Court File and Parties

Court File No.: CRIMJ(F) 191/14 Date: 2016-08-02

Superior Court of Justice – Ontario

Between: Her Majesty The Queen Ostap Melnik, for the Crown

- and -

Dexter Meakland Peters Paul Genua, for the Defence

Heard: June 20, 2016, at Brampton

Reasons for Sentence

Justice F. Dawson

[ 1 ] On April 5, 2016, Dexter Peters was convicted by a jury of importing 2.827 kilograms of cocaine into Canada. The date of his offence was August 29, 2013. The cocaine was concealed inside bags of dried soy food products that were located inside the accused’s checked luggage when he returned to Canada on a flight from Jamaica.

[ 2 ] The issue before the court today is the imposition of a fit sentence.

[ 3 ] As part of his sentencing submissions counsel for Mr. Peters argues that the sentence I would otherwise impose should be reduced by from between five to 11 months to take into account the effect of the Abolition of Early Parole Act, S.C. 2011, c. 11 (AEPA) which has effectively eliminated “accelerated parole review” (APR). The accused submits that such a reduction is required to ensure that there is parity between individuals sentenced before and after the AEPA came into force. That act came into force on March 28, 2011, almost two and a half years before the accused was charged. I will deal with this submission before going on to determine a fit sentence. I note that the accused does not invoke any provision of the Canadian Charter of Rights and Freedoms in support of this submission.

The AEPA Argument in More Detail

[ 4 ] The accused acknowledges that the range of sentence for a first offender courier who imports multiple kilos of cocaine into Canada is six to eight years: R. v. Cunningham (1996), 104 C.C.C. (3d) 542 (Ont. C.A.), at pp. 546-47; R. v. Gordon-Cummins, [2010] O.J. No. 6594 (S.C.J.), at para. 22. He submits that, as the AEPA was enacted subsequent to the decision in Cunningham and materially impacts the level of punishment suffered by an accused sentenced subsequently, the range of sentence established in Cunningham must be adjusted downward to take that impact into account. The accused places considerable reliance on Canada (A.G.) v. Whaling, 2014 SCC 20, [2014] 1 S.C.R. 392 (Whaling) for the proposition that a change in parole eligibility can, in some circumstances, constitute an increase in punishment.

[ 5 ] The changes effected by the enactment of the AEPA were comprehensively summarized by Wagner J. writing for the Supreme Court of Canada in Whaling, at paras. 13-16. In essence, the AEPA eliminated APR for both full and day parole and lengthened the time before an offender is eligible for day parole. The AEPA also modified the process by which inmates are considered for day parole. The process was transformed from one in which day parole for qualifying offenders was considered automatically without a hearing to one in which a written application and a hearing are required.

[ 6 ] The test for granting day parole was also transformed. Prior to the AEPA a grant of day parole was mandatory for first time federal inmates sentenced for nonviolent offences in the absence of evidence which established a risk that the inmate would commit a violent offence if released. After the AEPA a grant of day parole was in the discretion of the National Parole Board after taking all relevant factors relating to the risk of reoffending and any risk to society into account.

Analysis of the AEPA Issue

[ 7 ] I do not accept the accused’s submission for a number of reasons.

[ 8 ] First, I observe that in Whaling the court was concerned with the retrospective application of the AEPA. The case was decided on the basis of s. 11(h) of the Charter. In Whaling the applicants were eligible for APR at the time they were convicted. However, s. 10(1) of the AEPA made the abolition of APR apply retrospectively to offenders already serving their sentences. The applicants in Whaling challenged the constitutional validity of s. 10(1) of the AEPA on the basis that s. 11(h) of the Charter was offended by the retrospective application of the legislation because such retrospective application led to their being punished again for the same misconduct. While the court did conclude that in such circumstances a change in parole eligibility could constitute additional punishment that finding was inextricably linked to the retrospectivity aspect of the case. At para. 60, Wagner J. emphasized that it was the “retrospective frustration of an expectation of liberty” that constituted an increase in punishment.

