



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Gill, 2019 ONCA 902

DATE: 20191114

DOCKET: C64647

Simmons, Watt and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Karamjit Kaur Gill

Appellant

Mindy Caterina, for the appellant

Howard Piafsky, for the respondent

Heard: October 25, 2019

On appeal from the conviction entered on June 9, 2017 and
    the sentence imposed on November 9, 2017 by Justice J. Michal Fairburn of the Superior
    Court of Justice, sitting without a jury.

REASONS FOR DECISION

[1]

After a trial before a judge of the Superior Court of Justice sitting
    without a jury, the appellant was convicted of attempting to possess heroin for
    the purpose of trafficking. She was sentenced to a term of imprisonment of 9
    years less credit of 36 days for time spent in pre-trial custody. She appeals
    both conviction and sentence.

[2]

At the conclusion of the appellants submissions in this court, we
    dismissed the appeals from conviction and sentence. At that time we indicated
    that we would provide reasons for our decision. Those reasons follow.

The Background Facts

[3]

Thirty boxes, destined for a commercial address in Brampton, arrived at
    Pearson International Airport. The point of origin was Pakistan. Alerted by
    CBSA/Customs officials that one of the boxes contained a large fabric belt with
    several pockets in which were contained 18 packets of a white substance, the
    RCMP took charge of the shipment. On examination, the packets were found to
    contain heroin weighing 3.3 kilograms. The police replaced the heroin with a
    control sample of heroin and an inert substance.

[4]

The RCMP released the boxes to a cargo forwarding company that
    disseminated cargo to the consignee or persons designated by the consignee to
    take delivery of the Customs-cleared cargo. Over the next several days several
    inquiries were made about the shipment by callers who identified themselves by
    names including that of the consignee. But no one came to pick up the shipment.

[5]

About 12 days after the shipment arrived, the appellant appeared at the
    cargo forwarding company at about 10:00 p.m. She was driving a mini-van and
    produced a document authorizing her to pick up the shipment on behalf of the
    consignee. The 30 boxes, including the box with the control sample, were loaded
    into the appellants mini-van. She drove off. Unmarked police vehicles
    followed. She was arrested 18 minutes later.

[6]

The evidence at trial consisted of an Agreed Statement of Facts together
    with the testimony of two police officers who followed the appellant after she
    picked up the boxes and arrested her.

[7]

The contested issue at trial was the knowledge of the appellant that the
    shipment she picked up contained a controlled substance. The appellant did not
    testify at trial.

The Appeal from Conviction

[8]

The appellant advances two grounds of appeal against conviction. She
    says that the trial judge erred by materially misapprehending the evidence at
    trial in three respects:

i.

by failing to consider relevant evidence;

ii.

by failing to resolve material inconsistencies in the evidence; and

iii.

by reaching speculative conclusions rather than drawing reasonable
    inferences from established facts.

She further contends that the trial judges conclusion
    that the appellants knowledge of the controlled substance in the shipment was
    the only reasonable inference available on the evidence, considered as a whole,
    was unreasonable.

Discussion

[9]

We are not satisfied that, whether considered individually or
    cumulatively, the grounds of appeal advanced warrant setting aside the
    appellants conviction.

Misapprehension of Evidence

[10]

The standard applied when misapprehension of evidence is said to warrant
    reversal of a conviction is a stringent one. The misapprehension of the
    evidence must relate to the substance of the evidence, not simply a matter of
    detail. It must be material, rather than peripheral to the reasoning of the
    judge. But that is not all. The errors alleged must also play an essential
    part, not just in the narrative of the judgment, but in the reasoning process
    resulting in the conviction:
R. v. Lohrer
, 2004 SCC 80, at para. 2.
    Misapprehensions of evidence amount to a miscarriage of justice only if
    striking the misapprehension from the judgment would leave the judges
    reasoning on unsteady ground:
R. v. Sinclair
, 2011 SCC 40, at para.
    56.

[11]

In this case, the misapprehensions alleged all relate to the trial
    judges use of testimony about the appellants vehicular movements after
    leaving the airport as an item of circumstantial evidence to assist in proof of
    the knowledge that the boxes she picked up contained a controlled substance.

[12]

In our view, considered as a whole, this evidence of frequent lane and
    direction changes; cutting across lanes of traffic; and the like, could ground
    the inferences upon which the trial judge relied. The trial judge acknowledged
    that, considered separately and taken out of context, individual manoeuvres
    could give rise to other inferences. But, as the trial judge recognized, that
    is not the manner in which we assess the probative force of circumstantial
    evidence. It is the cumulative effect of the evidence, each item considered in
    relation to the others, and the evidence as a whole, that matters.

[13]

In the end, we simply cannot say that the trial judge:

i.

was mistaken as to the substance of the evidence;

ii.

failed to consider evidence relevant to a material issue; or

iii.

failed to give proper effect to the evidence.

The Standard of Proof

[14]

The appellant also submitted that the trial judges conclusions that the
    appellants knowledge of the controlled substance in the consignment was the
    only reasonable inference emerging from the evidence as a whole was
    unreasonable.

