Court File and Parties

Ontario Court of Justice

Date: August 21, 2020

Court File No.: BRAMPTON 19-4411

Between:

Her Majesty the Queen

— and —

Chanelle Mosodeen

Before: Justice A.R. Mackay

Heard on: March 5, 2020, August 12, 2020

Reasons for Judgment released on: August 21, 2020

Counsel

Robert Tremblay — counsel for the Public Prosecution Service of Canada

Jennifer Hue — counsel for the defendant Chanelle Mosodeen

MACKAY J.:

I. Overview

[1] On March 5, 2020, Ms. Mosodeen pled guilty to importing 7,007 grams of cocaine into Canada, contrary to section 6(1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19. Within a few weeks of her plea, the COVID-19 pandemic struck Canada. The World Health Organization declared the pandemic on March 11. The country began to lock down. Sentencing submissions were completed on August 12, 2020. The Crown seeks a sentence of six and one-half years and Ms. Hue seeks a sentence of five years. Both parties submit that Ms. Mosodeen should receive a reduction for pre-sentence incarceration, however, they differ on how the enhanced credit should be calculated.

II. The Facts

(a) Circumstances of the Offence

[2] On March 28, 2019, Ms. Mosodeen was working as a flight attendant. The flight she worked on arrived at Pearson International Airport Terminal 3 from Trinidad and Tobago. Upon arrival, a controlled search was done while baggage was unloaded at the tarmac. Police searched a suitcase in the crew cargo hold. Inside one of those bags they discovered eight bricks of cocaine, weighing 7,007 grams. A ripped suitcase luggage tag was located on the ground beside the suitcase. The tag had Ms. Mosodeen's name on it. When confronted by police, she denied ownership of the bag. Ms. Mosodeen claimed that she checked a different bag.

[3] RCMP attended and conducted further investigation the following day. Police received a photograph of a picture of Ms. Mosodeen at Trinidad International Airport checking in with the suitcase in question with a "crew" sticker on it. Video footage was also retrieved showing Ms. Mosodeen with the suitcase later found to contain the cocaine. She was arrested and charged with importing.

[4] The cocaine had an approximate street value of $280,000.00 if sold at the kilo level or $565,000.00 if sold at the gram level. Ms. Mosodeen conceded that she was willfully blind as to what was in her bag. In defence counsel's words, she was "subjectively suspicious" and deliberately failed to make inquiries about whether her suitcase contained drugs.

(b) Circumstances of the Offender

[5] Ms. Mosodeen is 32 years old having been born and raised in Trinidad and Tobago. She was raised by her mother and grandmother. Her grandmother is now deceased. She has not had contact with her father since she was six years old. She has no prior criminal history.

[6] Ms. Mosodeen had a long-term healthy relationship. However, both she and her partner were dealing with the loss of family members and that ended the relationship. Shortly thereafter she became involved with her last partner who was very abusive to her. The abuse was both physical and mental. On one occasion she was hospitalized as a result of being slashed with a knife; on another she was choked and left unconscious in a forest. Ms. Mosodeen advised that she was close to death on two occasions. Her partner caused her to miss work at times because he bruised her face or refused to let her leave. He did not work and caused her to go into financial debt. She was terrified to leave her partner.

[7] Ms. Mosodeen's mother and aunt confirmed that she was in an abusive relationship.

[8] The defendant worked for Caribbean Airlines as a customer service representative. She then worked for nine years as a flight attendant until her arrest.

[9] While Ms. Mosodeen stated that she was a social drinker, her aunt advised that she was, on occasion, drinking to excess. This was out of character for her and it was believed that she did so as a coping mechanism.

[10] The defendant agreed to import a substance she suspected was illegal. She did so because she owed a previous co-worker money and he was demanding payment. She was extremely depressed and "wanting to disappear or die".

[11] In one sense Ms. Mosodeen believed being arrested was positive as she has been away from her abusive partner and believes she has the strength not to return to this relationship.

[12] A sworn affidavit was also submitted by Ms. Mosodeen. She spoke about how difficult it has been to be incarcerated in another country so far away from her family. She has not been able to make long distance calls to her family. However, she has, on occasion, been able to speak to her mother. The distance from her family has increased her feelings of isolation and intense sadness. Ms. Mosodeen has been suffering from anxiety and depression. Since the onset of COVID-19, she has not been able to participate in programs or attend church.

