by Jason Tarnow | Sep 21, 2026 | Crime, Legal Rights, Media, Police, Politics, Wheels Of Justice
In February 2025, a 19-year-old Māori mother from Auckland was arrested at Vancouver International Airport. She was about to board a flight home. In her checked suitcase were 23 kilograms of methamphetamine at 99% purity, worth as much as NZ$8.6 million at street level in New Zealand.
She pleaded guilty to possession for the purpose of exportation under s. 6(2) of the Controlled Drugs and Substances Act. The Crown asked for eight years.
On July 9, 2026, in R v A, 2026 BCPC 229, Judge Vandor of the Provincial Court of British Columbia imposed 760 days: time served, plus one day.
I was defence counsel. It was one of the most rewarding cases of my career. I also believe it matters well beyond this one client, because it shows what sentencing looks like when a court insists on seeing the person and not only the suitcase.
The starting point: six to ten years
Exporting a Schedule I substance carries a maximum of life imprisonment. The established British Columbia range for importing or exporting a substantial quantity of methamphetamine is six to ten years. The court accepted that range. It accepted that the nature of the drug, its quantity and its purity were aggravating. Nothing in the decision minimizes the offence.
What the decision does is take the Supreme Court of Canada at its word. In R v Parranto, 2021 SCC 46, the Court confirmed that sentencing ranges are guidelines, not straitjackets. A range reflects judicial consensus on the gravity of the offence. It says nothing about the offender. Proportionality under s. 718.1 of the Criminal Coderequires both. Where an individualized analysis demands a departure from the range, the judge must depart. As Justice DeWitt-Van Oosten put it in R v Chen, 2017 BCSC 1863, when a marked departure is necessary to achieve proportionality, parity with other cases “assumes a secondary role.”
Who was actually before the court
Ms. A was born to a teenage mother in the grip of a methamphetamine addiction. She was raised among relatives who struggled with drugs and alcohol, was exposed to family and sexual violence, and enrolled herself in school because no adult would. She left school at 14. She was pregnant at 16 and a mother at 17.
The father of her child was violent and controlling. He isolated her from her family and logged into her bank account to steal her welfare income to buy drugs. When his own drug-trade debts caught up with him, he recruited two couriers: his 17-year-old sister and Ms. A. In her words: “He told me that I would be going and I agreed.”
He kept her phone. He kept the $800 in spending money the organizers had provided. She flew to Canada with ten New Zealand dollars, a shared suitcase of summer clothes, and no idea that Vancouver in February is cold. It was the second flight of her life. It was also the first time she had ever been apart from her daughter.
A scheme without sophistication
The two girls spent six days in a Vancouver airport hotel, cold, hungry and dependent on the criminal organizers to top up a payment card a few dollars at a time.
Until the final day, the 17-year-old was the one meant to carry the drugs. The plan changed by text message hours before the flight. The suitcase was handed over on a busy street in daylight. It was overweight, and the girls were $15 short of the baggage fee. The organizers told them to ask strangers in the terminal for cash.
The Crown’s case narrows
The defence called evidence at a contested Gardiner hearing. Ms. A testified, and the court found her credible. Her account was corroborated by surveillance video and by Snapchat messages sent while the offence was underway. In those messages refused payment: “I didn’t want a cut.”
The court found that she stood to gain nothing personally. Of the five aggravating factors the Crown alleged, three failed: sophistication, profit motive, and use of a minor. On arrest, she confessed before the suitcase was opened. Within hours she gave a full statement and drew police a diagram of the organization. The court called that cooperation “mitigation of a high order.”
Four principles the case stands for
1. Youthfulness does not end at 18. In R v D.B., 2008 SCC 25, the Supreme Court held that the diminished moral blameworthiness of young persons is a principle of fundamental justice. In R v Habib, 2024 ONCA 830, the Ontario Court of Appeal held that turning 18 must not be a “cliff edge” for sentencing. For youthful first-time offenders, restraint governs. Rehabilitation is the paramount objective, and denunciation and general deterrence cannot be elevated above it. Judge Vandor applied those principles to a kilo-level CDSA offence, which is territory where they are too often treated as irrelevant.
