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

88 O.R. (3d) 570

Court of Appeal for Ontario,

Armstrong, Juriansz and LaForme JJ.A.

December 7, 2007

Criminal law -- Sentencing -- Importing narcotics -- Youthful first offender being sentenced to life imprisonment for conspiracy to import cocaine and importing 270 kilograms of cocaine -- Accused's appeal being allowed -- Sentencing judge misapplying principle of parity where co-accused who received 19-year sentence was charged with other serious offences, pleaded guilty and had criminal record -- Life sentence not having been imposed in Ontario for importing cocaine -- High end of range being around 20 years' imprisonment -- Sentence imposed by trial judge being crushing and leaving little room for accused's rehabilitation -- Sentence being reduced to 19 years' imprisonment.

Criminal Law -- Sentencing -- Principles -- Life imprisonment for importing narcotics -- Trial judge finding that accused being overall boss of importation ring -- Co-accused being sentenced to 19 years' imprisonment following joint submission on early guilty plea -- Trial judge failing to give adequate weight to rehabilitation given accused's relative youth and absence of prior criminal record -- Co-accused sentenced on basis that he orchestrated offence -- Life imprisonment never before imposed for importing cocaine into Ontario -- Sentence manifestly unfit -- Sentence appeal allowed and sentence reduced to 19 years' imprisonment.

Criminal law -- Trial -- Charge to jury -- Trial judge improperly referring to "pit of stomach" test in charging jury on reasonable doubt -- Rest of charge on reasonable doubt being exemplary -- Jury would not have been confused as to proper standard of proof to apply -- Accused admitting that he was involved in drug trade -- Trial judge not erring in failing to give specific limiting instruction on how to use this evidence of discreditable conduct.

The accused, who was 26 or 27 years old at the time of the offences and who had no criminal record, was convicted of conspiracy to import cocaine and importing 270 kilograms of cocaine. The trial judge instructions on reasonable doubt included a direction that a reasonable doubt is something one feels in the "pit of [page571] the stomach". He was sentenced to life imprisonment. The accused appealed the conviction and the sentence.

Held, the conviction appeal should be dismissed; the sentence appeal should be allowed.

While the trial judge made several errors or misstatements in his charge to the jury, the charge as a whole would have left the jury in no confusion as to the proper standard of proof to apply.

In applying the principle of parity, the trial judge referred to a co-accused who received a 19-year sentence after pleading guilty. However, that co-accused was charged with other serious offences and, unlike the accused, was neither a youthful offender nor a first time offender. In addition, the trial judge found that the accused was the prime mover in the importation scheme. However, when the co-accused was sentenced, the agreed upon facts indicated that he orchestrated the offence. There was no principled reason why the most severe sentence available in Canada should have been imposed on a youthful first offender, despite the gravity of the offences and the accused's role in them. There is no Ontario authority where a life sentence has been imposed for importing cocaine. Cases involving the importation of large quantities of cocaine into Canada where it was considered to be at the higher levels of the importation hierarchy reveal a high end range of sentence at about 20 years' imprisonment. Those cases also involved much larger quantities of cocaine or offenders with prior criminal records. The sentence imposed in this case was crushing and left little room for the accused's rehabilitation which was a significant factor to be considered given the accused's relative youth and lack of a prior criminal record. The sentence was varied to 19 years' imprisonment.

APPEAL from the conviction entered on October 21, 2005 for conspiracy to import cocaine and importing cocaine, and from the sentence imposed by Thomson J., sitting with a jury, [2006] O.J. No. 1974 (S.C.J.).

