Her Majesty the Queen v. C.N.H. [Indexed as: R. v. H. (C.N.)]

62 O.R. (3d) 564

[2002] O.J. No. 4918

Docket No. C37966

Court of Appeal for Ontario,

Doherty, Rosenberg and Cronk JJ.A.

December 19, 2002

Criminal law -- Sentence -- Importing narcotics -- Sentencing range of six to eight years for importing cocaine continues to be appropriate -- Nineteen-year-old first offender pleading guilty to importing almost four kilograms of cocaine -- Accused believing that he was smuggling small quantity of marijuana -- Accused cooperating fully with police and providing them with information -- Decrease in sentence for cooperation with police should be modest -- Trial judge erring in sentencing accused to one year's imprisonment -- Appropriate sentence would have been three years' imprisonment -- Accused had served custodial part of sentence by time of appeal and should not be reincarcerated -- Crown's appeal dismissed.

The accused, a 19-year-old first offender, pleaded guilty to importing almost four kilograms of cocaine with a street value of approximately $600,000. He went to Jamaica for a vacation, with no intention of bringing back drugs, but was persuaded by a friend of a friend to smuggle what he believed to be a small quantity of marijuana back to Canada in exchange for $2,000. The trial judge questioned the joint submission of five years' imprisonment, suggesting that it might be excessive in the circumstances of the accused. Crown counsel drew his attention to two 1996 decisions of the Ontario Court of Appeal which stated that the appropriate range for this type of offence, in the absence of exceptional circumstances, would be six to eight years. The trial judge challenged the continued relevancy of that range in light of significant changes to the legal landscape since 1996, including the proclamation of Part XXIII of the Criminal Code, R.S.C. 1985, c. C-46 and the replacement of the Narcotic Control Act, R.S.C. 1985, c. N-1 with the Controlled Drugs and Substances Act, S.C. 1996, c. 19. Defence counsel indicated that the accused wished to resile from the joint submission. The Crown brought a motion to strike the guilty plea and for the trial judge to recuse himself because of a reasonable apprehension of bias. Crown counsel submitted that the Crown had been prejudiced because the trial judge had questioned whether the joint submission was appropriate and had done so in a manner that led the accused to resile from the agreement. The trial judge dismissed the application and sentenced the accused to one year's imprisonment. The Crown appealed.

Held, the appeal should be dismissed.

The trial judge correctly disposed of the Crown's recusal application. He was not bound by the joint submission, and he was required to decide whether or not the sentence proposed by the parties was consistent with the public interest. He closely questioned Crown counsel about the reasons for the proposed sentence, and there was nothing in the dialogue between the trial judge and counsel from which a reasonable observer could infer that the trial judge was biased.

The trial judge erred in finding that the 1996 decisions of the Ontario Court of Appeal setting out a range of six to eight years, in the absence of exceptional circumstances, for importing narcotics were no longer valid. Legislative developments and developments in the case law since 1996 did not entitle the trial judge to disregard that range.

The court was entitled to consider the accused's co-operation with the police as an extenuating circumstance that would permit a sentence outside the six- to eight-year range. However, the reduction for that factor should be modest in the circumstances of this case, something in the range of one year. The accused provided information most of which, with very little effort, the police could have obtained for themselves by searching the accused's belongings.

The most significant extenuating factor in this case was the trial judge's finding that the accused believed that he was importing marijuana rather than cocaine. The fundamental principle of sentencing set out in s. 718.1 of the Criminal Code is that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. This requires the court to consider the moral blameworthiness of the offender. There is a considerable difference in the moral blameworthiness of a person who believes he is importing marijuana, a so-called "soft drug" that is grown in Canada, and one who knows he is importing cocaine, a dangerous drug that has no domestic source. This factor justified imposing a sentence out of the six- to eight- year range. Other mitigating factors included the accused's youth and the facts that he was of otherwise good character, had been performing volunteer work since 1995, was employed and financially assisting his mother, a single parent of three children, and did not go to Jamaica to commit a crime. The appropriate sentence would have been three years' imprisonment. However, the accused had now served the custodial part of his sentence. Had the trial judge imposed the sentence that should have been imposed, the accused in all likelihood would be on day parole at this point under the accelerated parole review provisions of the Corrections and Conditional Release Act, S.C. 1992, c. 20. It would not be in the public interest to return the accused to prison at this time.

APPEAL by the Crown from a sentence for importing cocaine.