2. Parity looks at everyone involved, charged or not. The 17-year-old was never charged. She was home in about a week. Had she been charged, the Youth Criminal Justice Act would have barred an adult penitentiary sentence altogether. The Crown said her treatment was irrelevant. The court disagreed. Eight years for one participant and no consequences for the other, when 18 months of age separated them, “exposes the disproportionality of a lengthy jail sentence and engages the parity principle.”
3. A parent’s sentence is served by the child too. Ms. A was her daughter’s sole caregiver. Her daughter was two when her mother vanished. She took to kissing photographs of her mother around the house. With no prisoner transfer arrangement between Canada and New Zealand, every day of custody would be served an ocean away. Applying R v Suter, 2018 SCC 34, the court held that this separation made the same number of months a materially heavier punishment. It also weighed a hard deadline. Ms. A had been accepted into a Māori-focused residential program for mothers and children under five. Her daughter is three. A longer sentence would not have delayed that opportunity. It would have ended it.
4. Systemic disadvantage does not stop at the border. Māori are under 20% of New Zealand’s population and over 50% of its prisoners. The court received an Impact of Race and Culture Assessment from a New Zealand expert and applied the framework of R v Ipeelee, 2012 SCC 13, and R v Morris, 2021 ONCA 680, to a foreign Indigenous offender. Her background did not excuse the offence. It explained how she came to commit it, and it reduced her moral blameworthiness accordingly.
How low is this?
Counsel put roughly 50 authorities before the court. None came close on these facts, and none came close on this result. To my knowledge, this may be the lowest sentence imposed in Canada for exporting or importing a kilogram-level quantity of a Schedule I substance, and certainly for 23 kilograms of near-pure methamphetamine.
Why it matters
This decision is not a discount on drug exportation. Couriers perform an essential function in transnational trafficking. But organizers deliberately recruit the young, the poor and the controlled, because those people are expendable. A sentencing system that weighs only the suitcase punishes exactly the people the organizers chose to sacrifice, and leaves the organizers untouched.
Ms. A earned more than 100 program certificates on remand and began reconnecting with her Indigenous heritage under the guidance of First Nations elders. She told the court she would return to her daughter “a much stronger person than I once was.” The sentence gives her the chance to prove it. That is what individualized sentencing is for.
If you or someone you know is facing a serious drug charge, contact Tarnow Criminal Law at 604.278.0555.
by Jason Tarnow | Sep 3, 2026 | Crime, Police
In June, the Supreme Court of Canada released R. v. Berg, 2026 SCC 21, and every criminal defence lawyer in BC should have it bookmarked. The decision tackles a question I confront constantly in my Vancouver practice: in a trial that comes down to two conflicting accounts — the complainant’s word against the accused’s — how does a judge decide without turning the trial into a credibility contest?
The answer, the Court confirmed unanimously, is that a judge never simply picks the more believable witness. A conviction must rest on proof beyond a reasonable doubt, assessed against the whole of the evidence. Preferring one account over another is not enough.
That may sound like a truism. It isn’t. As Berg shows, appellate courts are still catching trial judges who slide — sometimes subtly — from “I believe the complainant” to “therefore the accused is guilty.” For anyone facing sexual assault charges in British Columbia or the Yukon, this decision matters.
Key Takeaways
- In R. v. Berg, 2026 SCC 21, a unanimous Supreme Court confirmed that convictions must rest on proof beyond a reasonable doubt — never on merely preferring the complainant’s testimony over the accused’s.
- The Court reined in R. v. J.J.R.D. (2006), 218 O.A.C. 37, in which Ontario case trial judges have long used when resolving conflicting testimony, holding it should generally not be relied on when assessing an accused person’s evidence.
