Her Majesty the Queen v. Spencer [Indexed as: R. v. Spencer]

72 O.R. (3d) 47

[2004] O.J. No. 3262

Docket No. C39850

Court of Appeal for Ontario,

O'Connor A.C.J.O., Doherty and Gillese JJ.A.

August 3, 2004

• Application for leave to appeal to the Supreme Court of Canada was dismissed June 23, 2005 (Major, Fish and Abella JJ.)

Criminal law -- Sentence -- Conditional sentence -- Young black single mother convicted after trial of importing 733.4 grams of cocaine into Canada -- Trial judge imposing conditional sentence of two years less one day -- Trial judge erring in taking systemic racial and gender bias into consideration as factor justifying conditional sentence -- No evidence before trial judge that accused was in financial need or that her race or gender contributed to her financial circumstances -- Importation of "kilogram more or less" of cocaine generally calling for sentence [page48 ]in range of three to five years -- Appropriate sentence at time of sentencing would have been 40 months in custody -- Appropriate sentence now 20 months' incarceration giving credit for 16 months served on conditional sentence and considering hardship of being incarcerated on appeal.

Criminal law -- Sentence -- Principles -- Narcotics offences -- Young black single mother convicted after trial of importing 733.4 grams of cocaine into Canada -- Trial judge imposing conditional sentence of two years less one day -- Trial judge erring in taking systemic racial and gender bias into consideration as factor justifying conditional sentence -- No evidence before trial judge that accused was in financial need or that her race or gender contributed to her financial circumstances -- Importation of "kilogram more or less" of cocaine generally calling for sentence in range of three to five years -- Appropriate sentence at time of sentencing would have been 40 months in custody -- Appropriate sentence now 20 months' incarceration giving credit for 16 months served on conditional sentence and considering hardship of being incarcerated on appeal.

Criminal law -- Sentence -- Principles -- Narcotics offences -- importation of cocaine -- Trial judge multiplying quantity of drug by its purity and concluding that resulting amount not within category of "kilogram more or less" for which appellate authority set sentencing range at three to five years -- Error to adjust weight by purity -- Amount imported brought accused within guidelines previously set -- Accused single mother with no prior record but on bail at time of offence -- While on bail for drug charge accused committing unrelated offence -- Crown appeal from conditional sentence allowed and sentence of 40 months' incarceration imposed.

Criminal law -- Sentence -- Principles -- Mitigation of sentence -- Accused on bail for 31 months before trial -- Trial judge finding lengthy delay before trial mitigating factor -- Terms of accused's bail imposing almost no restraint on liberty -- Not mitigating factor -- Trial judge concluding fact accused could not appeal deportation order unless received sentence of less than two years mitigating factor justifying sentence of less than two years -- Error to impose sentence that failed to reflect gravity of offence on basis that accused would be in worse position regarding immigration status if received fit sentence.

The accused, a black single mother, was convicted of importing cocaine. When she returned from a trip to Jamaica, she was found to have 733.4 grams of 82 per cent pure cocaine in a false-bottomed suitcase. L, a man on the same flight, had 1.42 kilograms of cocaine in his luggage. L pleaded guilty to importing cocaine and received a sentence of two-and-a-half years' imprisonment. At the time of her arrest, the accused had no criminal record but was on bail on a charge of possession of stolen property, to which she later pleaded guilty. While on bail on the drug charge, the accused was charged with theft and uttering threats and later pleaded guilty to both charges. At the time of sentencing, she was employed in the accounts department at a manufacturing company and her salary and child support payments combined for an income of about $38,000 a year.

The trial judge imposed a conditional sentence of two years less a day. She rejected the Crown's argument that the amount of cocaine imported by the [page49 ]accused brought her within the authority of an Ontario Court of Appeal decision which set a range of three to five years for the importation of a "kilogram more or less" of cocaine. In doing so, she reduced the weight of the cocaine actually imported by the accused by multiplying the weight by its purity (82 per cent). The trial judge also found that the specific extenuating and mitigating circumstances of the accused's case justified a sentence well below the three-to-five-year range and also justified a conditional sentence. Among the extenuating and exceptional circumstances identified by the trial judge were that the accused was the victim of systemic racial and gender bias which played a role in her commission of the crime, and that the accused was a courier who "likely fell prey to the suggestions of an overseer that she could make a 'fast doll ar' by being a courier". The trial judge also took into account the "substantial delay" of 31 months between the arrest and the sentencing, the fact that the accused faced a serious risk of deportation, and the potential adverse effects that the accused's incarceration would have on her children as significant factors mitigating the sentence which might otherwise be appropriate. The Crown appealed.