[15]

It is fundamentally for the trier of fact to assess the cumulative
    effect of the evidence adduced at trial. In each case, this assessment involves
    drawing the line that separates reasonable doubt from speculation. We are
    entitled to set aside the trier of facts assessment only where it is
    unreasonable:
R. v. Villaroman
, 2016 SCC 33, at para. 71. A verdict is
    unreasonable if it is one that no properly instructed jury acting judicially
    could reasonably have rendered:
R. v. Jackson
, [2007] 3 S.C.R. 514, at
    para. 2.

[16]

In our view, when the evidence adduced at trial, which consisted of the
    Agreed Statement of Facts and the testimony of the surveilling and arresting
    officers, is taken or considered as a whole, the finding of guilt entered by
    the trial judge was a verdict that a properly instructed trier of fact acting
    judicially could reasonably have rendered.

[17]

The appeal from conviction is dismissed.

The Appeal from Sentence

[18]

The appellant also appeals sentence. She tenders for admission fresh evidence
    of what she has done since sentence to repair her relationship with various
    members of her family, as well as about her employment history and achievements
    since her release on bail pending appeal. She was 38 years old when she
    committed the offence of which she was convicted, and 45 at the time of
    sentence. She is now 47 years old and without prior convictions apart from the
    present.

[19]

At trial, the Crown sought a sentence of imprisonment for 15 years. The
    appellants trial counsel submitted that the applicable range of sentence was
    6-12 years and advocated for a sentence at the lower end of that range, more
    specifically, a sentence of 6-8 years.

[20]

The trial judge considered the predominant sentencing objectives to be
    deterrence, both specific and general, and denunciation. She characterized the
    appellants role in the drug importation scheme as one at the lower end, but
    nonetheless critical to the success of the venture.

[21]

In determining the sentence she would impose, the trial judge was also
    mindful of the appellants circumstances:

i.

the absence of previous convictions;

ii.

a lengthy history of gainful employment in positions involving
    increasing responsibility;

iii.

her medical condition requiring accommodation at her place of employment
    and during the sentencing hearing; and

iv.

the physical and emotional abuse she suffered during a previous arranged
    marriage.

[22]

The appellant asserts three errors in principle warrant reduction of the
    sentence to a term of imprisonment of six years. Those errors are:

i.

a failure to consider the significant concessions the appellant made at
    trial to reduce the length of trial proceedings to one day from an original
    estimate of eight days;

ii.

misidentification of the applicable range of sentence; and

iii.

failure to apply the principle of parity.

[23]

As
Lacasse
teaches, an error in principle, a failure to
    consider a relevant factor or the erroneous consideration of an aggravating or
    mitigating factor justifies our intervention only where it appears from the
    sentencing judges decision that the error alleged had an impact on the
    sentence imposed:
R. v. Lacasse
, 2015 SCC 64, at para. 44. We are
    disentitled to intervene simply because one, two or all of us, would have
    weighed the relevant sentencing factors differently:
Lacasse
, at para.
    49. Further, the choice of a sentencing range or of a category within a range
    falls within the discretion of the trial judge and does not, in itself,
    constitute a reviewable error. Thus, we are enjoined from interfering on the
    ground that we would have put the sentence in a different range or located it
    in a different category within that range. Our intervention is confined to
    cases in which the sentence imposed is demonstrably unfit:
Lacasse
, at
    para. 51.

[24]

Our inquiry must fasten on the fundamental principle of sentencing 
    proportionality  expressed in s. 718.1 of the
Criminal Code
. A
    sentence is demonstrably unfit if it constitutes an unreasonable departure from
    the fundamental principle of proportionality. And proportionality is determined
    not only on an individual basis, that is to say, in relation to the individual
    accused and offence being considered, but also by comparison with sentences
    imposed on similar offenders for similar offences committed in similar
    circumstances:
Lacasse
, at para. 53.

[25]

Tested against the fundamental principle of proportionality and mindful
    of the scope of appellate review, we ascertain no basis upon which to interfere
    with the sentencing judges conclusion.

[26]

This was a very serious offence involving the importation of 3.3
    kilograms of a highly addictive drug. The appellant, although not a directing
    mind of the scheme, was an essential link in the chain from source to street.
    She was a mature adult, well beyond the naivete of youth. Her involvement was
    not for the purpose of fuelling her addiction, rather for financial reward,
    however meagre it may have been when held up against the penal consequences.

[27]

We are not persuaded on the basis of the record of proceedings or the
    fresh evidence that there was any error in principle, a failure to consider a
    relevant factor or the erroneous consideration of an aggravating or mitigating
    factor. The sentence imposed pays heed to the fundamental principle of
    proportionality and is fit for this offence and the offender who committed it.

[28]

Leave to appeal sentence is granted, but the appeal from sentence is
    dismissed.

Janet Simmons J.A.

David Watt J.A.

B.W. Miller J.A.