Cases referred to R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320, [1997] S.C.J. No. 77, 118 Man. R. (2d) 218, 150 D.L.R. (4th) 733, 216 N.R. 215, 149 W.A.C. 218, [1997] 10 W.W.R. 570, 118 C.C.C. (3d) 1, 9 C.R. (5th) 1; R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, [2000] S.C.J. No. 40, 148 Man. R. (2d) 161, 190 D.L.R. (4th) 591, 258 N.R. 250, 224 W.A.C. 161, [2000] 11 W.W.R. 1, 147 C.C.C. (3d) 449, 36 C.R. (5th) 1, consd R. v. Fievet, 1997 CanLII 23470 (NB PC), [1997] A.N.-B. no 329, 191 N.B.R. (2d) 185, 488 A.P.R. 185 (Prov. Ct.), distd Other cases referred to R. v. Archer, 2005 CanLII 36444 (ON CA), [2005] O.J. No. 4348, 203 O.A.C. 56, 202 C.C.C. (3d) 60, 34 C.R. (6th) 271 (C.A.); R. v. Bertucci, 2002 CanLII 41779 (ON CA), [2002] O.J. No. 3870, 169 C.C.C. (3d) 453 (C.A.); R. v. Bisson, 1998 CanLII 810 (SCC), [1998] 1 S.C.R. 306, [1998] S.C.J. No. 21, 155 D.L.R. (4th) 531, 222 N.R. 365, 121 C.C.C. (3d) 449, 14 C.R. (5th) 1; R. v. Bolus, [2002] O.J. No. 386 (C.A.); R. v. Farrah, 2004 CanLII 9762 (ON CA), [2004] O.J. No. 2089, 187 O.A.C. 76, 186 C.C.C. (3d) 347 (C.A.); R. v. Feeley, [2003] 1 S.C.R. 64, [2003] S.C.J. No. 6, 301 N.R. 115, 171 C.C.C. (3d) 353, 2003 SCC 7, affg (2001), 2001 CanLII 105 (ON CA), 55 O.R. (3d) 481, [2001] O.J. No. 3359, 156 C.C.C. (3d) 449, 46 C.R. (5th) 307 (C.A.); R. v. J.P.S., [2001] O.J. No. 1890, 50 W.C.B. (2d) 161 (C.A.); R. v. Pan; R. v. Sawyer, [2001] 2 S.C.R. 344, [2001] S.C.J. No. 44, 200 D.L.R. (4th) 577, 270 N.R. 317, 85 C.R.R. (2d) 1, 155 C.C.C. (3d) 97, 49 C.R. (5th) 203, 2001 SCC 42; R. v. Pilgrim, 2001 CanLII 7205 (ON CA), [2001] O.J. No. 4253, 150 O.A.C. 394 (C.A.); R. v. Rhee, [2001] 3 S.C.R. 364, [2001] S.C.J. No. 69, 96 B.C.L.R. (3d) 224, 204 D.L.R. (4th) 618, 275 N.R. 281, [2002] 1 W.W.R. 409, 158 C.C.C. (3d) 129, 46 C.R. (5th) 233, 2001 SCC 71; R. v. Ruddick, 1980 CanLII 2941 (ON CA), [1980] O.J. No. 1534, 57 C.C.C. (2d) 421 (C.A.); R. v. Russell, 2000 SCC 55, [2000] 2 S.C.R. 731, [2000] S.C.J. No. 56, 87 Alta. L.R. (3d) 1, 192 D.L.R. (4th) 585, 261 N.R. 339, [2001] 2 W.W.R. 407, 149 C.C.C. (3d) 66, 38 C.R. (5th) 1 (sub nom. R. v. Russell (M.E.)); R. v. W. (D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, [1991] S.C.J. No. 26, 46 O.A.C. 352, 122 N.R. 277, 63 C.C.C. (3d) 397, 3 C.R. (4th) 302; [page572] R. v. Zebedee (2006), 2006 CanLII 22099 (ON CA), 81 O.R. (3d) 583, [2006] O.J. No. 2628, 212 O.A.C. 23, 211 C.C.C. (3d) 199 (C.A.) Statutes referred to Criminal Code, R.S.C. 1985, c. C-46, s. 718.2 [as am.] Authorities referred to Armstrong, Simon, Sentencing Drug Offenders (Aurora, Ont.: Canada Law Book, 2004)

P. Andras Schreck and Jennifer A.Y. Trehearne, for appellant. Kevin Wilson and Chris de Sa, for respondent.

The judgment of the court was delivered by

LAFORME J.A.: --

Introduction

[1] The appellant and a co-accused were tried for the following offences: conspiracy to import cocaine, importing cocaine, and importing hashish. The jury found the appellant guilty of conspiracy to import cocaine and importing cocaine, but not guilty of importing hashish. His co-accused was acquitted on all counts.

