Court File and Parties

Ontario Court of Justice

Date: 2018-05-31

Court File No.: Brampton 15-16213

Between:

Her Majesty the Queen

— and —

Beverly Bernard

Before: Justice P.T. O'Marra

Heard on: April 19, 2018

Reasons for Sentence released on: May 31, 2018

Counsel

Martin Park — counsel for the Crown

Ashli Pinnock and John S. Struthers — counsel for the defendant Beverly Bernard

Reasons for Sentence

O'Marra P.T. J.:

Overview

[1] On October 27, 2017, I found Ms. Bernard guilty of importing cocaine on December 1, 2015. My reasons for judgment are found at R. v. Bernard, [2017] O.J. No. 6492.

The Facts

[2] On December 1, 2015, Ms. Bernard returned from a trip to Jamaica with her granddaughter. She entered Canada at Pearson International Airport. Her personal belongings contained four (4) jars: two containers of Metamucil, one container of Jamaican curry spice and one container of psyllium fibre powder. Inside the containers, cocaine had been secretly inserted. The total amount of cocaine found in the jars was 1,976 grams. The agreed-value of the cocaine, if sold at the gram level varied from $158,080 to $217,360.

[3] The only issue at trial was whether Ms. Bernard had the requisite knowledge of the cocaine in the four (4) jars or was willfully blind to that fact. I determined that Ms. Bernard either knew the jars contained cocaine or was deliberately ignorant to the fact.

The Legal Parameters

[4] Subsections 1 and 3(a) of Section 6 of the Controlled Drugs and Substances Act provides as follows:

• S.1 Except as authorized under the regulations, no person shall import into Canada or export from Canada a substance included in Schedule I, II, III, IV, V or VI.

• S.3 Every person who contravenes subsection (1) or (2) (a) where the subject-matter of the offence is a substance included in Schedule I or II, is guilty of an indictable offence and liable to imprisonment for life.

[5] The Criminal Code sets out for the purpose and principles of sentencing the following:

• 718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

  • (a) to denounce unlawful conduct;
  • (b) to deter the offender and other persons from committing offences;
  • (c) to separate offenders from society, where necessary;
  • (d) to assist in rehabilitating offenders;
  • (e) to provide reparations for harm done to victims or to the community; and
  • (f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

• 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

• 718.2 A court that imposes a sentence shall also take into consideration the following principles:

  • (a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,
  • (b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

[6] Section 10(1) of the Controlled Drugs and Substances Act provides as follows:

• (1) Without restricting the generality of the Criminal Code, the fundamental purpose of any sentence for an offence under this Part is to contribute to the respect for the law and the maintenance of a just, peaceful and safe society while encouraging rehabilitation, and treatment in appropriate circumstances, of offenders and acknowledging the harm done to victims and to the community.

Impact on the Community

[7] Little needs to be said about the very serious impact on society arising from the importation, distribution and use of cocaine. As stated by Doherty J. in R. v. Hamilton (2004), 186 C.C.C. (3d) 129 (Ont. C.A.):

"The importation of dangerous drugs like cocaine and others found in Schedule 1 of the Controlled Drugs and Substances Act has always been considered among the most serious crimes known to Canadian law...The use and sale of cocaine kills and harms both directly and indirectly. The direct adverse health effects on those who use the drug are enormous and disastrous. Cocaine sale and use is closely and strongly associated with violent crime(s). Cocaine importation begets a multiplicity of violent acts. Viewed in isolation from conduct which inevitably follows the importation of cocaine, the act itself is not a violent one in the strict sense. It cannot, however, be dissociated from its inevitable consequences."

