Her Majesty the Queen v. Sidhu [Indexed as: R. v. Sidhu]
94 O.R. (3d) 609
Court of Appeal for Ontario,
Moldaver, Borins and Blair JJ.A.
January 28, 2009
Criminal law -- Sentencing -- Importing narcotics -- Courier with no criminal record pleading guilty to importing 9.56 kilograms of high-grade heroin into Canada -- Accused sentenced to seven years and nine months' imprisonment in addition to credit of three months for pre-trial custody -- Crown's appeal allowed -- Sentencing judge erring in finding that heroin only marginally more dangerous drug than cocaine, leading judge to err by stating that sentencing range for heroin importation only slightly higher than for cocaine importation -- Heroin being most addictive and dangerous of hard drugs -- Sentencing range for first offender couriers who import large amounts of high-grade heroin into Canada for personal gain being 12 to 17 years -- Sentence varied to 14 years and nine months' imprisonment.
The accused, a first offender, pleaded guilty to importing 9.56 kilograms of high-grade heroin into Canada. His role was that of a courier, and he was to receive $20,000 for the job. The offender assumed that he was bringing in drugs, but didn't try to ascertain what was in the suitcase he was asked to import. The trial judge relied upon the fact that the accused was willfully blind as a mitigating factor, contrasting him with an offender who knew he was importing heroin. The sentencing judge imposed a sentence of seven years and nine months' imprisonment, in addition to a credit of three months for pre-trial custody. The Crown appealed.
Held, the appeal should be allowed. [page610]
The sentencing judge erred in characterizing heroin as "marginally" more dangerous than cocaine and in concluding that the sentencing range for first offender couriers who import large amounts of high-grade heroin for personal gain should be only "marginally" higher than the six-to-eight-year range for first offender couriers who import large amounts of cocaine for personal gain. Heroin is the most pernicious of the hard drugs, being the most addictive and dangerous drug. Those who import heroin should know that they will be dealt with harshly. Absent exceptional or extenuating circumstances, first offender couriers who import large amounts of high-grade heroin into Canada for personal gain should expect to receive sentences within a 12-to-17-year range. The sentencing judge also erred in considering the accused's wilful blindness about what he was importing to be a mitigating factor. Having chosen not to ascertain what he was importing, the accused cannot rely on his lack of knowledge in mitigation. The sentence was varied to 14 years and nine months' imprisonment.
APPEAL by the Crown from the sentence imposed by Clements J., [2008] O.J. No. 3479 (C.J.) for importing heroin.
Cases referred to Pushpanathan v. Canada (Minister of Citizenship and Immigration), 1998 CanLII 778 (SCC), [1998] 1 S.C.R. 982, [1998] S.C.J. No. 46, 160 D.L.R. (4th) 193, 226 N.R. 201, J.E. 98-1298, 11 Admin. L.R. (3d) 1, 43 Imm. L.R. (2d) 117, 79 A.C.W.S. (3d) 998, 38 W.C.B. (2d) 423; R. v. Anaso, [2002] O.J. No. 4452 (C.A.); R. v. Cunningham (1996), 1996 CanLII 1311 (ON CA), 27 O.R. (3d) 786, [1996] O.J. No. 448, 88 O.A.C. 143, 104 C.C.C. (3d) 542, 30 W.C.B. (2d) 74 (C.A.); R. v. H. (C.N.) (2002), 2002 CanLII 7751 (ON CA), 62 O.R. (3d) 564, [2002] O.J. No. 4918, 167 O.A.C. 292, 170 C.C.C. (3d) 253, 9 C.R. (6th) 103, 56 W.C.B. (2d) 426 (C.A.); R. v. Jantuah, [1993] Q.J. No. 2265, J.E. 94-139, 62 Q.A.C. 19, 22 W.C.B. (2d) 130 (C.A.); R. v. Kwok, 1986 CanLII 4726 (ON CA), [1986] O.J. No. 1194, 18 O.A.C. 38, 31 C.C.C. (3d) 196, 1 W.C.B. (2d) 6 (C.A.) [Leave to appeal to S.C.C. refused [1987] S.C.C.A. No. 362, 86 N.R. 264n, 24 O.A.C. 160n]; R. v. Mensah, 2003 CanLII 57419 (ON CA), [2003] O.J. No. 1096, 170 O.A.C. 244, 9 C.R. (6th) 339, 57 W.C.B. (2d) 121 (C.A.) [Leave to appeal to S.C.C. refused [2003] S.C.C.A. No. 207]; R. v. Mostafalou (October 21, 1992), Toronto, Doc. No. C11611 (Ont. C.A.); R. v. Nguyen, 1996 CanLII 2487 (ON CA), [1996] O.J. No. 2593, 92 O.A.C. 200, 31 W.C.B. (2d) 400 (C.A.); R. v. Osei, [2004] O.J. No. 65, 2004 CanLII 25984 (C.A.), affg [2002] O.J. No. 5601 (S.C.J.); R. v. Sherman, 2004 CanLII 17725 (ON CA), [2004] O.J. No. 651, 183 O.A.C. 198, 60 W.C.B. (2d) 500 (C.A.), affg [2001] O.J. No. 5008, [2001] O.T.C. 926, 52 W.C.B. (2d) 208 (S.C.J.); R. v. Thambiah, [1987] O.J. No. 1025, 23 O.A.C. 394, 3 W.C.B. (2d) 325 (C.A.); R. v. Tsoi, [1982] A.J. No. 811, 36 A.R. 606, 8 W.C.B. 31 (Q.B.)
