COURT FILE NO.: CRIMJ(F)435/10

DATE: 20120618

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Nora L. Lapp and Geoffrey Roy for the Crown

• and -

ANDREW DUNCAN

Mr. Guiste and Ms. Velvet for Andrew Duncan

HEARD: March 19 and 22, 2012

REASONS FOR SENTENCE

Fragomeni J.

[1] Following a jury trial Andrew Duncan was convicted of the following:

Count 1 - Importing Cocaine;

Count 2 - Conspiracy to Import Cocaine;

Count 4 - Importing Cocaine;

Count 5 - Conspiracy to Import Cocaine;

Count 6 - Conspiracy to Traffic Cannabis (Marihuana);

Count 7 - Possession of Ecstasy for the Purpose of Exporting;

Count 8 - Conspiracy to Export Ecstasy;

Count 9 - Possession of Cannabis (Marihuana) for the Purpose of Exporting;

Count 10 - Conspiracy to Export (Cannabis) Marihuana;

Count 12 - Conspiracy to Commit the Offence of Possession of Proceeds of Crime – U.S. Cash exceeding $5,000.00;

Count 13 - Offer to transfer a black 9 mm. Firearm;

Count 14 - Conspiracy to Commit the offence of Unauthorized Possession of a Black 9 mm. Firearm.

[2] A sentencing hearing took place on March 19, 2012. A Pre-Sentence Report was ordered and filed as Exhibit 1 at the Sentencing hearing. Prior to hearing submissions of counsel, Mr. Duncan testified on his own behalf and also called several witnesses. I will review that evidence at this time.

Initial Submissions Relating to the P.S.R.

[3] Before I deal with Mr. Duncan’s testimony, I wish to set out his initial comments relating to the Pre-Sentence Report.

[4] Mr. Duncan submitted that the Pre-Sentence Report contained serious deficiencies. Mr. Duncan points out that his sister, Carlotta Ewing, was not interviewed by the Probation Officer despite Mr. Duncan’s request that she be interviewed. Ms. Ewing was present at the sentencing hearing and I will deal with her evidence in due course.

[5] Mr. Duncan also notes that other relevant contacts were not interviewed, including his biological father in Florida and his step-father.

[6] The P.S.R. is devoid of any background information such as his relationship with his parents while growing up and the environment and circumstances of his early childhood. There is no detail in the P.S.R. about Mr. Duncan’s own five children and his relationship and involvement with them.

[7] The P.S.R. does not contain any details about Mr. Duncan’s future plans or education and employment goals.

[8] Mr. Duncan asserts that the manner in which the P.S.R. was prepared clearly points to a finding of systemic discrimination. It also perpetuates a stereotype of a black male detached from his children.

[9] Following these initial submissions on Mr. Duncan’s behalf, the Crown argued that at a sentencing hearing the accused has the full opportunity to put forward any further relevant information that would assist the court. The failure to contact other sources is not a basis to find that the Probation Officer engaged in systemic discrimination or racial stereotyping.

ANDREW DUNCAN

[10] Mr. Duncan testified that he was 6 years old when he moved to the Toronto area. He lived with his mother, his brother and two sisters in the area of Jane and Finch. They lived in a three bedroom apartment. He shared a bedroom with his brother.

[11] Mr. Duncan’s mother was a single parent and was employed in a factory. As a child he recalls his mother working long hours, from 2 or 3 p.m. to midnight.

[12] In the Jane and Finch area Mr. Duncan grew up witnessing violent behaviour. It was not a happy place. He witnessed people being beat up, people fighting and people getting hurt. Criminal activity was all around him. People being shot, robbed, dealing drugs.

[13] For his high school years his mother moved the family out of this area and into the city of Brampton.

[14] Mr. Duncan was close to his mother. His parents separated when he was a young boy in Guyana.

[15] Mr. Duncan was not close to his biological father who lives in Florida. His father did not assist financially. Mr. Duncan resented his father. Mr. Duncan promised himself that if he had his own children he would be there for them all the time.