R. v. Cunningham (1996), 1996 1311 (ON CA), 27 O.R. (3d) 786, 104 C.C.C. (3d) 542 (C.A.); R. v. Madden (1996), 1996 10228 (ON CA), 27 O.R. (3d) 640, 104 C.C.C. (3d) 548 (C.A.), apld R. v. Cartwright (1989), 17 N.S.W.L.R. 243 (C.C.A.); R. v. John Doe (1999), 1999 15051 (ON SC), 142 C.C.C. (3d) 330 (Ont. S.C.J.), consd Other cases referred to R. v. Biancofiore (1997), 1997 3420 (ON CA), 35 O.R. (3d) 782, 119 C.C.C. (3d) 344, 29 M.V.R. (3d) 90, 10 C.R. (5th) 200 (C.A.); R. v. Blondin (1971), 1971 1411 (SCC), 4 C.C.C. (2d) 566n, [1972] 1 W.W.R. 479 (S.C.C.), affg (1970), 1970 1006 (BC CA), 2 C.C.C. (2d) 118, [1971] 2 W.W.R. 1 (B.C.C.A.); R. v. Cerasuolo (2001), 2001 24172 (ON CA), 151 C.C.C. (3d) 445 (Ont. C.A.); R. v. Gladue, 1999 679 (SCC), [1999] 1 S.C.R. 688, 171 D.L.R. (4th) 385, 238 N.R. 1, 133 C.C.C. (3d) 385, 23 C.R. (5th) 197; R. v. McDonnell, 1997 389 (SCC), [1997] 1 S.C.R. 948, 49 Alta. L.R. (3d) 111, 145 D.L.R. (4th) 577, 210 N.R. 241, 43 C.R.R. (2d) 189, 114 C.C.C. (3d) 436, 6 C.R. (5th) 231; R. v. Preston (1990), 1990 576 (BC CA), 47 B.C.L.R. (2d) 273, 79 C.R. (3d) 61 (C.A.); R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, 142 Man. R. (2d) 161, 182 D.L.R. (4th) 1, 249 N.R. 201, 212 W.A.C. 161, [2000] 4 W.W.R. 21, 140 C.C.C. (3d) 449, 49 M.V.R. (3d) 163, 30 C.R. (5th) 1 (sub nom. R. v. P. (J.K.D.)); R. v. Rubenstein (1987), 1987 2834 (ON CA), 24 O.A.C. 309, 41 C.C.C. (3d) 91 (C.A.); R. v. Sagoe, [1998] O.J. No. 4721 (Quicklaw) (C.A.); R. v. Sriskantharajah (1994), 1994 631 (ON CA), 90 C.C.C. (3d) 559 (Ont. C.A.); R. v. Stone, 1999 688 (SCC), [1999] 2 S.C.R. 290, 173 D.L.R. (4th) 66, 239 N.R. 201, 63 C.R.R. (2d) 43, 134 C.C.C. (3d) 353, 24 C.R. (5th) 1; R. v. Valentini (1999), 1999 1885 (ON CA), 43 O.R. (3d) 178, 132 C.C.C. (3d) 262 (C.A.); R. v. Wood (1988), 1988 7095 (ON CA), 29 O.A.C. 99, 43 C.C.C. (3d) 570 (C.A.) Statutes referred to Controlled Drugs and Substances Act, S.C. 1996, c. 19, ss. 6(1), 10 Corrections and Conditional Release Act, S.C. 1992, c. 20 Criminal Code, R.S.C. 1985, c. C-46, ss. 718.1, 718.2(d), (e) Narcotic Control Act, R.S.C. 1985, c. N.1 [repealed by S.C. 1996, c. 19, s. 94 (in force May 14, 1997)] Authorities referred to Canadian Sentencing Commission, Sentencing Reform: A Canadian Approach (Ottawa: Ministry of Supply and Services, 1987)

Beverly J. Wilton, for appellant. David M. Tanovich, for respondent.

The judgment of the court was delivered by

[1] ROSENBERG J.A.: -- This is an appeal by the Crown from a sentence of one year's imprisonment and two years' probation imposed upon the respondent following his plea of guilty to importing cocaine.

[2] This is an offence that would ordinarily attract a lengthy penitentiary sentence even for an offender, like this respondent, who has no prior criminal record. In articulate and very thoughtful reasons, Duncan J. explained why he was imposing the sentence of one year's imprisonment. His decision ultimately turned on his conclusion that this court's decisions in R. v. Cunningham (1996), 1996 1311 (ON CA), 27 O.R. (3d) 786, 104 C.C.C. (3d) 542 (C.A.) and R. v. Madden (1996), 1996 10228 (ON CA), 27 O.R. (3d) 640, 104 C.C.C. (3d) 548 (C.A.) had been overtaken by subsequent legislation and case law. He therefore believed that he was free to ignore the sentence range set out in those cases. I cannot agree with that conclusion.

[3] In my view, the trial judge erred in principle in failing to apply this court's decisions and this led him to impose a sentence that was manifestly inadequate. Even taking into account the many mitigating circumstances relied upon by the trial judge, he should have imposed a sentence of imprisonment of at least three years. However, for reasons that I will explain, but particularly given the passage of time since the respondent was sentenced, I would not reincarcerate the respondent. Accordingly, while I would grant the Crown leave to appeal sentence, I would dismiss the appeal.

The Procedural History

[4] It is necessary to briefly set out the procedural history of this case because of submissions by the appellant that the trial judge should have recused himself.

[5] On March 24, 2000, the respondent returned from Jamaica to Canada and was arrested at the Pearson International Airport in possession of almost 4 kilograms of cocaine. The respondent was released on bail on April 3, 2000. On May 8, 2001, the respondent appeared before Duncan J. and pleaded guilty to one count of importing cocaine contrary to s. 6(1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19. The Crown read in a brief synopsis of facts and the case was adjourned to July 9, 2000 for sentencing submissions. The trial judge ordered that a pre-sentence report be prepared. There was no mention of any joint submission at that time. The proceedings were further adjourned to July 31, 2001.

[6] On July 31, 2001, counsel for the respondent, not Mr. Tanovich, informed the trial judge that he and Crown counsel, not Ms. Wilton, had arrived at a joint submission of five years' imprisonment. Crown counsel then made submissions in support of the joint submission and drew the trial judge's attention to the Cunningham and Madden decisions, which suggest that the appropriate range for this type of offence would be six to eight years.