Held, the appeal should be allowed.

For the purpose of determining whether the three-to-five-year range is appropriate, the weight of the cocaine should not be purity-adjusted. The amount of cocaine in this case, 733.4 grams, came within the description of a "kilogram more or less".

The trial judge erred in taking systemic racial and gender bias into account in concluding that a conditional sentence was appropriate. Given the seriousness of the crime of importing cocaine, those factors could not justify a conditional sentence. Moreover, there was no evidence that the accused was in dire financial circumstances when she committed the crime or that she had no prospects for improving her financial circumstances, much less that her race or her gender contributed to her financial circumstances. It was open to the trial judge to find that the accused was a courier and was to have no role in the distribution of the cocaine in Canada, but there was absolutely no evidence to support her conclusion that the accused "likely fell prey to the suggestions of an overseer that she could make a 'fast dollar' by being a courier". The trial judge erred in diminishing the accused's personal culpability based on speculation as to how and why she came to be involved in the offence.

The two-and-a-half-year sentence imposed on L, while properly taken into account in sentencing the accused, did not justify giving the accused a sentence of under two years, much less a conditional sentence.

The accused was on bail throughout the trial proceedings, and the terms of her bail imposed virtually no restraint on her liberty. The delay between her arrest and her sentencing did not warrant any mitigation of her sentence.

If the accused received a sentence of two years or more, she lost the right to appeal any deportation order under the Immigration and Refugee Protection Act, S.C. 2001, c. 27. Given the amount of cocaine imported by the accused and the absence of significant mitigating factors, a sentence of less than two years was not within the appropriate range. The fact that a sentence of two years or more would put the accused in a somewhat worse position should she be ordered deported could not justify a sentence which did not fit the offence.

The fact that the accused had three young children and played a very positive and essential role in their lives could not diminish the seriousness of her crime or detract from the need to impose a sentence that adequately denounced her conduct and hopefully deterred others from committing the same crime. [page50 ]

The appropriate sentence at the time of sentencing would have been 40 months' incarceration. The accused had already completed 16 months of her conditional sentence and should be given credit for that time. She also deserved some credit for the added hardship occasioned by the imposition of a custodial sentence on appeal. The sentence was varied to 20 months' incarceration.

APPEAL by the Crown from a sentence imposed by Mossip J., [2003] O.J. No. 1052, [2003] O.T.C. 238 (S.C.J.) for importing cocaine.

R. v. Hamilton (2004), 2004 5549 (ON CA), 241 D.L.R. (4th) 490, 186 C.C.C. (3d) 129, 22 C.R. (6th) 1, [2004] O.J. No. 3262 (C.A.), affg (2003), 2003 2862 (ON SC), 172 C.C.C. (3d) 114, [2003] O.J. No. 532 (S.C.J.); R. v. Madden (1996), 1996 10228 (ON CA), 27 O.R. (3d) 640, 104 C.C.C. (3d) 548 (C.A.), apld Other cases referred to R. v. Bosley (1992), 1992 2838 (ON CA), 18 C.R. (4th) 347 (Ont. C.A.); R. v. Cooper (No. 2) (1977), 1977 2103 (ON CA), 35 C.C.C. (2d) 35, 4 C.R. (3d) S10 (Ont. C.A.); R. v. Doren (1982), 1982 2197 (ON CA), 36 O.R. (2d) 114, 135 D.L.R. (3d) 258, 66 C.C.C. (2d) 448 (C.A.); R. v. Wilson, 2003 34247 (ON CA), [2003] O.J. No. 144, 167 O.A.C. 351 Statutes referred to Immigration and Refugee Protection Act, S.C. 2001, c. 27

Jim Leising, Julie Jai and Nick Devlin, for applicant/ appellant. Julian N. Falconer and Julian K. Roy, for respondent. Andrew M. Pinto and Beverly Jacobs, for the Native Women's Association of Canada. Brian Eyolfson and Kent Roach, for the Aboriginal Legal Services of Toronto Donald McLeod and Faizal Mirza, for the African Canadian Legal Clinic.