[16] When Mr. Duncan was 12 years old, his mother re-married. The step-father did assist financially.

[17] Mr. Duncan stated that he had five children of his own, namely: Andrew - 2; Devonte -19; Shemica - 20; Jamar - 19; Zen – 6.

[18] With respect to his education Mr. Duncan indicated that he did not complete his diploma as he had to work to help his mother financially. He did attend George Brown College in his twenties but did not complete the GED Program.

[19] His plans upon release from custody are to work in a skilled trade such as plumbing or heating/air conditioning. He would also like to look into the importing and exporting of heavy equipment. When he told the Probation Officer of this goal, the Probation Officer told him he could not pursue that line of work due to the nature of his convictions.

[20] In cross-examination by the Crown, Mr. Duncan acknowledged that he worked for his step-father from the age of 16 to 30. From 2000 to 2009 he supported his children by engaging in many business ventures including a car rental business, clothing store, night club and promoting concerts.

[21] Mr. Duncan’s Criminal Record is as follows:

04/29/1991 Toronto - Public Mischief - Fine $200 I-D 21 Days

06/05/1992 Toronto - Traffic Narcotics X3 - 15 month jail & 24 month Probation

03/08/1994 Toronto - Possession of a Narcotic X2 – 6 days jail & 24 months Probation

Gloria Smith

[22] Gloria Smith is Mr. Duncan’s mother. She confirmed that Mr. Duncan was 6 years old when he came to Canada from Guyana. They initially lived at Jane and Finch as it was closer to her job at James Frozen Foods where she worked as a packager. Today she is a supervisor.

[23] Ms. Smith’s mother helped with the children due to her work schedule.

[24] Ms. Smith described Mr. Duncan’s relationship with his own children as being very good. When Mr. Duncan’s father left them Mr. Duncan said he would never do that to his own children.

[25] Ms. Smith stated that Mr. Duncan did not have any male role models prior to her getting married again. Once she remarried her new husband provided for the family so she was able to move out of the Jane and Finch area. Ms. Smith bought a home in Brampton. She moved with the children to Brampton when Mr. Duncan was 12 or 13 years old.

[26] In cross-examination Ms. Smith confirmed Mr. Duncan was a good father and he had done well to escape the troubles of his youth. He worked very hard and set aside money for his children and also gave her money as well.

Carlotta Ewing

[27] Ms. Ewing is Mr. Duncan’s sister. She is now 45 years old. She is a Licensed Paralegal and teaches at a Private College as well. She is the middle sibling.

[28] While they were living at Jane and Finch they lived in a two bedroom home. At that time their grandmother resided with them as well.

[29] When Mr. Duncan was in Grade 1 they moved to a four-bedroom townhouse and it was a great place to live.

[30] Until she was 12 years old there was no male role model for her and her siblings.

[31] After their mother re-married they moved to Brampton.

[32] Ms. Ewing stated that Mr. Duncan has ADHD, although he was never formally diagnosed as such.

[33] In Brampton, the absence of their biological father affected Mr. Duncan greatly.

[34] Ms. Ewing stated that Mr. Duncan’s own children adore their father.

[35] In cross-examination Ms. Ewing acknowledged that Mr. Duncan attended George Brown College for 2 ½ years but then left. His leaving after 2 ½ years was not related to any learning issues or difficulties.

Shemica Duncan

[36] Shemica is Mr. Duncan’s 20 year old daughter. She is very close to her father and it has been sad since he has been in jail. She is finding it very difficult as she always talked to him and he is not there anymore. She has overdosed on pills. Her mother is bipolar and is not able to help her. Her grandmother is older and cannot help her either. She lives with her grandmother.

Yumi Duncan

[37] Yumi Duncan is Mr. Duncan’s wife. They have a son, Zen, who is now 6 years of age. Zen does not know that his father has been in custody on these matters. Zen misses his father and asks for him. A letter written by Zen was filed as Exhibit 2.