[7] In the course of Crown counsel's submissions, the trial judge expressed some concern about the joint submission. He questioned whether a five-year sentence could be justified on the basis of general deterrence and whether sentences of the length set out in the Cunningham and Madden decisions could be justified in view of sentences normally imposed on first offenders for violent offences. He also asked Crown counsel what efforts the police were making to take the investigation of drug importation beyond the arrest and charging of couriers, like the respondent. In particular, he expressed a view that the police ought to make greater efforts to proceed with controlled deliveries and to follow up on information provided by an accused. The trial judge also asked Crown counsel when a trial judge is entitled to reject a joint submission where the judge is of the view that the suggested sentence is too high. Crown counsel was well prepared and dealt with all of the trial judge's questions in careful submissions and by reference to cases from this court and the Supreme Court of Canada. Crown counsel concluded his remarks with the following:

[I]n my submission, there is nothing in the present case in which the court could say this is not within the range or that the precedent that is before the court is outdated or offer any other reason. It is in fact the lowest position that the Crown has taken on these kind of offences, for multi kilograms. And in fact, my submission is that this is an appropriate position that has been put forth before the court and absent exceptional circumstances which I will be prepared to respond to if the court has any concerns, it should not be varied at all. Those are my submissions.

[8] The trial judge then took the morning recess. When court resumed, counsel for the respondent indicated that he wished to attend with Crown counsel in chambers to see the trial judge. When counsel returned to court, the trial judge placed on the record the fact that defence counsel had informed him that the respondent may have changed his instructions to his counsel. He therefore agreed to adjourn the proceedings to August 21, 2001 "to give counsel an opportunity to clarify and perhaps amend those instructions and come back when the uncertainty is cleared up". Crown counsel did not object.

[9] On August 21, 2001, Crown counsel informed the trial judge that the sentence hearing "would be a fresh hearing as if there was no position put forth before the court". The trial judge and the respondent's trial counsel then provided further information on the record about what transpired in chambers. It seems that defence counsel told the trial judge and Crown counsel that his client wished to resile from the joint submission. Counsel felt that in those circumstances he could not continue to act for the respondent and asked to be removed from the record. Defence counsel then described what happened as follows:

However, there was a compromise found based on discussions in chambers and this is the outcome of that discussion, that is Mr. [H] had further time to discuss with his counsel the implications of what was said by the Court and the Crown in discussions as to the joint position and based on that he wishes to now testify after considering for some time further the issue of whether he ought to call evidence.

[10] Crown counsel did not disagree with this characterization of the events. The sentence hearing then continued. The respondent testified and was cross-examined. Crown counsel called a police officer to contradict one part of the respondent's evidence. Counsel then made lengthy submissions concerning sentence. Crown counsel sought a sentence of six to seven years' imprisonment. Defence counsel sought a conditional sentence of two years less one day. When submissions were all but complete, Crown counsel sought to call another police officer. Over objection by defence counsel, the trial judge granted a further adjournment to accommodate Crown counsel. At no time during this lengthy proceeding did Crown counsel suggest that the trial judge should recuse himself. It is apparent that the parties were now proceeding on the basis that there was no longer a joint submission and that each party was free to make submissions without regard to the joint submission. The trial judge adjourned the proceeding to October 3, 2001.

[11] For reasons that are not explained, the matter was adjourned again to December 18, 2001. At that time, the Crown was represented by new counsel who brought a motion to strike the guilty plea and for the trial judge to recuse himself because of a reasonable apprehension of bias. Crown counsel submitted that the Crown had been prejudiced because the trial judge had questioned whether the joint submission was appropriate and had done so in a manner that lead the respondent to resile from the agreement. He submitted that the trial judge was bound to sentence in accordance with the joint submission unless the suggested disposition would bring the administration of justice into disrepute. Crown counsel conceded that the trial judge had not been part of any pre-plea discussions and that Crown counsel had not objected when the respondent resiled from the joint submission. The trial judge dismissed the Crown's application without calling on counsel for the respondent. When he imposed sentence, the trial judge released his reasons for dismissing the motion.

[12] After the motion was dismissed, Crown counsel called another police officer. Both counsel then made further submissions with respect to sentence. The trial judge adjourned the case to February 27, 2002 at which time he imposed the sentence. He provided brief oral reasons and at the same time released lengthy written reasons.

The Facts of the Offence

[13] The facts read in by Crown counsel at the time of the plea were relatively brief. On March 24, 2000, the respondent returned to Canada from Jamaica. He was referred to secondary customs where customs officers found a quantity of cocaine concealed in his garment bag. The cocaine weighed almost four kilograms and had a value of approximately $600,000. In the subsequent proceedings, the respondent and the Crown witnesses provided much greater detail. The trial judge found the respondent to be a credible witness and, as a result, made a number of findings of fact in his favour. While counsel for the appellant disputed some of the inferences to be drawn from the facts, I did not understand her to argue that any of the primary findings were unreasonable.

[14] The facts as found by the trial judge can be summarized as follows. At the time of the offence, the respondent was 19 years of age and had no prior criminal record. He had a learning disability that he had managed to overcome to complete Grade 12. His mother is a single parent and the respondent is close to her and his two half-siblings. The respondent had worked part-time in the food services industry for three years. He also had been doing volunteer work with youth. Just prior to the offence in early 2000, the respondent was working at York Central Hospital. He and his friend J.D. decided to take a vacation in the March school break. J.D. suggested that they go to Jamaica, a country where they both have roots. The respondent purchased his own ticket about a month before the scheduled holiday. The plan was that he would stay with friends of J.D.

