WARNING Section 87(8) of the Child, Youth and Family Services Act , 2017, S.O. 2017, c. 14, Sched. 1 may apply:

Prohibition re identifying child

87(8) No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family.

COURT OF APPEAL FOR ONTARIO

DATE: 20221213 DOCKET: C70648

van Rensburg, Roberts and Sossin JJ.A.

BETWEEN

His Majesty the King Respondent

and

L.C. Appellant

Counsel: Anne Marie Morphew and Bianca Benincasa, for the appellant Jeanette Gevikoglu and Sarah Virani, for the respondent

Heard: November 7, 2022

On appeal from the sentence imposed by Justice Jennifer Woollcombe of the Superior Court of Justice on October 21, 2019.

Sossin J.A.:

OVERVIEW

[1] The appellant was convicted of one count of importing cocaine contrary to s. 6(1) of the Controlled Drugs and Substances Act , S.C. 1996, c. 19, on August 8, 2019.

[2] The appellant, a Canadian citizen, entered Canada through Pearson International Airport on February 2, 2014. She was returning from St. Maarten, travelling alone, and subject to a “lookout report”. She had approximately 3.2 kilograms of cocaine strapped to her body with a body pack girdle, which was seized and later analyzed to have 66% purity and a street value of between $258,080 and $327,120. A Charter application seeking to exclude this evidence was dismissed, following which the appellant did not contest she should be convicted. She did not testify in the conviction proceedings.

[3] The Crown sought a sentence of six and a half years less pre-sentence custody, submitting that this case fell within the six to eight year sentencing range established in R. v. Cunningham (1996), 27 O.R. (3d) 786 (C.A.). The trial judge understood the appellant, who was self-represented at the sentencing hearing, to submit that between eight and nine months would be appropriate, relying on the sentencing decision in R. v. Sharma, 2018 ONSC 1141, 44 C.R. (7th) 341, rev’d 2020 ONCA 478, 152 O.R. (3d) 209, rev’d 2022 SCC 39.

[4] The trial judge concluded that the sentence should be in the Cunningham range and imposed a sentence of six years and three months, less pre-sentence custody.

[5] The appellant seeks leave to appeal her sentence. She argues that the trial judge erred by failing to consider (1) the collateral consequences relating to the appellant’s children who were, at the time, in extended and temporary care of the Catholic Children’s Aid Society (“CCAS”), and (2) the systemic discrimination and racism experienced by the appellant in assessing her moral blameworthiness and balancing the principles of sentencing.

[6] For the reasons that follow, I would grant leave to appeal the sentence, but dismiss the appeal.

DECISION BELOW

[7] The appellant submitted a number of supporting documents at the hearing, including a pre-sentence report and an email from her family lawyer. The appellant made clear that she is a devout Christian. She believes she has been tasked with a mission from God to fight against an unjust system and people in authority who are against her, which appears to include the CCAS.

[8] The lawyer’s email stated that the appellant’s three children were in CCAS care, were separated from each other, and had indicated they wished to live with their mother. The email further suggested that the CCAS was primarily concerned with the appellant’s unavailability to parent due to her incarceration, rather than the quality of her parenting, and that it would be in the best interests of the children for her incarceration to be as short as possible.

[9] In the sentencing proceedings, the appellant claimed she engaged in the conduct leading to the conviction as a result of threats by someone named “Dennis.” In response, the trial judge held a Gardiner hearing to consider whether the guilty verdict should be set aside and the trial reopened on the issue of duress, or alternatively, if compulsion short of duress should be considered as a mitigating factor in sentencing. Only the appellant testified.

[10] The trial judge rejected the appellant’s evidence that she was threatened. She found that the narrative that Dennis was part of a conspiracy by those in authority to take the appellant’s children away from her defied belief. Furthermore, the trial judge noted that the appellant had relatively recent convictions for 23 counts on offences of dishonesty (fraud and personation), so there was a need for caution before accepting her evidence as truthful.

[11] With respect to the sentencing criteria, the trial judge considered both mitigating and aggravating factors.

