COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Buffone, 2021 ONCA 825
DATE: 20211119
DOCKET: C64424

Doherty, Gillese and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Vito Buffone and Jeffrey Kompon

Respondents

Tanit Gillium, Amber Pashuk and Brian Puddington, for the appellant

Mark Halfyard and Colleen McKeown, for the respondent Vito Buffone

Frank Addario and William Thompson, for the respondent Jeffrey Kompon

Heard: September 15, 2021 by video conference

On appeal from the sentences imposed on September 28, 2017, by Justice James A. Ramsay of the Superior Court of Justice.

Gillese J.A.:

I. OVERVIEW

[1] Vito Buffone and Jeffrey Kompon (the “Respondents”) were the leaders of a sophisticated criminal organization that oversaw and directed the importation and trafficking of two tonnes of cocaine into Ontario in a three-year period. According to the Crown, it was the largest importation of cocaine ever prosecuted in Ontario.

[2] After a lengthy jury trial, the Respondents were convicted of: possession of cocaine for the purpose of trafficking; trafficking cocaine; conspiracy to import and possess cocaine for the purpose of trafficking; and, committing offences in association with a criminal organization. Mr. Kompon was also convicted of possessing proceeds of crime.

[3] Mr. Buffone was given a global sentence of 22 years’ imprisonment (less one year for pre-sentence custody and restrictive bail) and Mr. Kompon a global sentence of 20 years’ imprisonment (less 18 months’ credit for pre-sentence custody and restrictive bail). The sentencing judge also imposed a fine in lieu of forfeiture for the seized funds that Mr. Kompon used to fund his defence.

[4] The Respondents appealed their convictions. The Crown appealed the sentences.

[5] Mr. Kompon also appealed against sentence, arguing that the sentencing judge erred by imposing a fine in lieu of forfeiture. In light of R. v. Rafilovich, 2019 SCC 51, 442 D.L.R. (4th) 539, which was issued after the sentencing in this case, the Crown conceded this matter. In Rafilovich, the Supreme Court concluded that, generally, a judge should not impose a fine in lieu of forfeiture for funds that have been judicially returned for the payment of reasonable legal expenses associated with a defendant’s criminal defence: at para. 74.

[6] In separate reasons, this court dismissed the conviction appeals.[1] These reasons address the sentence appeals.

[7] For the reasons that follow, I would allow the Crown’s sentence appeal and sentence each of the Respondents to life imprisonment. I would also allow Mr. Kompon’s sentence appeal.

II. BACKGROUND

[8] Between 2011 and 2014, the Respondents headed up a sophisticated criminal organization that imported and distributed some two tonnes of cocaine into Canada. The cocaine was hidden inside large stone boulders, first imported from Mexico and later from Brazil. The boulders were shipped to a warehouse near Port Colborne, Ontario, where the cocaine was extracted. The Respondents’ organization imported all of the cocaine, some of which they sold for profit and some of which they passed to other criminal organizations to traffic. Evidence showed that the cocaine was 93 percent pure when it arrived in Canada.

[9] The Respondents, along with 12 others, were arrested on September 22, 2014, following a three-year police investigation into the cocaine importation scheme. On “take down day”, the police executed search warrants at approximately 30 locations. In addition to the seizure of cocaine, officers seized a vast number of documents and approximately 100 electronic devices, including laptop computers and cell phones, some of which were encrypted.

[10] Some co-accused pleaded guilty. Five others settled the proceedings against them by admitting facts sufficient to convict them and offering no defence. They were sentenced based on joint submissions.

[11] The trial against the Respondents proceeded before a judge and jury in the spring of 2017. It ran for approximately four months. The Crown called over 100 witnesses, including experts on cocaine trafficking, proceeds of crime, ion mobile spectrometry, and digital forensics. It also filed approximately 450 exhibits to prove the existence and scope of the multi-year drug importation and trafficking operation. This evidence included intercepted and seized communications, Spanish language translation of communications and documents, as well as accounting records documenting the quantities of cocaine imported, warehoused and sold, and the costs paid and profits earned.

[12] After the 50-day jury trial, the Respondents were convicted of the various offences as set out above.

[13] At the time of sentencing, Mr. Buffone and Mr. Kompon were 53 and 46 years old, respectively. Neither had a criminal record of significance. The Crown argued that, given the quantity of cocaine and the roles played by the Respondents in the criminal organization, only life sentences were appropriate. The defence position was that a range of 18 to 21 years was appropriate, less credit for pre-sentence custody and restrictive bail.