[15] A couple of days before the respondent was to return to Canada, one of J.D.'s friends, E., approached the respondent and asked him to smuggle a small quantity of marihuana back to Canada. E. said that he had sent marihuana back many times and he paid well. The respondent initially said he would think about it and then agreed to do so. The respondent testified that he agreed because he did not really know E. and he was afraid of what he might do if he refused. E. did not, however, threaten the respondent. A day or so before the scheduled departure date, E. took away the respondent's bag and brought back a garment bag. The respondent searched the bag on several occasions but could not see where the marihuana was hidden. E. also changed the respondent's flight. He purchased a new ticket for him returning a day later. E. told the respondent this was because someone would be meeting him at the airport on his return. On the way to the airport in Jamaica, E. gave the respondent $2,000.

[16] The respondent believed that he was smuggling marihuana. He did not know that Jamaica is a source country for cocaine. He purchased a camera in Jamaica and took a picture of E. holding marihuana. He was stunned when cocaine was discovered in his bags. The trial judge accepted the respondent's evidence that he believed that he was importing marihuana. He also accepted his evidence that he did not go to Jamaica with the intention of importing drugs to Canada.

[17] There was a dispute at the sentence hearing as to whether the respondent offered to assist the police. The respondent testified that he provided the names of J.D. and E. and other people he met in Jamaica as well as the camera with the undeveloped film. It was his impression that the police were not interested in the information because it largely involved people in Jamaica. A police officer who dealt with the respondent testified that the respondent offered some information but refused to give a sworn videotaped statement. The respondent testified that the police never asked him to give such a statement. Another officer testified that he ran the names through the computer but did not get any "hits". The trial judge accepted the respondent's evidence that he "voluntarily gave the police the information regarding those he knew to be involved and pointed out their phone numbers and the photos that he had taken". He also accepted his evidence that no request was made for a videotaped statement. The trial judge was critical of the police for not showing any interest in the Jamaican connection to the crime. He found that the information provided by the respondent, if acted upon, might have led to the arrest and prosecution of principals in the cocaine importation venture.

Analysis

The joint submission and recusal issues

[18] The appellant submits that the trial judge wrongly disregarded the joint submission and should have recused himself because he questioned the propriety of the submission. As I have said, the trial judge dismissed the Crown's motion at trial and delivered reasons for that decision. Those reasons are now reported at [2002] O.J. No. 1112 (Quicklaw). I agree with the trial judge's disposition of the motion. This court has said on more than one occasion that a trial judge is not bound by a joint submission. See R. v. Rubenstein (1987), 1987 2834 (ON CA), 41 C.C.C. (3d) 91, 24 O.A.C. 309 (C.A.). Duncan J. was required to decide whether or not the sentence proposed by the parties was consistent with the public interest. In this case, he closely questioned Crown counsel at trial about the reasons for the proposed sentence. There is nothing in the dialogue between the trial judge and counsel from which a reasonable observer could infer that the trial judge was biased.

[19] The appellant submits that the trial judge was bound to follow the joint submission unless the proposed sentence would bring the administration of justice into disrepute. This court has said that a trial judge should not exceed a joint submission unless the proposed sentence would be contrary to the public interest and bring the administration of justice into disrepute. See R. v. Cerasuolo (2001), 2001 24172 (ON CA), 151 C.C.C. (3d) 445 (Ont. C.A.) per Finlayson J.A. at p. 447. However, this court has held that the same very high threshold does not apply where an accused seeks on appeal to resile from a joint submission. See R. v. Sriskantharajah (1994), 1994 631 (ON CA), 90 C.C.C. (3d) 559 (Ont. C.A.) per Finlayson J.A. at p. 562 and R. v. Wood (1988), 1988 7095 (ON CA), 43 C.C.C. (3d) 570, 29 O.A.C. 99 (C.A.).

[20] However, I need not decide what test a trial judge should apply where he or she is of the view that the proposed sentence is excessive. When the trial judge came to deal with the recusal motion and with sentencing in this case, there was no joint submission. The respondent, without objection from the Crown, had resiled from the joint submission. Thereafter, the parties proceeded on the basis that the matter of sentencing was wide open. Both parties took positions outside the joint submission and called evidence. The Crown was not treated unfairly. It had the respondent's guilty plea and had not withdrawn any other charges or altered its position to its prejudice in any other way. It seems to me that the trial judge acted properly throughout the proceedings. For example, even after submissions were almost finished, he permitted Crown counsel to call another witness to meet one of defence counsel's submissions.

The continued vitality of Madden and Cunningham

[21] In early 1996, this court dealt with two sentence appeals concerning importing cocaine. The two cases, Madden and Cunningham, involved first offenders arrested at the Pearson International Airport. In both cases, the offenders were conceded to be couriers, that is, people whose only role in the offence is to attempt to smuggle the drugs through Canadian customs.

[22] Madden involved an appeal by an offender who imported less than a kilogram of cocaine and who received a sentence of four years' imprisonment. She was co-operative with the police and participated in an attempted controlled delivery. The controlled delivery failed through no fault of the offender. The offender believed she was importing marihuana. I will deal with that aspect of the case below. This court reduced her sentence to three years. The court found that the trial judge had erred in principle in holding that the range for this type of offence was six to seven years. Rather, an appropriate range would be three to five years.