John North, for appellant. Dean F. Embry, for respondent.
[1] BY THE COURT: -- The respondent is a first offender courier who imported a very large amount of high-grade heroin into Canada. Upon his plea of guilty to one count of importing, Clements J. of the Ontario Court of Justice imposed a sentence of seven years and nine months' imprisonment, in addition to 37 days of pretrial custody for which he credited the respondent with three months.
[2] The Crown applies for leave to appeal and if leave is granted, seeks a sentence in the range of 12 to 17 years. [page611]
[3] For reasons that follow, we would grant leave to appeal and after crediting the respondent with time spent in pretrial custody, we would increase the sentence to 14 years and nine months.
[4] The respondent, aged 21 at the time of the offence, was a first offender. He agreed to act as a courier for two brothers, about whom we know little. His task was to travel to India and return with a suitcase, for which he was to receive $20,000.
[5] On September 2, 2005, the respondent flew to India. He remained there until October 13, 2005, when he returned to Canada with not one, but two suitcases. He assumed that the suitcases contained drugs, perhaps opium, but he did not know for sure. He made a point of not asking.
[6] Upon arrival at Pearson International Airport, he was referred for a secondary examination. An x-ray revealed a substance within the walls of the suitcases and further examination led to the discovery of a light brown lumpy substance located under false covers in both suitcases.
[7] The brown lumpy substance proved to be heroin -- 9.56 kilograms (21 pounds) to be exact, with a purity of 61 to 77 per cent and a street value of between $4.78 and $6.69 million. The heroin seized from the respondent represented 11.4 per cent of all of the heroin seized by Canadian police forces in 2005; for street purposes, it represented a monumental 430,290 "hits".
[8] Apart from his age and lack of criminal antecedents, the respondent had little else to offer by way of mitigation. His claim that he was motivated to commit the crime because of unspecified financial difficulties rings somewhat hollow. At the time of the offence, he was gainfully employed as a truck driver and living with his mother and three sisters. He planned to use the $20,000 as a down payment on a house.
[9] In short, like many, if not most cases involving first offender couriers, the respondent was vulnerable. His youth and lack of sophistication, his apparent need for money and his clean record made him a prime target for the two men who enlisted his services.
[10] Be that as it may, as this court explained in R. v. Cunningham (1996), 1996 CanLII 1311 (ON CA), 27 O.R. (3d) 786, [1996] O.J. No. 448, 104 C.C.C. (3d) 542 (C.A.), at p. 791 O.R., at p. 547 C.C.C., concerns for "the plight of many couriers" must "give way to the need to protect society from the untold grief and misery occasioned by the illicit use of hard drugs". And lest there be any doubt about it, heroin represents the worst of the hard drugs.
[11] The trial judge in the instant case questioned that proposition but was prepared, in the end, to assume "that heroin is a marginally more dangerous drug than cocaine", thereby warranting [page612] "a marginal increase" in the range of sentences identified for cocaine importation (para. 70).
[12] The trial judge's characterization of heroin as "marginally" more dangerous than cocaine finds no support in the record, nor in the existing case law. Time and again, this court and the Supreme Court of Canada have made it clear that heroin is the most pernicious of the hard drugs -- it is the most addictive, the most destructive and the most dangerous. Heroin trafficking has been described as a "despicable" crime and one that "tears at the very fabric of our society": see Pushpanathan v. Canada (Minister of Citizenship and Immigration), 1998 CanLII 778 (SCC), [1998] 1 S.C.R. 982, [1998] S.C.J. No. 46, at para. 79; R. v. Nguyen, 1996 CanLII 2487 (ON CA), [1996] O.J. No. 2593, 92 O.A.C. 200 (C.A.), at para. 9; R. v. Sherman, [2001] O.J. No. 5008, [2001] O.T.C. 926 (S.C.J.), at para. 18, affd 2004 CanLII 17725 (ON CA), [2004] O.J. No. 651, 183 O.A.C. 198 (C.A.); and R. v. Osei, [2002] O.J. No. 5601 (S.C.J.), at para. 7, affd [2004] O.J. No. 65, 2004 CanLII 25984 (C.A.).