[12] She concluded that the mitigating factors included that the appellant had an unstable family background, became a single mother as a teenager, faced real challenges as a parent including the CCAS apprehending her children, may well have been vulnerable to suggestion to import cocaine, had taken steps toward rehabilitation, was unlikely to commit this offence again, and did not challenge the Crown’s case once the Charter application was dismissed. However, the trial judge did not accept that there was compulsion short of duress, finding that the appellant voluntarily imported the cocaine.

[13] The trial judge also distinguished the facts in Sharma based on Ms. Sharma’s tragic life circumstances, including her Indigeneity, guilty plea, younger age, lower quantity of cocaine, and steps toward rehabilitation. While the appellant had taken positive steps toward rehabilitation while in custody and faced significant challenges including a difficult upbringing and depression, some of these challenges were of her own making, including that she had to serve time in custody for previous offences.

[14] The trial judge identified as aggravating factors that the appellant imported a significant amount of cocaine in a profit-motivated crime, had a criminal record with multiple recent convictions, and was on probation when she committed the offence.

ISSUES

[15] The appellant requests that her application for leave to appeal sentence be granted, and that her sentence be reduced to 4.5 years’ imprisonment less pre-sentence custody.

[16] The issues on appeal can be framed as follows:

Did the trial judge err in failing to consider collateral consequences in sentencing the appellant?
Did the trial judge err in failing to consider the impact of systemic discrimination and racism in sentencing the appellant?

ANALYSIS

(1) The trial judge did not fail to consider collateral consequences

[17] An appellate court can only intervene to vary a sentence if (1) the sentence is demonstrably unfit or (2) the sentencing judge made an error in principle that had an impact on the sentence: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 43-44. Errors in principle include an error of law, a failure to consider a relevant factor, or erroneous consideration of an aggravating or mitigating factor. An appellate court has authority to intervene if the sentencing judge was not aware of a collateral consequence or if counsel failed to advise the judge on this issue, as this means the sentence was decided without considering a relevant factor: R. v. Pham, 2013 SCC 15, [2013] 1 S.C.R. 739, at para. 24.

[18] The appellant submits that the trial judge failed to consider the collateral consequence that the appellant, in addition to being separated from her children, risks permanently losing all parental rights as a result of being incarcerated. She notes that her children are separated from each other and that at the time of sentencing, the CCAS was seeking an order for extended society care for one of her children.

[19] The Crown contends that the appellant has failed to show that the trial judge committed any error in principle by not expressly referring to these particular family consequences. The Crown submits that the trial judge was aware of, and took into account, the appellant’s family circumstances, including the collateral impact of a penitentiary sentence on the appellant’s children and their placement in extended society care. Moreover, the appellant has not demonstrated why the sentence sought, which is outside the range established for this type of offence in Cunningham, would mitigate the collateral impact on her children.

[20] Collateral consequences that may be considered at sentencing include any consequences arising from the commission of an offence, the conviction for an offence, or the sentence imposed for an offence, that impacts the offender: R. v. Suter, 2018 SCC 34, [2018] 2 S.C.R. 496, at para. 47. The Supreme Court in Suter, at para. 48, explained the relevance of collateral consequences and the difference between collateral consequences and mitigating and aggravating factors as follows:

Though collateral consequences are not necessarily “aggravating” or “mitigating” factors under s. 718.2 (a) of the Criminal Code — as they do not relate to the gravity of the offence or the level of responsibility of the offender — they nevertheless speak to the “personal circumstances of the offender” (Pham, at para. 11). The relevance of collateral consequences stems, in part, from the application of the sentencing principles of individualization and parity: ibid.; s. 718.2 (b) of the Criminal Code. The question is not whether collateral consequences diminish the offender’s moral blameworthiness or render the offence itself less serious, but whether the effect of those consequences means that a particular sentence would have a more significant impact on the offender because of his or her circumstances. Like offenders should be treated alike, and collateral consequences may mean that an offender is no longer “like” the others, rendering a given sentence unfit. [Citations in original.] [Footnotes omitted.]