[23] Cunningham was a Crown appeal. The offender and her companion each imported a large quantity of cocaine. Ms. Cunningham imported 5.231 kg. Her companion imported 4.8965 kg. She knew she was importing cocaine, although she did not know the exact quantity. She was paid $4,000. She was co-operative with the police in the sense of admitting her guilt but did not provide any assistance to them. The trial judge was of the view that the appropriate range was three to five years and he imposed a sentence of three years' imprisonment, taking into account some eight months of pre-trial custody. This court increased the sentence to five years. The court reaffirmed that "absent exceptional or extenuating circumstances" the range for importing around a kilogram of cocaine was three to five years and held that the range for importing large, multi- kilogram, amounts was six to eight years' imprisonment. The court also recognized at p. 790 O.R., p. 546 C.C.C., a fundamental principle of sentencing that "sentencing is not an exact science and that trial judges must retain the necessary degree of flexibility to do justice in individual cases". Recognizing that the suggested range for first offenders is quite severe, the court nevertheless held at p. 791 O.R., p. 547 C.C.C.:

Sympathetic though we are to the plight of many couriers, such concerns must give way to the need to protect society from the untold grief and misery occasioned by the illicit use of hard drugs. In this regard, we can do no better than to quote from the majority judgment in Smith v. The Queen (1987), 1987 64 (SCC), 34 C.C.C. (3d) 97, 40 D.L.R. (4th) 435, [1987] 1 S.C.R. 1045. While the case is best known for the successful attack upon the constitutional validity of the minimum seven- year sentence for importing a narcotic pursuant to s. 5(2) of the Narcotic Control Act, R.S.C. 1970, c. N-1, as amended, the remarks made by Lamer J. at the outset of his reasons bear repetition [at p. 123]:

Those who import and market hard drugs for lucre are responsible for the gradual but inexorable degeneration of many of their fellow human beings as a result of their becoming drug addicts. The direct cause of the hardship cast upon their victims and their families, these importers must also be made to bear their fair share of the guilt for the innumerable serious crimes of all sorts committed by addicts in order to feed their demand for drugs. Such persons, with few exceptions (as an example, the guilt of addicts who import not only to meet but also to finance their needs is not necessarily the same in degree as that of cold-blooded non-users), should, upon conviction, in my respectful view, be sentenced to and actually serve long periods of penal servitude.

There can be no doubt that commercial traffickers rely heavily on couriers to facilitate their deadly trade. That being so, it falls to the courts to warn would-be couriers, in no uncertain terms, that they will pay a heavy price for choosing to import large quantities of hard drugs for quick personal gain.

[24] The trial judge in this case challenged the continued relevancy of the ranges established in Madden and Cunningham. He gave three reasons:

(1) Restraint in the use of imprisonment;

(2) Individualized sentencing;

(3) A cautious reliance on general deterrence.

[25] All three reasons were grounded in the trial judge's view that there had been significant changes to the legal landscape since this court's decisions in 1996. The trial judge looked to two important legislative changes. First, in September 1996, the new Part XXIII of the Criminal Code, R.S.C. 1985, c. C-46 was proclaimed in force. For the first time, Parliament codified a set of sentencing objectives and principles. In particular, Parliament explicitly recognized in s. 718.2(d) and (e) the principle of restraint in the use of imprisonment. Second, in May 1997, Parliament replaced the Narcotic Control Act, R.S.C. 1985, c. N-1 with the Controlled Drugs and Substances Act. Here, again, Parliament set out principles and objectives of sentencing. Section 10 of that Act, while referring to the Criminal Code, explicitly recognizes rehabilitation and treatment as objectives for sentencing under that Act. As the trial judge pointed out, s. 10 makes no express reference to general deterrence.

[26] As to changes in the case law, the trial judge noted statements by this court and the Supreme Court of Canada that, in light of the new legislation, had cautioned against over- reliance on the objective of general deterrence. I would note, however, that many of those statements were made in the context of discussions about the new conditional sentencing provisions. The trial judge also referred to decisions from the Supreme Court of Canada, notably R. v. McDonnell, 1997 389 (SCC), [1997] 1 S.C.R. 948, 114 C.C.C. (3d) 436 and R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, 140 C.C.C. (3d) 449 where that court emphasized the importance of individualized sentencing and cast some doubt on the efficacy of guideline or starting point sentencing.

[27] These are all very important developments and the trial judge's review of the legislation and the case law is scholarly and helpful. However, I do not attach the same importance to those changes, as does the trial judge. In particular, I do not agree that those developments left him free to depart from the decisions of this court.

[28] I will start with the impact of the new Part XXIII of the Criminal Code. There is no denying the importance of the new provisions. The Supreme Court discussed the legislation in R. v. Gladue, 1999 679 (SCC), [1999] 1 S.C.R. 688, 133 C.C.C. (3d) 385. The court held at p. 719 S.C.R., p. 409 C.C.C. that the new Part XXIII and the principle of restraint codified in s. 718.2(e), in particular"must be understood as a reaction to the overuse of prison as a sanction, and must accordingly be given appropriate force as remedial provisions". At p. 737 S.C.R., p. 423 C.C.C., the court also emphasized that sentencing is "an individual process and in each case the consideration must continue to be what is a fit sentence for this accused for this offence in this community". Similarly, in Proulx at p. 79 S.C.R., p. 465 C.C.C., the court held that"Parliament has sought to give increased prominence to the principle of restraint in the use of prison as a sanction through the enactment of s. 718.2(d) and (e)."

[29] However, the principle of restraint is not new to the law of sentencing. It has been a guiding principle of sentencing and criminal law in general in this country for a long time. See for example the discussion in Canada, Sentencing Reform: A Canadian Approach (Ottawa: Ministry of Supply and Services, 1987), c. 2 and especially pp. 44-46. The principle of restraint has found its most practical expression in the new conditional sentencing provisions of the Code and in the greater emphasis on objectives of restorative justice and community-based sanctions. The offence here, however, was far too serious to warrant a conditional sentence and restorative justice principles and community alternatives to imprisonment were simply not appropriate in this case.

[30] I wholeheartedly endorse the trial judge's concern about the principle of restraint. But, in a case that has the objective seriousness of this one, a substantial sentence of imprisonment was required. The amendments to Part XXIII of the Code were not reason enough for the trial judge to depart from the guidelines set out in Cunningham.