[14] In his reasons for sentence, the sentencing judge set out the following sentences imposed on six co-accused. The first five were the products of joint submissions and the sixth was imposed following a guilty plea.

i. Raul Bulhosen: 18 years for possession of cocaine for the purpose of trafficking, conspiracy to import, possession of proceeds, and money laundering;

ii. Borja Vilalta-Castellanos: 17 years for trafficking cocaine, conspiracy to import, and money laundering;

iii. Marco Cipollone: 12.5 years for conspiracy to import cocaine;

iv. John Edward Oliver: 12.5 years for trafficking cocaine, conspiracy to import, possession of a firearm knowing he did not have a licence, and possession of a firearm without a licence;[2]

v. Dean Brennan: 8.25 years for conspiracy to import and possess cocaine for the purpose of trafficking; and

vi. Victor Lucero (who was involved at the tail end of the conspiracy): 3 years for conspiracy and proceeds over $5,000.[3]

[15] The sentencing judge also referred to the nine-year sentence[4] imposed on Guy Caputo, a co-accused who pleaded guilty early in the proceedings to possession for the purpose of trafficking and possession of proceeds of crime over $5,000.

[16] I will refer to the six co-accused and Mr. Caputo collectively as the “Co-accused”.

[17] The sentencing judge then made the following statement, “For the sake of parity I think that [the] sentences I impose must be based on this range, depending on factors individual to each offender” (the “Statement”).

[18] I highlight the Statement because, as you will see below, it plays an important role in this appeal.

[19] Next, the sentencing judge observed that there was a significant difference between the Respondents and the Co-accused in that the former were convicted of the criminal organization offence while the latter were not. He found that the Respondents were partners at the head of the criminal organization – Mr. Buffone at the apex and Mr. Kompon “a bit below him” – and that both organized the operation so that they took the least risk of being caught.

[20] The sentencing judge noted the following mitigating factors in relation to the Respondents. Both were middle-aged family men without criminal records of significance. Mr. Kompon had a conviction for drinking and driving and Mr. Buffone was fined for possession of a narcotic in 1986 and possession of stolen property in 1994. Mr. Buffone was pardoned for these matters but the pardons were revoked as a result of the convictions in this matter. Favourable references from family and friends were before the court, showing the Respondents’ contributions to society.

[21] However, as the sentencing judge observed, the Respondents were involved in a lifestyle of deliberate criminality for over three years and caught only because the police had invested significant resources in the investigation and made courageous tactical decisions. Both Respondents were sophisticated businessmen, making reasonable livings through successful legitimate businesses. They were well able to weigh the risks involved against the potential benefits of the importation scheme. They gained “fantastic amounts of money”.

[22] The sentencing judge then spoke of the great harm that cocaine has caused to individuals, their families, and the community. He referred to caselaw, noting that the quantity of cocaine imported in this case was much greater than the “hundreds of kilos” in those cases. He then imposed the following sentences on the Respondents:

Count

Mr. Buffone’s sentence

Mr. Kompon’s sentence

3 – Conspiracy to import and possess cocaine for the purpose of trafficking

20 years’ incarceration

18 years’ incarceration

1 – Possession of cocaine for the purpose of trafficking

15 years’ incarceration, concurrent

18 years’ incarceration, concurrent

2 – Trafficking cocaine

15 years’ incarceration, concurrent

18 years’ incarceration, concurrent

4 – Committing offences in association with a criminal organization

1-year incarceration, consecutive (to reflect a sentence of 2 years, reduced by 6 months for 4 months’ pre-sentence custody, and further reduced by 6 months for restrictive bail)

6 months’ incarceration, consecutive (to reflect a sentence of 2 years, reduced by 1 year for 8 months’ pre-sentence custody, and further reduced by 6 months for restrictive bail)

6 – Possession of proceeds of crime (over $5,000)

N/A

4 years’ incarceration, concurrent

III. GROUNDS OF APPEAL

[23] The Crown submits that the sentencing judge erred by:

a. imposing sentences that are demonstrably unfit and by underemphasizing the principles of denunciation, deterrence and of promoting a sense of responsibility in the offender;

b. failing to treat as aggravating that the Respondents were the directing minds of a criminal organization;

c. overemphasizing the parity principle and failing to account for the significant mitigation earned by the co-accused who resolved their charges early; and,

d. failing to make an order for delayed parole for the Respondents.

