



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Safronii, 2022 ONCA 307

DATE: 20220420

DOCKET: C66162

Rouleau, Nordheimer and George
JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Natalia Safronii

Appellant



Etai Hilzenrat, for the appellant

Sandy Thomas, for the respondent

Heard: March 4, 2022 by video conference

On appeal from the conviction entered on
August 16, 2018 and the sentence imposed on May 21, 2019 by Justice Leonard Ricchetti
of the Superior Court of Justice.

Rouleau J.A.:

[1]

The appellant appeals her conviction for
importing opium, a Schedule 1 controlled substance, contrary to s. 6(1) of the
Controlled
Drugs and Substances Act
, S.C. 1996,
c. 19
.
She also applies for leave to appeal against the
one year and 359-day sentence imposed.

FACTS

[2]

On August 7, 2014, the appellant and her seven year
old daughter landed at Toronto Pearson International Airport on a flight from
Turkey. Upon arrival they were referred to the Canada Border Services Agency
(CBSA) secondary inspection area. As part of this inspection, the CBSA agent
emptied out the appellants black nylon carry-on bag and took a swab of the bag.
The scan of the swab returned a positive result for trace amounts of opium and
heroin. The CBSA officer also noted that the bag, although empty, was unusually
heavy. He therefore passed the bag through an x-ray machine and noted anomalies
in the x-ray. As a result, he made an incision in the bags lining and discovered
a brown plastic wrapped moist material with a distinctive earthy smell.

[3]

The appellant was then arrested. Upon inspection
of the appellants checked baggage, a second similar black nylon bag was found
inside the checked baggage. An x-ray of that bag revealed the same anomalies as
found in the x-ray of the carry-on bag. In the lining of the second bag,
further plastic wrapped moist brown material with an earthy smell was
recovered.

[4]

The material extracted from the lining of the
two bags consisted of several panels of felt-like material. That material
weighed 3,181 grams whereas the bags themselves, once emptied of the felt-like
material weighed only 2,008 grams.

[5]

Two samples from each of the two bags were sent
to Health Canada for testing. Certificates of analysis were returned confirming
the presence of opium in two of the samples and the presence of codeine, Schedule
1 morphine, didehydro-epoxy methylmorphinan, and narcotine in the remaining two
samples. Health Canada did not opine on the quantity of opium in the sample of
the felt-like materials that had been sent to them.

[6]

At trial, Crown counsel sought to introduce the
evidence of Sgt. Rodney Gray. On a
voir dire
Sgt. Gray testified that
he carried out an experiment to extract the opium from the felt-like material.
He rinsed the felt cloth twice in hot tap water, collected all the rinsed water
and boiled it until the water evaporated. He explained that the residue looked
and smelled like opium and in his opinion was about three kilograms of opium. Sgt.
Gray had not, however, conducted such an experiment before. As a result, the
trial judge ruled that Sgt. Gray could not testify at trial as an expert to
certify that the residue was in fact opium. The evidence Sgt. Gray sought to
give could only be given by an expert. Having ruled Sgt. Grays testimony
inadmissible at trial, there was no admissible evidence as to the specific
weight of the opium imported.

[7]

The appellant testified in her defence. She
explained that she had been in a romantic relationship with a man named Mr. Ali
Arapour for about a year. They had travelled together to Turkey on at least
three previous occasions. On each of those occasions, Mr. Arapour had paid all
of the expenses.

[8]

In August of 2014, Mr. Arapour arranged for
another trip. He made all the arrangements and paid for the plane tickets and
accommodation in Turkey. Although they had planned to travel together, a couple
of days before the trip, Mr. Arapour told the appellant that he could not
accompany her. In order not to waste the tickets, the appellant decided to take
her daughter on the trip. The day before or on the morning of departure,
Mr. Arapour dropped off the tickets and travel information. This was the
last time she saw him or anyone from his family here in Canada.

[9]

According to the appellant, her luggage was lost
in transit. It was later found and delivered to her hotel three or four days
later. While in Turkey, members of Mr. Arapours family, including his aunt and
her husband met with her and took her to the central bazaar. There she
purchased clothing, toys, as well as the two black nylon bags to store her
purchases as her luggage had not, at that point, been located. These are the
bags in which the opium was ultimately found. Mr. Arapours family members
initially retained the black nylon bags. The day before the appellant was to
return to Canada, she and her daughter were at the beach when Mr. Arapours
relatives visited her. They borrowed her hotel room key and delivered to her
room the two black nylon bags that the appellant had purchased at the bazaar.
Mr. Arapours relatives then helped her place gifts and clothing into the
nylon bags. The appellant surmised that the drugs must have been inserted into
the bags at some point before they were delivered to her room by Mr. Arapours relatives.