- The classic framework from R. v. W.(D.), [1991] 1 S.C.R. 742 remains the governing approach: even if the accused’s evidence is rejected, the Crown’s case must still prove guilt beyond a reasonable doubt.
- Paired with R. v. Kinamore, 2025 SCC 19 — a BC appeal — the Supreme Court has now issued two significant sexual assault rulings in twelve months, both reinforcing procedural fairness for the accused.
- How a trial judge structures their credibility reasons is now fertile ground for appellate review in “word against word” cases.
What Happened in R. v. Berg
The facts were, in one sense, unremarkable — which is exactly why the case is so important. Mr. Berg met the complainant when he checked into the hotel where she worked. They exchanged contact information, stayed in touch, and she accepted an invitation to his room after her shift. She testified that he sexually assaulted her; he testified the intercourse was consensual. There was no third witness and no decisive physical evidence. The trial turned entirely on testimony.
The trial judge accepted the complainant’s evidence, rejected Mr. Berg’s account, and convicted him of sexual assault under s. 271 of the Criminal Code. A majority of the Saskatchewan Court of Appeal upheld the conviction (2025 SKCA 85), but a dissenting judge would have ordered a new trial, concluding that the trial judge failed to properly grapple with inconsistencies in the complainant’s evidence about her alcohol and marijuana consumption. That dissent gave Mr. Berg an appeal as of right to the Supreme Court.
The Supreme Court dismissed the appeal — the conviction stands — but its reasons deliver guidance that will shape trials for years.
The J.J.R.D. Problem: How Courts Drifted Toward Credibility Contests
For nearly two decades, trial judges across Canada have leaned on R. v. J.J.R.D. (2006), 218 O.A.C. 37, an Ontario Court of Appeal decision, when explaining why they rejected an accused’s testimony. The case was routinely cited for the proposition that a judge may reject an accused’s uncontradicted evidence based on a “considered and reasoned acceptance” of the complainant’s conflicting account.
In Berg, the Supreme Court clarified that J.J.R.D. was really about something narrower: whether a trial judge’s reasons were detailed enough to permit appellate review. The Court held that trial judges should generally not rely on J.J.R.D.when assessing an accused person’s evidence or instructing a jury. Used incorrectly, it wrongly suggests a judge can reject the accused’s evidence simply because the judge accepts the complainant’s — a shortcut that inverts the burden of proof.
This is not an academic quibble. In my practice, I have read countless trial rulings where the reasoning ran, in substance: “The complainant was credible. I accept her evidence. It follows that I reject the accused’s denial.” Berg confirms that this chain of reasoning, standing alone, is an error of law.
W.(D.) Still Governs: The Three-Step Framework
The bedrock remains R. v. W.(D.), [1991] 1 S.C.R. 742. The framework, familiar to every criminal lawyer in British Columbia, asks three questions where the accused testifies:
- If you believe the accused’s evidence, you must acquit.
- Even if you do not believe it, if it leaves you with a reasonable doubt, you must acquit.
- Even if the accused’s evidence does not raise a doubt, you must ask whether, on the evidence you do accept, the Crown has proven guilt beyond a reasonable doubt.
Berg reinforces that the third step is not a formality. The accused’s account must be considered against the totality of the evidence — not dismissed as the automatic by-product of believing the complainant. Notably, the Court found the trial judge in Berg did exactly what the law requires: he assessed Mr. Berg’s account in light of all the evidence before convicting. The conviction survived because the reasoning was sound, not because the complainant was preferred.
Berg and Kinamore: A Pattern at the Supreme Court
Berg does not stand alone. A year earlier, in R. v. Kinamore, 2025 SCC 19 — an appeal from our own BC courts — the Supreme Court unanimously quashed a sexual assault conviction and ordered a new trial. Kinamore held that evidence of a complainant’s sexual history, including sexual inactivity, is presumptively inadmissible under the principles animating s. 276 of the Criminal Code, and that the Crown must clear the same voir dire hurdle as the defence before leading it.