The judgment of the court was delivered by

DOHERTY J.A.: --

I

Overview

[1] On September 13, 2002, the respondent Tracy-Ann Spencer ("Ms. Spencer") was convicted, after a trial by a judge sitting without a jury, of importing cocaine into Canada from Jamaica. On March 26, 2003, the trial judge imposed a conditional sentence of two years less a day. Ms. Spencer was placed under partial house arrest for the first 20 months of the sentence and placed on a curfew for the remainder of the sentence.

[2] The Crown appealed the sentence. The appeal was heard with the Crown appeals in R. v. Hamilton, [2004] O.J. No. 3262, 186 C.C.C. (3d) 129 (C.A.) (C39716/C39715). [page51 ]

[3] I would allow the appeal. A sentence of 40 months should have been imposed at trial. I would impose a custodial sentence of 20 months.

II

The Offence and the Offender

[4] Ms. Spencer, a single black mother of two, returned to her home in Toronto from Jamaica on July 25, 2000. She was on the same flight as Richard Langley and it appeared that the two were together in the Customs area of the airport. Both Ms. Spencer and Mr. Langley attracted the suspicion of Customs officials. A search of Ms. Spencer's luggage revealed a false- bottomed suitcase containing 733.4 grams of 82 per cent pure cocaine. A search of Mr. Langley's luggage disclosed cocaine weighing 1.42 kilograms. Ms. Spencer and Mr. Langley were both arrested and charged with importing cocaine into Canada.

[5] Ms. Spencer spent about three days in jail before she was released on bail. She remained on bail until she was sentenced.

[6] At the time of her arrest, Ms. Spencer was a full-time nursing student. This was her third trip to Jamaica in eight months. She had $1,000 in cash in her possession at the time of her arrest.

[7] Ms. Spencer pleaded not guilty. She testified that she had no knowledge of the cocaine secreted in her luggage and told a story that involved a cousin purchasing the suitcase for her in Jamaica. The trial judge rejected Ms. Spencer's evidence as unworthy of belief and gave extensive reasons for doing so.

[8] Ms. Spencer was born in 1977 in Jamaica. She came to Canada in 1993 at age 16. She is not a Canadian citizen. Ms. Spencer was 23 at the time of the offence and 25 at the time of sentencing. She was raised in a stable, loving environment primarily by her mother, who came to Canada before Ms. Spencer and trained to become a registered nurse. Ms. Spencer's mother is a hardworking, impressive individual. Ms. Spencer has an excellent relationship with her father who has remained in Jamaica.

[9] Ms. Spencer moved out of her mother's home in 1996 at age 19. She had her first child that year and a second child in 1998. The relationship with the father of these two children ended shortly after the second child was born. Ms. Spencer and the father remain on good terms. He provides $600 a month towards child support. Ms. Spencer and her children are very close to the father's mother, Ms. Hutchison. A third child was born in March 2002. This child's father returned to Jamaica in April 2002 and has not played any part in raising the child. He provides $400 a month towards child support. [page52 ]

[10] Ms. Spencer completed her high school education in 1996. She was a good student. Ms. Spencer took a year of nursing at Seneca College and then completed a six-month computer business course. She returned to the nursing course in 1998, but found it difficult to keep up with her studies and attend to the needs of her children. She has financed her education through government student loans totalling some $25,000.

[11] At the time of the offence, Ms. Spencer and her two children were living with her mother. About five months later, in January 2001, Ms. Spencer got a job in the accounts department at a manufacturing company. She continued in that employment up to the time of sentencing with leave of absence to have her third child in 2002. Ms. Spencer enjoys her job and intends to upgrade her accounting skills. She moved to her own apartment in November 2001. Her salary and the child support payments combined provide for an income of about $38,000 a year.

[12] Ms. Spencer was on bail on a charge of possession of stolen property when she was caught trying to smuggle the cocaine into Canada. She eventually pleaded guilty to possession of stolen property and received a conditional discharge with probation for one year. While on bail on the importing charge, Ms. Spencer was charged with theft and uttering threats. These charges arose out of Ms. Spencer's possession of stolen jeans and a threat made against a store employee who attempted to search Ms. Spencer. Ms. Spencer pleaded guilty to both charges and received a suspended sentence with probation for one year.