[2] The importing conviction consisted of bringing some 270 kilograms of cocaine into Canada from Jamaica. On the evidence of intercepted phone calls the trial judge found, at the time of his sentencing, that the appellant was "the overall boss in the conspiracy to import cocaine and continued in that capacity as a party to the importation itself". The trial judge sentenced the appellant to the maximum penalty, imprisonment for life.

[3] He appeals both his conviction and sentence. The appellant submits that in the trial judge's charge to the jury he committed two errors: (i) he improperly instructed on the standard of proof; and (ii) he failed to give a limiting instruction respecting evidence of other criminal activity by the appellant.

Background

[4] On November 7, 2001, a private jet landed at Lake Simcoe Regional Airport near Barrie, Ontario. Police officers who were waiting for the plane observed people arrive in several vehicles, approach the plane, and then walk away carrying bags. The people [page573] in and around the plane were arrested, including the pilot. The police seized several bags containing a total of 270 kilograms of cocaine and 16.4 kilograms of hashish.

[5] The appellant was not among the people arrested, nor was he anywhere near the plane. The Crown's theory was that the appellant was involved in arranging the importation of both the cocaine and hashish, both on this occasion and in the past. The appellant and several other people were arrested on July 9, 2002.

[6] The Crown's case rested almost entirely on intercepted telephone communications. The intercepts showed that the appellant and others were clearly involved in agreements to effect some unlawful purpose. Included in the Crown's theory was that the pilot of the plane and other persons involved on this occasion had been involved with the appellant in the past.

[7] It was the defence position that although the appellant was clearly involved in the importation of controlled substances, he was importing hashish or hashish oil, not cocaine. Furthermore, the appellant's position was that he was not involved in arranging the November 7 flight and had no prior knowledge of it.

[8] I will provide other relevant facts and background when I discuss the related issues in this appeal. In that regard, and for the reasons that follow, I would dismiss the appeal against conviction. At the same time, I would grant leave to appeal the life sentence imposed, allow the appeal, and substitute a term of imprisonment of 19 years.

The Conviction Appeal

(i) Jury charge -- Reasonable doubt

[9] The trial judge gave the jury the standard Lifchus instruction on reasonable doubt. However, he added the following explanation of "reasonable doubt":

The phrase "beyond a reasonable doubt" is a very important part of our criminal system. Reasonable doubt is not a farfetched or frivolous doubt. It is not a doubt based on sympathy or prejudice. It is a doubt based on reason and common sense. The old pit of the stomach test. You have got to feel it. That is what common sense is all about. Common sense is something that you have collectively gained, again, over the passage of years.

(Emphasis added)

[10] The appellant argues that by telling the jury that a reasonable doubt is something they have to "feel" in the "pit of the stomach" and by equating common sense with such a feeling, the trial judge engaged in misdirection. He contends that by instructing the jury that "a feeling" is "what common sense is all about", the trial judge effectively invited the jury to decide [page574] the case based on intuition instead of a reasoned and logical analysis of the evidence.

[11] Later in his charge, the trial judge gave the following instruction:

So, when you go to your jury room, use the same old common sense we have talked about, that you use everyday in getting yourself up in the morning. Why do you get up [in] the morning [at] 6 o'clock? Answer, I have to go to work. Or I have to go to Tim Horton's, or I have to do something. There is a reason for everything. Common sense tells you how you move from stage one to stage two in your reasoning process. There is no magic formula in deciding how much or how little to believe of a witness's testimony or how much to rely upon it in deciding the case.

[12] The appellant argues that this instruction is contrary to directions from the Supreme Court of Canada in that the deliberation process should not be likened to the approach one takes to everyday decisions. See R. v. Bisson, 1998 CanLII 810 (SCC), [1998] 1 S.C.R. 306, [1998] S.C.J. No. 21, 121 C.C.C. (3d) 449, at p. 454 C.C.C.

