ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CRIM (J) 3648/09
DATE: 20120316

B E T W E E N:

HER MAJESTY THE QUEEN

Ms. S. Curtis

• and -

DAWN ASHLEY

Mr. A. Buchanan

Defendant

HEARD: February 27, 2012

REASONS FOR SENTENCE

F. Dawson J.

[ 1 ] On December 19, 2011 I provided oral reasons for judgment convicting Dawn Ashley of importing 20.2 kilograms or just over 44 pounds of marihuana into Canada contrary to s. 6(1) of the Controlled Drugs and Substances Act . The issue today is the determination of a fit sentence.

[ 2 ] The Crown submits that in the circumstances the appropriate range of sentence is from two years less a day to three and one-half years. The Crown seeks a three year sentence. Counsel for Ms. Ashley submits the range of sentence is considerably less and submits that a reformatory sentence to be served conditionally in the community is appropriate.

[ 3 ] The facts are, of course, important in determining a fit sentence. The evidence I accepted at trial showed that on August 24, 2008 Dawn Ashley arrived at Toronto Pearson International Airport on a flight from Jamaica. She was accompanied by her two and a half year old daughter. Ms. Ashley had several pieces of checked luggage. Two of her largest suitcases were found to contain items of produce, including a number of large compressed balls of cocoa. When the cocoa balls were cut into they were found to contain the quantity of marihuana I have referred to.

[ 4 ] An expert’s report as to the quality and value of the marihuana was filed as Exhibit 2 at trial. In that report Corporal S.J. O’Brien, who has considerable experience investigating offences related to marihuana, places the value of the seized marihuana at between approximately $51,000 and $58,000. He indicates that the marihuana is of poor quality, containing stems amongst the plant material. He also noted the presence of seeds, indicating that the marihuana was likely grown outside in the presence of a male plant and therefore devoted some of its energy to the production of seeds as opposed to the flowers and buds that are desired for smoking. Due to the low quality of the marihuana, Cpl. O’Brian felt the value would be towards the bottom of the range.

[ 5 ] Crown counsel agrees that Ms. Ashley was acting as a courier and was not otherwise involved in the scheme of importation.

[ 6 ] Ms. Ashley is 44 years of age. She has no criminal record. She was born in Kingston, Jamaica and was raised by her aunt together with her 10 cousins. At the age of 11 she came to Canada to be united with her mother who had been living here for some time. Her siblings then came to Canada as well. Ms. Ashley advised the pre-sentence reporter that she had a difficult time with her mother.

[ 7 ] At the age of 18 Ms. Ashley became pregnant with her first child. The pre-sentence report indicates she was in an abusive relationship for three years. That child, a son, is now 25 years old.

[ 8 ] Subsequently, Ms. Ashley was involved in another common law relationship that lasted for 13 years. Two other children were born from that union, sons now aged 21 and 20. In 2003 she married Garfield Edwards, and that is a subsisting relationship. While there have been some separations, I am advised that the marriage is generally a supportive one that Ms. Ashley and Mr. Edwards have been working at maintaining. They have two children, a son and a daughter, aged nine and five.

[ 9 ] At the present time Ms. Ashley and Mr. Garfield live in a family unit that consists of their two children and Ms. Ashley’s 21 and 22 year old sons. Ms. Ashley’s mother, who is very ill, is also living with them and being cared for by Ms. Ashley. I have no further information concerning the mother’s illness.

[ 10 ] Ms. Ashley is continuing to work part time in a food preparation position with a school board. She has held that position since 2005. The pre-sentence report indicates she has had a steady work history since at least 2004 when she obtained her food preparation qualification. The pre-sentence report indicates that Garfield Edwards has stable long term employment and contributes to the family finances.

[ 11 ] Ms. Ashley has experienced two personal tragedies in the last six years. In 2006 her niece, to whom she was very close, was killed in a motor vehicle accident. In 2011 her father was shot and killed during a robbery in Jamaica. Shortly before that he had travelled to Canada to establish a relationship with Ms. Ashley.

