with most of the food
    contents spread out and a cell phone in her hand. The bags containing the chocolates
    had been removed from the package and the house. The police found Donovan
    Gordon in a shed in the backyard apparently examining the tampered chocolates
    on a makeshift table with his cell phone flashlight. Latex gloves and the
    controlled cocaine sample were also on the table. The police arrested Ms. Anderson
    and Mr. Gordon. Later that evening, at about 11:44 p.m. Mr. Cumberbatch
    arrived as a passenger in a car that parked down the street from the residence,
    and he was arrested. Mr. Eckert was arrested the next day at the Abbot St.
    address.

[8]

The appellants and Mr. Eckert were charged with unlawfully importing
    into Canada not more than one kilogram of cocaine, and with possessing cocaine
    for the purpose of trafficking. Mr. Cumberbatch was also charged with
    possession of proceeds derived from an offence. This charge stemmed from $285
    that the police found in his wallet when they arrested him.

[9]

The appellants were jointly tried with Mr. Eckert. The Crown called
    several CBSA, RCMP and NRPS officers who had been involved in the
    investigation. They testified about intercepting the package, receiving the
    package from CBSA, opening and dismantling the contents of the package,
    locating the suspected cocaine, sending samples to Health Canada for
    confirmatory analysis, repackaging the package for a controlled delivery,
    delivering the package to Mr. Eckert, conducting surveillance to follow
    the movement of the package, observing Mr. Cumberbatch transfer the package to
    Ms. Andersons vehicle, being notified that the device had triggered and that
    the package had been opened, entering Ms. Andersons residence, finding Mr.
    Gordon in the backyard shed, and arresting the various accused parties. On
    consent an expert witness testified about the value of the intercepted drugs,
    the amount of cocaine consumed daily by a heavy user, and the non-indigenous
    nature of cocaine.

[10]

At
    the conclusion of the Crowns case, the appellants brought applications for
    directed verdicts of acquittal. The applications were unsuccessful except for
    the dismissal of the proceeds of crime charge against Mr. Cumberbatch. None of
    the defendants testified and no defence evidence was called. The appellants and
    Mr. Eckert were convicted on the remaining charges.

B.

Issues on Appeal

(1)

Issue One: Were the Verdicts Unreasonable?

[11]

On
    an appeal asserting that a verdict was unreasonable, the court must determine,
    on the evidence as a whole, whether the verdict is one that a properly
    instructed jury, acting judicially, could reasonably have rendered. The
    question is whether the jurys verdict is supportable on any reasonable view of
    the evidence and whether proper judicial fact-finding, applied to the evidence
    as a whole, precludes the conclusion reached by the jury: see
R. v. Pannu
,
    2015 ONCA 677, 127 O.R. (3d) 545, at paras. 162-63, leave to appeal refused, [2015]
    S.C.C.A. No. 478 and [2015] S.C.C.A. No. 498;
R. v. Smith
, 2016
    ONCA 25, 333 C.C.C. (3d) 534, at paras. 71-73.

[12]

The
    appellants submit that the verdicts were unreasonable for two reasons: first,
    because the importation had already ended before they became involved with the
    package containing the cocaine, and second, because no reasonable jury could
    conclude from their brief handling of the package that their knowledge of the
    controlled substance, and therefore their guilt, was the only reasonable
    inference.

(a)

When did the importation end?

[13]

The
    appellants first unreasonable verdict argument applies to their convictions
    for importing cocaine. They submit that there was no evidence that they
    assisted in the importation of the drugs into Canada because the importation
    ended when the package was delivered to Mr. Eckert. They contend that, by the
    time they handled the package, the importation was complete, and that, at best,
    they could be guilty of possession for the purpose of trafficking (assuming
    that their knowledge and control of the drugs were made out).
[2]

[14]

In
    their directed verdict applications, the appellants and Mr. Eckert argued,
    among other things, that the importing was complete by the time they handled
    the package, however, their argument on this point was different from the one
    made on appeal. Relying on
Bell v. The Queen
,
    [1983] 2 S.C.R. 471
as authority that importing is not a continuing
    offence, the appellants and Mr. Eckert argued at first instance that the
    offence of importing was complete when the package containing cocaine entered
    the country, that is, even before the controlled delivery to Mr. Eckert.
    The trial judge rejected this argument. He noted that the case law contemplates
    that the offence of importing is complete when the goods are received by the
    importer, and that in this case, Mr. Gordon could reasonably be viewed to be
    the importer given his apparent knowledge of the presence and location of the
    cocaine in the package. As such, the appellants and Mr. Eckert could be found
    guilty of importing, as parties to the offence who aided Mr. Gordon.