[13] There are several factors, as I will demonstrate, that support upholding the trial judge's charge in this case. And, after considering those factors, I am satisfied that the trial judge's description of the meaning of "reasonable doubt" -- although regrettable in part -- nevertheless, meets the standard required by the Supreme Court of Canada in R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320, [1997] S.C.J. No. 77, 118 C.C.C. (3d) 1 and R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, [2000] S.C.J. No. 40, 147 C.C.C. (3d) 449. I am convinced that the jury in this case was not confused as to the proper standard of proof to apply in its deliberations.

The law on reasonable doubt

[14] The question in this case -- as it is in all cases where a trial judge's instructions on reasonable doubt are impugned -- is whether there is a reasonable likelihood that the jury was under a misapprehension as to the correct standard of proof to apply: Starr, supra, at para. 233; R. v. Archer, 2005 CanLII 36444 (ON CA), [2005] O.J. No. 4348, 202 C.C.C. (3d) 60 (C.A.), at para. 37. In answering this question the charge must be assessed by reading it in its entirety, and not by focusing on particular words that might have been omitted or included: R. v. Bertucci, 2002 CanLII 41779 (ON CA), [2002] O.J. No. 3870, 169 C.C.C. (3d) 453 (C.A.), at para. 9.

[15] Although the Supreme Court in Lifchus has set out specific language that it recommends be used for the purpose of defining "reasonable doubt", this language is not mandatory. And as that court stated in R. v. Russell, 2000 SCC 55, [2000] 2 S.C.R. 731, [2000] S.C.J. No. 56, 149 C.C.C. (3d) 66, at para. 23, an appellate court should only interfere if there is a "serious concern about the [page575] validity of the jury's verdict [leading] to the conclusion that the accused did not have a fair trial".

[16] There have been numerous cases that have examined reasonable doubt jury charges in the wake of Lifchus and Starr. The cases have consistently stressed the need for flexibility and shown hesitancy towards reversing a trial result based on the presence of a few misspoken words. At the same time, however, this court has repeatedly stated that the boundaries set out by the Supreme Court must be guarded. It is this balance that I have kept in mind when analyzing the charge that is the subject of this appeal.

[17] In R. v. Zebedee (2006), 2006 CanLII 22099 (ON CA), 81 O.R. (3d) 583, [2006] O.J. No. 2628, 211 C.C.C. (3d) 199 (C.A.), at para. 41, this court upheld a charge where a judge told jurors that they need proof that "convinces your mind and satisfies your conscience". Although this type of "morality-laden language" should be avoided, it is not automatically fatal to the charge. In R. v. Pan; R. v. Sawyer, 2001 SCC 42, [2001] 2 S.C.R. 344, [2001] S.C.J. No. 44, 155 C.C.C. (3d) 97, at para. 127, the Supreme Court of Canada allowed a jury charge where the judge told the jury: "You must be able to say to yourself, 'He is really guilty. Of that I am morally certain.' "

[18] Other charges have been upheld in which judges have told juries that, reasonable doubt has an "ordinary natural meaning" and no "special connotation": R. v. Feeley (2001), 2001 CanLII 105 (ON CA), 55 O.R. (3d) 481, [2001] O.J. No. 3359, 156 C.C.C. (3d) 449 (C.A.), [See Note 1 below] and which contained "timid juror" references: See Zebedee, supra, at para. 53.

Application to this case

[19] As I alluded to earlier, there are a number of factors that are important when considering jury charges that on their face fall short of the standard, such as is contended in this case. Some of these factors are particularly relevant in this case.

