Court Information
Ontario Court of Justice
Date: 2017-10-06
Court File No.: Brampton 3111 998 15 9385
Parties
Between:
Her Majesty the Queen
— And —
Patrick Williams
Before the Court
Justice: G. Paul Renwick
Heard: 06 October 2017
Reasons for Sentence Released: 06 October 2017
Counsel
For the Crown: S. Thompson
For the Defendant Patrick Williams: D. Santoro
Sentencing Decision
RENWICK J.:
Background and Charges
[1] Patrick Williams is a 67 year old, Canadian citizen, who imported a significant amount of hashish into Canada as an illegal drug courier.
[2] The prosecution seeks a penitentiary sentence between two and three years to appropriately denounce the serious crime of drug importation and to deter others in similar financial situations like the offender from considering drug importation as a way to make money.
[3] Counsel for the offender submits that a conditional sentence of imprisonment is an appropriate sentence given the prior unblemished character, the health, the remorse, and the on-going support of Mr. Williams by his family and his community.[1]
Mitigating and Aggravating Factors
Mitigating Factors
[4] In terms of mitigating factors, there are several:
i. Mr. Williams is an elderly first-offender, with health issues;
ii. Mr. Williams pleaded guilty before a preliminary hearing was held;
iii. Mr. Williams committed his crime for financial reasons other than greed; and
iv. After his arrest, when he spoke with the RCMP, Mr. Williams admitted that he had brought the bag with the drugs into Canada, and that was his only role in the importation.
Aggravating Factors
[5] Aggravating features of this offence are:
i. The offender imported a significant amount of cannabis hashish for the purpose of trafficking;
ii. The amount of the drug imported is significant: in terms of the amount, the agreed facts are that Mr. Williams imported 14kgs of hashish. But at the 10 minute mark of his videotaped statement to the RCMP, which began around 3:30am, the officer indicated that the amount of the hashish was approximately 11kgs. Given that there is a discrepancy in the weight of the drugs imported, and both the contents of the video statement and the agreed facts are equally conceded by the parties, and the burden remains on the prosecution to prove aggravating facts beyond a reasonable doubt, I am prepared to resolve any doubt about the amount of the hashish in the offender's favour;
iii. The offender violated an international border, and evaded detection of his crime until after he had completed his role by dropping off the bag of drugs; and
iv. The offender is not addicted to the drug he imported and made the decision to commit this crime for financial gain.
Sentencing Principles and Case Law
[6] I have considered the cases that were presented by both sides. There is no simple tariff for drug importation, or schedule II drug importation. Sentences range from an intermittent sentence: see R. v. Mayers, 2014 ONCJ 160, and include conditional sentences of about 15 months, see R. v. Wellington, 132 CCC (3d) 470, at the lower end of the range, and three-years' imprisonment at the upper end: R. v. McPartland, 1981 O.J. No. 114 (C.A.).
[7] In terms of the facts, this case resembles several cases: R. v. Duffus, 2017 O.J. No. 155 (S.C.J), R. v. Ashley, 2012 ONCA 576, 2012 O.J. No. 4141, and the McPartland decision already mentioned. I find that in this case, the overriding sentencing consideration is denunciation and deterrence, with Mr. Williams' rehabilitation as a secondary consideration.
[8] All of the cases suggest that drug importation, even involving "soft" drugs like cannabis are serious. In Ashley, our Court of Appeal upheld the 18-month sentence of institutional incarceration for a first-offender who had a very young child. In Duffus, the amount of the hashish imported was less than half of the amount imported here, and in McPartland, the Court of Appeal also took into account that the 26 year old offender had spent 3 months in pre-trial custody.
Sentencing Analysis
[9] I have to balance the sentencing objectives, with your moral blameworthiness and your particular circumstances to determine a fit and appropriate sentence for you. In the end, I am satisfied that you meet the criteria for a conditional sentence: there is no mandatory minimum sentence, and I disagree with the prosecution that this sentence merits a sentence above two years' incarceration, in these circumstances. However, were it not for your age, Mr. Williams, and health at the time of the offence, I may well have decided that a penitentiary sentence was appropriate in the circumstances. Also, given your prior good character, I do not believe that you would put the safety of our community at risk if you served a sentence of imprisonment in the community.
[10] However, that is not the end of the analysis; that only means, technically you are not ineligible for a conditional sentence. I also have to consider the circumstances of this case, and the signal that cases like Ashley and others from our Court of Appeal sound. Commercial drug importation is a serious and significant threat to our health and public safety and a gross violation of the integrity of our national border. As well, people who are generally of good moral character, like you, Mr. Williams, need to be deterred from acting as the pawns in an illegal commercial enterprise that involves profits in the tens or hundreds of thousands of dollars.
[11] In fashioning an appropriate sentence in this case I am mindful that Parliament says that I must use actual incarceration only when other forms of punishment do not appropriately address the level of culpability and your personal circumstances. I am also mindful that a conditional sentence is a sentence of imprisonment by which significant deprivations of liberty can occur and which can send an appropriate message of denunciation and deterrence with appropriate conditions.