Read together, the two decisions send a consistent message: sexual assault trials are governed by rules of evidence and proof that protect both complainants and accused persons, and neither side gets a shortcut. For defence counsel, they are complementary tools — Kinamore polices what evidence gets in; Berg polices how the judge reasons once it is in.
What This Means for Accused Persons in BC and the Yukon
If you are charged with sexual assault in British Columbia, the odds are high that your trial will look like Berg’s: two accounts, no independent eyewitness, and a verdict that turns on testimony. Here is what a criminal defence lawyer in BC will be examining after this decision:
The structure of the judge’s reasons. In a judge-alone trial — the norm for s. 271 prosecutions in BC Provincial Court, where the Crown often proceeds by indictment but the accused elects trial by provincial court judge — the written or oral reasons must show that the accused’s evidence was weighed against the whole record. Reasons that leap from accepting the complainant to rejecting the accused are now squarely vulnerable on appeal.
Jury instructions. Where the trial is in the BC Supreme Court before a jury, defence counsel will scrutinize the charge to ensure the jury was not directed in a way that invites a credibility contest. Berg says J.J.R.D. language does not belong in jury instructions.
Inconsistencies in the Crown’s evidence. The dissent below focused on the complainant’s inconsistent statements about intoxication. While Mr. Berg ultimately lost, the case confirms that material inconsistencies must be genuinely analyzed — not waved away — when the judge assesses whether the Crown has met its burden.
Preserved appeal routes. Berg reached the Supreme Court because of a dissent in the provincial appeal court. It is a reminder that a strong appellate record starts at trial: objections to reasoning shortcuts, requests for particularized credibility findings, and careful cross-examination all preserve issues for review.
None of this is legal advice about any particular case — the factors above are what counsel examines, and every file turns on its own facts.
Why Experienced Counsel Matters in “Word Against Word” Trials
Cases like Berg are won and lost in the details: how cross-examination exposes inconsistency without alienating the trier of fact, whether evidentiary applications under ss. 276 and 278.92 to 278.94 of the Criminal Code are properly brought or resisted, and whether the trial record positions the defence for appeal if a conviction follows. These are craft skills built through years of trial work — precisely the kind of trials I have defended across sexual offence and assault files in Vancouver and throughout BC and the Yukon.
Frequently Asked Questions
Can I be convicted of sexual assault just because the judge believes the complainant more than me?
No. R. v. Berg, 2026 SCC 21 confirms that a conviction cannot rest on merely preferring the complainant’s account. The Crown must prove guilt beyond a reasonable doubt on the whole of the evidence, and the judge must explain why your evidence, considered against that record, did not raise a doubt.
What is the W.(D.) framework?
It is the three-step approach from R. v. W.(D.), [1991] 1 S.C.R. 742: acquit if you believe the accused; acquit if the accused’s evidence leaves a reasonable doubt; and even if it does not, convict only if the evidence you accept proves guilt beyond a reasonable doubt.
Does R. v. Berg apply in British Columbia?
Yes. Supreme Court of Canada decisions bind every court in Canada, including the BC Provincial Court, BC Supreme Court, BC Court of Appeal, and the Yukon courts.
Can a conviction be appealed if the trial judge’s credibility reasoning was flawed?
Potentially. Flawed credibility reasoning — such as rejecting the accused’s evidence solely because the complainant was believed — can be an error of law supporting an appeal. Strict deadlines apply, so speak to a criminal defence lawyer promptly.
What should I do if I’m charged with sexual assault in BC?
Exercise your right to silence, do not contact the complainant, and retain experienced defence counsel before your first court appearance. Early decisions — including Crown election, bail conditions, and evidentiary applications — can shape the entire case.
This article is general legal information, not legal advice, and reading it does not create a solicitor-client relationship. Sexual assault allegations carry serious consequences, and every case turns on its own facts. If you are facing charges, retain qualified defence counsel without delay.