[20] The first factor is whether the rest of the charge was exemplary: Feeley, supra. When a charge closely tracks the model charge from Lifchus with only slight deviations, it is unlikely that the jury has been misled as to the standard to be applied: Archer, supra, at para. 38. In R. v. Pilgrim, 2001 CanLII 7205 (ON CA), [2001] O.J. No. 4253, 150 O.A.C. 394 (C.A.), at para. 4, the jury charge took six hours to deliver and had raised only one objection by defence. In dismissing the appeal, Justice Borins wrote that "with the exception of the impugned aspect of the charge, it represents a model charge". In my view, this is such a case. [page576]

[21] The second factor is whether the judge correctly explains the concept elsewhere. In R. v. W. (D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, [1991] S.C.J. No. 26, 63 C.C.C. (3d) 397, at pp. 409-10 C.C.C., the Supreme Court of Canada in discussing the burden of proof observed that [at para. 30]:

Where an error is made in the instruction on the burden of proof, the fact that the trial judge correctly instructed on that issue elsewhere in the charge is a strong indication that the jury were not left in doubt as to the burden resting on the Crown. [See Note 2 below]

[22] Here, the trial judge gave the complete Lifchus charge not once but twice. He briefly explained to the jury the requirement of proof beyond a reasonable doubt at the commencement of the trial. On October 12, he instructed the jury on reasonable doubt in a fashion wholly consistent with Lifchus. On October 14, the trial judge once again instructed the jury on reasonable doubt, which was also consistent with Lifchus except for the impugned sentences. Leaving aside the sentences in question, the concept was fully and properly explained to the jury.

[23] The third factor is whether the instructions on reasonable doubt are preceded by full and complete instructions on the presumption of innocence and the burden of proof: Zebedee, supra, at para. 41. If reasonable doubt is strongly linked with the presumption of innocence, it is less likely that the jury will have been misled by the direction: Feeley, supra, at para. 13.

[24] The impugned sentences in this charge obviously refer to the trial judge's attempt to define common sense in an unsophisticated and simple fashion. If his instructions had ended with this comment, it would have been a more troubling charge. However, the trial judge not only qualifies his definition correctly with the sentence that immediately follows, but defines it even further, wholly in accordance with the requirements of Lifchus.

[25] The trial judge instructed that the standard of proof beyond a reasonable doubt is linked to the presumption of innocence. Thus, the charge linked the two concepts adequately. He instructed the jury repeatedly that the presumption of innocence remained unless and until the Crown had proved every element of the offences beyond a reasonable doubt, and that the accused had no obligation to prove anything.

[26] Additionally, in further compliance with Lifchus, the jury was instructed to decide the case without sympathy, prejudice or fear. On at least two occasions the jury was instructed that [page577] reasonable doubt is based upon reason and common sense, although on the second occasion the trial judge unnecessarily included the impugned sentences. The jury was instructed that the standard of proof "logically arises from the evidence or the lack of evidence". And, the jury was instructed that more is required than that the accused is probably or likely guilty. He added that "proof of probable or likely guilt is not proof beyond a reasonable doubt".

[27] A fourth -- and very important -- factor identified by this court is whether a jury convicts an accused on some counts while acquitting on others. Doing so strongly suggests that the jury appreciated the requisite standard of proof for a conviction: R. v. J.P.S., [2001] O.J. No. 1890, 50 W.C.B. (2d) 161 (C.A.), at para. 23; R. v. Bolus, [2002] O.J. No. 386 (C.A.).

[28] Here, the jury found the appellant guilty of conspiracy to import cocaine and importing cocaine, but not guilty of importing hashish. And as I noted at the outset, they found the co-accused who was tried with him not guilty on all counts. Considering the complexity of the evidence in this case, these verdicts strongly suggest that the jury was applying a high standard of proof and not relying only on emotion, feeling or intuition.

[29] In the end, when the jury charge in this case is considered in its entirety, and not by focusing on the particular words that were included, the appeal must be dismissed. That is to say, in answer to the question that is central in cases such as this, there was no reasonable likelihood that the jury was under a misapprehension as to the correct standard of proof to apply.

The "Tim Horton's" charge

[30] As set out above, the trial judge also referred to the process of making everyday decisions in part of his jury charge. The appellant argues that the trial judge invited the jury to take the same approach to a finding of guilt as they would to making everyday decisions. This type of instruction has been said to be inappropriate by the Supreme Court. The respondent argues that the judge, in this passage, was describing only the reasoning process to be applied to making individual findings of fact along the way.