[12] Your crime is extremely serious. You have threatened the well-being of your fellow Canadians, you have threatened the security of our border, and you have undone every good deed you have achieved as a productive member of our community by this irresponsible act, because you stood to make between $10-15,000, and like many Canadians, you have suffered losses and have unpleasant financial burdens.
[13] Were it not for the fact that you are, according to the medical evidence, at a high risk of cardiac episodes, or suffering a stroke or complications arising from your diabetes, I would not be inclined to consider a conditional sentence. To be clear, I have no sympathy for you as a senior citizen, with health issues – many people in worse and more dire health and financial situations do not sink so low. You have betrayed yourself, your community, and your family to earn the rank of a drug importer, and my sympathies are reserved for our community, your family, and your true self as a respectable and decent human being.
Sentence Imposed
[14] You are hereby sentenced to serve two years less one day imprisonment in our community followed by 18 months of probation.
Conditional Sentence Order Terms
[15] The terms of the conditional sentence Order are as follows:
Keep the peace and be of good behaviour;
Appear before the court when required;
Report to a supervisor within 24 hours and thereafter as required, and not less than once per month for the first 18 months of the conditional sentence Order;
Remain in Ontario unless prior written permission to go outside the jurisdiction is obtained from the court or your conditional sentence supervisor;
Notify the court or your supervisor in advance of any change of name, address, and promptly notify the court or the conditional sentence supervisor of any change of employment or occupation;
Abstain absolutely from the possession of any controlled drugs or substances, except in accordance with a medical prescription;
Perform 180 hours of community service over a period of 18 months;
For the first 18 months of this Order you will observe a condition of house arrest, to be in your residence at all times except:
i. For the purpose of travelling to, from, and while at your place of employment;
ii. For the purpose of travelling to, from, and while attending your personal medical appointments;
iii. For the purpose of travelling to, from, and while attending a place of worship, on a day designated by your supervisor; not to exceed once per week;
iv. For the purpose of seeking emergency medical treatment for yourself; and
v. For any other purpose approved in writing by your conditional sentence supervisor; and
When outside of your residence for the duration of this Order, you are not to possess any amount of Canadian or American currency beyond a reasonable amount to travel from and return to your residence.
[16] What that means, Sir, is, you are serving a jail sentence in the community for the next two years, less one day. Possessing currency is a luxury and a liberty you will only be permitted to observe in the amount that is reasonable for the mode of transportation to leave your house for the purposes approved by your conditional sentence supervisor, or in accordance with this Order, and to return. That means, you won't have extra cash on your person that could be used to buy drugs or other illicit substances, nor can you have cash on your person in an amount that exceeds a reasonable amount for your mode of travel at any given time you are out of your house, so that nobody will suspect that you are a drug trafficker. Again, this is a jail sentence served in the community. This term is to send home the message to you that you are serving a jail sentence.
Probation Order Terms
[17] The terms of the probation are:
Keep the peace and be of good behaviour;
Appear before the court when required;
Report to a probation officer within 24 hours and thereafter as required, and not less than once per month for the first six months of this Order;
Remain in Ontario unless prior written permission to go outside the jurisdiction is obtained from the court or your probation officer;
Notify the court or your probation officer in advance of any change of name, address, and promptly notify the court or the probation officer of any change of employment or occupation;
Abstain absolutely from the possession of any controlled drugs or substances, except in accordance with a medical prescription; and
Perform 120 hours of community service over a period of 12 months.
So that is a separate Order apart from the community service that you have to perform during your jail sentence in the community.
[18] You will receive a copy of each Order and it will be explained to you and you will have to sign for that copy so that you acknowledge your understanding. But, if you fail or refuse to comply with the terms of either of these Orders, you can be charged and prosecuted, and in respect of the conditional sentence Order you could be sentenced to serve the remaining term of the jail sentence in an actual institution. With respect to the probation Order, if you fail or refuse to comply with that and you are prosecuted, you could face jail of up to four years, a fine of $5000, or both.
Ancillary Orders
[19] In terms of the ancillary Orders, I am not inclined to make the DNA Order that is requested because this is not the type of offence where DNA is a primary investigative tool; as well, this is the offender's first criminal conviction. On that basis, it is not in the public interest and I am not making the DNA Order that was requested.
[20] I am prohibiting you from possessing prohibited, restricted weapons, ammunition or explosives and other items as designated in s. 109 of the Criminal Code, for ten years.
[21] As well, I will sign the forfeiture Order.
[22] I am giving you six months to pay the victim surcharge, unless you tell me you require more time.
Released: 06 October 2017
Justice G. Paul Renwick
Footnote
[1] In a decision released on 29 September 2017 I held that s. 6(3)(a) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 ("CDSA") is overbroad and contrary to s. 7 of the Canadian Charter of Rights and Freedoms, Being Part I of the Constitution Act, 1982, Enacted as Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 ("Charter"): see R. v. Patrick Williams, [2017] O.J. No. 5143. I also found that the combined operation of s. 6(3)(a) of the CDSA and s. 742.1 of the Criminal Code, R.S.C. 1985, c. C-46 infringed s. 7 of the Charter. As a result, I granted Mr. Williams a judicial exception from the combined applicability of these laws, making it possible for the offender to seek a conditional sentence of imprisonment for this offence.