[13] Ms. Spencer was described as a good mother and a good worker.

[14] Ms. Spencer maintained her innocence throughout the proceedings, but did concede that she needed counselling as she had fallen in with a bad crowd. Apart from Ms. Spencer's testimony at trial in which she insisted she did not know she was carrying cocaine into the country, there was no evidence as to how Ms. Spencer came to bring the drugs into Canada or the remuneration she was to receive for doing so.

[15] Considerable concern was expressed during the sentencing proceedings about what would happen to Ms. Spencer's three children if their mother were incarcerated. Ms. Spencer's mother indicated:

Presently, Viola Hutchison [the grandmother of the two older children] and myself are the only immediate family members to assist with carrying [sic] for them. In the event she becomes incarcerated, there are limited friends and family members to provide support. This will result in these children being shuffled from place to place on a day to day basis. This will be very unsettling for the children especially her eight month old baby. [page53 ]

III

The Trial Proceedings

[16] Ms. Spencer was convicted on September 13, 2002. Sentencing was adjourned to October 23 for the preparation of a pre-sentence report. Sentencing was adjourned from October 23 to November 18 for undisclosed reasons. On November 18, the matter was adjourned for a further week. Counsel for Ms. Spencer had become aware that certain issues that could be germane to the sentencing of Ms. Spencer were being canvassed before Hill J. in the matter of R. v. Hamilton (2003), 2003 2862 (ON SC), 172 C.C.C. (3d) 114, [2003] O.J. No. 532 (S.C.J.) ("Hamilton and Mason"). Counsel took the position that Ms. Spencer's sentencing should not proceed until judgment was rendered in Hamilton and Mason. On November 25, 2002, the trial judge adopted counsel's position and adjourned the sentencing of Ms. Spencer to March 3, 2003, as it was anticipated that the decision in Hamilton and Mason would be rendered in February 2003. On March 3, 2003, the trial judge heard evidence and arguments. She delivered reas ons for sentence on March 26, 2003.

[17] The trial judge relied heavily on the reasoning in Hamilton and Mason in coming to the conclusion that a conditional sentence of two years less a day was appropriate for Ms. Spencer. She rejected the Crown's argument that the amount of cocaine imported by Ms. Spencer (733.4 grams) brought her within the authority of R. v. Madden (1996), 1996 10228 (ON CA), 27 O.R. (3d) 640, 104 C.C.C. (3d) 548 (C.A.), which set a range of three to five years for the importation of a "kilogram more or less" of cocaine into Canada. In rejecting the Crown's submission, the trial judge reduced the weight of the cocaine actually imported by Ms. Spencer by multiplying the weight by its purity (82 per cent). She said at para. 74:

Based on both the issue of purity-adjusted weight, which in Ms. Spencer's case leads to a weight of approximately 600 grams of cocaine, and the language "a kilogram more or less", I find Ms. Spencer is in all likelihood out of the Cunningham [see R. v. Cunningham (1996), 1996 1311 (ON CA), 104 C.C.C. (3d) 542 (Ont. C.A.)] and Madden range.

[18] After concluding that the range set in Madden was probably not applicable, the trial judge went on to indicate that regardless of whether the range was applicable, the specific extenuating and mitigating circumstances of Ms. Spencer's case justified a sentence well below three to five years and also justified a conditional sentence. The extenuating and exceptional circumstances identified by the trial judge were that: [page54 ]

-- Ms. Spencer, like the offenders in Hamilton and Mason, was the victim of systemic racial and gender bias which played a role in her commission of the crime (paras. 60-61);

-- Ms. Spencer was a courier who "likely fell prey to the suggestions of an overseer that she could make a 'fast dollar' by being a courier" (paras. 25, 60);

-- the parity principle required that the sentence imposed on Ms. Spencer have regard to the sentence imposed on Mr. Langley (two-and-a-half years) so that it would not appear that Ms. Spencer was being punished for pleading not guilty (paras. 32-36);

-- the 31 months between the arrest and the sentencing of Ms. Spencer constituted a substantial delay and was a "significant factor mitigating the sentence which might otherwise be appropriate" (para. 38);

-- the serious risk of deportation faced by Ms. Spencer was a "circumstance mitigating the severity of the sanction that might otherwise be imposed" (para. 50); and

-- the potential adverse effects that Ms. Spencer's incarceration would have on her three dependent children mitigated what would otherwise be an appropriate sentence (para. 45).