[31] In my view, the respondent is correct. When the trial judge gave this part of the charge, the trial judge had moved on from explaining the basic principles on to the evaluation of the evidence. In the impugned passage, the judge says that "common sense tells you how you move from stage one to stage two in your reasoning process". This comment is prefaced, however, by his instructions to rely (or not rely) on the testimony of witnesses, the audio recordings, and the presentation of counsel. [page578]

[32] Once again, I am satisfied that when the jury instructions are read as a whole, the jury would not have misunderstood the correct standard of proof required to convict the appellant. This argument, respectfully, does not alter my opinion on the charge respecting reasonable doubt that was given in this case.

[33] Before leaving this area of appeal, I wish to make a brief comment about this charge on reasonable doubt. This court has said on numerous occasions that language such as that used by the trial judge in this case ought to be avoided. After Lifchus and Starr it was expected that this ground of appeal would virtually disappear. Regrettably, that does not appear to be the case. Nevertheless, I do not view this unfortunate and unnecessary language as being fatal in this case.

[34] Upon consideration of the factors set out above, it is my view that they support the conclusion that this jury charge did not mislead the jury as to the proper standard of proof to be applied. In my view, when read as a whole, the instructions on reasonable doubt were adequate and met that test. I would reject this ground of appeal.

(ii) Jury charge -- Other discreditable conduct

[35] At trial, through his trial counsel, the appellant acknowledged that he was involved in the drug trade, although not cocaine. In light of this, counsel requested that the jury be given a limiting instruction. That is, he wanted the trial judge to warn the jury that it was not to infer that the appellant was the type of person who was likely involved in the cocaine trade. He now says that the trial judge erred because he neither responded to this request, nor gave the limiting instruction.

[36] In my view, and as with the previous ground of appeal, when the jury instructions are read as a whole, the trial judge adequately dealt with the evidence of other criminal activity by the appellant. I reach this conclusion for two reasons.

[37] First, the trial judge instructed the jury that their concern was the alleged cocaine conspiracy, and not other possible conspiracies. The judge clearly explained that the appellant's general involvement in the drug trade was to have no effect on their decision about the cocaine conspiracy. However, while the appellant acknowledges this aspect of the jury charge was given several times, he argues that it falls short of what is mandatory.

[38] The appellant submits that there are two mandatory components to a limiting instruction regarding evidence of prior discreditable conduct. He argues that the jury must be instructed [page579] that they are not to use the evidence in two ways: (i) to punish the accused person other than for the offences charged; and (ii) to reason that the accused person is, by virtue of his involvement in other discreditable conduct, the type of person to commit the offences charged and is therefore more likely to be guilty.

[39] A most telling portion of the trial judge's charge to the jury, and which I believe addresses the grievance of the appellant, is as follows:

Again, there was a concession, and counsel did not suggest that these people were up to something that was legal. In fact, quite the opposite, that they may well have been up to something illegal.

Further, it is most likely that Malanca and Blewitt were involved in the drug trade. However, they are not charged with being involved in the drug trade. You are not here to punish them for things they did quite outside anything that is alleged against them here. So, because they may have trafficked with Magic or taken his pails or done something, it has nothing to do with what is going on here and you are not to punish them by convicting them of these charges because they appear to have made some admission about something that had gone [on] historically in the past. That is a given.

They can only be convicted after the Crown has proven beyond a reasonable doubt that they conspired to import, and in fact, imported the specific drugs named in the three counts. That is important.

[40] These instructions, especially in the context of the charge read as a whole and with what I say below, provides ample warning to the jury as to the limited use that could be made of any character or propensity evidence: R. v. Ruddick, 1980 CanLII 2941 (ON CA), [1980] O.J. No. 1534, 57 C.C.C. (2d) 421 (C.A.). In sum, it was clear in the jury instructions that the appellant was not to be found guilty for being a bad person. A precise statement to this effect was unnecessary.