[10]

Pursuant to a search warrant, the appellants
phone was inspected by the RCMP. Data extracted from the phone showed that
calls and texts had been exchanged with a number that the appellant testified
was Mr. Arapours. This included a call made after the appellant landed in
Toronto as well as a message sent after she landed in Toronto in which the
appellant was asked to come and meet Mr. Arapour around Square One in
Mississauga.

[11]

When the appellant was released from custody,
she tried but was unable to find or contact Mr. Arapour or anyone from his
family.

[12]

At trial the appellant maintained that she only
learned about the opium in the felt-like material through her lawyer in the
course of these proceedings. She admitted the
actus reus
of the offence
of importing a controlled substance. As a result, the only issue was whether
the appellant knew about the opium contained in her carry-on bag and her luggage.
The jury concluded that she did.

[13]

At sentencing, a
Gardiner
hearing was held
to determine the quantity of opium imported. The parties agreed that Sgt.
Grays
voir dire
evidence given earlier that was not admitted for
trial purposes would be admitted on the
Gardiner
hearing. Based on Sgt.
Grays evidence as well as the evidence from the trial, including the evidence
as to the weight of the bags and the felt-like material, the manner in which
the opium was hidden and the cost of the airline tickets, the trial judge
concluded that the amount of opium imported was substantial. He imposed a
custodial sentence of one year and 359 days.

ISSUES

[14]

The appellant raises three grounds of appeal. She
argues that the trial judge:

a)

did not properly caution the jury on the
admissibility of the evidence as to the weight of the opium;

b)

erred in his
W.(D.)
instruction to the
jury; and

c)

imposed an unfit sentence.

ANALYSIS

(1)

The trial judges caution to the jury with
respect to the evidence of the weight of the opium

[15]

The appellant argues that the trial judge
committed three errors in dealing with the evidence as to the weight of the
opium. Before addressing these, I will provide some additional background from
the trial.

(a)

Background from the trial

[16]

There was no issue at trial that the appellants
bags contained opium. The only issue for the jury was knowledge. The evidence
on which the Crown relied to prove that the appellant knew that her bags
contained a controlled substance was all circumstantial.

[17]

The parties had agreed as a fact that opium
would sell for somewhere between $30 and $50 per gram. While the Crown did not
need to prove what quantity of opium was imported in order to make out the
offence, the Crown sought to support the inference that the appellant knew of
the opium by showing that the quantity in the bags was significant. In that
regard, the Crown had sought to rely on the evidence of Sgt. Gray. As noted
earlier, however, Sgt. Grays evidence as to the weight of the opium was not admitted.
As a result, the Crown was unable to establish the specific quantity of opium secreted
in the bags.

[18]

In the course of the trial, the Crown introduced
a chain of custody exhibit, Exhibit 24, wherein the movement of the felt-like panels
originating from the appellants bags was tracked. It also tracked the material
extracted by Sgt. Gray. That exhibit indicated that the weight of the material extracted
by Sgt. Gray and described as opium was 3,031.7 grams. The exhibit had been
marked and left with the jury but, because of the ruling that Sgt. Grays
evidence from the
voir dire
would not be admitted at trial, it was
agreed by the parties that the references in Exhibit 24 to the weight and identify
the material as opium were not evidence that the jury could rely on. There was no
expert evidence led at trial from which the quantity of opium contained in the
extracted material could be determined. The trial judge decided that because the
exhibit had been marked, he would leave it with the jury but would give a clear
instruction to the effect that the weight and description of the extracted
material as opium were not evidence that the jury could use or rely on. The parties
raised no objection with regard to the instruction that was given to the jury.

[19]

In the circumstances, the Crown could not, in
its closing, refer to the evidence of Sgt. Gray as to the weight of the opium. What
the Crown invited the jurors to do, however, was to conclude that the bags
contained a fair bit of opium.