IV

The Errors in Principle

(a) The applicability of the range set in R. v. Madden

[19] In Madden, the offender imported 770 grams of cocaine into Canada. The cocaine was 92 per cent pure. [See Note 1 at the end of the document] Ms. Spencer imported slightly less cocaine (733.4 grams) that was slightly less pure (82 per cent). I cannot accept that the small differences in weight and purity take this case out of the Madden range. I am confirmed in this view by the decision in R. v. Wilson, 2003 34247 (ON CA), [2003] O.J. No. 144, 167 O.A.C. 351, where the Madden range was held to be applicable to the importation of an amount of cocaine only slightly greater than the amount imported in this case. [page55 ]

[20] The range of sentence described in Madden is based on the weight of the cocaine imported. There was no reference to the purity of the cocaine in this court's decision in Madden. I see no reason to assume that the amounts referred to in Madden should be treated as though they were purity-adjusted weights when they were not. For the purpose of determining whether the Madden range is applicable, the weight of the cocaine imported should be compared to the "kilogram more or less" standard described in Madden. I think 733.4 grams comes within that description.

[21] The purity of the cocaine imported has some impact on the seriousness of the offence and, therefore, some relevance in fixing where within the range of sentences the specific sentence should fall. If the purity of the drug is low and the amount imported near the bottom of the "kilogram more or less" weight referred to in Madden, a sentence outside of the range described in Madden may be appropriate. Although 733.4 grams is near the low end of the amount referred to in Madden, the purity of the cocaine imported by Ms. Spencer was high and would not justify departing from the Madden range.

[22] The trial judge erred in principle in holding that the range established in Madden did not apply to Ms. Spencer.

(b) The mitigating factors identified by the trial judge

[23] My conclusion that the trial judge erred in principle in finding that the Madden range was not applicable does not inevitably lead to the further conclusion that the sentence imposed by the trial judge was inappropriate. As the trial judge observed, the range of sentence described in Madden cannot be read as though it were a statute imposing a maximum and minimum punishment. The range is provided to assist trial judges in fixing the appropriate sentence in the specific circumstances and for the specific offender. The cumulative effect of the circumstances specific to the offence and the offender may even justify a departure from the range of sentence identified in Madden.

[24] None of the factors described by the trial judge as mitigating justified any departure from the Madden range, much less a conditional sentence of two years less a day.

(c) Systemic racial and gender bias

[25] The trial judge adopted the analysis made by the trial judge in Hamilton and Mason. She concluded that systemic racial and gender bias played a role in Ms. Spencer's commission of the crime and should substantially mitigate the sentence to be [page56 ]imposed on Ms. Spencer. I have addressed the trial judge's treatment of racial and gender bias in Hamilton and Mason in my reasons on those appeals. I held that those factors could inform the trial judge's understanding of the difficult economic circumstances that led those offenders to decide to courier cocaine into Canada. I further concluded that given the seriousness of the crime of importing cocaine, those factors, although they played a role in explaining the personal circumstances of the respondents and to some degree mitigated their personal culpability, could not justify conditional sentences. That conclusion applies with even more force on this appeal. Ms. Spencer imported considerably more cocaine than did Ms. Hamilton o r Ms. Mason. Her crime must be regarded as more serious than the crimes committed by Ms. Hamilton and Ms. Mason. Furthermore, there were mitigating personal factors present in the cases of Hamilton and Mason that are not present in Ms. Spencer's case. Foremost, among those are the guilty pleas entered by Ms. Hamilton and Ms. Mason. The sentence imposed on Ms. Spencer should have reflected those distinctions.

[26] In addition, the circumstances of Ms. Hamilton and Ms. Mason insofar as they made systemic racial and gender bias germane to an assessment of their personal culpability, are very different than Ms. Spencer's circumstances. Ms. Spencer cannot be equated with Ms. Hamilton and Ms. Mason just because, like them, she is a black single mother. A sentencing judge must look at the specific circumstances of each case.