[31] I also do not attribute the same importance to s. 10 of the Controlled Drugs and Substances Act, as did the trial judge. It seems to me that the importance of s. 10 is to encourage courts to recognize the particular problem that in many cases persons convicted of drug offences are themselves victims of the drug culture and dependent upon drugs as addicts or users. I think s. 10 recognizes a view that had become increasingly prevalent that, especially for the addict trafficker, the public interest -- including the protection of the public -- is best served by the treatment and rehabilitation of the offender. See, in particular, the reasons of Wood J.A. speaking for a five-person court in R. v. Preston (1990), 1990 576 (BC CA), 79 C.R. (3d) 61, 47 B.C.L.R. (2d) 273 (C.A.), especially at pp. 71-72 C.R. That objective, however, had no application in this case. The respondent was not an addict trafficker. What he did, he did purely for personal gain. He was not a victim of the drug culture. Rather, by bringing the drugs into Canada he was contributing to the problem, to the extent of drugs having a street value of $600,000.

[32] I will now deal with some of the developments in the case law referred to by the trial judge. The use of starting- point or guideline sentencing has been somewhat controversial and has never been fully endorsed by this court. However, on more than one occasion, this court has suggested sentencing ranges for certain types of offences. These ranges are to assist trial judges in the difficult task of sentencing and to fulfill the appellate function of offering guidance to trial judges. The Supreme Court recognized that function in McDonnell where Sopinka J. said the following at p. 981 S.C.R., p. 458 C.C.C.:

I add that I do not disagree with McLachlin J. that appellate courts may set out starting-point sentences as guides to lower courts. Moreover, the starting- point may well be a factor to consider in determining whether a sentence is demonstrably unfit. If there is a wide disparity between the starting-point for the offence and the sentence imposed, then, assuming that the Court of Appeal has set a reasonable starting-point, the starting-point certainly suggests, but is not determinative of, unfitness.

[33] In the subsequent decision in R. v. Stone, 1999 688 (SCC), [1999] 2 S.C.R. 290, 134 C.C.C. (3d) 353, the court returned to this issue. Bastarache J. said the following at p. 411 S.C.R., p. 450 C.C.C.:

One function of appellate courts is to minimize disparity of sentences in cases involving similar offences and similar offenders; see M. (C.A.), supra, at para. 92, and McDonnell, supra, at para. 16, per Sopinka J. In carrying out this function, appellate courts may fix ranges for particular categories of offences as guidelines for lower courts. However, in attempting to achieve uniformity, appellate courts must not interfere with sentencing judges' duty to consider all relevant circumstances in sentencing; see McDonnell, supra, at para. 43, per Sopinka J.; and at para. 66, per McLachlin J. In Archibald, McEachern C.J. clearly stated, at p. 304, that it would be wrong to assume that there is any "precise range that will apply to every case". In my opinion, this qualification reveals that the Court of Appeal in Archibald correctly intended for trial judges to balance uniformity in sentencing with their duty to consider the circumstances of the particular case.

[34] The decision of an appellate court to set a range for certain types of offences is also consistent with the court's obligation to take into account the principle set out in s. 718.2(b) of the Code, that "a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances." It seems to me that this was the point of this court's decisions in Madden and Cunningham. The manner in which the range was expressed in both those cases was consistent with the dictates set out in Stone [at p. 411 S.C.R., p. 450 C.C.C.] that "in attempting to achieve uniformity, appellate courts must not interfere with sentencing judges' duty to consider all relevant circumstances in sentencing . . .". The Cunningham court made it crystal clear that trial judges must "retain the necessary degree of flexibility to do justice in individual cases" (at p. 790 O.R., p. 546 C.C.C.).

[35] I agree with the trial judge that general deterrence as the animating objective of any offence must be approached with caution. In R. v. Biancofiore (1997), 1997 3420 (ON CA), 35 O.R. (3d) 782, 119 C.C.C. (3d) 344 (C.A.) at p. 792 O.R., p. 356 C.C.C., I said the following:

The general deterrent effect of incarceration is somewhat speculative and I adhere to the view I expressed in R. v. Wismayer, supra, at p. 36 that incarceration should be used with great restraint where the justification is general deterrence. There are, however, offences that are more likely to be influenced by a general deterrent effect.

(Emphasis added)

[36] In that case, the court was considering drinking and driving offences and we held that incarceration for such crimes could be justified on the basis of general deterrence. The same applies for importing large quantities of cocaine for personal gain. These are offences that ordinarily require some degree of planning. The trial judge recognized that fact himself when he said at para. 35 of his reasons that "where potential offenders can deliberate on the cost/benefit of committing the offence, general deterrence might well be seen as a principle that is effective in curtailing drug crimes." The trial judge, however, discounted the value of general deterrence in the case of couriers, in part, because it could never be 100 per cent effective as there would always be people ignorant or desperate enough to take the risk. That may be, but it was not a basis for rejecting the application of the general deterrence objective in courier cases. Just as in the drinking and driving context, prison sentences alone will never solve the problem, but they do have a role in deterring crime.

[37] To conclude, in my view, legislative developments and developments in the case law since 1996 did not entitle the trial judge to disregard the range set for this offence in Cunningham. I also point out that in R. v. Valentini (1999), 1999 1885 (ON CA), 43 O.R. (3d) 178, 132 C.C.C. (3d) 262, this court applied the Cunningham decision. The trial judge should have recognized that the offence is one that would normally attract a sentence of six to eight years' imprisonment and, after taking into account any mitigating factors that would take it out of this range, sentenced the respondent accordingly. Counsel for the respondent at trial and before this court placed particular emphasis on two factors, the respondent's co-operation with the police and his belief that he was smuggling marihuana rather than cocaine. I will now turn to those and other factors.