[41] Second, there was no risk that the jury was confused about the possible uses of general propensity evidence. The appellant asserted at trial that the conversations were about unrelated discreditable conduct. It was the appellant who tactically chose to put his own general character in issue. The appellant's theory itself would, therefore, impress upon the jury the limited use that could be made of any evidence found to be associated with other drug activity.

[42] Finally, this court's decision in R. v. Farrah, 2004 CanLII 9762 (ON CA), [2004] O.J. No. 2089, 186 C.C.C. (3d) 347 (C.A.) does not assist the appellant. In Farrah, unlike here, there was no instruction whatsoever as to how the jury should deal with the accused person's admission that he was a drug dealer.

[43] For these reasons, I would reject this ground of appeal. [page580]

The Sentence Appeal

[44] The principles of sentencing relied upon by the trial judge in this case are captured in the following passage from his reasons [at para. 33]:

The cases tell us that the paramount considerations in sentencing are deterrence and denunciation. The two over- riding considerations are the gravity of the offence and the degree of responsibility of the offender in making sure that the sentence he receives is proportionate to these two considerations. Deterrence must always reflect the moral culpability of the offender, as well as the seriousness of the offence.

[45] The trial judge considered mitigating factors that could be applied to diminish the appellant's sentence. He noted that the appellant was 26 or 27 years old when he was convicted of the offences and he was a first time offender who has the support of his family and friends. He observed that while the appellant's background consisted of some traumatic experiences, they could not be described as unusual. He noted that the appellant has two legitimate businesses: one concerns mortgages and financing, and the other is a restaurant.

[46] As to any aggravating factors, the trial judge concluded that the appellant was the "boss" who "occupies the very pinnacle at the top of the pyramid" in this criminal conspiracy. He found that the appellant had no regard for those below him in the drug business, nor any for the ultimate victims of drug use. He concluded that the appellant was motivated solely by greed. "[T]he most aggravating factor of all," he noted, "was the immense quantity of cocaine imported and the unbelievable effects that that would have been visited on the public in Canada" [at para. 59].

[47] In addition to considering the principles of deterrence and denunciation, the trial judge also noted that he must consider sentencing principles of parity and totality. In this regard he alluded to another co-accused who received an effective sentence of 19 years imprisonment "as a result of a guilty plea at a very early opportunity after being detained without bail" [at para. 61]. It was a joint submission.

[48] In sentencing the appellant to life imprisonment, I am of the view that the trial judge erred in two ways. First, he misapplied the principle of parity, and second, he arrived at a sentence that is manifestly unfit in all the circumstances.

[49] Regarding the first error, s. 718.2(b) [of the Criminal Code, R.S.C. 1985, c. C-46] requires that a sentencing judge take into consideration the principle that:

(b) [A] sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. [page581]

[50] The co-accused's plea and sentence of 19 years included the same November 7, 2001 importation as well as other offences including a completely separate importation conspiracy and other drug offences. Moreover, unlike the appellant, that co- accused was neither a youthful offender nor a first time offender. These differences, in my view, were very relevant to the principle of parity and were not given sufficient consideration by the trial judge.

[51] As to the second error, I can find no principled reason why the most severe sentence available in Canada should have been imposed on the appellant, a youthful first offender. The trial judge appears to have believed that the gravity of the offences and his view of the appellant's role in the crimes weighed in favour of the most severe sentence. Respectfully, in all the circumstances, I must disagree.

[52] The trial judge emphasized two features as aggravating to such an extent that it warranted life in prison. First, he found "the most aggravating factor" to be the amount of cocaine imported and its negative impact on members of society. Second, he found that the appellant was the "big guy, the boss, the leader, orchestrator, planner and financier" of the conspiracy to import cocaine.

[53] While these are indeed important factors to consider, and the offences the appellant was convicted of were very serious, they did not add up to this offender being required to serve a life sentence. The life sentence imposed, in my opinion, was manifestly unfit in all the circumstances.