[13] Ms. Mosodeen has experienced great anxiety as she cannot really social distance at the jail and is concerned that she could become infected. She feels vulnerable and helpless. The institution has not advised the inmate population of what is going on with respect to the number of positive cases.

[14] Ms. Mosodeen addressed the court and expressed, in my view, real remorse. In addition, she spoke about how sorry she was for all the pain she has caused her mother as a result of participating in the offence before the court.

(c) Evidence about how the correctional institutions are dealing with the pandemic

[15] The Crown submitted several Notes from The Assistant Deputy Minister's Office dated April 7, 2020 through to June 16, 2020.

[16] With the exception of the Ontario Correctional Complex, there has not been an outbreak at the institutions. The Notes set out the many steps, procedures and protections the institutions have put in place.

[17] One Note revealed there were three positive tests in Vanier as of June 16 and they were all released from custody.

[18] While it would appear, based on the Notes, that the institutions are making valiant efforts to reduce the spread of the virus, the loss of visits would have a serious impact on the inmates. Some of the steps taken include the following: suspending programs and personal visitation and inmates being isolated from one another and other people.

[19] I understand the institution tried to compensate for loss of visitations; for example, they were trying to provide extra phone calls and other activities; TV time or access to additional TV channels was increased. In support of inmates, the Ministry also increased the weekly "canteen" limit by 50% to $90 to allow inmates to purchase additional comfort and recreation items. The professional visits, including lawyers and spiritual volunteers, are continuing.

[20] An affidavit of Dr. Aron Orkin, doctor and epidemiologist, was submitted by defence. It set out, at length, the dangerousness of the virus and how individuals in institutions are at a much greater risk to contract the virus than those in the general public.

III. The Range

[21] Mr. Tremblay correctly submitted that the Ontario Court of Appeal has consistently upheld a range of sentence of 6-8 years of incarceration for this type of offence and offender.[1] The Ontario Superior Court in the Central-West region has also consistently imposed sentences between 6-8 years for this type of offence.[2]

[22] The Supreme Court however, has also instructed trial and appellate courts that the ranges are guidelines to follow rather than hard and fast rules. In R. v. Nasogaluak,[3] the Court stated the following at para. 44:

[I]t must be remembered that, while courts should pay heed to these ranges, they are guidelines rather than hard and fast rules. A judge can order a sentence outside that range as long as it is in accordance with the principles and objectives of sentencing. Thus, a sentence falling outside the regular range of appropriate sentences is not necessarily unfit. Regard must be had to all the circumstances of the offence and the offender, and to the needs of the community in which the offence occurred.

[Emphasis added]

[23] Later, in R. v. Lacasse:[4]

Sentencing ranges are nothing more than summaries of the minimum and maximum sentences imposed in the past, which serve in any given case as guides for the application of all the relevant principles and objectives. However, they should not be considered "averages", let alone straitjackets, but should instead be seen as historical portraits for the use of sentencing judges, who must still exercise their discretion in each case …

[24] Most recently, in R. v. Friesen,[5] the Court reiterated this instruction that sentencing ranges are guidelines and not hard and fast rules. The Court went on to explain that differential standard of review is important as it recognizes that sentencing is an individualized process, at para. 38:

The deferential appellate standard of review is designed to ensure that sentencing judges can individualize sentencing both in method and outcome. Sentencing judges have considerable scope to apply the principles of sentencing in any manner that suits the features of a particular case. Different methods may even be required to account properly for relevant systemic and background factors (Ipeelee, at para. 59). Similarly, a particular combination of aggravating and mitigating factors may call for a sentence that lies far from any starting point and outside any range (see Lacasse, at para. 58; Nasogaluak, at para. 44; R. v. Suter, 2018 SCC 34, [2018] 2 S.C.R. 496 (S.C.C.), at para. 4).

[25] The determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purely mathematical calculation. It involves a variety of factors that are difficult to define with precision. As Chief Justice Lamer stated in R. v. M. (C.A.):[6]

...Sentencing is an inherently individualized process, and the search for a single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise of academic abstraction.

[26] Very recently, the Ontario Court of Appeal, in R. v. Sharma,[7] held that an appropriate sentence for importation for an Aboriginal accused was a conditional sentence. The Court reviewed issues of rehabilitation and as it related more specifically to Aboriginal offenders.