[ 12 ] There is no indication that Ms. Ashley suffers from any substance abuse problems. She does suffer from depression and is receiving medical treatment for that condition.

[ 13 ] Overall, the pre-sentence report is a positive one. It indicates that Ms. Ashley has had a number of difficulties in her life. However, she has been able to maintain at least part time employment and has also been a volunteer in her community with an organization called Reachout. That organization was founded eight years ago in response to problems relating to violence in the African Canadian community.

[ 14 ] Ms. Ashley has not expressed any remorse for her involvement in the offence. She maintained her innocence to the pre-sentence reporter. Consequently, I do not know anything about how she came to be involved in the offence. The inference is that it was for financial gain. While it appears to me that Ms. Ashley was far from “well off” at the time she committed the offence, she was working at two part time jobs and her husband was also employed.

[ 15 ] In arriving at my determination of a fit sentence, I am guided by the principles of sentencing as codified in Part XXIII of the Criminal Code of Canada . In addition, I have also taken into account the provisions of s. 10 of the Controlled Drugs and Substances Act which address sentencing in drug cases.

[ 16 ] The fundamental principle of sentencing as set out in s. 718.1 of the Criminal Code is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. As explained in the drug importation case of R. v. Hamilton (2004), 2004 5549 (ON CA) , 72 O.R. (3d) 1 (C.A.), at para. 90 , the “gravity of the offence” refers to the seriousness of the offence in a generic sense. One looks to the potential penalty set by Parliament and specific features of the crime which may increase or decrease the risk of harm to the community. The court specifically observed that “in a drug importation case, the nature and quantity of the drug will impact on the gravity of the offence”.

[ 17 ] In the present case the drug is marihuana, which is generally referred to as a “soft drug” in the decided cases. The maximum sentence is 10 years. As I have already mentioned, the quality of the drug was determined by the Crown’s expert to be low. It is somewhat ironic that someone would import low quality marihuana into Canada when Canada is well known to be a producer and exporter of high quality marihuana that is grown both outdoors and indoors in sometimes large scale sophisticated operations.

[ 18 ] As to the degree of responsibility of the offender, it is well recognized that “the offender’s role in the importation scheme is an important consideration in assessing the offender’s personal responsibility”: Hamilton , at para. 91 .

[ 19 ] The presence or absence of aggravating and mitigating factors is an important consideration. The Crown submits that it is an aggravating factor that Ms. Ashley committed the offence while caring for her two and a half year old daughter. I agree that this is an aggravating factor although I observe that there is no evidence that the daughter was endangered in any way by what occurred. Nor is there any evidence the child was deliberately used as a form of cover. It is more the improbity or lack of morality of committing the crime in the presence of the child that stands out.

[ 20 ] The Crown also submits that the lack of remorse shown by Ms. Ashley is an aggravating factor. I conclude that this cannot be viewed as an aggravating factor. The most that can be said is that the lack of remorse demonstrates the absence of what would otherwise be a mitigating factor.

[ 21 ] In terms of mitigating factors, I note that this was not a guilty plea situation. I do take into account that Ms. Ashley has no criminal record and has been a productive and contributing member of society. One cannot but also see that in some respects Ms. Ashley has had a difficult life. I am sure that she has been personally deterred by being apprehended and tried. Based on her employment history and community involvement and her marriage, she has good prospects for rehabilitation.

[ 22 ] What becomes difficult on the basis of the submissions and information before me is establishing a range of sentence that is appropriate.

[ 23 ] Crown counsel has provided me with a number of cases. As I mentioned during oral submissions, the cases are somewhat dated. I will very briefly summarize them.