[ 9 ] There is no retrospective aspect to the case before me. The AEPA came into force more than two years before the accused was even charged. In these circumstances I conclude that the Whaling case is of no assistance to the accused. In fact, it undermines the accused’s submission. At para. 61, Wagner J. referred to the consideration of parole eligibility in Whaling as an exception to the general proposition that “a sentencing judge is not to consider parole eligibility in assessing the fitness of the sentence…” (emphasis added). That proposition is squarely at odds with the accused’s submission. Wagner J. cited R. v. Zink, 2003 SCC 6 in support of that general proposition.

[ 10 ] Zink was a case dealing with s. 743.6 of the Criminal Code, which permits a court to delay parole eligibility as part of its sentence in some circumstances. In that context LeBel J. indicated, at para. 20, that the granting of parole does not amount to a reduction of a jail sentence. He held that a parolee is still serving his or her sentence until the end of the term of imprisonment imposed by the sentencing court. Earlier, at para. 19, LeBel J. emphasized that the decision making process in relation to whether to grant parole is very different than “the judicial determination of a fit sentence.”

[ 11 ] I take the juxtaposition of these observations to be significant and also at odds with the accused’s submissions in the present case. While an increase in parole ineligibility may form a part of the court’s sentence when that sentence is imposed, the administration by the parole authorities of a sentence already imposed is an entirely different matter. As already indicated, the only situation in which a change of parole eligibility has been regarded as increased punishment involved the retrospective application of such changes, which is not present here.

[ 12 ] Second, I reject the accused’s submission that the principle of parity in sentencing requires the acceptance of his submission. The parity principle, now codified in s. 718.2(b) of the Criminal Code, provides that “a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances”. The accused was charged well after the AEPA came into force. There is no disparity created by that legislation in respect of other accused persons so charged. The parity principle only operates in circumstances of similarity. Parliament, so long as it acts in a constitutional manner, is entitled to vary the law and to have those variations respected by the courts. The changes brought about by valid legislation change the relevant circumstances to be taken into account. The parity principle does not apply across such different circumstances.

[ 13 ] This brings me to my third reason for rejecting the accused’s submission. The accused is suggesting that the parity principle should be used to undermine the will of Parliament. As discussed in Whaling, at paras. 3-7, Parliament enacted the AEPA to remedy perceived shortcomings in the parole scheme previously in effect. The accused does not challenge the constitutional validity of the AEPA. Rather, he submits that the court should engage in a process of evaluation or calculation to determine what lesser sentence should be imposed so as to effectively neutralize the changes Parliament sought to effect. The parity principle was never intended to be utilized in such fashion. The accused acknowledges that he can find no authority to support such a broad application of the parity principle.

[ 14 ] I agree with Crown counsel’s submission that in these circumstances para. 15 of R. v. Pham, 2013 SCC 15, [2013] 1 S.C.R. 739 is instructive. I would apply that paragraph here. It reads as follows:

The flexibility of our sentencing process should not be misused by imposing inappropriate and artificial sentences in order to avoid collateral consequences which may flow from a statutory scheme or from other legislation, thus circumventing Parliament’s will.

[ 15 ] Finally, it also appears from a history of the various legislative changes as set out by Crown counsel, that the situation as regards the period before which an accused was eligible for day parole in 1996, when Cunningham was decided, and today, are no different. The differences occurred within the intervening time, and they have now been largely repealed by the AEPA.

[ 16 ] I would not place as much emphasis on this point as Crown counsel did in his submissions but it is an interesting observation. It led Fitzpatrick J. of this court to dismiss a somewhat similar application: see [R. v. Sinclair, [2013] O.J. No. 3982 (S.C.J.), at para. 29].