[15]

This
    was the Crowns theory at trial, and the approach taken when the case was put
    to the jury. Mr. Cumberbatchs trial counsel, for example, described Mr. Gordon
    as the last man standing in the presence of the ball of cocaine and
    chocolates, and asserted that he was the true intended recipient of the package
    containing the drugs and had some role in its importation. And in his charge,
    the trial judge stated that [f]or knowledge, the Crown counsel must prove that
    Ms. Anderson, Mr. Cumberbatch, and Mr. Eckert knew that Donovan Gordon
    intended to commit the offence of importing cocaine, although Crown counsel
    need not prove that they knew precisely how Mr. Gordon would commit the offence.
    The jury was instructed that if they concluded that Mr. Gordon was the
    importer, they could consider whether the actions of the three accused
    constituted aiding.

[16]

On
    appeal, the appellants make a different argument about when the offence of
    importation is concluded. They accept that, although importing is legally
    complete when contraband passes the border, the importation continues until it
    is factually complete, with the goods becoming available to the domestic
[3]
recipient of the importation: see e.g.,
R. v. Foster
, 2018 ONCA 53,
    360 C.C.C. (3d) 213, at paras. 106, 108, leave to appeal refused, [2018] S.C.C.A.
    No. 127;
R. v. Onyedinefu
, 2018 ONCA 795, at para. 8. The appellants
    point out that these cases involved a single alleged importer. They contend
    that, by contrast, when there are multiple recipients, the importer is always the
    first domestic recipient, who in this case was Mr. Eckert. Again, they argue
    that they could not be found guilty of the offence of importing based on their
    handling of the package after it was received by Mr. Eckert, because by then
    the importation was complete.

[17]

In
    support of their argument that Mr. Eckert, as the first domestic recipient of
    the package, was the importer, the appellants rely on this courts decision in
R.
    v. Buttazzoni
, 2019 ONCA 645.

[18]

In
Buttazzoni
, the appellant appealed his conviction for conspiracy to import
    cocaine, which arrived in a shipment from Guyana. He had been acquitted of
    importing, after the trial judge concluded that his involvement with the drugs
    commenced after the shipment reached Ontario, and there was no evidence that he
    was involved in directing or causing another person, including his co-accused,
    Lawrence Dalloo, who was the consignee of the shipment, to bring the cocaine
    into Canada. Buttazzoni argued that he could not be convicted of conspiracy to
    import absent a finding that he had joined the conspiracy before the
    importation ended, that is, when the drugs entered Canada. The trial judge had
    not determined when he had joined the conspiracy. Feldman J.A. accepted that
    the Crown had to prove that Buttazzoni had joined the conspiracy before the
    completion of its object, which was the importation of the cocaine. However,
    she noted that the trial judge did not have the benefit of this courts
    decisions in
Foster
and
Onyedinefu
, which distinguished
    between the completion of the offence of importing in law and in fact. She held
    that the importation was factually complete when the cocaine became available
    to Dalloo and he took possession of it. The evidence was clear that Buttazzoni
    joined the conspiracy after the drugs arrived in Canada, but before the
    importation was factually complete. As such, his conviction for conspiracy was
    upheld.

[19]

The
    appellants assert that this case is authority for the principle that an
    importation completes when the package is received by the first domestic
    recipient. They argue that Mr. Eckert, rather than Mr. Gordon, was in the
    same position as Dalloo in
Buttazzoni
and was the domestic recipient
    as contemplated in
Foster
,
Onyedinefu
,

and

Buttazzoni
.
Given that cocaine is a trafficked commodity, treating Mr. Gordon as the
    domestic recipient, and hence the importer, would improperly stretch the
    offence of importation and imply that a potential purchaser could also be
    characterized as an importer.

