ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CRIMJ(F) 1153/11
DATE: 20120412

B E T W E E N:

HER MAJESTY THE QUEEN

A. C.-L. Afonso, for the Crown

• and -

KATHLEEN KNOCKWOOD

S.B. McPherson, for the Defence

HEARD: August 10, 2011 and April 10, 2012

SENTENCING JUDGMENT

HILL J.

INTRODUCTION

[ 1 ] Kathleen Knockwood pled Guilty to unlawfully importing heroin into Canada. The offender was sentenced to 6 years’ incarceration on April 10, 2012 with enhanced reasons for sentence to follow.

FACTS OF THE OFFENCE

[ 2 ] On October 22, 2010, at about 6:15 a.m., the offender deplaned at the Pearson International Airport from a flight originating in Bogota, Columbia. She was referred to a secondary customs inspection at the airport by Canada Border Security Agency (C.B.S.A.) personnel.

[ 3 ] When the offender’s checked suitcase was x-rayed, certain physical anomalies in the receptacle were observed. Within a false bottom, a white powdery substance was discovered which C.B.S.A. officers initially believed to be cocaine. Ms. Knockwood was arrested. At the airport, she gave a statement admitting that she had knowledge of the drugs in her suitcase but stated that she was unaware of the identity of the narcotic she had imported.

[ 4 ] Removed from the offender’s suitcase were four tightly wrapped packages. The seized drug tested to be heroin. The weight of the imported drug was 997 grams.

CHRONOLOGY OF THE PROCEEDING

[ 5 ] The offender was granted judicial interim release on October 30, 2010. A judicial pre-trial was conducted in this case on June 29 and August 10, 2011. I presided over the pre-trial. Ms. Afonso and Ms. McPherson, experienced criminal lawyers, represented the respective parties. A joint submission of 8 years’ incarceration was discussed between counsel should the offender plead Guilty. On behalf of the Crown, Ms. Afonso recognized that such a disposition was less than the prevailing range of sentence but not unfit on the basis of Ms. McPherson’s representations about her client’s background.

[ 6 ] The parties agreed that I should preside as the trial judge although I had chaired the pre-trial. On August 10, 2011, the appellant entered her Guilty plea. Ms. Knockwood is an Aboriginal Canadian residing on a reserve in Quebec at Kahnawake (derived from Kahnawà:ke, “place of the rapids”). Based upon consultation with the parties, the court made this endorsement:

Conviction entered. A Gladue report by way of a pre-sentence report is hereby ordered to be prepared and filed with the court on or before Nov. 1, 2011. The case will next be spoken to on November 9, 2011 at 9:30 a.m. when the offender may appear by designation of counsel.

[ 7 ] The court allowed approximately 12 weeks for preparation of the Gladue report as opposed to the 6-to-8 week period for a conventional pre-sentence report in this jurisdiction. The objective of having the November 9 to-be-spoken-to appearance was to ensure that the Gladue report was in-hand so that an early December 2011 date could be scheduled for the sentencing.

[ 8 ] By e-mailed correspondence dated August 10 th , the Probation and Parole Service of the Ontario Ministry of Community Safety and Correctional Services (Ontario probation services) advised that the information received from Quebec was that it was a province “where they do not complete Gladue reports”. Both Crown and defence counsel thereafter consented to the preparation of a PSR with “ Gladue content” as a surrogate for a fulsome, conventional Gladue report and Ontario probation services was so advised forthwith.

[ 9 ] By a hand-delivered letter dated August 12, 2011, received on or about August 17, Ontario probation services wrote to the Court:

Probation staff from Quebec have requested that the due date for the Pre Sentence report regarding Ms. Kathleen Knockwood be extended to December 12, 2011. They are unable to complete the report by the date of November 1, 2011 as requested due to workload constraints. There are limited officers at that location that would be able to conduct the interview in English.

Please advise if you are in agreement or would propose an alternative.

[ 10 ] The court responded to the communicated request from Quebec probation services ( 2011 ONSC 5004 ):

Section 720 of the Code provides a “court shall, as soon as practicable after an offender has been found guilty, conduct proceedings to determine the appropriate sentence to be imposed”.

