R. v. Scott, 2018 ONSC 5836

Her Majesty The Queen v. Tanisha Scott, 2018 ONSC 5836

Court File and Parties

COURT FILE NO.: CRIMJ(F) 1998/16 DATE: 20181001

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN Ms. Nassar, for the Crown

- and -

TANISHA SCOTT Mr. Yasskin, for the defence

HEARD: August 2, 2018, at Brampton

REASONS FOR SENTENCE André J.

Reasons for Sentence

1A jury convicted Tanisha Scott (Ms. Scott) of importing cocaine into Canada on March 23, 2016. The Crown seeks a sentence of eight years imprisonment on the ground that the white powdery substance found in Ms. Scott’s luggage, weighed 3.846 kilograms. The defence however, contends that the appropriate sentence should be four to five years imprisonment, given that only 1,320 grams of the imported substance tested positive for cocaine.

Background Facts

2Ms. Scott arrived at Toronto Pearson Airport on March 23, 2016 on a flight from Jamaica. A Canada Border Services Officer found a number of cans and packets of instant chocolate, coffee, cocoa powder and other products in her luggage. He opened some of the cans and discovered a white powdery substance in them. He performed a NIK test on a sample which proved positive for cocaine. He then arrested Ms. Scott. An RCMP officer later weighed the white powdery substance. It weighed 3.846 kilograms. He took samples of the substance from the chocolate tin, a salt fish fritter package, a punch packet and coffee packages and sent them to Health Canada. The certificates received from Health Canada confirmed that the white powdery substance was indeed cocaine. The officer only sent samples of 1,320 grams of cocaine to Health Canada. He testified that he exercised his discretion in deciding how many samples of the suspected cocaine he should send for testing.

Analysis

3The Crown’s position is based on the Ontario Court of Appeal’s decision in R. v. Cunningham (1996), 27 O.R. (3d) 786, 104 C.C.C. (3d) 542, which establishes a sentence range of six to eight years imprisonment for the importation of multi-kilograms of cocaine.

4The defence relies on the Court of Appeal’s decision in R. v. Madden, to the effect that absent exceptional circumstances, the appropriate sentence range for the importation of approximately one kilogram of cocaine, is three to five years imprisonment.

5In R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, and R. v. Foster, 2018 ONCA 53, the Supreme Court of Canada and the Court of Appeal for Ontario respectively, noted that these sentence ranges are not inflexible and do not relieve a sentencing judge from his or her obligation to determine a proportionate sentence pursuant to s. 718.1 of the Criminal Code.

6A determination of a proportionate sentence requires one to consider the aggravating and mitigating factors in this case.

[7] The aggravating factors include the following: (1) Ms. Scott imported a significant amount of cocaine. (2) Cocaine is an addictive drug which has had a devastating effect on our community. (3) The offence involves a violation of Canada’s borders. (4) The manner of concealment of the drug was very sophisticated and clearly reflects the work of a criminal organization.

[8] The mitigating factors include the following: (1) Ms. Scott has no criminal record. (2) The 29-year-old Ms. Scott is a single mother. (3) Ms. Scott has a very supportive family and has excellent prospects for rehabilitation. (4) Ms. Scott has had a difficult childhood evidenced by child abuse. (5) Ms. Scott is a “drug mule” rather than a ranking member on the drug-importation hierarchy.

9I should note parenthetically that Ms. Scott’s background circumstances, within the context of drug importation, do not constitute exceptional circumstances that would take her outside of the sentence range set out in Cunningham or Madden. There is anecdotal evidence to suggest that the unfortunate reality is that in the Greater Toronto Area, those who are recruited to import drugs into Canada through Canada’s airports are disproportionately impoverished, racialized, single mothers who have led rather difficult lives: see R. v. Hamilton (2003), 172 C.C.C. (3d) 114, [2003] O.J. No. 532, at para. 102.