[27] Unlike Ms. Hamilton and Ms. Mason, there is no evidence that Ms. Spencer was in dire financial circumstances when she committed this crime, or that she had no prospects for improving her financial circumstances. When Ms. Spencer chose to import cocaine into Canada, she was a full-time student working towards a registered nursing degree. Her education was being funded, at least in part, through substantial government loans. Ms. Spencer was living with her mother, who, along with the children's paternal grandmother, was actively involved in the care and nurturing of Ms. Spencer's children. Ms. Spencer was receiving child support from the children's father. She was apparently affluent enough to have travelled to Jamaica three times in under eight months, returning on the third occasion with $1,000 in her pocket.

[28] While it is true that Ms. Spencer was on government assistance, presumably above and beyond the student loans, when she committed this crime, I do not think that the receipt of government assistance means that she was impoverished, or more to the point, that her financial circumstances had anything to do [page57 ]with race or gender. One wonders how many 23-year- old single parents with two children who are full-time students would not be receiving some form of government assistance. There was no evidence before the trial judge that Ms. Spencer was in grave financial need when she chose to commit this crime or that she did so out of the need to provide for her family.

[29] Ms. Spencer's financial prospects are also very different from those of Ms. Hamilton and Ms. Mason. By the time she was sentenced, Ms. Spencer had a good job which she enjoyed and an income of about $38,000 a year. There is no basis to conclude that Ms. Spencer faced a life of poverty with little chance of improving her financial circumstances, much less that racial and gender bias caused that predicament.

[30] In finding that the connection between systemic racial and gender bias existed, the trial judge said at para. 59:

Her [Ms. Spencer] post high-school educational training was incomplete due to child care responsibilities. She had after high school no marketable skills in Canada, and she had some history as an unskilled labourer through temporary agencies prior to the time of the offence. Her full-time employment now, albeit at a low income, is recent and post-dates the offence. At the time of the offence, Ms. Spencer was unskilled, on social assistance and a single mother of 2 children with little or no involvement from the father of those children.

[31] With respect, this is not an accurate description of Ms. Spencer's circumstances. She did not stop her post-high school educational training because of child care responsibilities. While it is true that she found the nursing program difficult to complete because of her parental responsibilities, she ultimately found a different career which she prefers and which she fully intends to pursue by way of further education. The description of Ms. Spencer as having no marketable skills after completing high school is a description that would fit the vast majority of high school graduates in Canada. She was well on her way to acquiring marketable skills at the time of the offence and even further along that way by the time of sentencing. The description of Ms. Spencer as unskilled at the time of the offence ignores the fact that she was a full-time student training to be a registered nurse. The indication that Ms. Spencer was on social assistance, while accurate, ignores the fact that she had other sources o f support and income and was living in her mother's home. Finally, I cannot find any indication that the father of her first two children was not involved in the raising of those children. He has a good relationship with Ms. Spencer, as does his mother, and contributes $600 a month towards child support.

[32] In summary, the specific circumstances of Ms. Spencer do not support the conclusion that she was impoverished, that her [page58 ]race or gender contributed to her financial circumstances, or that she chose to commit the crime so as to provide for her family.

(d) The trial judge's finding that Ms. Spencer was a courier

[33] The trial judge held that as there was no evidence that Ms. Spencer was anything but a courier, she should be sentenced as a courier. The trial judge reached this conclusion in the face of Ms. Spencer's discredited evidence that she was an innocent dupe, and in the absence of any other evidence as to the nature of Ms. Spencer's involvement. Having declared Ms. Spencer a courier, the trial judge went further and said at para. 60:

Ms. Spencer likely fell prey to the suggestions of an overseer that she could make a "fast dollar" by being a courier.

[34] I think it was open to the trial judge, given what she knew about Ms. Spencer, to conclude that the drugs she was carrying into Canada did not belong to her and that she was to have no role in their distribution. In my view, however, the trial judge could not go further and, in the total absence of evidence, speculate either as to the relationship between Ms. Spencer and those who hired her, or the circumstances that led her to agree to courier cocaine into Canada. The trial judge erred in diminishing Ms. Spencer's personal culpability based on speculation as to how and why she came to be involved in this crime.

