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EVIDENCE - Methods of proof - Inferences - From conduct

Wednesday, January 08, 2020 @ 6:22 AM  

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Appeal by the accused from conviction and sentence for attempting to possess heroin for the purpose of trafficking. She was sentenced to nine years’ imprisonment less credit of 36 days for time served. Police took control of a shipment from Pakistan and found over three kilograms of heroin in one of the boxes. About 12 days after the shipment arrived, the appellant appeared at the cargo forwarding company and produced a document authorizing her to pick up the shipment on behalf of the consignee. She drove off with the boxes and was arrested a few minutes later. 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. She argued the trial judge erred by materially misapprehending the evidence and that that the trial judge’s conclusion that the appellant’s knowledge of the controlled substance in the shipment was the only reasonable inference available on the evidence, considered as a whole, was unreasonable. She was 38 years old when she committed the offence and 45 at the time of sentencing. She had no prior convictions. She had a long history of employment. The trial judge characterized the appellant’s role in the drug importation scheme as one at the lower end, but still critical to the success of the venture.

HELD: Appeals dismissed. The trial judge’s use of testimony about the appellant’s 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 was not unreasonable. In considering this evidence, the judge recognized that it was the cumulative effect of the evidence, each item considered in relation to the others, and the evidence as a whole, that mattered. When the evidence adduced at trial was 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. The sentence imposed was not unfit. This was a very serious offence involving the importation 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. The sentence imposed addressed the fundamental principle of proportionality and was fit for this offence and the offender who committed it. Sentence: Nine years’ imprisonment.

R. v. Gill, [2019] O.J. No. 5713, Ontario Court of Appeal, J.M. Simmons, D. Watt and B. Miller JJ.A., November 14, 2019. Digest No. TLD-January62020005