[20]

We
    disagree. In
Buttazzoni

there was
    no question that Dalloo, who had pleaded guilty to importing, was the importer of
    the cocaine; indeed, the identification of the importer was not a live issue in
    that case. Dalloo also happened to be the first domestic recipient of the
    shipment. At issue on appeal was whether Buttazzoni was guilty of conspiracy to
    import; his acquittal for importing, and in particular whether he was a party
    to the importing by having aided Dalloo, was not in question.
Buttazzoni
does not stand for the principle that it is always the first domestic recipient
    who is the importer. Rather, as
Bell

has been interpreted, it
    is the identity of the ultimate domestic recipient (
Onyedinefu
, at
    para. 8), who may not be the first point of contact in Canada, that is
    important. The determination of when an importation is factually complete will
    depend on the evidence, including in circumstances where, as here, there is a
    controlled delivery and multiple parties are involved.

[21]

In
    this case it was reasonable to infer that Mr. Gordon was the ultimate domestic
    recipient of the package containing cocaine, and therefore the importer of the
    cocaine. Although Mr. Eckert was the addressee, he did not open the package,
    but instead passed it on to Mr. Cumberbatch before it ultimately was opened by Ms.
    Anderson and/or Mr. Gordon. The fact that Mr. Gordon was found in a shed with the
    chocolates from the package, apparently looking for the hidden cocaine, was
    compelling evidence that he knew where to look for the drugs and that he was the
    ultimate domestic recipient. And in this case, quite reasonably none of the
    parties at trial suggested that Mr. Eckert was the principal importer of the
    cocaine, whether because he was the first domestic recipient or at all, although
    the package was addressed to him.

[22]

If
    Mr. Gordon was the ultimate recipient of the package, as the evidence suggests,
    then, consistent with the
Foster

line of cases, the offence of
    importing was not factually complete until the package was received by him. In
    these circumstances then, the actions of the appellants in transporting the
    package to Mr. Gordon could be considered acts of aiding.

[23]

We
    therefore reject the appellants argument that the importing verdict was
    unreasonable because the importation had ended before they became involved with
    the package containing the cocaine.

(b)

Was the appellants guilt the only reasonable inference based on the circumstantial
    evidence?

[24]

As
    this was a case where the element of knowledge that the package contained a
    controlled substance was based entirely on circumstantial evidence, the jury
    could not convict the appellants of importing or possession for the purpose of
    trafficking, unless the only reasonable inference from all of the evidence was
    that they had such knowledge: see
R. v. Villaroman
, 2016 SCC 33, [2016]
    1 S.C.R. 1000, at paras. 30-42. Other plausible theories or other reasonable possibilities
    must be based on logic and experience, applied to the evidence or the absence
    of evidence, and not on speculation: see
Villaroman
, at para. 37.

[25]

The
    jury was properly charged in respect of the circumstantial evidence, and in a
    manner consistent with the approach required by
Villaroman
.
The
    appellants do not challenge the content of the charge on circumstantial
    evidence; rather they say that the jurys verdict was unreasonable because no
    reasonable jury, acting judicially, would have concluded that the only
    reasonable inference from the circumstantial evidence was that the appellants knew
    the package contained a controlled substance.

[26]

The
    appellants contend that there was no evidence about the relationship between
    the parties or of their communications. There was no evidence of what they were
    told about the contents of the package or why they were doing what they were
    doing. The only evidence respecting Mr. Cumberbatch was that he collected a
    food package two hours after it was received by Mr. Eckert, that he gave it to
    Ms. Anderson, with whom he sat, apparently chatting, for about an hour
    before driving away, and that he arrived at Ms. Andersons home about two hours
    after the package was opened. In Ms. Andersons case, the only evidence was
    that she received the package from Mr. Cumberbatch, and took it home, where it
    was opened about nine minutes after she had left the house and brought back two
    men, a teenager and a baby, and that she was standing by the opened package
    when the police entered the house. Mr. Gordon was not in her presence but was
    outside in a dark shed looking for cocaine in the chocolates. The appellants
    say that there may have been any number of reasons for the appellants actions in
    transporting the package that was delivered to Mr. Eckert and ended up with Mr. Gordons
    handling of the drugs. The appellants say that it was an equally reasonable
    inference that the appellants had no knowledge of the illicit contents of the
    package.