SUBMISSIONS

Crown Position

[38] The Crown advises that as of March 19, 2012 Andrew Duncan’s Pre-Trial custody is 1,942 days. The Crown agrees that on a 2 for 1 basis Pre-Trial custody equals 5 years, 3 months and 26 days as of March 19, 2012. From March 19 to June 18, there are 92 days. 92 x 2 = 184 days which is the equivalent of 6 months plus 4 days. I am prepared, therefore, to assess the total pre-trial custody at 6 years. (5 years + 9 months + 30 days = 5 years 10 months - I have rounded this off to 6 years in total).

[39] I now wish to review the Crown’s position on each of the counts.

Counts 1, 2, 4 and 5

[40] The Crown seeks a range of 8 to 12 years.

[41] These importing and conspiracy to import counts related to cocaine. The total quantity involved for both importing charges is just under 4 kilograms.

[42] In R. v. Cunningham 1996 CanLII 1311 (ON CA), 104 C.C.C. (3d) 542 (Ont. C.A.) the court set out the following at paras. 1, 20-22:

This appeal calls into question the appropriate range of sentence for a first offender, acting as a courier, who imports multiple kilograms of cocaine into Canada for personal gain.

We take no issue with the sentence in Bayne. Indeed, after careful consideration, we are all of the view that as a general rule, absent exceptional or extenuating circumstances, 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. In establishing such a range, we readily acknowledge that sentencing is not an exact science and that trial judges must retain the necessary degree of flexibility to do justice in individual cases. We recognize as well that the suggested range will often require the imposition of a severe penalty for first offenders. We are not insensitive to this concern, mindful as we must be that in many instances, couriers tend to be weak and vulnerable, thereby becoming easy prey to those who engage in drug trafficking on a commercial basis.

Sympathetic though we are to the plight of many couriers, such concerns must give way to the need to protect society from the untold grief and misery occasioned by the illicit use of hard drugs. In this regard, we can do no better than to quote from the majority judgment in R. v. Smith, 1987 CanLII 64 (SCC), [1987] 1 S.C.R. 1045, 34 C.C.C. (3d) 97. While the case is best known for the successful attack upon the constitutional validity of the minimum seven-year sentence for importing a narcotic pursuant to s. 5(2) of the Narcotic Control Act, R.S.C. 1970, c. N-1, as amended, the remarks made by Lamer J. at the outset of his reasons bear repetition:

Those who import and market hard drugs for lucre are responsible for the gradual but inexorable degeneration of many of their fellow human beings as a result of their becoming drug addicts. The direct cause of the hardship cast upon their victims and their families, these importers must also be made to bear their fair share of the guilt for the innumerable serious crimes of all sorts committed by addicts in order to feed their demand for drugs. Such persons, with few exceptions (as an example, the guilt of addicts who import not only to meet but also to finance their needs is not necessarily the same in degree as that of cold-blooded non-users), should, upon conviction, in my respectful view, be sentenced to and actually serve long periods of penal servitude.

There can be no doubt that commercial traffickers rely heavily on couriers to facilitate their deadly trade. That being so, it falls to the courts to warn would-be couriers, in no uncertain terms, that they will pay a heavy price for choosing to import large quantities of hard drugs for quick personal gain.

[43] The Crown argues that in this case Mr. Duncan was the person employing couriers so he is more liable than a courier. Mr. Duncan is receiving and profiting from the drugs. The Crown submits that after a trial, the minimum term should be 8 years. Mr. Duncan, in these two importing counts, used three different people. The Crown argues that in all of these circumstances the appropriate sentence is 12 years concurrent on each of counts 1, 2, 4 and 5.

Count 6

[44] The Crown’s position is for 12 months consecutive.

[45] The conspiracy to traffic in marihuana involved 10 pounds. The Crown submits that this amount is at the commercial level.

Counts 7, 8, 9 and 10

[46] The Crown seeks 6 years consecutive but concurrent to each other.

[47] The Crown argues that Mr. Duncan and the co-accused, Gerald Pinch are at the same level of culpability. On February 13, 2012 Justice Hill sentenced Mr. Pinch to 6 years.