[24] At the oral hearing of the appeal, the Crown advised that it was not pursuing the fourth ground of appeal. Consequently, I say nothing more about it.

IV. THE STANDARD OF REVIEW

[25] This court must apply a deferential standard of review to sentencing decisions. Sentencing judges are in the best position to determine just and appropriate sentences and are entitled to considerable deference: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 41. Appellate intervention is warranted in only two situations. First, where the sentencing judge commits an error in principle, fails to consider a relevant factor, or erroneously considers an aggravating or mitigating factor, and the error had an impact on the sentence: Lacasse, at para. 44. Second, where the sentence is demonstrably unfit: Lacasse, at para. 51. In either situation, the appellate court may set aside the sentence and conduct its own analysis to determine a fit sentence in all the circumstances.

V. ANALYSIS

[26] The parity principle, as codified in s. 718.2(b) of the Criminal Code, R.S.C. 1985, c. C-46, is that similar offenders who commit similar offences in similar circumstances should receive similar sentences. The sentencing judge relied on the parity principle in determining the sentences he imposed on each of the Respondents. This can be seen by recalling the Statement, in which he stated that “for the sake of parity” he had to impose sentences on the Respondents based on the range of sentences given to the Co-accused. That range was from 3 to 18 years.

[27] Although the Respondents and the Co-accused were involved in the same conspiracy to import cocaine, in my view, the sentencing judge erred in his application of the parity principle. I say this for two reasons.

[28] First, most of the sentences the sentencing judge relied on to establish the range for determining the Respondents’ sentences were the result of joint submissions. While the sentencing judge referred to this matter, he failed to appreciate that the sentences imposed on these co-accused under the joint submissions, lost much of their value as comparators.

[29] In R. v. Anthony-Cook, 2016 SCC 43, [2016] 2 S.C.R. 204, the Supreme Court established the legal test a sentencing court should apply in deciding whether to depart from a joint submission on sentence: the court should not depart from such a joint submission unless the proposed sentence would bring the administration of justice into disrepute or is otherwise contrary to the public interest: Anthony-Cook, at para. 32. In establishing this test, the Court expressly rejected the notion that a joint submission on sentence should be measured by determining whether it was “fit” or even “demonstrably unfit”: Anthony-Cook, at paras. 46-47. Justice Moldaver, writing for the Court at para. 48 of Anthony-Cook, explained why:

Further, both the fitness test and the appellate “demonstrably unfit” test suffer from a similar flaw: they are designed for different contexts. As such, there is an appreciable risk that the approaches which apply to conventional sentencing hearings or sentencing appeals will be conflated with the approach that must be adhered to on a joint submission. In conventional sentencing hearings, trial judges look at the circumstances of the offender and the offence, and the applicable sentencing principles. They are not asked to consider the critical systemic benefits that flow from joint submissions, namely, the ability of the justice system to function fairly and efficiently. Similarly, appellate courts are not bound to consider these systemic benefits on a conventional sentencing appeal. The public interest test avoids these pitfalls.

[30] In R. v. MacLeod, 2018 SKCA 1, [2018] 5 W.W.R. 743, at para. 21, the Court of Appeal for Saskatchewan stated that, because a sentence based on a joint submission is not directly evaluated for its fitness, “the sentence imposed on a co-accused under a joint submission loses much of its value as a comparator when it comes to the sentencing of any co-accused who has not entered into a joint submission” (emphasis added). I agree.

[31] Consequently, by basing the sentences for the Respondents on those imposed on the Co-accused – the large majority of which had been sentenced based on joint submissions – the sentencing judge used a range of sentences that may or may not have been fit. In short, because the Co-accused’s sentences were not fit comparators, the sentencing judge erred in relying on them to establish the range on which to determine fit sentences for the Respondents.

[32] Second, in his application of the parity principle, the sentencing judge failed to adhere to the proportionality principle.

[33] All sentencing starts with the proportionality principle: sentences must be proportionate to the gravity of the offence and the degree of responsibility of the offender: R. v. Friesen, 2020 SCC 9, 444 D.L.R. (4th) 1, at para. 30. The proportionality principle has long been central to Canadian sentencing and is now codified as the “fundamental principle” of sentencing in s. 718.1 of the Criminal Code: Friesen, at para. 30.

[34] Parity is an expression of proportionality and a consistent application of proportionality will lead to parity: Friesen, at para. 32. However, an approach that assigns the same sentence to unlike cases can achieve neither parity nor proportionality: Friesen, at para. 32. That is what occurred in the sentencing below.