[27]

We
    disagree. While the individual pieces of evidence may well have been open to reasonable
    alternative inferences, the circumstantial evidence considered as a whole
    allowed the jury to infer knowledge and therefore guilt beyond a reasonable
    doubt. As noted earlier, the question in determining whether the verdict is
    reasonable is whether the jurys verdict is supportable on
any
reasonable view of the evidence and whether proper judicial fact-finding
    applied to the evidence as a whole precludes the conclusion reached by the
    jury: see
Pannu
, at para. 163.

[28]

The
    evidence and available reasonable inferences include the following:

·

Mr. Cumberbatch picked up an unopened package that was labelled
    as containing food items from Mr. Eckert, to whom the package was addressed,
    and, without opening it, simply drove it to an apparently pre-planned meeting location
    where he gave it to Ms. Anderson.

·

Ms. Anderson received an unopened package from Mr. Cumberbatch
    that was labelled as containing food items and was addressed to Mr. Eckert, but
    she took it to her home where it was opened, apparently by her or in her
    presence.

·

If the appellants believed the package contained the non-perishable
    food items that were listed on the customs declaration, there would have been
    no apparent reason for their haste in transferring and transporting the package
    the same day it was received by Mr. Eckert.

·

The appellants, in transporting the package, each had exclusive
    control over its valuable contents  the 187 grams of cocaine that it originally
    contained was valued at $8,000 to $20,000. It was open to the jury to infer
    from the quantity and value of the drugs that the package would not have been
    entrusted to someone who did not know the nature of the contents: see
Pannu
,
    at para. 173.

·

If the objective was to deliver a package containing only food
    items to Mr. Gordon, there would have been no reason for the circuitous
    route that was taken  passing from Mr. Eckert to Mr. Cumberbatch and then to Ms. Anderson.
    If Mr. Cumberbatch was going to Ms. Andersons house that evening, he could
    have taken the package with him at that time.

·

The evidence suggested that Ms. Anderson had picked up the ultimate
    recipient of the cocaine, Mr. Gordon, as the package was opened shortly after
    she returned to the house with two males, a teenaged female and a baby.

·

Ms. Anderson was in the house, standing by the opened package,
    when the police entered. The opening of the package had not been concealed from
    her.

·

Mr. Cumberbatch arrived at the house after the package had been
    opened and the small amount of cocaine that was left in the package had been
    retrieved.

[29]

The
    court is entitled to assess the reasonableness of the jurys verdict having
    regard to the absence of any innocent explanation for the appellants actions. The
    absence of defence evidence is a factor in assessing the reasonableness of the
    jurys verdict. As Watt J.A. notes in
Pannu
, at para. 175, the failure
    to testify on its own does not justify an inference of guilt, however, [w]hat
    follows from a failure to testify  is the absence of an innocent explanation
    of inculpatory facts and thus a basis to conclude otherwise than guilt. See
    also
R. v. George-Nurse
, 2018 ONCA 515, 432 D.L.R. (4th) 88, at paras.
    31-35, affd 2019 SCC 12, [2019] 1 S.C.R. 570;
R. v. Ezechukwu
, 2020
    ONCA 8, at para. 29.

[30]

It
    is not the role of the court on an unreasonable verdict appeal to retry the
    case or in effect to act as a 13
th
juror; rather the question is
    whether the jury was entitled to find that the circumstantial evidence in light
    of human experience, when considered as a whole, and the absence of evidence
    could exclude all reasonable inferences other than guilt: see
Pannu
,
    at paras. 162-63;
Villaroman
, at paras. 30, 36 and 69.

[31]

For
    these reasons we are satisfied that the verdicts here were reasonable, and we do
    not give effect to this ground of appeal.

(2)

Issue Two: Was There an Air of Reality to Knowledge Based on Wilful
    Blindness?