[48] At pages 3 and 4 of his sentencing decision Justice Hill states:

Together with Andrew Duncan and others, the offender conspired to export ecstasy from Canada to the Atlanta area. Mr. Pinch acted between the supplier of the MDMA and the Duncan network, running couriers into the United States, and back with cash proceeds of the distribution of MDMA in the United States. The evidence supports intimate involvement in the ecstasy distribution regime over a number of months.

In a wiretap intercept, the offender discussed “85-87 pounds of pills,” and in another a reference to what may be inferred as about 90,000 ecstasy pills.

In a separate trial, Andrew Duncan was found guilty of his part in the unlawful scheme and stands to be sentenced by Justice Fragomeni.

MDMA in the form of ecstasy pills can be cheaply produced for a few cents a pill. Relevant case law reviews show street-price ranges of perhaps $20.00 to $40.00 a pill. The value of the 85,000-plus pills here therefore in total would be from one to one-and-a-half to over three million dollars.

On the evidence as said, Mr. Pinch stood between the supplier – whether a foreign supplier or the operator of a domestic lab – and Andrew Duncan who arranged to have the ecstasy pills packaged and couriered into the United States with proceeds returned. The offender’s role was integral to the operation. On the evidence, he was fronted the ecstasy and had either actual or constructive possession before passing it to Andrew Duncan. Mr. Pinch came under pressure when payment was delayed. The wiretap intercepts indicate that he and Mr. Duncan both felt the pressure and urgency of the situation when sufficient funds were not returned from the United States after border seizures from cash couriers. What exact cut or profit Mr. Pinch stood to make is unknown.

[49] After reviewing the aggravating and mitigating circumstances relating to Mr. Pinch, Justice Hill noted the following at pages 8 and 9:

In Pushpanathan v. Canada (Minister of Citizenship and Immigration,) 1998 CanLII 778 (SCC), [1998] 1 S.C.R. 982 (S.C.C.), Justice Cory wrote of the social and economic costs of illicit drug use in Canada. He stated at page 1039:

“The costs to society of drug abuse and trafficking in illicit drugs are at least significant if not staggering. They include direct costs such as health care and law enforcement, and indirect costs of lost productivity.”

Canada, of course, has a legal duty to honour its international obligations respecting elimination of the global movement of ecstasy. Meaningful sanctions contribute to the defeat of transnational criminal organizations. A conviction for possession of ecstasy for the purpose of exportation from Canada is punishable, pursuant to section 6(2) of the Controlled Drugs and Substances Act, by a maximum of ten years’ imprisonment. The conspiracy to export ecstasy offence is similarly punishable by a maximum of ten years’ imprisonment.

[50] And finally Justice Hill states at page 14:

Mr. Pinch is not a one-off courier employed at a low level role in the ecstasy distribution scheme. His participation in the unlawful agreement to export ecstasy involving tens of thousands of MDMA pills and his possession of the ecstasy for the purpose of trafficking was at the level of a principal. As such, the degree of moral blameworthiness is significant. Only complete deprivation of liberty would be proportionate to his involvement, the gravity of the offence, and the need for general deterrence.

In the circumstances, the offender is sentenced on Counts 1 and 2 to concurrent terms of six years’ incarceration. There will be a section 109(2)(a) order for ten years; a section 109(2)(b) order for life.

Count 12

[51] The Crown makes two submissions here. One is that the conspiracy to possess proceeds of crime attracts a 2-3 year consecutive sentence. However, as these proceeds relate to the exporting counts in Counts 7 and 8, an argument can be made that this count is subsumed in those counts such that any sentence could be concurrent to Counts 7 and 8.

Counts 13 and 14

[52] The conviction for Count 13 attracts a three year minimum.

[53] The Crown seeks 3 to 4 years consecutive on Count 13 and 12 months concurrent on Count 14.

[54] The maximum ranges set out by the Crown results in a total period of incarceration of 26 years. The minimum of the ranges results in a total period of 21 years.