[35] This can be seen by comparing Mr. Kompon’s sentence with that of Mr. Bulhosen, one of the Co-accused. Mr. Bulhosen was sentenced to 18 years’ imprisonment for his role in the conspiracy to import cocaine. Mr. Kompon was given the same sentence for his role in the conspiracy – which fails to account for Mr. Kompon being a leader of the criminal organization that established and controlled the conspiracy and that he outranked Mr. Bulhosen.

[36] Further, the sentencing judge offended the proportionality principle by failing to properly consider the gravity of the offences the Respondents committed and their blameworthiness.

[37] In terms of the gravity of the offences, when imposing sentences for conspiracy to import and possess cocaine for the purpose of trafficking, the sentencing judge failed to take into consideration that the Respondents committed the offences in association with a criminal organization. This he was required to do by s. 718.2(a)(iv) of the Criminal Code. It was not sufficient, as the Respondents contend, that the sentencing judge imposed a consecutive sentence for the offence of having committed the conspiracy offence in association with a criminal organization. This aggravating circumstance was relevant to the gravity of the offence of conspiracy to import and had to be considered when imposing a sentence for that offence. That said, the totality principle may, to some extent, moderate the individual sentences imposed for the two offences. In any event, as I would impose life sentences for the conspiracy to import offences, any potential problem with “double counting” disappears.

[38] As well, the gravity of the offences required the sentencing judge to adequately address the quantity of cocaine that the Respondents were responsible for importing into Canada. This he did not do. The sentencing judge observed that, in the cocaine importation caselaw he considered, the quantity of cocaine was in the “hundreds of kilos” rather than thousands of kilograms as in this case. In view of this significant difference in quantity, the sentencing judge said, “19 years is not necessarily the top end of the range”. However, he then imposed sentences of 18 and 20 years respectively on Messrs. Kompon and Buffone for the cocaine importation offences. 18 years is self-evidently less than 19 years and 20 years is but one year more.[5] Neither sentence adequately reflects the gravity of the much larger quantities of cocaine that the Respondents were responsible for importing.

[39] Moreover, the sentencing judge failed to take into consideration that the Respondents’ degree of blameworthiness was much greater than that of the Co-accused. The Respondents were the “bosses” – the directing minds of the conspiracy. They established the cocaine importation operation and stood at its head. The Co-accused took their orders from the Respondents.

[40] These errors on the part of the sentencing judge clearly had an impact on the sentences he imposed on the Respondents. Consequently, it falls to this court to determine fit sentences for them. In the circumstances, it is unnecessary to address the Crown’s contention that the sentences are demonstrably unfit.

VI. SENTENCES OF LIFE IMPRISONMENT ARE FIT

[41] I recognize that the Respondents have no criminal records of significance and that they enjoy family and community support. Nonetheless, given the gravity of their offences and the degree of their blameworthiness, in my view, each should be sentenced to life imprisonment.

[42] I begin by acknowledging the exceptional nature of imposing the maximum sentence: R. v. Cheddesingh, 2004 SCC 16, [2004] 1 S.C.R. 433, at para. 1. However, as the Supreme Court of Canada stated in R. v. L.M., 2008 SCC 31, [2008] 2 S.C.R. 163, at para. 22: “[T]he maximum sentence cannot be reserved for the abstract case of the worst crime committed in the worst circumstances.”

[43] I also acknowledge that the Crown has not identified a single case in Ontario where a life sentence has been imposed for the importation of cocaine.[6] A life sentence was imposed in R. v. Murtaza, 2013 ONSC 4239, but the imported drug in Murtaza was heroin – not cocaine. Because heroin is recognized as a more harmful substance than cocaine, higher sentences are typically imposed for offences involving it: R. v. Sidhu, 2009 ONCA 81, 94 O.R. (3d) 609, at paras. 12-14.

[44] I further acknowledge that in R. v. Malanca, 2007 ONCA 859, 88 O.R. (3d) 570, leave to appeal (conviction) refused, [2008] S.C.C.A. No. 71, this court set aside a life sentence for the importation of cocaine and imposed a sentence of 19 years’ imprisonment. However, the facts in Malanca are very different from those in the present case.