[20]

For its part, the appellants trial counsel
highlighted for the jury that the Crown had been unable to prove the quantity
of the opium imported. Defence counsel also objected to the Crowns reference
to there being a fair bit of opium and asked the trial judge to give a
corrective instruction.

[21]

The trial judge determined that a corrective
instruction was not required as the Crown had not been specific about the
weight of the opium.

(b)

The three errors alleged on appeal

[22]

The appellant argues that the trial judge made
three errors in the way that he dealt with the evidence regarding the weight of
the opium resulting in a miscarriage of justice. The three errors alleged are
that the trial judge:

i.

failed to correct the Crowns statement as to there being a fair
bit of opium;

ii.

left Exhibit 24 with the jury; and

iii.

failed to give a limiting instruction directed at deterring the jury
from making any use of the evidence of the street value of the opium.

[23]

In my view, this ground of appeal must be rejected.
I will deal with the three errors alleged in turn.

(i)

The Crowns statement as to there being a fair
bit of opium

[24]

The Crowns reference in his closing to the bags
containing a fair bit of opium did not require correction by the trial judge.
As the trial judge explained, it was acknowledged that the bags contained opium.
The evidence at trial established that the felt-like material hidden in the
bags weighed approximately three kilograms while the bags themselves weighed only
two kilograms. The Crown did not reference any specific amount nor was it
necessary that the amount be proven in order to make out the actus reus of the
offence. All that is required is a physical and fault element that at some
point must coincide:
R. v. Okojie
, 2021 ONCA 773, at paras. 95-97.

[25]

In any event, it is not unreasonable to infer in
the circumstances that a person taking the risk of importing opium and hiding
it in the manner done in this case would be importing more than trace amounts
of opium.

(ii)

Exhibit 24

[26]

Turning to the concern with respect to Exhibit
24, I disagree that the jury may have used the weight and reference to the
material as opium to reason that the appellant must have known of the opium or
that there was an error in the jury instruction relating to this evidence. While
it may have been preferable to have provided the jury with a redacted version
of Exhibit 24 with the weight and identification as opium removed, I consider the
trial judges instruction to the jury to be adequate in the circumstances. The
judge told the jury that Exhibit 24 contained a description of what was
extracted from the felt-like material and that it was hearsay evidence from a
third party and was untested and unproven. He cautioned the jury to completely
disregard the evidence describing what the substance was and the quantity of
the substance. The trial judge told the jury that this evidence was to have no
place in their discussions or deliberations.

[27]

Juries are presumed to follow the trial judges
instruction:
R. v. Suzack
(2000), 128 O.A.C. 140 (C.A.), at para. 111.
No objection was taken at trial with the language used by the trial judge with
respect to Exhibit 24. The appellant was not prejudiced by the trial judges
failure to have redacted the references to the weight of the extracted
material.

(iii)

The trial judges failure to give a limiting
instruction

[28]

Finally, as for the use the jury could make of
the street value of a gram of opium, I see no basis for requiring that an
instruction limiting the jurys use or consideration of that evidence. The
street value of opium as being between $30 and $50 per gram was entered as an
agreed fact. The appellant argues that it could have been used by the jury in
conjunction with the weight set out in Exhibit 24 to calculate a value. If the
jury did so, it would prejudice the appellant. As I have explained, the jury
was properly told not to use the weight set out in Exhibit 24. In the charge,
the trial judge simply referred to the agreed fact as to value per gram. The
trial judge cannot be faulted for how he dealt with that evidence. Nothing
further was required. No objection was raised by trial counsel nor was any
alternative wording for the charge suggested.

(2)

The
W.(D.)
instruction

[29]

In
R. v. W.(D.)
, [1991] 1 S.C.R. 742
, the Supreme Court
of Canada set out proposed instructions to assist juries in assessing an
accuseds evidence. The second prong of the three-part test set out in
W.(D.)
is to the effect that if you do not believe the testimony of the accused
but you are left with a reasonable doubt by it, you must acquit: at para. 11.

[30]

The appellant argues that her testimony at trial
was the focus of her defence and that the instructions to the jury did not
clearly convey that, even if they disbelieved her evidence, they should
nonetheless acquit if that evidence raised a reasonable doubt as to her
knowledge that her bags contained opium.