[13] The trial judge's treatment of heroin as only "marginally" more dangerous than cocaine led him into error in assessing the appropriate range of sentence for first offender couriers who import large amounts of high-grade heroin for personal gain. Specifically, we respectfully disagree with the trial judge's conclusion that the sentencing range for such individuals should only be "marginally" higher than the range of sentences (six to eight years, per Cunningham) for first offender couriers who import large amounts of cocaine for personal gain.
[14] While we recognize that sentencing is not an exact science and that trial judges must retain the necessary flexibility to do justice in individual cases, as a general rule, absent exceptional or extenuating circumstances, first offender couriers who import large amounts of high-grade heroin into Canada for personal gain should expect to receive sentences consistent with the 12-to-17-year range suggested by the Crown. To be clear, when we refer to "large amounts" of high-grade heroin, we are not referring solely to multiple kilograms; as authorities from this court and other courts show, lesser amounts will often attract similar, if slightly lower, penalties (see para. 20, below).
[15] That range of sentence may seem harsh to some, but it is necessary to protect our country and our citizens from the ravages of heroin. Those who would engage in its importation must know that they will pay a heavy price.
[16] In that regard, some clarification is needed to address the significance, if any, of couriers, like the respondent, who purposefully shut their eyes to the nature and quantity of the illicit substance they are importing. [page613]
[17] The trial judge considered the respondent's wilful blindness to be a mitigating circumstance. With respect, we disagree. As a matter of principle and policy, we ought not to be sending a message to would-be couriers that if they wear blinders, they will receive a lower sentence than if they actually learn the nature and quantity of the substance they are importing. In assessing degrees of moral blameworthiness, we see no meaningful distinction between the two.
[18] In so concluding, we are not to be taken as departing from the principle enunciated by this court in R. v. H. (C.N.) (2002), 2002 CanLII 7751 (ON CA), 62 O.R. (3d) 564, [2002] O.J. No. 4918, 170 C.C.C. (3d) 253 (C.A.) -- that where an offender takes reasonable steps to determine the nature of the drug and is duped by his co-conspirators, this will serve as a mitigating factor.
[19] That, however, is not this case. The respondent was wilfully blind to the nature and quantity of the substance he was importing. Having kept himself in the dark, he cannot rely on his lack of knowledge as a mitigating factor.
[20] In this case, despite the appellant's youth and lack of criminal background, for personal gain he imported an enormous amount of high-grade heroin into Canada. There are few reported cases where couriers have been found in possession of like amounts. But those that exist and others that involve much smaller amounts confirm the range of sentence that we have suggested: see, for example, R. v. Kwok, 1986 CanLII 4726 (ON CA), [1986] O.J. No. 1194, 31 C.C.C. (3d) 196 (C.A.), leave to appeal to S.C.C. refused [1987] S.C.C.A. No. 362, 24 O.A.C. 160, where the amount of heroin imported was 7.7 pounds (3.49 kilograms) and the courier is reported to have received a sentence of 13 years' imprisonment on a plea of guilty; R. v. Mostafalou (October 21, 1992), Toronto, Doc. No. C11611 (Ont. C.A.), in which a sentence of nine and a half years, in addition to six-and-a- half months of pretrial custody, was upheld for importing 489 grams of heroin; R. v. Anaso, [2002] O.J. 4452 (C.A.), where the accused received a sentence of eight years, in addition to two years and four months' credit for pretrial custody, for her courier-like role in attempting to export 1.13 pounds (512 grams) of heroin; R. v. Mensah, 2003 CanLII 57419 (ON CA), [2003] O.J. No. 1096, 170 O.A.C. 244 (C.A.), leave to appeal to S.C.C. refused [2003] S.C.C.A. No. 207, where the accused received a global sentence of nine years, less credit for pretrial custody of 20 and a half months, for importing 1.038 kilograms of heroin; R. v. Jantuah, [1993] Q.J. No. 2265, 62 Q.A.C. 19 (C.A.), where the Quebec Court of Appeal upheld a sentence of ten years, in addition to six months' pretrial custody, for the importation of 475 grams of heroin; R. v. Tsoi, [1982] A.J. No. 811, 36 A.R. 606 (Q.B.), where the [page614] co-accused courier was sentenced to ten years after pleading guilty to importing two pounds (907 grams) of heroin; R. v. Thambiah, [1987] O.J. No. 1025, 23 O.A.C. 394 (C.A.), in which a sentence of 15 years was upheld for the importation of 30 pounds (13.6 kilograms) of high-grade heroin.
[21] In our view, the situation at hand approximates the situation in Thambiah. In the result, the appeal is allowed and the sentence imposed at trial is increased to 14 years and nine months' imprisonment. A fresh evidence report received on appeal from Corrections indicates that the respondent is doing well at the Beaver Creek Institution. While it will be for the Correctional authorities to determine, we would recommend that the respondent be allowed to remain at Beaver Creek to complete the balance of his sentence.
Appeal allowed.