[45] In Malanca, the appellant was a first-time offender, aged 26 or 27, when he was convicted of conspiracy to import cocaine and of importing about 270 kilograms of cocaine into Ontario. In sentencing the appellant to life imprisonment, the sentencing judge emphasized two features as aggravating: the amount of cocaine imported; and, his finding that the appellant was the “boss” of the conspiracy.

[46] This court set aside the life sentence in Malanca because, among other things, the sentencing judge gave little or no consideration to the fact that the appellant was a youthful first-time offender for whom the life sentence was crushing and which left little room for the possibility of his rehabilitation: at paras. 59-60. As well, the court found that it was “not at all clear” that the evidence supported the sentencing judge’s conclusion that the appellant was the “boss” of the conspiracy: Malanca, at para. 61.

[47] It is significant that this court stated, at para. 57 of Malanca, that while there was no Ontario authority imposing a life sentence for the importation of cocaine, “a case may cry out for such a sentence”. This is such a case.

[48] Unlike Malanca, in which 270 kilograms of cocaine were imported into Canada, in the present case, the Respondents oversaw an importation scheme that resulted in some 2,000 kilograms of cocaine being imported into Ontario over a three-year period.

[49] Sentencing for importation of this quantity of cocaine is unprecedented in Ontario. Before this case, the largest conviction for cocaine importation into Ontario was in R. v. Frost, 2011 ONSC 6448. Frost involved an uncontested trial on an agreed statement of facts involving 1,360 kilograms of cocaine. The accused was sentenced to 16.5 years’ imprisonment. His co-conspirator, who pleaded guilty prior to his preliminary hearing, was sentenced to 16 years’ imprisonment based on a joint submission. Neither accused in Frost was alleged to be part of a criminal organization, it was a one-time importation conspiracy, and the accused was a first-time offender (his co-conspirator had one prior offence).

[50] The differences between Frost and the present case are readily apparent. In Frost, unlike this case, the sentence followed an uncontested trial. In the case of the co-conspirator, the sentence was the product of a joint submission following a guilty plea. The amount of cocaine was significantly less (1,360 kilograms rather than 2,000 kilograms) and there was a single act of importation versus the 47 shipments of boulders as indicated by Canada Border Services Agency records in this case. Further, and importantly, neither offender in Frost was alleged to be part of a criminal organization.

[51] The Respondents also differ materially from the offender in Malanca. They are not youthful first offenders. Each is a middle-aged, sophisticated businessman who enjoyed a good life running a successful, legitimate business. They committed the offences purely for greed, without any concern for the harm that would be visited on the public in Ontario by the importation of such large amounts of cocaine. When serious crimes are well-thought out and motivated entirely by greed, the objectives of specific and general deterrence must move to the forefront.

[52] And, significantly, the Respondents were indisputably the “bosses” of the importation conspiracy. On the findings of the sentencing judge, the Respondents were the leaders of the criminal organization that oversaw and directed the importation and distribution of staggering amounts of cocaine in Ontario over a three-year period. They stood at the head of the sophisticated criminal organization which: had established trade routes and three large, remote commercial warehouses; used secure lines of communication and a fleet of company vehicles; employed meticulous record-keeping; and, drew from a reservoir of shell companies, false identities, and fraudulent documents to lend legitimacy to their operations.

[53] The Respondents argue that there is little practical difference between sentences of life imprisonment and the sentences imposed by the sentencing judge because of the points at which the Respondents will become eligible for parole. Under the sentences as imposed, the Respondents will be eligible for full parole once they have served one-third of their sentences – that is, approximately seven years for Mr. Buffone and a little over six years for Mr. Kompon. If life sentences are imposed, Mr. Buffone and Mr. Kompon will each be eligible for full parole after approximately seven years, pursuant to s. 120(2) of the Corrections and Conditional Release Act, S.C. 1992, c. 20.

[54] However, as the Respondents rightly acknowledge in their factum, the “key difference between the sentences imposed and life imprisonment is that a person serving a life sentence will always be subject to the correctional authorities”. An offender who is released on parole continues to serve their imposed sentence until its expiry, and during this time, remains subject to the conditions of their parole or statutory release: Corrections and Conditional Release Act, S.C. 1992, c. 20, ss. 128(1)-(2). Therefore, under sentences of life imprisonment, the Respondents will remain subject to supervision for the remainder of their lives, including upon release from prison.