A time period approaching three months from the date of conviction for the completion of a PSR is well beyond the usual 6 to 8-week range frequently accommodated in the busy courts in Brampton. The court’s direction of August 10 was a court order in a federal proceeding, not a request subject to the idiosyncratic response of a particular provincial probation service. If necessary, the court shall take whatever further coercive and/or punitive measures necessary to enforce its order.

It is hereby confirmed that it is ordered that the PSR is to be completed and filed with the court on or before November 1, 2011.

[ 11 ] On October 25, 2011, ‘a Rapport présentencial à l’intention de’ from the Ministère de la Sécurité publique Québec dated October 21, 2011 was filed with the court. The report was 4 ½ pages in length and entirely in the French language. Ms. Knockwood, with a grade 9 to 10 education level, is an English-speaker and does not speak or read French with any fluency. The Superior Court of Justice Trial Coordinator in Brampton arranged to have the report translated. English language copies were available for the November 9 court date.

[ 12 ] On November 9, the case was adjourned for Ms. McPherson to review the adequacy of the report with her client.

[ 13 ] The offender was sufficiently upset at her treatment at the hands of Quebec probation services that she attended a Montreal courthouse on November 25 to make her own inquiries about a Gladue report. She spoke with a Native Court worker and was advised that “for a fee a Gladue -type report” could be completed.

[ 14 ] On November 28, counsel informed the court that they were in agreement that the report was entirely inadequate and non-compliant with the agreement and direction as to the inclusion of Gladue content – a conclusion with which the court was in complete agreement. Ms. McPherson reported that the offender was devastated by the skimpy and uninformative report. In an endorsement of the same day ( 2011 ONSC 7053 ), the court stated in part:

Ms. Knockwood is facing a penitentiary-length sentence for the crime of importing heroin into Canada.

On August 10, 2011, the court ordered the preparation of a pre-sentence report (PSR) in the Gladue format which is typically prepared in Ontario in the case of an offender of aboriginal heritage.

It appears that, by some reciprocal mechanism, the probation services unit of the Ontario Ministry of Community Safety and Correctional Services delegates preparation of a PSR relating to an out-of-province resident to the government of the province of an offender’s residency. Ms. Knockwood resides on a reservation at Kahnawake in the Province of Quebec.

Alerted by Ontario probation services some days after the PSR was ordered that Gladue reports are never prepared in Quebec, counsel for the parties, and the court, agreed to the government’s suggested compromise of a PSR with “ Gladue content”.

The sentencing process engages an individualized assessment of a particular offender and the circumstances of her crime…

On October 25, 2011, the government filed a PSR in this case dated October 21, prepared by a probation officer from the Longueuil Court House in Longueuil, Quebec. Its length amounted to about four (4) pages of text. It was entirely in the French language.

This proceeding is not a bilingual or French-language trial. The offender does not speak the French language. Delay and expense were occasioned in having the PSR translated.

It is the view of the parties, concurred in by the court, that the PSR is essentially bereft of Gladue content and is, accordingly, not only insufficient for sentencing purposes but also in contravention of the spirit of this court’s order relating to the preparation of the PSR in this case.

Ms. McPherson reported to the court that her client was deeply offended by the tone, form and content of the PSR. She believes she is entitled to a Gladue report or functional equivalent for her sentencing. She also perceived, on the basis of remarks by the PSR author, that that person felt that there was little time to prepare a PSR for fear of being “hauled” before the court. Ms. Knockwood further perceives that the PSR product received by the court in effect punishes her for insistence upon a type of PSR the Province of Quebec is disinclined to prepare.

Counsel have discussed with the court various options in an effort to move this overly-delayed sentencing forward.

As an interim step, the Superior Court of Justice Trial Coordinator shall forthwith send a copy of this endorsement to the Director of Legal Services, Ministry of Community Safety and Correctional Services Ontario as background to an “invitation to attend” to the Director or designate when this case is again spoken to on December 15, 2011 at 4:30 p.m. at the Brampton courthouse located at 7755 Hurontario Street, Brampton, Ontario L6W 4T6. It is hoped that the Legal Services Branch will be in a position to assist the court with respect to the discharge of the Ontario Government’s obligations pursuant to s. 721 of the Code . On December 15, after hearing submissions, the court will issue such further order or orders as may be required for the court to comply with its legal and constitutional obligations.

[The remainder of the judgment continues verbatim with paragraphs [15]–[75], concluding with the sentencing analysis and orders.]

HILL J.

Released: April 12, 2012