[27] Sharma also addressed the principle of proportionality as applied generally and to importation cases. Referring to R. v. Hamilton[8] Doherty J.A. considered the proportionality requirement under s. 718.1 of the Criminal Code. In reviewing the phrase "the degree of responsibility of the offender", Doherty J.A. explained that it addresses the offender's role in carrying out the crime, as well as "any specific aspects of the offender's conduct or background that tend to increase or decrease the offender's personal responsibility for the crime."[9] I have considered both of these aspects in my reasons.

[28] Importation of cocaine is a very serious offence. It causes significant harm to individuals in our community and the community at large.

[29] If I were to sentence Ms. Mosodeen solely for the offence without considering her circumstances just prior to committing the offence and the situation she finds herself in presently, the sentence suggested by Mr. Tremblay would seem to be a fit and appropriate sentence.

IV. Credit for pre-trial custody and the conditions in custody

[30] There are three possible ways that credit for pre-trial custody can be given to Ms. Mosodeen: Summers credit of 1.5 to 1, Duncan credit for lockdowns, and finally, consideration for detention during the COVID-19 pandemic as a collateral consequence.

The Summers Credit

[31] The parties agree that Ms. Mosodeen should be granted credit for her pre-trial custody in accordance with s. 719(3.1) of the Criminal Code and R. v. Summers,[10] on the basis of 1.5. From March 30, 2019 to August 21, 2020 she has served 511 actual days. She will be given credit of 1.5 days for each day she spent in pre-trial custody which will bring the pre-trial credit to 767 days.

Lockdown Credit

[32] The other issues to be addressed are how much additional credit should be assigned to her pre-trial custody because of the conditions at Vanier, otherwise known as Duncan credit, and whether the COVID-19 pandemic should impact the overall sentencing as a collateral factor. Although in R. v. Duncan the Court did not grant a further reduction beyond the 1.5 Summers credit, the Court said the following:

We agree with counsel that in the appropriate circumstances, particularly harsh presentence incarceration conditions can provide mitigation apart from and beyond the 1.5 credit referred to in s. 719(3.1). In considering whether any enhanced credit should be given, the court will consider both the conditions of the presentence incarceration and the impact of those conditions on the accused.[11]

[33] The parties agree that some additional credit should be granted for Ms. Mosodeen's pre-trial custody when she was on lockdown; that is, being confined to her cell for all or part of the day due to staff shortages at Vanier. The Crown suggests an additional credit of 0.5 days for lockdown days; the defence suggests 1.5. Ms. Hue has asked for further credit given the lockdown at the Vanier institution and the negative effects her client has faced as a result of the pandemic while in custody.

[34] Counsel provided a letter from Vanier which set out the lockdown dates for Ms. Mosodeen's unit and other units that may have affected her. The letter summed up that there were 121 hours of full lockdown from March 2019 to the present. Looking at the chart provided from the institution there were also 11 days of partial shutdown varying from one hour up to 10.5 hours. However, most seemed to be for two hours. Ms. Mosodeen was never segregated.

[35] Mr. Tremblay submitted that the defendant should not be entitled to a Duncan credit beyond an additional 0.5 for each day she served because the institution had taken many proactive steps to keep inmates safe and to reduce transmission of the virus. It appears that there has not been an outbreak or at least a significant outbreak of the virus at this institution. While all that is true, being further isolated from other people and unable to participate in programs must contribute to a decline in the mental health of many inmates. Clearly the further precautions, although necessary, have added to Ms. Mosodeen's declining mental health as set out in her affidavit.

[36] Ms. Hue submitted cases to support her argument that Ms. Mosodeen should be given credit at 1.5 for lockdown days and for the period she has spent in custody during the pandemic. Mr. Tremblay submitted that the defence cases were all distinguishable.