The Positions of the Parties

[8] The Crown seeks a penitentiary sentence in the range of six (6) to eight (8) years. The Crown also seeks a DNA order and a mandatory weapons prohibition order for life. Although the CPIC shows no prior record, the Ministry of Community Safety and Correctional Services file indicated that Ms. Bernard was sentenced on November 1, 1999 to two (2) years and six (6) months for "Import/Export Substance". Ms. Bernard was pardoned for this offence on June 13, 2008. The Crown is not relying on Ms. Bernard's past conviction for importing on November 1, 1999 as an aggravating factor on sentence due to the dated nature of the entry. The proposed range of six (6) to eight (8) years is consistent with the Ontario Court of Appeal's decision in R v. Cunningham, [1996] O.J. No. 448, for a first time offender importing multi-kilograms of cocaine. Given Ms. Bernard's personal circumstances and the circumstances of this case the Crown suggests that the "basement" of the range of six (6) years is appropriate.

[9] The Crown's position is that this Court can properly consider the prior conviction of importing cocaine in determining a fit sentence by operation of s. 7.2 of the Criminal Records Act, which states the following:

7.2 A record suspension ceases to have effect if

(a) the person to whom it relates is subsequently convicted of

(i) an offence referred to in paragraph 4(1)(a), or

(ii) any other offence under the Criminal Code, except subsection 255(1), or under the Controlled Drugs and Substances Act, the Firearms Act, Part III or IV of the Food and Drugs Act or the Narcotic Control Act, chapter N-1 of the Revised Statutes of Canada, 1985, that is punishable either on conviction on indictment or on summary conviction; or

(b) the Board is convinced by new information that the person was not eligible for the record suspension when it was ordered.

1992, c. 22, s. 7; 2000, c. 1, s. 7; 2010, c. 5, ss. 6.1(E), 7.1(E), 7.3(F); 2012, c. 1, s. 126.

[10] I recognize and acknowledge that Ms. Bernard should be treated as a first time offender. However, by virtue of her subsequent conviction, she has lost the protection of the record suspension by operation of section 7.2 of the Criminal Records Act, in so far as she can no longer be regarded as a person of good character.

[11] The defence seeks a penitentiary sentence in the range of three (3) to five (5) years. The defence takes no issue with the corollary orders sought by the Crown.

Ms. Bernard's Personal Circumstances

[12] Ms. Bernard was born and raised in Jamaica. She is 55 years of age. She immigrated to Canada in 1990 at age 28. Originally, her husband was her sponsor. Her mother resides in Brampton with one of Ms. Bernard's sisters. Ms. Bernard has fifteen (15) siblings, four (4) which live in Brampton.

[13] Ms. Bernard is currently married to her second husband who permanently resides in Jamaica.

[14] Ms. Bernard has four (4) children and four (4) grandchildren. The youngest two children reside with her in Brampton.

[15] Ms. Bernard is currently unemployed and has been collecting social assistance through Ontario Works. Prior to collecting Ontario Works, Ms. Bernard was employed as a personal support worker for approximately ten (10) years. A year before her arrest she was laid off and collected employment insurance.

The Law

[16] As previously stated the Cunningham range for first time offenders importing multi-kilograms of cocaine is six (6) to eight (8) years. The court is also mindful of the dicta in the Supreme Court's decision in R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089 and the Court's view on judicially prescribed sentencing ranges. Chief Justice Wagner stated the following:

"58 There will always be situations that call for a sentence outside a particular range: although ensuring parity in sentencing is in itself a desirable objective, the fact that each crime is committed in unique circumstances by an offender with a unique profile cannot be disregarded. The determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purely mathematical calculation. It involves a variety of factors that are [page1119] difficult to define with precision. This is why it may happen that a sentence that, on its face, falls outside a particular range, and that may never have been imposed in the past for a similar crime, is not demonstrably unfit. Once again, everything depends on the gravity of the offence, the offender's degree of responsibility and the specific circumstances of each case. LeBel J. commented as follows on this subject:

A judge can order a sentence outside that range as long as it is in accordance with the principles and objectives of sentencing. Thus, a sentence falling outside the regular range of appropriate sentences is not necessarily unfit. Regard must be had to all the circumstances of the offence and the offender, and to the needs of the community in which the offence occurred.(Nasogaluak, at para. 44)

59 In Brutus, the Quebec Court of Appeal described the limits of the process of ensuring the similarity of sentences as follows:

[TRANSLATION] There is no doubt that the sentence imposed in this case differs from certain sentences imposed in other cases for the same offence. However, as our colleague Rochon J.A. stated in Ferland v. R, 2009 QCCA 1168, with respect to the principle of parity of sentences that is set out in section 718.2 (b) Cr.C., it "has some limits because of the individualized nature of the sentencing process" and cannot provide a basis for departing from the principle of deference to the trial judge's exercise of his or her sentencing discretion (R. v. L.M., supra, at para. 35). [para. 12]

60 In other words, sentencing ranges are primarily guidelines, and not hard and fast rules: Nasogaluak, at para. 44. As a result, a deviation from a sentencing range is not synonymous with an error of law or an error in principle. Sopinka J. stated this clearly in McDonnell, although he was referring in that case to categories of assault: [page1120]

... in my view it can never be an error in principle in itself to fail to place a particular offence within a judicially created category of assault for the purposes of sentencing... . If the categories are defined narrowly, and deviations from the categorization are generally reversed, the discretion that should be left in the hands of the trial and sentencing judges is shifted considerably to the appellate courts. [para. 32]

61 Any other conclusion would have the effect of authorizing appellate courts to create categories of offences with no real justification and accordingly intervene without deference to substitute a sentence on appeal…"

[17] Justice Durno in R. v. Gordon-Cummins, 2013 ONSC 5901, made the following statement regarding the sentencing range for importation of cocaine:

"[22] For a very few number of offences, our Court of Appeal has provided ranges of sentences. One of the offences for which they have provided ranges is the importation of cocaine. There are three: in the area of a half kilogram up to a kilo, more or less, is around two years to five years; a kilogram, more or less, three to five; and multi-kilos, six to eight years. However, the range is really a starting point with respect to sentence. In terms of another area where there are ranges, our Court of Appeal has said ranges are not embedded in stone. Given their nature as guidelines only, I do not view them as being fixed in law as is the case with binding legal principles. The Supreme Court of Canada said it would be wrong to assume there is a precise range that will apply in every case. And of particular importance, in Hamilton and Mason, Justice Doherty spoke about fixing sentences in a case that dealt with the importation of cocaine.

Fixing the range of sentence for a particular offence, of course, does not determine the sentence to be imposed on a particular offender. The range is in large measure a reflection of the "objective seriousness" of the crime ... Once the range is identified, the sentencing judge must consider specific aggravating and mitigating factors. The mitigating factors may be so significant as to take the case below the otherwise appropriate range.

[23] I would add that there are also cases where the aggravating factors take it above. The factors have to be considered in terms of where within the range the sentence is."

[18] The Crown has provided a number of cases to support its position:

(1) R. v. Syblis, [2001] O.J. No. 115 (C.A.): After trial the defendant was found guilty of importing 2.13 kilograms of cocaine in his bag and one kilogram in his shoe. The Court of Appeal upheld the sentence of seven (7) years on the cocaine charge and four (4) years concurrent for the hashish.

(2) R. v. Cunningham, [1996] O.J. No. 448 (C.A.): 21 year old first offender, who was cooperative with the police and plead guilty to importing five (5) kilograms of cocaine. The Court of Appeal increased the sentence from three (3) to five (5) years after taking into consideration the eight (8) months pretrial custody. The Court of Appeal emphasized the need to send a denunciatory message to couriers that a harsh penitentiary sentence is required.

(3) R. v. Madden, [1996] O.J. No. 376 (C.A.): 23 year old female first offender imported 770 grams of cocaine in the concealed bottom of a duty free cardboard box. After her arrest she assisted in attempting to carry out a controlled delivery. After her guilty plea the judge sentenced the offender to four (4) years. The Court of Appeal reduced the sentence to three (3) years as the sentencing judge failed to give adequate weight to the offender's co-operation with police.