10The critical issue regarding the determination of a proportionate sentence for Ms. Scott is the quantum of cocaine she is found to have imported. The Crown bears the burden to prove all contested facts on sentencing beyond a reasonable doubt: see R. v. Gardiner, [1982] 2 S.C.R. 368, at p. 406. The Crown should therefore prove beyond a reasonable doubt that Ms. Scott must be sentenced for importing 3.846 kgs of cocaine, rather than 1.3 kilograms.

11The trial evidence indicated that the manner of concealment of the drugs was identical in all Ms. Scott’s checked luggage. The cans and packets all contained the same white powdery substance. Furthermore, every random sample sent to Health Canada tested positive for cocaine.

12The Crown contends that it would defy common sense to infer that the contents of the untested cans and packets would have been different from those from which random samples were taken. Defence counsel submits that absent a Certificate of Analysis with respect to all the suspected drug contraband, the Crown has not discharged its evidentiary burden.

13I disagree with defence counsel’s submissions for the following reasons.

14Ms. Scott arrived at the airport with various pieces of luggage. A CBSA officer located a small black bag in a black suitcase and located a number of cans and packets labelled as food products. These included three cans of “chocolate”, two packets of “coffee”, and another can of “cocoa powder”. The cocoa can seemed heavier than its stated weight of 400 grams. It turned out to be almost 800 grams. It contained a white powder inconsistent with the colour of cocoa powder. A NIK test showed positive for cocaine.

15Constable Mark Sinker later examined the contents of the products found in Ms. Scott’s luggage. They all contained a white powdery substance. The officer took a small sample from a chocolate tin, salt fish fritter packet, Mega-Punch packet and coffee packet and sent them to Health Canada for testing. The samples all tested positive for cocaine.

16In my view, the only rational inference to be drawn from this constellation of facts is that the white powdery substance found in the cans and packets in Ms. Scott’s luggage was cocaine. The cans and packets did not contain the products indicated on their labels. The samples sent for testing were randomly selected by the RCMP. All tested positive for cocaine. The “cocoa” product tested by the CBSA officer also tested positive for cocaine. It is inconceivable that the rest of the white powdery substance found in Ms. Scott’s luggage could have been anything but cocaine.

17For the above reasons, I find that the Crown has proven beyond a reasonable doubt that Ms. Scott imported 3.846 kilograms of cocaine.

18What is the appropriate penalty for importing this quantity of cocaine? The Crown’s position is at the upper end of the Cunningham range. The Crown justifies its position by relying on a number of sentencing cases.

19In R. v. Syblis (2001), 140 O.A.C. 64, [2001] O.J. No. 115 (C.A.) for example, the offender received a seven year term of imprisonment for importing 2.1 kg of cocaine. In R. v. Roache, [2006] O.J. No. 3180 (C.A.) the offender received seven years imprisonment for importing 2.97 kg of cocaine, while in R. v. Bernard, 2018 ONCJ 376, the offender received a sentence of six years imprisonment for importing 1.97 kg of cocaine. Meanwhile, the offenders in R. v. Carrera-Vega, 2015 ONSC 4958, [2015] O.J. No. 4126, received six and a half year terms of imprisonment, for importing 3.8 kg and 4 kg of cocaine respectively. All the offenders in these examples were found guilty following a trial.

20Sentencing is an individualized process. The quantity of the imported drug is not the sole factor in the determination of an appropriate sentence. I must also consider Ms. Scott’s personal circumstances to determine an appropriate sentence.

21Undoubtedly, general deterrence and denunciation, given the nature of the imported drug, is of paramount importance. However, rehabilitation is also a factor to be considered. While the mitigating factors in this case do not take the appropriate sentence outside the Cunningham range, they have some salience in the determination of an appropriate sentence.

Conclusion

22In my view an appropriate sentence in this case, considering Ms. Scott’s excellent prospects for rehabilitation, is seven years imprisonment.

[23] The ancillary orders are:

1. a DNA order;
2. a s. 109(a) order for 10 years; and
3. victim fine surcharge. Ms. Scott will have three years to pay.

André J.