[ 24 ] In R. v. Amos; R. v. Walker, [1992] O.J. No. 437 (C.A.) each of the accused swallowed condoms filled with hash oil. Walker, who had a criminal record, ingested 1.1 pounds of the drug valued at $15,000 to $20,000. Amos, who had no record, ingested twice as much with twice the value. These factors are taken from the sentencing decision at trial reported at [1990] O.J. No. 3240 . The Court of Appeal upheld four years for Walker and three years for Amos. While the weight of the drug was considerably less it was in the form of hash oil, well known to be a more concentrated derivative of cannabis then cannabis marihuana.

[ 25 ] In R. v. McPartland (1981), 1981 3146 (ON CA) , 63 C.C.C. (2d) 88 (Ont. C.A.), the accused had 17 ½ pounds of cannabis resin in a false bottom suitcase. His travelling companion had 14 ½ pounds in his suitcase. The evidence indicated that the two men had purchased eight identical suitcases. The modifications to the suitcases were sophisticated. Their purchase and modification of the suitcases shows that they were more than couriers. McPartland’s sentence of two years less a day was increased on appeal to three years. Again the substance was the more concentrated drug cannabis resin. The quantities were substantial.

[ 26 ] In R. v. Lynch , [1987] O.J. No. 1423 (Ont. D.C.) , Kurisko D.C.J. imposed a sentence of three years for importation of 35 pounds of marihuana hidden in a door panel of a motor vehicle. In reaching his determination he referred to McPartland and R. v. Pasha and Pasha, (1981) 1981 3330 (ON CA) , 61 C.C.C. (2d) 340 (Ont. C.A.). In Pasha the Court of Appeal increased a sentence of 22 months to three and a half years for a 24 year old accused with no criminal record who imported 82 pounds of hashish valued at $250,000. Once again, in Pasha the court was once again dealing with the more concentrated form of cannabis.

[ 27 ] In R. v. Stanley, [1998] O.J. No. 3115 (Ont. Ct. (Gen. Div.)), Donnelly J. imposed a sentence of two years on a 57 year old woman with no criminal record and a steady work history who imported approximately 20.7 kilograms of marihuana. The Crown submits that this case is the one that comes closest to the overall fact situation in the present case. I agree. While the quantity of marihuana was similar to that in the present case, in Stanley it was valued at between $100,000 to $400,000. That is considerably above the value of the low grade marihuana in this case.

[ 28 ] In R. v. Benn, [1998] O.J. No. 4711 (Ont. Ct. (Gen. Div.)), a sentence of two years was imposed on a female courier with no criminal record who imported 22 kilograms of marihuana. This is a quantity that also closely approximates the quantity in the present case, but again, the value of the marihuana in that case was said to be between $100,000 to $400,000.

[ 29 ] In R. v. Richards , [1996] O.J. No. 686 (Ont. Ct. (Gen. Div.)), Hill J. imposed a 15 month sentence on a courier who imported 2.5 kilograms of marihuana strapped to his legs. The accused was 44 years old, had a prior record and was in desperate financial circumstances. I note that in that 1996 decision Hill J. referred to “the critical link between foreign supplies and domestic traffickers unable to grow enough of the non-indigenous drug for their market”. I have no evidence to support such a conclusion in this case in 2012, and based on the court’s experience, every reason to think that this no longer applies in the case of marihuana.

[ 30 ] I would note that in R. v. Krunic, [2005] B.C.J. No. 1299 (C.A.) , cited by defence counsel, the British Columbia Court of Appeal upheld a 10 month sentence imposed in relation to 66 pounds of marihuana sealed in a secret compartment of a camper trailer for the purpose of export from Canada.

[ 31 ] Defence counsel also provided me with R. v. Wellington (1999), 1999 3054 (ON CA) , 43 O.R. (3d) 534 (C.A.). In that case the Ontario Court of Appeal was dealing with a case of importation of two kilograms of hashish from Jamaica. The drug was hidden in the false bottom of a cooking pot. The trial judge imposed a sentence of 15 months. The trial judge rejected a conditional sentence on the basis that such should only be considered for importing narcotics in the rarest of circumstances. The Court of Appeal found that statement to be an error and after a careful analysis ordered that the 15 month sentence be served conditionally in the community.