[37] In R. v. Stud,[12] Duncan credit and COVID credit were granted. However, the Crown points out that 45% of the time that accused was in custody was spent in some sort of lockdown. Further the defendant had a compromised immune system and was at a heightened risk. He was granted time served. While Mr. Tremblay submitted that time served was appropriate in that case, this is not a sentencing case wherein Ms. Mosodeen is close to a time served position. Further he argued to give additional credit as a result of the lockdown and the pandemic would result in a sentence that does not reflect predominant sentencing considerations and cited R. v. Spicher.[13]

[38] In R. v. Hearns,[14] the Crown points out that there was a joint position for time served. The case before the court was not what Pomerance J. referred to where "our sense of humanity tells us that release from prison is a fit and appropriate response".[15]

[39] The Crown submitted that R. v. Yzerman[16] is also distinguishable on its facts. In that case the defendant had HIV, Hep C and an affliction of the respiratory system. Mr. Tremblay submits that Ms. Mosodeen is different; she does not need to take medication for asthma, she is only on medication for anxiety and has no other health issues. Further, Vanier is completely different than Toronto South Institution which has triple and double bunking in a pandemic situation.

[40] Some courts have granted 1.5 credit in addition to the Summers credit while others have granted a further 0.5. In R. v. AA,[17] the court gave the defendant an additional 1 for 1 due to the lockdown conditions pursuant to R. v. Duncan. In R. v. Persad,[18] the court gave 1.5 days for each day of lockdown. In Persad the accused was under lockdown for approximately 47% of the time.

The Impact of the Pandemic (COVID-19) on the overall sentence

[41] While the Crown pointed out that Hearns was a joint submission for time served, I found Justice Pomerance's reasons most helpful in looking at the impact of the pandemic on the overall sentence. She was of the view that the pandemic may be applied to "soften the requirement of parity with precedent". She stated the following at paras. 15–17:

15 How does all of this impact the fitness of sentence? Clearly, the pandemic does not do away with the well-established statutory and common law principles. However, the pandemic may impact on the application of those principles. It may soften the requirement of parity with precedent. The current circumstances are without precedent. Until recently, courts were not concerned with the potential spread of a deadly pathogen in custodial institutions.

16 COVID-19 also affects our conception of the fitness of sentence. Fitness is similar to proportionality, but not co-extensive with it. Proportionality dictates that the sentence should be no more than is necessary to reflect the gravity of the crime and the moral blameworthiness of the offender. Fitness looks at a broader host of factors. A sentence may be fit even if it is not perfectly proportionate. Fitness looks, not only at the length of a sentence, but the conditions under which it is served. As a result of the current health crisis, jails have become harsher environments, either because of the risk of infection or, because of restrictive lock down conditions aimed at preventing infection. Punishment is increased, not only by the physical risk of contracting the virus, but by the psychological effects of being in a high-risk environment with little ability to control exposure. [Emphasis added]

17 Consideration of these circumstances might justify a departure from the usual range of sentence, such as that contemplated in R. c. Lacasse, 2015 SCC 64 (S.C.C.), para. 58:

There will always be situations that call for a sentence outside a particular range: although ensuring parity in sentencing is in itself a desirable objective, the fact that each crime is committed in unique circumstances by an offender with a unique profile cannot be disregarded. The determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purely mathematical calculation. It involves a variety of factors that are difficult to define with precision. This is why it may happen that a sentence that, on its face, falls outside a particular range, and that may never have been imposed in the past for a similar crime, is not demonstrably unfit. Once again, everything depends on the gravity of the offence, the offender's degree of responsibility and the specific circumstances of each case. [Emphasis per Pomerance J.]

[42] Pomerance J. reviewed two Supreme Court cases where the Court used extraneous circumstances to reduce a sentence: R. v. Nasogaluak,[19] and R. v. Suter,[20] and then succinctly set out the collateral consequence doctrine as follows:

1. A collateral consequence includes "any consequence arising from the commission of an offence, the conviction for an offence, or the sentence imposed for an offence, that impacts the offender";

2. "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"; and

3. There is no requirement that collateral consequences emanate from state misconduct in order to be considered as a factor at sentencing.[21]

[Emphasis added]

[43] There is no rigid formula for taking collateral consequences into account. They may flow from the length of sentence, or from the conviction itself.[22]

[44] Justice Pomerance's following footnotes were also very instructive. At footnote 48 she described further the collateral consequences factor:

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.

[45] Other courts have also granted further credit for lockdown during the pandemic. In R. v. Abdella,[23] Justice Kozloff granted a further one-day credit on top of lockdown credit during the time of COVID-19. He found that it was not necessary to have specific evidence of additional mental and physical hardship on the accused from incarceration at Toronto South Detention Centre during the current health crisis. In light of the greatly elevated risk posed by COVID-19, as well from the consequential restrictions on activities, visitors and programming at Toronto South Detention Centre, Justice Kozloff inferred additional hardship caused by the pandemic, above and beyond any hardship caused by lockdown alone.