The mitigating factors

(a) Co-operation with the police

[38] Counsel for the appellant argued that there was no basis for treating the respondent's co-operation with the police as an exceptional or extenuating circumstance as that phrase is used in Cunningham to take this case out of the six- to eight- year range. Ms. Wilton properly conceded that she was bound by the trial judge's findings of fact concerning the degree of the respondent's co-operation. However, she argued that, even accepting those findings, the respondent's co-operation was minimal and it should be disregarded since it proved of no practical use to the police.

[39] I have set out the trial judge's findings respecting the respondent's co-operation with the police. To summarize, the trial judge found that the respondent voluntarily provided all of the information that he had including names, telephone numbers and photographs. He also found that the information, if acted upon, might have led to the arrest and prosecution of principals in the cocaine importation venture. He also found that the police were only mildly interested in the information and took few investigative steps. The trial judge also noted that the respondent's co-operation with the authorities ended on the night of his arrest. He did not seek out the police to provide further information. On the other hand, the trial judge found that the respondent had provided all of the information that he had.

[40] There is a division in the authorities as to when co- operation with the police should be considered a mitigating factor and, if so, the amount of the "discount" from the usual sentence that can be expected. The courts have found that co- operation with the police is a substantial mitigating factor where the accused has provided extensive information that has led to the prosecution of others for serious offences. For example, in R. v. John Doe (1999), 1999 15051 (ON SC), 142 C.C.C. (3d) 330 (Ont. S.C.J.), Hill J. imposed a conditional sentence of two years less one day on a charge of importing 1.5 kg. of cocaine, a case that he acknowledged would ordinarily call for a sentence of four to five years.

[41] The appellant, relying on the John Doe case, submits that to be relevant to sentencing, the accused's information or assistance must be of practical use in the sense that it can be acted upon. The appellant refers to the following passage from pp. 341-42 C.C.C. of that case:

[I] am of the view that the mere providing of information which is already known to the police, or which fails to prove reliable in the sense of leading to arrests, seizures, or to the banking of useful intelligence information in the view of the authorities, is not worthy of sentencing credit.

[42] In my view, this is too narrow an expression of the circumstances in which credit should be given for assistance to the police. I prefer the somewhat broader view taken by the majority in R. v. Cartwright (1989), 17 N.S.W.L.R. 243 (C.C.A.) at pp. 252-53:

In order to ensure that such encouragement is given, the appropriate reward for providing assistance should be granted whatever the offender's motive may have been in giving it, be it genuine remorse (or contrition) or simply self-interest. What is to be encouraged is a full and frank co-operation on the part of the offender, whatever be his motive. The extent of the discount will depend to a large extent upon the willingness with which the disclosure is made. The offender will not receive any discount at all where he tailors his disclosure so as to reveal only the information which he knows is already in the possession of the authorities. The discount will rarely be substantial unless the offender discloses everything which he knows. To this extent, the inquiry is into the subjective nature of the offender's co- operation. If, of course, the motive with which the information is given is one of genuine remorse or contrition on the part of the offender, that is a circumstance which may well warrant even greater leniency being extended to him, but that is because of normal sentencing principles and practice. The contrition is not a necessary ingredient which must be shown in order to obtain the discount for giving assistance to the authorities.

Again, in order to ensure that such encouragement is given, the reward for providing assistance should be granted if the offender has genuinely co-operated with the authorities whether or not the information supplied objectively turns out in fact to have been effective. The information which he gives must be such as could significantly assist the authorities. The information must, of course, be true; a false disclosure attracts no discount at all. What is relevant here is the potential of the information to assist the authorities, as comprehended by the offender himself . . .

(Emphasis added)

[43] Many of the policy considerations for giving credit for assistance to the police apply whether or not the information turns out to be useful in fact. Hill J. listed those considerations in the John Doe case at pp. 339-40 C.C.C.:

(1) The authorities can apprehend serious criminals including upper-level offenders in criminal organizations . . .

(2) The police are able to seize contraband or to prevent the distribution of drugs . . .

(3) The speedy proferring of information is encouraged by those who have it as part and parcel of their acceptance of responsibility for the matters with which they are charged . . .

(4) The known availability of a sentence reduction for meaningful assistance to the police encourages other informers to come forward . . .

(5) The spectre of substantial sentencing leniency for informer assistance encourages criminals to have less confidence in each other . . .

(6) A sentence for an offender who has helped the police may be one of intense severity in prison on account of such matters as fear of reprisals or removal to a prison far from family . . .

(7) Time spent in jail may, of necessity, have to be in solitary confinement or protective custody for the informer prisoner's protection . . .

(8) In some cases, the accused/informer's family may be at risk of vengeance from the criminal element . . .

(9) Where the informer's identity is known, as in the instance where he or she provides testimony against others, the risks to the informer and family may subsist after release . . .

(10) Where an informer's identity is known, that person's days of living by crime are probably at an end . . .

[44] Finally, in Madden, this court reduced the sentence imposed by the trial judge by one year because the judge failed to give sufficient weight to the appellant's co- operation with the police, even though no seizures or arrests were made. In Madden, the appellant had participated in a controlled delivery that failed through no fault of the appellant.