[32]

The
    trial judge instructed the jury as follows with respect to the knowledge
    element of the offence of possession for the purpose of trafficking:

Knowledge for each of the accused is established if the Crown
    proves beyond a reasonable doubt that the person knew the substance was cocaine,
    or that she or he thought it was some other substance in which trafficking is
    in fact prohibited. Knowledge is also established if the Crown proves beyond a
    reasonable doubt that the person was aware of indications about the illegal
    nature of the substance but deliberately chose to ignore those indications
    because she or he did not want to know the truth. This is sometimes referred to
    as willful blindness or deliberate ignorance.

[33]

A
    similar instruction was given with respect to the knowledge component for
    importing.

[34]

The
    trial judge instructed the jury to consider based on the evidence, assessed
    logically and in light of [their] experience and common sense whether it is a
    reasonable inference to conclude that any one or more of [the appellants and
    Mr. Eckert] was actually aware of the nature of the substance, or that any one
    or more of them deliberately chose to ignore indications about the illegal
    nature of the substance because she or he did not want to know the truth.

[35]

The
    appellants argue that knowledge based on wilful blindness had no air of reality
    in this case, and as such it was an error of law to leave wilful blindness with
    the jury. They contend that there was no evidence that their suspicions were
    aroused to the point where they knew they should make inquiries, but
    deliberately chose not to make inquiries and to remain ignorant.

[36]

To
    meet the air of reality standard, the Crown must be able to point to some
    evidence in the record which, if believed, would allow the jury to make the
    findings necessary to engage the doctrine of wilful blindness: see
R. v.
    Burnett
,

2018 ONCA 790,
367 C.C.C. (3d) 65, at para. 141. It is not necessary to have direct evidence;
    circumstantial evidence will suffice. In
Burnett
this court noted that
    [t]o determine whether there was an air of reality to permit the jury to
    consider wilful blindness in proof of knowledge requires a consideration of the
    cumulative effect of the evidence adduced at trial: at para. 156. The
    evidentiary threshold may be met by an accuseds own evidence, or by the
    cumulative effect of several strands of circumstantial evidence from different
    sources woven together in a mosaic: see
Burnett
, at para. 143;
R.
    v. Onasanya
, 2018 ONCA 932, at para. 24.

[37]

The
    Crown asserts that the circumstantial evidence in this case was capable of
    supporting the conclusion that the appellants knew that the package contained
    cocaine, and that the same evidence was capable of supporting the conclusion
    that the appellants were suspicious and knew that there was a need to inquire
    but deliberately chose not to inquire. The situation was inherently suspicious,
    and the trial judge was correct to instruct the jury to consider the evidence
    on knowledge in determining liability through wilful blindness. Ms. Salih, who
    argued the wilful blindness ground of appeal, fairly acknowledged that the air
    of reality test would have been met if the circumstances were so inherently
    suspicious that the appellants could be taken to have been aware of the
    potential that the package contained contraband and chose not to make those
    inquiries.

[38]

We
    agree with the Crown that the events and the circumstances respecting the
    package and its transportation were inherently suspicious, and that a
    reasonable inference from these events and circumstances was that if the
    appellants did not know that the package contained a controlled substance, it was
    only because they chose to remain deliberately ignorant. The circumstantial
    evidence was capable of supporting the reasonable inference that, if they did
    not know what the package contained, the appellants would necessarily have been
    suspicious of its contents and did not make the necessary inquiries.

[39]

The
    circumstances included the same suspicious circumstances from which knowledge
    was a reasonable inference. Both appellants would have been aware that they were
    involved in transporting a package that was labelled as containing non-perishable
    food items from its addressee to someone else. Mr. Cumberbatch took it from Mr.
    Eckert, who was the addressee, and gave it to Ms. Anderson, who had no apparent
    relationship to the package and did not open it in his presence. Mr.
    Cumberbatch and Ms. Anderson apparently pre-arranged a meeting for the transfer
    of this package. Ms. Anderson took a package from Mr. Cumberbatch that was not
    addressed to Mr. Cumberbatch or to herself, but was addressed to Mr. Eckert,
    and she did not take it to Mr. Eckert, rather she took it home. What was in the
    package and why they were entrusted with its seemingly urgent transportation
    cried out for an explanation. It made little sense that they would be
    transporting the package in the manner that they did without either knowing
    what the package contained or having their suspicions aroused and deciding to
    remain deliberately ignorant.