(e) The sentence imposed on Mr. Langley

[35] Mr. Langley pleaded guilty to importing 1.42 kilograms of cocaine into Canada and received a sentence of six months. Taking into account his pre-trial custody, the sentence was the equivalent of a two-and-a-half-year sentence. A transcript of Mr. Langley's sentencing was filed at the respondent's sentencing. Mr. Langley was treated as a first-time offender and he indicated that he brought the cocaine into Canada in exchange for a free trip to Jamaica.

[36] Mr. Langley and Ms. Spencer were on the same airplane and both were carrying cocaine secreted in their luggage. At Ms. Spencer's trial, there was a dispute as to the connection, if any, between Mr. Langley and Ms. Spencer. The Crown contended that there was a connection and Ms. Spencer denied any connection. In her reasons for sentence, the trial judge said at para. 35:

Although Ms. Spencer and Mr. Langley were not co-accused, I found they were in all likelihood importing together, though not in constructive possession of the cocaine imported by the other person. The issue of parity is therefore important, so that Ms. Spencer is not "punished" for her not guilty plea. [page59 ]

[37] The trial judge's finding that the two were "importing together" would suggest that Ms. Spencer bore some responsibility for the total amount of cocaine imported by her and Mr. Langley. This would be an aggravating circumstance. If on the other hand, the two were acting independently, Mr. Langley's sentence would take on less significance than it would in the case of co-accused being sentenced for the same offence: see R. v. Doren (1982), 1982 2197 (ON CA), 36 O.R. (2d) 114, 66 C.C.C. (2d) 448 (C.A.) at pp. 122-23 O.R., p. 457 C.C.C.

[38] The trial judge was required to take the sentence imposed on Mr. Langley into consideration. At the same time, however, the differences between Ms. Spencer and Mr. Langley had to be borne in mind in comparing their sentences. Mr. Langley imported significantly more cocaine than did Ms. Spencer. However, Mr. Langley pleaded guilty. A plea of guilty is an important mitigating factor that was not available to Ms. Spencer. Any meaningful comparison of the positions of Ms. Spencer and Mr. Langley had to give considerable weight to the guilty plea entered by Mr. Langley.

[39] The two-and-a-half-year sentence imposed on Mr. Langley, while properly taken into account in sentencing Ms. Spencer, did not justify giving Ms. Spencer a sentence of under two years, much less a conditional sentence.

(f) The alleged delay

[40] Thirty-one months passed between the respondent's arrest and her sentencing. The progress of her case was unremarkable save in two respects:

-- her preliminary inquiry was delayed seven months (June 2001- February 2002) when her case was not reached on the date first set for the preliminary inquiry; and

-- the sentencing proceedings, which in the normal course would have been completed in November 2002, were delayed four months (November 2002-March 2003) to await the decision in Hamilton and Mason.

[41] Delay in the completion of the trial process can be a mitigating factor on sentence, if the delay is lengthy and beyond the control of the offender, or if there is delay attributable to Crown conduct. The four months between November 2002 and March 2003 was the direct result of the respondent's request for an adjournment. It was entirely reasonable for her counsel to take the position that sentencing of the respondent should await the [page60 ]decision in Hamilton and Mason. Some delay in the completion of the sentencing was, however, inherent in that request. Having obtained the adjournment sought, the respondent cannot now claim that the delay flowing from that adjournment should somehow mitigate her sentence.

[42] The seven-month delay in the completion of the preliminary inquiry was beyond the control of the respondent and two months of that delay can be attributed to the Crown. Although any delay is regrettable, I do not think a seven-month delay in the completion of the process is sufficiently long in and of itself to warrant any mitigation of the sentence. Seven months does not approach the length of the delay described in R. v. Bosley (1992), 1992 2838 (ON CA), 18 C.R. (4th) 347 (Ont. C.A.), the authority relied on by the respondent. In Bosley, there was a 17-month delay between the completion of the evidence and the imposition of sentence. Most of that delay occurred over the strong objection of counsel for the accused. Similarly, in R. v. Cooper (No. 2) (1977), 1977 2103 (ON CA), 35 C.C.C. (2d) 35, 4 C.R. (3d) S10 (Ont. C.A.), the authority referred to in Bosley, there was a three-year delay occasioned by various appeals.