[21] In specific cases, mitigating factors, collateral consequences, or other attenuating circumstances relating to the offence or offender may warrant a sentence below the usual range. Similarly, aggravating factors in a particular case may warrant a sentence above the usual range: Suter, at paras. 27, 90. “[T]he weight to be given to collateral consequences varies from case to case and should be determined having regard to the type and seriousness of the offence”: Pham, at para. 12. The attenuating effect of relevant collateral consequences on the sentence imposed will differ depending on the circumstances. In some cases, it may be that the collateral consequence will have no impact on the sentence imposed: Suter, at para. 48, footnote 3. The weight to be given to relevant mitigating factors, aggravating factors, and collateral consequences in crafting a fit sentence is within the discretion of the trial judge: Suter, at para. 14; R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at para. 43.

[22] To be considered at sentencing, where they are raised as attenuating circumstances to mitigate or reduce a sentence, relevant collateral consequences need not be “foreseeable” or “flow naturally from the conviction, sentence, or commission of the offence” (emphasis in original), nor must they emanate from state misconduct, though they must relate to the offence and the circumstances of the offender: Suter, at paras. 49, 56.

[23] The appellant relies on R. v. Stanberry, 2015 QCCQ 1097, 18 C.R. (7th) 87, at paras. 18-20, for the proposition that sentencing courts can consider not only that a parent will be separated from their children, but that the children will be separated from the parent and (where applicable) each other, as collateral consequences that could magnify the severity of the sentence for an offender. Stanberry has been applied or cited favourably in Suter, at para. 56; R. v. McDonald, 2016 NUCA 4, at para. 43; R. v. Kaneza, 2015 ABQB 658, at paras. 43-48, aff’d, 2016 ABCA 411, at paras. 7-8; and R. v. Zhou, 2016 ONSC 3233, at paras 9-14. This court also has previously accepted that family separation may be a relevant collateral consequence: see e.g., R. v. Kanthasamy, 2021 ONCA 32, at paras. 7-9.

[24] Given this authority, I accept that it is open to a sentencing judge to consider both collateral family consequences of family separation on the offender, as well as on the children themselves. However, the sentence imposed must always remain proportionate to the gravity of the offence and the responsibility of the offender: Pham, at paras. 14-18; Suter, at para. 56.

[25] In this case, the evidence of the collateral consequences of a custodial sentence on the appellant and her children was quite weak. In October 2019, the children were 19, 15 and 8. At the time of the hearing of the appeal, only the appellant’s youngest child was under 18. There was no evidence that the youngest child would be returned to the mother’s care had a lower custodial sentence been imposed. The potential collateral consequences were raised in the family lawyer’s email, the appellant’s typed letter, and some of the appellant’s testimony. The family lawyer’s email stated that the CCAS was mainly concerned about the appellant’s unavailability to parent because of her incarceration and not with her parenting. The lawyer also stated that it would be in the best interests of her children for her incarceration to be as short as possible. I note, however, that the appellant’s children were apprehended at least once before the offence in question and that the CCAS had been intermittently involved since 2004. The exact circumstances of the most recent apprehension were unclear. The appellant did not provide this court with current information on the status of the children or child protection proceedings. The appellant focused her submissions on appeal on the possibility that the appellant’s youngest child might become eligible for permanent adoption as a result of her placement in extended care.

[26] In her reasons for sentence, the trial judge referred to the email from the family lawyer and summarized its contents, including that the lawyer indicated that it would be in the best interests of her children for the appellant’s incarceration to be as short as possible. The trial judge subsequently referred to the family separation concern generally. Although she did not identify this concern as a “collateral consequence”, she treated it as a mitigating circumstance for the offender. She stated:

While I must bear in mind the range of sentence that the Court of Appeal has said is usual for this type of offence, the sentence imposed must be tailored to the particular circumstances of the offence and offender before me. The sentence I impose on [the appellant] must give effect to both the aggravating and mitigating factors present in this case, bearing in mind the legal principles and case law. There are several factors that I find are mitigating.

[The appellant] has had an unstable family background and became a mother, responsible for her children on her own, from the time she was a teenager. She has faced real challenges as a parent, including having her children apprehended from her by the CAS. I accept that this was an extremely difficult experience for her and has caused significant stress . [Emphasis added.]

[27] As outlined above, the evidence in this case of the collateral consequences of a custodial sentence was weak. In any event, the trial judge was clearly alive to the potential impact of the sentence length on the appellant’s children in society care, and she took this into consideration as a mitigating factor. In these circumstances, and considering the weak evidence before her, there is no basis to reason that the attenuating effect would have been greater had the trial judge expressly adverted to the forward-looking impact of a custodial sentence on either the appellant or her children as a collateral consequence.