[46] In R. v. Kandhai,[24] Justice Harris also found that additional hardship in serving a jail sentence during the time of the pandemic is obvious, at least up to a certain degree.

[47] The court in R. v. O.K.[25] imposed enhanced credit of 1.5 for every day of lockdown, plus an additional .5 days credit for every day served during the COVID crisis. In R. v. Laurin[26] the defendant was given an additional credit of 9 months for harsh pre-trial conditions during the start of the pandemic.

[48] As numerous jurists have already commented, measures taken to combat the virus have resulted in harsher conditions of imprisonment and resulted in declining mental health of inmates.[27]

[49] I am mindful that the fundamental principle of proportionality remains paramount. Collateral consequences cannot be used to reduce a sentence to the point where it is no longer proportionate to the gravity of the offences or the moral blameworthiness of the offender.[28]

V. Analysis and Conclusion

[50] There is much for me to consider and weigh in the sentencing of Ms. Mosodeen.

[51] I have, of course, considered the purpose and objectives set out in s. 718 and 718.1 of the Code.

[52] Importation is a serious offence. Deterrence and denunciation take a more prominent role in these types of offences given the suffering that many endure as a result of cocaine addiction.

[53] I have considered proportionality as set out in s. 718.1, along with the very recent comments of the Court of Appeal in Sharma which I have set out above. I have reviewed the range of sentences for importation of cocaine.

[54] I have considered the following aggravating and mitigating factors.

[55] It was an aggravating factor that Ms. Mosodeen used her employment to commit the offence. The amount of the cocaine is also aggravating, although this is already considered in the range of sentences for the cases I have reviewed.

[56] There are a number of factors that are mitigating. Prior to committing the offence Ms. Mosodeen was a hard-working individual. She had to endure an extremely abusive relationship which left her in emotional, mental and financial ruin. I accept that this led to her making poor decisions. She is remorseful, wants to work on her mental health and mend the harm she has done to her family as a result of her involvement in this offence. She has the strong support of family and is committed to her rehabilitation.

[57] I have considered that she entered a guilty plea. While it could not be said to be an early plea as she entered her plea close to her trial date, she did so very soon after receiving further disclosure.

[58] I have considered the overall effect of the pandemic on Ms. Mosodeen in circumstances where she had already been away from her family in a separate country for approximately one year. This is a collateral factor which allows me to give her further reduction in her sentence.

[59] After considering all of the above circumstances, and weighing the sentencing principles, I have determined that a fit sentence would be five and a half years. I will grant her the Summers credit for her pre-trial custody up until the present time at 1.5.

[60] I will grant her a further Duncan credit for the lockdowns of 1:1. The situation at Vanier was not nearly as egregious as the Toronto jail. Many of the lockdown days were partial.

[61] 73 days prior to the pandemic Ms. Mosodeen was on some type of lockdown; for those days I will give her 1.1 credit for pre-trial custody.

[62] Five and half years is approximately 2,008 days. From that I will subtract Summers credit. From March 30, 2019 to August 21, 2020 she has served 511 actual days. She will be given credit of 1.5 days for each day she spent in pre-trial custody which will bring the pre-trial credit to 767 days.

[63] 2,008 minus 767 amounts to 1,246. Now deducting Duncan credit of 73 days, the amount remaining will be 1,173 (this would amount to 3.2 years).

[64] I am not going to give her credit for lockdowns during the pandemic in the same way prior to COVID-19. I have granted her significant credit for the negative consequences of being in custody during that time when I determined a fit sentence was five and a half years. To do otherwise would be, in a sense, double dipping.

[65] For the time that she has served during the COVID-19 pandemic I have considered this as a collateral factor to further reduce her sentence. The pandemic has amplified Ms. Mosodeen's stress, anxiety and depression. It has also further isolated her from supports. She has not been able to involve herself in programs since March 2020.

[66] There will be a s. 108 Criminal Code weapons prohibition for 10 years.

[67] Pursuant to s. 487.051 of the Code Ms. Mosodeen will provide a sample of her DNA.

[68] I wish to thank both counsel for their advocacy in this matter.

Released: August 21, 2020

Signed: Justice A.R. Mackay