[43] In deciding whether any delay in the completion of the process should mitigate sentence, it is appropriate to consider an offender's bail terms. The more stringent those terms, the more likely it will be that any delay in completion of the process will have some mitigating effect on sentence. Indeed, even absent delay, particularly stringent bail conditions can have a mitigating effect on sentence. Ms. Spencer was on bail throughout the trial proceedings. The terms of her bail imposed virtually no restraint on her liberty. Neither her bail terms standing alone nor those terms considered in combination with the length of time needed to complete the process warranted any mitigation of her sentence.

(g) The risk of deportation

[44] Ms. Spencer is not a Canadian citizen. She is a landed immigrant and is in the same position as Ms. Mason in Hamilton and Mason. I outlined the operation of the relevant parts of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 in Hamilton and Mason and do not propose to repeat that description. Like Ms. Mason, Ms. Spencer is subject to deportation upon her conviction. Her deportation is not automatic. Again, like Ms. Mason, if Ms. Spencer receives a sentence of two years or more, she loses a statutory right of appeal should she be ordered deported.

[45] For the reasons set out in Hamilton and Mason, the particular provisions of the Immigration and Refugee Protection Act [page61 ]in issue here have significance only if a sentence of less than two years is in the range appropriate for the offence and offender. A sentence of less than two years was within the range of appropriate sentence for Ms. Mason, but given the amount of cocaine imported by Ms. Spencer, and the absence of significant mitigating factors, it is not within the appropriate range for Ms. Spencer. A sentence of less than two years would be an unfit sentence. The fact that a sentence of two years or more will put Ms. Spencer in a somewhat worse position should she be ordered deported cannot justify a sentence which does not fit the offence.

(h) The respondent's three young children

[46] It is a grim reality that the young children of parents who choose to commit serious crimes necessitating imprisonment suffer for the crimes committed by their parents. It is an equally grim reality that the children of parents who choose to bring cocaine into Canada are not the only children who are the casualties of that criminal conduct. Children, both through their use of cocaine and through the use of cocaine by their parents, are heavily represented among the victims of the cocaine importer's crime. Any concern about the best interests of children must have regard to all children affected by this criminal conduct.

[47] The fact that Ms. Spencer has three children and plays a very positive and essential role in their lives cannot diminish the seriousness of her crime or detract from the need to impose a sentence that adequately denounces her conduct and hopefully deters others from committing the same crime. Nor does it reduce her personal culpability. It must, however, be acknowledged that in the long-term, the safety and security of the community is best served by preserving the family unit to the furthest extent possible. In my view, in these circumstances, those concerns demonstrate the wisdom of the restraint principle in determining the length of a prison term and the need to tailor that term to preserve the family as much as possible. Unfortunately, given the gravity of the crime committed by Ms. Spencer, the needs of her children cannot justify a sentence below the accepted range, much less a conditional sentence.

V

The Appropriate Sentence

[48] Ms. Spencer is an intelligent, capable and industrious person with much to offer her community and her children. Although she had no criminal record when she committed this crime, she was on bail and committed two other offences after [page62 ]she committed this crime. Her other criminal offences are, however, relatively minor. Although Ms. Spencer is not to be penalized for her not guilty plea, she is also not entitled to the substantial mitigation flowing from a guilty plea.

[49] Having regard to the specific circumstances of this offence and offender, I think an appropriate sentence at trial would have been 40 months. Ms. Spencer has completed 16 months of her conditional sentence and should be given credit for that time.

[50] The sentence imposed on Ms. Spencer at trial was so manifestly inadequate that this is not a case where it can be said that the administration of justice would not be served by incarcerating Ms. Spencer at this time. Unlike Ms. Hamilton and Ms. Mason, Ms. Spencer would not be going to jail for just a few months. I do think, however, that Ms. Spencer deserves some credit for the added hardship occasioned by the imposition of a custodial sentence on appeal. This added credit cannot be quantified by any arithmetic formula. I think an appropriate sentence at this time would be 20 months.

[51] I would grant leave to appeal, allow the appeal and substitute a sentence of 20 months. If necessary, a warrant may issue for Ms. Spencer's arrest.

Appeal allowed.

Notes

Note 1: This figure comes from the reasons in R. v. Hamilton, where the trial judge indicates he has reviewed the Court of Appeal file.