[28] The trial judge selected a sentence at the low end of the Cunningham range based on the aggravating and mitigating factors she found, including the appellant’s role as a parent. The trial judge committed no error by addressing the appellant’s family circumstances as a mitigating factor in her sentencing analysis, without identifying these circumstances specifically as a “collateral consequence”.

[29] In Cunningham, this court established that the range of sentence for first offender couriers who smuggle large amounts of cocaine into Canada for personal gain should be six to eight years in the penitentiary. The court’s approach in Cunningham expressly considered the vulnerability of many offenders who act as couriers, acknowledging that there was flexibility to the range, in part, to address such circumstances.

[30] The appellant asserts that the trial judge, based on a single email from the family lawyer, should have inferred that the collateral consequences raised were not only likely to occur but also that those consequences would be lessened by a shorter sentence. There is insufficient evidence on this record to draw these conclusions, given the lack of information about the history of CCAS involvement, the timing and reasons for the recent apprehension, and the child protection court’s assessment of the best interests of the child.

[31] The appellant relies on a number of cases in which sentences below the Cunningham range were found to be appropriate, including R. v. Young, 2020 ONSC 5781; R. v. Trudeau, 2021 ONCJ 243; R. v. Gardener, 2021 ONSC 4221; and R. v. Grant, 2021 ONSC 4384. Those cases are distinguishable as they involved first time offenders, Indigenous offenders, offenders who had demonstrated significant remorse and a high degree of compliance with court orders, or other significantly mitigating factors that did not arise on the record before the trial judge in this case.

[32] For these reasons, I reject the appellant’s argument that the trial judge erred in imposing the sentence she did by failing to consider collateral consequences.

(2) The trial judge did not fail to consider systemic discrimination

[33] The sentencing decision pre-dated R. v. Morris, 2021 ONCA 680, 159 O.R. (3d) 641, but there was ample basis for the trial judge to consider the issue of anti-Black racism. The appellant is a Black single mother who grew up in and out of foster care, was exposed to substance abuse and family violence, lived in poverty without stable employment, and has in turn been involved with the CCAS.

[34] The appellant, in her testimony before the trial judge, explained how she felt the system had failed her when her children were taken away from her, how she did not have family to lean on in hard times, and how she could not trust others because people have not cared about her throughout her life.

[35] The Crown argues that, “[t]he appellant failed to establish that there was ‘some connection between the overt and systemic racism in the community’ and her explanation for her criminal conduct”.

[36] The trial judge accepted the pre-sentence report which, while recognizing many of the challenges the appellant has faced, also concluded that she lacked insight into her conduct and sought to blame others for it.

[37] Whether or not it is discussed in a pre-sentence report, this court can take judicial notice of the systemic factors that likely shaped the appellant’s “choice” to engage in a profit-motivated crime, including poverty, discrimination in employment opportunities, and the intergenerational effects of the child welfare system: Morris, at paras. 13, 39, 42, 123.

[38] While it is open to the court to consider these systemic factors, they do not affect the gravity of the crime in the context of the sentencing analysis. As this court explained in Morris, at para. 77:

It is important to preserve the distinction between factors relevant to the seriousness or gravity of the crime on the one hand, and factors relevant to the offender’s degree of responsibility on the other. Unless the distinction is maintained, the proportionality principle may be misapplied. A sentence, like the sentence imposed here, which wrongly discounts the seriousness of the offence to reflect factors which are actually relevant to the offender’s degree of responsibility, will almost inevitably produce a sentence that does not adequately reflect the seriousness of the offence and, therefore, fails to achieve the requisite proportionality.

[39] While the trial judge did not have the benefit of this court’s decision in Morris, in my view, her reasons demonstrate that she considered and gave appropriate mitigating weight to the evidence and the appellant’s submissions concerning the effects of anti-Black racism on her circumstances that were discussed in Morris. This was an extremely serious offence. Considering once again that the appellant was sentenced at the low end of the Cunningham range, there is no basis to suggest that the systemic factors reviewed in Morris were ignored in crafting the sentence or that there was an error in the sentence that the trial judge imposed.