[55] In this regard, I would simply echo the words of the Supreme Court at para. 62 of R. v. M. (C.A.), 1996 230 (SCC), [1996] 1 S.C.R. 500. Even though the conditions of incarceration are subject to change through a grant of parole, if life sentences are imposed, the Respondents would remain under the strict control of the parole system and their liberty would be significantly curtailed for the full duration of those sentences. Thus, the deterrent and denunciatory purposes which animated the life sentences remain in force and the goal of specific deterrence is still advanced because they would remain supervised to the extent and degree necessary to prevent possible further crime, and since they would remain under the shadow of re-incarceration should they commit another crime. As well, the goal of denunciation would continue to operate because the Respondents would still carry the societal stigma of being convicted offenders serving criminal sentences.

[56] Sentencing continues to be dictated by the fundamental principle of proportionality – the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender: L.M., at para. 22. The sheer quantity of cocaine imported, in conjunction with the Respondents’ roles and positions in the sophisticated criminal organization that masterminded the importation and trafficking of the cocaine, cries out for the maximum sentence of life imprisonment. A life sentence is proportionate to the gravity of the offences that the Respondents committed and the degree of their responsibility. Life sentences are also necessary to adequately address the principles of denunciation and deterrence, to promote a sense of responsibility in the Respondents, and to convey the clear message to them, and others, that the “cost of doing business” of this sort is extremely high.

DISPOSITION

[57] For these reasons, I would grant the Crown leave to appeal the sentences and allow the appeals. I would: (i) substitute a sentence of life imprisonment on each of the Respondents for count 3, conspiracy to import and possess cocaine for the purpose of trafficking; (ii) leave unchanged the sentences imposed on counts 1 and 2; and, (iii) leave unchanged the sentence on count 6 (Mr. Kompon only).

[58] The sentencing judge made the sentences imposed on count 4 (committing an offence in association with a criminal organization) consecutive to the sentences imposed on count 3 (conspiracy to import and possess cocaine for the purpose of trafficking). He was required to make the sentences on count 4 consecutive by s. 467.14 of the Criminal Code.

[59] The parties acknowledge that the sentences on count 4 cannot be made consecutive to life sentences imposed on count 3: see R. v. Sinclair (1972), 1972 1297 (ON CA), 6 C.C.C. (2d) 523 (Ont. C.A.), 172 1297 and R. v. Cadeddu (1980), 57 C.C.C. (2d) 264 (Ont. C.A.), 1980 2968. However, in light of the express language in s. 467.14, in my view, the sentences imposed on count 4 cannot be made concurrent to the life sentences on count 3.

[60] Accordingly, I would not alter the sentences imposed on count 4 by the sentencing judge. I would, however, stay the imposition of those sentences to avoid the impossibility of imposing a sentence to be served consecutively to a life sentence. Staying the imposition of the sentences on count 4 would not affect the total sentences imposed nor would it compromise the position or role of the parole board, should an application for parole ever be made.

[61] I would also grant Mr. Kompon leave to appeal sentence and grant his appeal, on the consent of the Crown, and set aside the fine imposed in lieu of forfeiture for seized property used to pay Mr. Kompon’s reasonable legal fees for his defence.

Released: November 19, 2021 “D.D.”

“E.E. Gillese J.A.”

“I agree. Doherty J.A.”

“I agree. Grant Huscroft J.A.”

[1] R. v. Buffone, 2021 ONCA 676.

[2] In the reasons for sentence, the sentencing judge states that Mr. Oliver received a 12-year sentence. However, based on the indictment and the reasons for sentence given in respect of Mr. Oliver, it appears that he was sentenced to 12.5 years’ imprisonment.

[3] This statement is based on the sentencing judge’s reasons. However, the record calls into question the accuracy of both the offences of which the sentencing judge said Mr. Lucero had been convicted and the sentence(s) imposed. Neither matter is significant for the purposes of this appeal.

[4] This appears to be an approximate figure of Mr. Caputo’s sentence. Mr. Caputo was sentenced to 8 years and 5 days, with credit for pre-sentence custody of 240 days, for a total sentence of 8 years and 245 days.

[5] The comparison is between the sentences imposed in the caselaw that the sentencing judge considered for large scale cocaine importation with those imposed on the Respondents for such offences. For that reason, I have not included the additional two-year sentences imposed on the Respondents for having committed the offences in association with a criminal organization.

[6] The court’s attention was drawn to R. c. Fievet (1997), 1997 23470 (NB PC), 191 N.B.R. (2d) 185 (Prov. Ct.), in which a New Brunswick provincial court imposed a life sentence for the importation of 5,400 kilograms of cocaine.