[45] Accordingly, I conclude that, in view of the findings made by the trial judge, this court is entitled to consider the respondent's co-operation as an extenuating circumstance that would permit a sentence outside the six- to eight-year Cunningham range. That said, in my view, the reduction for that factor should be modest in this case, something in the range of one year. The respondent provided information most of which, with very little effort, the police could have obtained themselves by searching the respondent's belongings. The degree of co-operation was far different than the assistance provided in the John Doe case.

(b) Belief that the substance was marihuana

[46] In my view, the most significant extenuating factor in this case is the trial judge's finding that the respondent believed that he was importing marihuana rather than cocaine. It has been held under the former Narcotic Control Act that the mens rea for the importing offence is satisfied if the accused knew or was wilfully blind to the fact that the contraband was a narcotic, not necessarily the particular narcotic actually imported. See R. v. Blondin (1970), 1970 1006 (BC CA), 2 C.C.C. (2d) 118, [1971] 2 W.W.R. 1 (B.C.C.A.), affd (1971), 1971 1411 (SCC), 4 C.C.C. (2d) 566n, [1972] 1 W.W.R. 479 (S.C.C.). Thus, the respondent was properly convicted of the offence of importing cocaine although he believed the substance to be marihuana. But, in considering the sentence to be imposed, the respondent's state of mind is very relevant. The fundamental principle of sentencing as set out in s. 718.1 of the Criminal Code is that the sentence "must be proportionate to the gravity of the offence and the degree of responsibility of the offender". This requires the court to consider the moral blameworthiness of the offender.

[47] There is a considerable difference in the moral blameworthiness of a person who believes he is importing marihuana, a so-called "soft drug" that is grown in Canada, and one who knows he is importing cocaine, a dangerous drug that has no domestic source. The finding of the trial judge was that the respondent "believed throughout that it was marijuana". I also interpret his reasons as finding that the respondent was not wilfully blind but actually took steps to determine that it was marihuana and was duped by the principals in the scheme. On the other hand, the respondent must be sentenced for the offence of importing cocaine. Further, as the trial judge observed, anyone engaged in this kind of behaviour is at least reckless in the sense that he runs the risk that the people with whom he is dealing will not deal honestly with him.

[48] In this court, counsel for the appellant suggested that the respondent's belief was not a mitigating factor. She relied upon the following passage at p. 642 O.R., p. 550 C.C.C. of Madden:

As to the sentence itself, the main thrust of the appellant's argument was that the trial judge, having found that the appellant believed she was importing marijuana, should have either sentenced her as a marijuana importer or, alternatively, discounted the normal range for the importation of cocaine to achieve the same result. We do not agree. The appellant must be sentenced as an importer of cocaine. The court should not ignore her recklessness in accepting for delivery, without further inquiry, a substance she knew to be a narcotic.

[49] There are two answers to that submission. First, in this case, the trial judge found that the respondent did make inquiries to ensure himself that the drug was indeed marihuana. Second, in the subsequent decision of this court in R. v. Sagoe, [1998] O.J. No. 4721 (Quicklaw) (C.A.), this court held that the accused's belief is a relevant factor. The court held as follows at para. 6:

As to sentence, we are all of the opinion that the sentence imposed is excessive. The trial judge appears to have thought that it was irrelevant that the appellant was wilfully blind to the nature of the narcotic involved, as opposed to having knowledge that it was heroin. This is not correct. Although the appellant had to be sentenced as being in possession of heroin for the purpose of trafficking, the fact that she did not know it was heroin was a mitigating factor. This factor, together with her passive role in the commission of the offence and the fact that she received no real benefit from it, justifies a reduction in her sentence.

[50] Finlayson J.A., who authored the decision of this court in Madden, was also a member of the court in Sagoe.

[51] To conclude, the respondent's belief, especially given the steps he took to satisfy himself that the substance was marihuana, was an important extenuating factor. He believed that he was importing what would amount to a relatively small quantity of marihuana rather than a large quantity of cocaine. This factor justifies imposing a sentence out of the Cunningham six- to eight-year range.

(c) Other mitigating factors

[52] There were other mitigating factors that this court is entitled to take into account to do justice in this particular case. An important factor is the respondent's youth. He was only 19 years of age at the time of the offence. He was otherwise of prior good character. He had been performing volunteer work since 1995 with the Youth Outreach Program and was described as a "tremendous, positive impact" on the youths with whom he worked. He was employed and financially assisting his mother, a single parent of three children. He did not go to Jamaica to commit a crime. He had been on very strict bail conditions, including a curfew, for the almost two years prior to sentencing. Finally, he pleaded guilty and was genuinely remorseful.

Conclusion on Sentence

[53] Taking all of those factors into account, it is my view that the objective gravity of the offence still required that the respondent be sentenced to the penitentiary. In my view, an appropriate sentence would have been three years' imprisonment. The one-year sentence imposed by the trial judge was manifestly inadequate.

[54] Notwithstanding the trial judge's error, I would dismiss the Crown appeal. The respondent has now served the custodial part of his sentence and was released from prison on October 28, 2002. This court is always hesitant to return a respondent to prison. A further complicating factor in this case is that, had the trial judge imposed the sentence that should have been imposed, the respondent in all likelihood would be on day parole at this point under the accelerated parole review provisions of the Corrections and Conditional Release Act, S.C. 1992, c. 20.

[55] With the consent of the appellant's counsel, we received an affidavit from the respondent. The respondent found new employment within a week of his release from prison. He indicates that next fall he intends to apply to school to pursue a business degree. The respondent also intends to continue his volunteer work. It would not be in the public interest to return the respondent to prison at this time.

Disposition

[56] Accordingly, while I would grant leave to appeal, I would dismiss the appeal.

Appeal dismissed.