[ 32 ] Defence counsel also provided me with a case in which an 18 month conditional sentence was imposed for importing 3.8 kilograms of cannabis resin ( R. v. Brissett , [2002] O.J. No. 1076 (C.A.) ; and a case where a 12 month conditional sentence was imposed for importing 13 pounds of marihuana in the wheel well of a car ( R. v. Kelly , [1998] O.J. No. 5062 (Ont. Ct. (Gen. Div.)).

[ 33 ] A review of the cases cited, and others, reveals that general deterrence and denunciation are important factors when sentencing in drug importation cases. This is particularly so in cases that involve cocaine and other hard drugs: Hamilton; R. V. Cunningham (1996), 1996 1311 (ON CA) , 27 O.R. (3d) 786, 140 C.C.C. (3d) 542 (C.A.); R. v. Madden (1996), 1996 10228 (ON CA) , 27 O.R. (3d) 640, 104 C.C.C. (3d) 548 (C.A.).

[ 34 ] This significant difference between the importation of marihuana and hard drugs must have some impact when it comes to sentencing. That was recognized in R. v. H. (C.N.) (2002), 2002 7751 (ON CA) , 62 O.R. (3d) 564 (C.A.)

[ 35 ] The cases I have been provided with, when combined with those that I have added to the mix, and the nature of marihuana as a soft drug with a domestic supply, leads me to conclude that the range of sentence extends below the Crown’s submission that two years less a day is the bottom of the range. In my view, having regard to decisions such as that of the Ontario Court of Appeal in Wellington , and to cases such as Brisset and Kelly , the range extends down to 15 months. I would suggest that in an appropriate case it may go lower than that, to about 12 months.

[ 36 ] When it comes to marihuana importation it seems to me that the quantity and quality of the drug will be important factors in determining where the sentence should fall within the range.

[ 37 ] There is no mention in the older appellate authorities of the prevalence of domestically grown marihuana or the fact that the illegal trade in marihuana is no longer dependent on importation.

[ 38 ] Having determined that the range of sentence for importing marihuana extends downward to 12 to 15 months at the bottom of the range, I return to the determination of an individualized sentence for Dawn Ashley.

[ 39 ] In my view a sentence of 18 months for Ms. Ashley is appropriate.

[ 40 ] I am also of the view that a sentence of 18 months makes due allowance for the fact that Ms. Ashley has good prospects for rehabilitation and takes into account her lack of criminal record and her role as a parent.

[ 41 ] As the sentence of 18 months falls within the reformatory range of less than two years, and the offence of importing marihuana is not otherwise excluded from consideration under s. 742.1 of the Criminal Code , I must consider the appropriateness of ordering that the sentence be served conditionally in the community pursuant to that section.

[ 42 ] As indicated in Wellington at para. 13 , in determining whether to grant a conditional sentence I must take into account the nature of the offence, the circumstances surrounding its commission and the personal circumstances of the offender.

[ 43 ] I have come to the conclusion that a conditional sentence is not appropriate in this case.

[ 44 ] In addition, this is a border crossing situation. The violation of the integrity of Canada’s borders by means of significant criminality is something that must be deterred.

[ 45 ] I also note the lack of remorse and the absence of any unusual or exceptional mitigating factors.

[ 46 ] For the foregoing reasons I will not grant a conditional sentence in this case. The sentence is 18 months to be served in a provincial reformatory.

[ 47 ] No submission has been made that a DNA order is not appropriate in this case. An order will go that Dawn Ashley provide a sample of her DNA for inclusion in the DNA data bank.

[ 48 ] There will also be a weapons prohibition order pursuant to s. 109 of the Criminal Code . To the extent the period of an order under that section is discretionary, it will be for a period of 10 years.

F. Dawson J.

Released: March 16, 2012