[40]

In
    our view the cumulative effect of the circumstantial evidence in this case met
    the threshold for leaving wilful blindness with the jury as an alternative route
    to concluding that the appellants had knowledge that the package contained a
    controlled substance.

C.

SENTENCE APPEALS

[41]

The
    appellants argue that, if this court were to give effect to their appeals only on
    the first issue, vacating their convictions for importing cocaine and substituting
    guilty verdicts on the possession for the purpose of trafficking offences,
    their sentences should be reduced under s. 686(3)(b) of the
Criminal Code
,
    R.S.C. 1985, c. C-46
.
In such circumstances, Mr. Cumberbatch would
    propose a reduction in his sentence from 3.5 years to three years, while Ms.
    Anderson would request a conditional sentence of two years less a day. The
    Crown asserts that the sentences imposed by the trial judge were fit, even if
    the importing convictions were set aside, and that the sentences therefore
    should not be disturbed.

[42]

When
    he sentenced the appellants the trial judge indicated that, if
Kienapple

had not applied, he would have sentenced Ms. Anderson to 18 months
    concurrent and Mr. Cumberbatch to three years concurrent on the possession for
    the purpose convictions.

[43]

Because
    we are dismissing the appeals entirely it is unnecessary to address the
    appellants sentences. If the appeals had been allowed on the first ground and this
    court had vacated the importing convictions, leaving the convictions on the
    possession for the purpose offences, we would have substituted the sentences
    the trial judge indicated that he would have imposed on a concurrent basis for
    the possession for the purpose convictions had he not applied
Kienapple
,
in each case less time served in pre-trial custody and to account for the
    strict terms of bail.

D.

Disposition

[44]

For
    these reasons the appeals are dismissed.

Released: December 29, 2020 (S.E.P.)

S.E. Pepall J.A.

K. van Rensburg
    J.A.

David Brown J.A.





[1]
In these reasons Mr. Cumberbatch-Agard is referred to as Mr. Cumberbatch, as
    this is how he was referred to during the trial, and in submissions in this
    court.



[2]
In February 2021, two pending appeals (
R.
    v. Hudson

(C65962) and
R. v.
    Okojie

(C68428)) will be heard by a five-judge panel of this
    court. An issue in the appeals is when importation is complete. The five-judge
    panel will allow this court to reconsider, should it decide to do so, its
    previous decisions in
R. v. Foster
,
    2018 ONCA 53, 360 C.C.C. (3d) 213, leave to appeal refused, [2018] S.C.C.A. No.
    127,
R. v. Onyedinefu
, 2018 ONCA
    795, and
R. v. Buttazzoni
, 2019
    ONCA 645, and whether they are consistent with the Supreme Courts decision in
Bell v. The Queen
, [1983] 2 S.C.R. 471. In
    July 2020, this court contacted counsel in these appeals and asked whether they
    wanted to apply to have these appeals heard together with
Hudson

and
Okojie

by the same five-judge
    panel. Mr. Sewrattan (who also represents the appellant in
Okojie
), responded that Mr. Cumberbatch
    would not be seeking to join the five-member panel appeals, stated that these
    appeals do not cover the issue that the five-member panel may choose to
    reconsider, and requested a speedy date for the hearing of these appeals. Ms.
    Andersons counsel and Crown counsel confirmed that they supported having the
    present appeals heard separately from the five-judge panel appeals. We note
    that, while the five-judge panel appeals challenge
Foster
,

Onyedinefu
,

and
Buttazzoni
, the appellants in the present
    appeals accept their authority, and in fact rely on
Buttazzoni

in their argument that
    the importing ended when the package was received by Mr. Eckert.



[3]
While their factum
used the term intended recipient to
    describe the importer of contraband, in oral argument the appellants asserted
    that the test is simply to determine who is the first domestic recipient.