[55] The Crown submits that considering the principle of totality the appropriate range is 14 to 18 years, less the Pre-trial custody.

[56] The Crown points to the following additional factors in support of their position:

1. Mr. Duncan is not a youthful offender. He was born on August 26, 1970. At the time of these offences Mr. Duncan was 39 years of age.

2. Mr. Duncan was the person in charge of this drug operation and occupied a high level within this network of drug dealing;

3. The amount of drugs involved and the nature of the drugs involved are indicative of a commercial enterprise;

4. Although Mr. Duncan did have difficulties in his early years, he overcame those difficulties. The witnesses called acknowledge Mr. Duncan is a good father and provided for his children. He successfully obtained a Pardon. The Crown submits that there is no link between Mr. Duncan’s difficulties in his youth to his criminal conduct at the age of almost 40. There is very little nexus with respect to these two events and circumstances;

5. The defence argues that the principles enunciated in the Supreme Court of Canada decision in Gladue should be applied in this case.

6. The Crown submits that the principles set out in the Gladue decision do not apply to Mr. Duncan. In R. v. Borde 2003 CanLII 4187 (ON CA), 63 O.R. (3d) 417 (Ont. C.A.) Rosenberg J.A. stated the following at paras. 30-33:

Some of the same things could be said of the over-representation of African Canadians in our jails and penitentiaries. I think that in an appropriate case a sentencing judge might find assistance from the approach described by the court in Gladue and Wells, even though that approach is grounded in the special reference to aboriginal offenders in s. 718.2. However, this is a matter that should be addressed at trial where the evidence can be tested and its relevance to the particular offender explored.

As well, I note that the affirmative duty placed upon the judge by s. 718.2(e), to take judicial notice of the unique systemic and background factors that have contributed to the difficulties faced by aboriginal people in the criminal justice system and throughout society at large and to inquire into the unique circumstances of aboriginal offenders, by its terms, only applies to aboriginal offenders. See Gladue at paras. 82-85 and Wells at paras. 53-55.

Further, an important part of the Gladue analysis hinged on the fact that the traditional sentencing ideals of deterrence, separation, and denunciation are often far removed from the understanding of sentencing held by aboriginal offenders and their community. At para. 70 the Gladue court noted, "most traditional aboriginal conceptions of sentencing place a primary emphasis upon the ideals of restorative justice. This tradition is extremely important to the analysis under s. 718.2(e)." This link for the African Canadian community is missing from the fresh evidence. The importance that the Supreme Court attached to the sentencing conceptions of aboriginal communities results from the specific reference to aboriginal offenders in s. 718.2(e). [page428] In this regard, aboriginal communities are unique. However, the principles that are generally applicable to all offenders, including African Canadians, are sufficiently broad and flexible to enable a sentencing court in appropriate cases to consider both the systemic and background factors that may have played a role in the commission of the offence and the values of the community from which the offender comes.

I would not dismiss the application to admit the fresh evidence in this case because it was not adduced before the trial judge or because of this gap in the evidence. Instead, I would not admit the evidence because the proposed evidence would not affect the result. In Gladue and Wells, the Supreme Court held that the more serious and violent the crime the less likely that the sentence for an aboriginal offender will differ from the sentence imposed on any other offender. This point is captured at paras. 79-80 of the Gladue reasons:

Yet, even where an offence is considered serious, the length of the term of imprisonment must be considered. In some circumstances the length of the sentence of an aboriginal offender may be less and in others the same as that of any other offender. Generally, the more violent and serious the offence the more likely it is as a practical reality that the terms of imprisonment for aboriginals and non-aboriginals will be close to each other or the same, even taking into account their different concepts of sentencing.

As with all sentencing decisions, the sentencing of aboriginal offenders must proceed on an individual (or a case-by-case) basis: for this offence, committed by this offender, harming this victim, in this community, what is the appropriate sanction under the Criminal Code? What understanding of criminal sanctions is held by the community? What is the nature of the relationship between the offender and his or her community? What combination of systemic or background factors contributed to this particular offender coming before the courts for this particular offence? How has the offender who is being sentenced been affected by, for example, substance abuse in the community, or poverty, or overt racism, or family or community breakdown? Would imprisonment effectively serve to deter or denounce crime in a sense that would be significant to the offender and community, or are crime prevention and other goals better achieved through healing? What sentencing options present themselves in these circumstances?