[31]

In that regard, the appellant references the
instruction given by the trial judge as to the second prong of
W.(D.)
and
finds it confusing. The trial judges instruction to the jury was as follows:

Upon considering all of the evidence, even if
you do not believe [the appellants] evidence, if based on the evidence you
accept or the absence of evidence or cannot determine,
it
leaves you with a reasonable doubt about [the appellants] knowledge that she
knew there was a controlled substance in the two nylon bags you must find her
not guilty of the offence. [Emphasis added.]

The appellant focusses on the word
it in that instruction and suggests that it would have confused to the jury.

[32]

In my view, the trial judges instruction in
this case was adequate. The instructions must be considered as a whole to
determine whether they adequately equipped the jury to apply the law to the
facts, including whether they stressed to the jury that the burden of proof
remained on the Crown:
R. v. Brown
, 2020 ONCA 462, at paras. 48-49. The
instructions must also be considered in the context of the case to determine
whether there was a reasonable likelihood that the jury misapprehended the
standard of proof:
R. v. Scott
(2001), 140 O.A.C. (C.A.), at para. 9.
There is no such reasonable likelihood in this case. In the balance of his
charge the trial judge dealt extensively with a reasonable doubt. Although the
W.(D.)
instruction could have been more clearly worded, when the trial judges charge is
considered as a whole, the jury would have understood that they were not
compelled to choose between the evidence favouring the Crown and evidence
favouring the appellant. They also would have understood that the burden of
proof rested on the Crown throughout. No objection was taken to the wording of
the charge.

(3)

Sentence appeal

[33]

The appellant makes two arguments on the
sentence appeal. She argues that the trial judge erred in finding that the
amount of opium imported by the appellant was substantial. She further argues
that the appropriate sentence in the circumstances is a conditional sentence. She
tendered proposed fresh evidence in support of the sentence appeal. In it she
outlines difficulties she has had in securing employment, particular challenges
she faces as a single parent with her now teenaged daughter, as well as her
concerns with respect to being incarcerated during the Covid pandemic.

[34]

I see no error in the trial judges finding that
the amount of opium was substantial and see no error in the sentence imposed.
The trial judge held a
Gardiner
hearing where evidence as to the
quantity of opium was led. At the hearing, the parties agreed that Sgt. Grays
evidence would be admitted. At the
Gardiner
hearing, the trial judge
also heard from an expert who explained that opium was water soluble and
contained a variety of opioids, including morphine, codeine and heroin. From
that evidence, together with the evidence as to the manner in which the opium
had been hidden in the lining of the bags as well as the costs and risks involved
in importing the drugs, it was, in my view, open to the trial judge to infer
that the amount of opium was substantial and he did not err in doing so. The
trial judge did not determine or rely on any specific quantity of opium being
contained in the three kilograms of residue.

[35]

As for the availability of a conditional
sentence, the appellant argues that the courts decision in
R. v. Sharma
,
2020 ONCA 478, 390 C.C.C. (3d) 1, issued following her sentencing, now makes a
conditional sentence possible and appropriate in this case. That decision
struck down the provision that made a conditional sentence unavailable. In that
case, the court substituted a sentence of imprisonment with a conditional
sentence. The appellant submits that the circumstances of the offenders and the
offences in
Sharma
and the present case are comparable.

[36]

I reject this ground of appeal.

[37]

In this case, the trial judge carefully
considered the nature and circumstances of the offence committed by the
appellant. Her relative youth, support of family, prospects for rehabilitation
and status as a first offender were all recognized to be mitigating factors.
However, there were significant aggravating factors including the fact that
opium is a hard drug and that the amount was significant. The trial judge
determined that a fit sentence was one of imprisonment but at the lower end of
the range of sentences for similar offences. Deference is due to the trial
judges sentencing decision and I see no basis to interfere: see
R. v.
Gomes
, 2022 ONCA 247, at para. 34.

[38]

I do not view the
Sharma
case as being
comparable. The offender in that case was an Indigenous mother who lived a life
of hardship and had pled guilty to the offence. Even considering the fresh
evidence, the appellants situation is not comparable to the offender in
Sharma
and no adjustment to the sentence is, in my view, warranted.

CONCLUSION

[39]

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

[40]

I would also deny the motion to file fresh
evidence as its admission would have no impact on the sentence and, as a
result, it does not meet the
Palmer v. The Queen
, [1980] 1 S.C.R. 759
test.

Released: April 20, 2021 P.R.

Paul Rouleau J.A.

I agree I.V.B. Nordheimer J.A.

I agree J. George J.A.