[ 17 ] For the reasons stated I do not propose to reduce the sentence I would otherwise impose on the basis suggested in relation to the AEPA.

The Determination of a Fit Sentence

[ 18 ] The accused is 44 years of age. He was 42 years old at the time of the offence. He has no criminal record. He has a generally favourable presentence report. He was born in Jamaica and came to Canada at the age of 12. He became a Canadian citizen in 2013, shortly before the offence.

[ 19 ] The accused has never married. He has seven children by four different mothers. One of his children lives in Jamaica.

[ 20 ] The accused suffers from a number of health problems, including diabetes. He has a partial grade nine education and has been taking courses towards his high school equivalency or GED. He has dyslexia and suffers from anxiety.

[ 21 ] The accused supports himself by operating a scrap business. He collects various types of scrap and sends some reparable items to Jamaica for sale. At trial he testified that he earns approximately $100 per day from his scrap business.

[ 22 ] Four letters of character reference have been filed on the accused’s behalf.

[ 23 ] In summary, the accused is well regarded in his community, has no criminal history and faces economic and health challenges. Those challenges rendered him vulnerable to the enticement of monetary gain by acting as a drug courier.

[ 24 ] I am guided in my determination of a fit sentence by the principles set out in Part XXIII of the Criminal Code. The fundamental principle of sentencing found in s. 718.1 of the Criminal Code is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Pursuant to s. 718.2 a sentence is to be increased or decreased having regard to the presence or absence of any aggravating or mitigating factors and taking the other principles set out in that section into account. Similar provisions are found in s. 10 of the Controlled Drugs and Substances Act.

[ 25 ] In this case the offence is grave. The relevant appellate authorities point out that the importation of hard drugs calls for lengthy deterrent penitentiary sentences, even for first offenders with good backgrounds.

[ 26 ] Cocaine is an addictive substance for many who use it. Addiction to cocaine has ruined many lives and families. Addiction to hard drugs also leads to the commission of many other crimes. Violent crimes are often associated with the importation and distribution of cocaine. As previously indicated, Cunningham establishes a range of six to eight years for an offender like the accused who imports multiple kilograms of cocaine into Canada. There are no factors present in this case which take it outside the range established in Cunningham.

[ 27 ] The accused appears to have been acting as a courier. There is nothing present in this case which mitigates the degree of the accused’s responsibility for the commission of this offence. However, there are factors, such as a lack of criminal record, the presence of family support, a history of employment and good character references, which suggest that the accused has good prospects for rehabilitation. While the sentence I impose must emphasize deterrence and denunciation I take his prospects for rehabilitation into account.

[ 28 ] In this case the accused had almost three kilograms of cocaine in his luggage. The value of the drugs was considerable. I also observe that the accused had a trial. While that is not an aggravating factor the accused does not gain the benefit of the considerable discount that would accrue had he pleaded guilty.

[ 29 ] Having regard to all of the relevant circumstances I conclude that, subject to credit for pretrial custody, an appropriate sentence would be six and a half years. The accused spent 239 days in pretrial custody before his release on bail. There is no reason in this case why he should not receive credit for pretrial detention at a ratio of one and a half days for each day served. Accordingly, I give credit for 359 days.

[ 30 ] In the result, the sentence to be served is five years six months and six days.

[ 31 ] There will be a weapons prohibition order pursuant to s. 109 of the Criminal Code. To the extent that order is discretionary it will be for a period of 10 years.

[ 32 ] There will also be an order that the accused provide a sample of his DNA for inclusion in the convicted offenders’ data bank. This is a secondary designated offence. There is no opposition to the DNA order and I am satisfied that it is in the best interests of the administration of justice to make such an order. I have considered the nature and seriousness of the offence, the fact that cocaine importation and distribution is often associated with other violent crime and the privacy protections in the relevant legislation.

[ 33 ] The seized drugs and offence related property are forfeit to the Crown.

Justice F. Dawson

Released: August 2, 2016