(4) R. v. McCrea, [2015] O.J. No. 4632 (S.C.J.): Justice Hill set out at paragraph 48 the starting-point range in Ontario of three (3) to five (5) years' incarceration guides sentencing court respecting: A first offender, acting as a courier, importing a kilogram more or less of cocaine and for personal gain. At paragraph 49 he confirmed that in Ontario a starting-point range is six (6) to eight (8) years' incarceration guide sentencing courts respecting: a first offender, acting as a courier, importing multiple kilograms of cocaine and for personal gain. Justice Hill stated the following at paragraph 53 in the context of the ranges withstanding the test of time especially in multi-kilogram importation cases:

"These guideline ranges assisting sentencing courts have consistently received confirmation in subsequent years with application of the Madden range where appropriate (Wilson (3/4 kg. – 3 years); R. v. Harris, 2014 ONCA 746 (913 g. 4 years)) as well as the Cunningham range: Phillips (2533 grams – 6 years); R. v. Syblis, [2001] O.J. No. 115 (C.A.) (2.13 kg. – 7 years)."

[19] To support its position the defence submitted the following cases:

(1) R. v. Foster, 2018 ONCA 53: Ms. Foster imported into Canada 1.2 kilograms of cocaine. The Court of Appeal dismissed both the conviction and sentence appeals and upheld the trial judge's sentence of three (3) years, as the sentence was at the bottom end of the range.

(2) R. v. Jackman, 2016 ONCA 121, [2016] O.J. No. 738 (C.A.): The defendant brought into Canada approximately four (4) kilograms of cocaine in the lining of his luggage. He was sentenced to five (5) years and nine (9) months. The Court of Appeal dismissed both the conviction and sentence appeals. The sentence did not result from error in principle and was not manifestly unfit. The sentencing judge considered the defendant's difficult personal circumstances, as was reflected in sentence slightly below the range established by Cunningham.

(3) R. v. Rogers, [2006] O.J. No. 1678 (O.C.J): The defendant plead guilty at a very early opportunity to importing 1.98 kilograms of cocaine. He was a single father supporting a ten (10) year old son. He was a resident of St. Kitts with no connection to Canada. The trial judge regarded the defendant as very unsophisticated or even of borderline intelligence. Another significant factor taken into consideration by the sentencing judge was the Crown doubling its original position on sentence from three (3) years to six (6) years as the original offer was time sensitive. The defendant was sentenced to three (3) years less time spent in custody for a sentence of thirty (30) months.

(4) R. v. Wilson, [2003] O.J. No. 144 (C.A.): The defendant was found guilty after trial of importing three-quarters (3/4) of a kilogram of cocaine. She was the mother of five (5) children and was fully employed. The defendant had a minor criminal record, a favorable pre-sentence report and sympathy for her plight, she was sentenced to three (3) years. The Court of Appeal upheld the sentence imposed as not demonstrably unfit.

Mitigating and Aggravating Factors

[20] I consider the following to be mitigating factors:

(1) A favorable pre-sentence report. Ms. Bernard presented as "polite and cooperative" during her interview. The author of the report concluded that "it appears that the subject would be suitable for community supervision should it be required or as an option".

(2) Since her arrest Ms. Bernard has led a pro-social lifestyle. Last year she was baptized as a Christian. She joined the "The Holy Remnant Apostolic Church". According to a letter prepared by Deacon Edwards, Dr. Williams and Reverend Ledgister on behalf of the Church, Ms. Bernard "is focused on having a positive impact…she has done her best to observe and follow the rules of this organization…and is positively pushing in the right direction".

(3) According to the letters prepared by family members, several friends and a former co-worker and submitted in support of Ms. Bernard, Ms. Bernard has a great deal of support in the community. This bodes well for her rehabilitation.

(4) Ms. Bernard has never used alcohol or illicit drugs during her lifetime.

[21] I do however, consider the following factors as aggravating:

(1) The importation of cocaine can be characterized as "violent" due to the seriousness of the drug. See: Hamilton, supra, para. 104.

(2) Cocaine is not indigenous to Canada. Without the cocaine importer, whatever his or her motive or involvement, there would be no cocaine problem. See: Hamilton, supra, para. 105.