[54] The only authority the Crown was able to provide as a precedent in which a life sentence was imposed for importing cocaine was the case of R. v. Fievet, 1997 CanLII 23470 (NB PC), [1997] A.N.-B. no 329, 191 N.B.R. (2d) 185 (Prov. Ct.). Fievet is a New Brunswick Provincial Court decision in which a life sentence was imposed for importing 5,400 kilograms of cocaine into Canada, which had a street value of over one billion dollars. The importing conviction in this case consisted of some 270 kilograms. The amount seized in Fievet, therefore, is 20 times the amount seized in this case. [See Note 3 below]

[55] It is important to note that the reported decision relied on by the sentencing judge in Fievet was in French, which the trial judge was unable to read, and thus he relied on the headnote, which was in English. In this regard, the headnote reports that Fievet had no previous criminal record, yet nowhere in the trial [page582] judge's reasons does he state this fact. Thus, it is entirely unclear as to what, if any, consideration the sentencing judge in Fievet gave to this important factor.

[56] Also, the sentencing judge in Fievet placed weight on his belief that drug importation is a greater concern in the Atlantic provinces and British Columbia than it is in Ontario. And finally, he found that rehabilitation is a relatively unimportant factor in drug importation cases. While the sentencing judge in Fievet may be correct in the former -- although I am not deciding the point -- he was incorrect on the importance of rehabilitation as a general principle.

[57] In my view, given that the court in Fievet -- as compared to this case -- was not dealing with a youthful first offender, and given the extreme difference in the quantity of drugs seized as well as the court's findings on regional differences, Fievet is of little assistance to this court. Thereafter, there is no Ontario authority where a life sentence has been imposed for importing cocaine. And, while it may be that at some point in time a case may cry out for such a sentence, this is not that case.

[58] Cases involving the importation of large quantities of cocaine into Canada where it was considered to be at the higher levels of the importation hierarchy, reveal a high end range of sentence at about 20 years imprisonment. Furthermore, these cases also involved much larger quantities of cocaine -- in the thousands of kilograms -- or offenders with prior criminal records. Again, that is different from this case.

[59] Moreover, and importantly, given that the appellant is a youthful first offender, the primary objectives to be considered by the sentencing judge should have included individual deterrence and rehabilitation. Ordinarily these are paramount objectives in such circumstances and require a sentence that should be the minimum sentence necessary in all the circumstances. See Simon Armstrong, Sentencing Drug Offenders (Aurora, Ont.: Canada Law Book, 2004) at 1:300.30.50.

[60] Respectfully, little to no regard was given to these important principles by the trial judge in this case when he considered a fit and proper sentence for the appellant. Indeed, the life sentence imposed in this case was crushing and left little room for the appellant's rehabilitation.

[61] Finally, it is not at all clear that the evidence supports the conclusion that the appellant was the "boss" in this conspiracy, especially as between him and the co-accused who pled guilty and received 19 years imprisonment. In fact, the synopsis read in at the co-accused's sentencing hearing -- upon which the Crown presumably relied -- described the co- accused as having "orchestrated" the November 7 importation. [page583]

[62] I would, therefore, grant leave to appeal the life sentence; I would allow the appeal and reduce the sentence to the same as that of the other co-accused. That is to say, I would reduce the appellant's sentence from life imprisonment to that of 19 years imprisonment.

Disposition

[63] I would, for all of the above reasons, dismiss the appeal against conviction. I would, however, grant leave to the appellant to appeal his sentence, allow the appeal, and reduce his sentence to 19 years imprisonment.

Conviction appeal dismissed; sentence appeal allowed.

Notes

Note 1: Note Feeley concerned a pre-Lifchus charge.

Note 2: Although this case long predates Lifchus, it was cited approvingly in R. v. Rhee, 2001 SCC 71, [2001] 3 S.C.R. 364, [2001] S.C.J. No. 69, 158 C.C.C. (3d) 129, at para. 34.

Note 3: In the reasons for sentence, the trial judge in Malance is reported as noting that the amount of cocaine seized in Fievet was 454 kg. when it was actually 5,400 kg. If the reasons reported are accurate -- and not a typographical error -- the trial judge's mistake as to the amount may have further misled him in his sentencing.