(3) This is a case of multi-kilogram importation of cocaine deserving of a lengthy penitentiary sentence. See: Cunningham, Hamilton, Madden.

[22] I also note the following neutral factors:

(1) At the time of this offence Ms. Bernard was 55 years of age. Youthful offenders are deserving of a degree of leniency by the Court. However, Ms. Bernard is a mature person who was not acting due to misjudgment or immaturity. See: R. v. Hoang, [2002] O.J. No. 1355 at paras. 113-114

(2) The Crown submits that Ms. Bernard lacks insight, remorse and responsibility for her conduct. I do not treat Ms. Bernard's abject rejection of the court's verdict or her proclamations of innocence as an aggravating feature to this case. However, in very unusual circumstances, it can be considered as aggravating where the accused's attitude towards the crime or victim demonstrates a substantial likelihood of future dangerousness. The Court still must be mindful not to increase the sentence beyond what is proportionate having regard to the circumstances of the particular offence. See: R. v. Valentini, [1999] 132 C.C.C. (3d) 262 (Ont. CA). I do not believe that Ms. Bernard's viewpoint is a reliable indication of potential recidivism and or her rehabilitation. The Court of Appeal recently reinforced the notion that a sentencing judge must tread cautiously in assessing the lack of remorse in R. v. Ellicott, 2017 ONCA 681, [2017] O.J. No. 4563 J.A. Huscroft stated at para. 31;

"The distinction between the legitimate and illegitimate uses of an accused's attitude toward the offence and lack of remorse can be a fine one."

(3) It is well established that a plea of guilty counts as a mitigating factor on sentencing, but neither a decision to plead not guilty nor the manner in which an accused person presents his or her defence is to be treated as an aggravating factor. See: R v. Kozy (1990), 58 C.C.C. (3d) 500 (Ont. C.A.) at 506, and R. v. Bradley, 2008 ONCA 179, 234 O.A.C. 363 at para. 16. As the court explained in Kozy at 506, "any perceived impingement upon the manner in which a defence is to be conducted, such as a fear that a particular tactic might induce a heavier penalty, would impair the right to full answer and defence".

Analysis

[23] The principle of general deterrence and public denunciation are emphasized and reflected in the penitentiary range suggested in the binding authorities.

[24] It is recognized that sentencing is not an exact science and the Court must approach sentencing with the necessary flexibility in assessing individual cases, however absent exceptional circumstances, couriers who import multi-kilograms of cocaine into Canada should expect to receive a sentence that is consistent within the range of six (6) to eight (8) years' incarceration.

[25] Ms. Bernard imported slightly under two (2) kilograms of cocaine. This is a similar quantity of cocaine in the Syblis decision which the offender received a sentence that was in the middle of the range for cocaine importation. In Syblis there was no guilty plea, and there was the added aggravating feature of an additional kilogram of hashish. On the other hand, in the Cunningham decision the offender plead guilty to more than two and half times more cocaine than in the case here and received a sentence of five (5) years. Many importation cases can slide up and down within the Cunningham range and in a few rare cases fall below or deviate from it if there are mitigating and or extenuating circumstances. However, there are neither exceptional nor unusual circumstances in this case that takes it below the range of sentence, as suggested by the defence for a case involving this amount of cocaine.

The Fit Sentence

[26] Therefore, Ms. Bernard is sentenced to a period of six (6) years' incarceration in this case. This sentence is consistent with the lowest end of the range and considers all of the circumstances of this case as noted above.

[27] Ms. Bernard is sentenced to a mandatory weapons prohibition for life, pursuant to section 109 of the Code.

[28] Having taken into consideration the circumstances and nature of this offence, Ms. Bernard's personal circumstances, and the negligible impact it would have on Ms. Bernard's privacy and security of person, I am satisfied that it is in the best interest of the administration of justice that I authorize the taking of samples from Ms. Bernard for DNA testing, pursuant to section 487.051(1)(b) of the Code.

Released: May 31, 2018

Signed: Justice P.T. O'Marra