Defence Position

[57] The defence submits that the appropriate range of sentence for all of these offences is 6 to 10 years, less the Pre-Trial custody. The defence argues, however, that because of the difficulties Mr. Duncan had early on in his youth, that range should be adjusted to 5 to 9 years.

[58] The defence allocates this range as follows:

Counts 1, 2, 4 and 5

[59] The total range here should be 5 to 9 years.

Count 6

[60] The sentence on this count should be 5 to 7 months concurrent. Cannabis marihuana is a soft drug unlike cocaine or heroin.

Counts 7, 8, 9, and 10

[61] The defence submits that the range should be 2 to 4 years concurrent. These incidents happened all within a short period of time.

Count 12

[62] The defence submits that this count relating to the proceeds of crime should be concurrent as there is a close nexus in time to Counts 7 to 10. The defence submits 2 to 3 years concurrent.

Counts 13 and 14

[63] The defence submits that a total of 2 years concurrent is appropriate for both counts. The police did not seize a firearm nor was a firearm actually transferred. The defence asks this court to declare the minimum sentence provisions of the Criminal Code to be unconstitutional and relies on the decision of Justice Molloy in R. v. Smickle.

[64] The defence relies on the following additional factors to support his position:

1. The evidence called at the sentencing hearing demonstrates the difficult youth that Mr. Duncan had growing up in the Jane and Finch area;

2. Mr. Duncan grew up without a male role model;

3. The Gladue principles apply in this case and the decision in Borde supports this proposition;

4. This case demonstrates the problem of systemic bias and discrimination against African Canadians. The deficient Pre-Sentence Report supports that position;

5. The impact of a lengthy period of incarceration must be balanced against the harm to the community occasioned by the drug trade;

6. Mr. Duncan is a good prospect for rehabilitation and this principle of sentencing should be given greater emphasis than that suggested by the Crown;

7. The deprivation suffered by Mr. Duncan as a child is directly linked to his engaging in these crimes;

8. Mr. Duncan’s prior criminal record is dated and those offences and convictions occurred when he was just in his early twenties.

[65] In the event that the court imposes a period of incarceration of over 10 years, the defence requests that some part of the time be by way of a Conditional Sentence with a Community Service component requiring Mr. Duncan speaking to young people about the dangers of drugs and the crimes associated with it.

ANALYSIS AND CONCLUSION

[66] The Crown and the defence have outlined their respective positions and the factors that support their positions.

[67] The Crown has properly and thoroughly set out his position on the aggravating factors that exist with respect to Mr. Duncan as it applies to each of the Counts and I agree with his submissions in that regard.

[68] A key component to Mr. Duncan’s position revolves around the circumstances of his youth. Mr. Duncan relies heavily on that factor and asks the court to consider these circumstances as analogous to the circumstances dealt with in the Supreme Court decision in Gladue.

[69] In R. v. Gladue, 1999 CanLII 679 (SCC), [1999] 1 S.C.R. 688, the accused, an aboriginal woman, pled guilty to manslaughter for the killing of her common-law husband and she was sentenced to three years in jail.

[70] At para. 93, the court set out the considerations which should be taken into account by a judge sentencing an aboriginal offender. Para. 93 states the following:

Let us see if a general summary can be made of what has been discussed in these reasons.

1. Part XXIII of the Criminal Code codifies the fundamental purpose and principles of sentencing and the factors that should be considered by a judge in striving to determine a sentence that is fit for the offender and the offence.

2. Section 718.2(e) mandatorily requires sentencing judges to consider all available sanctions other than imprisonment and to pay particular attention to the circumstances of aboriginal offenders.

3. Section 718.2(e) is not simply a codification of existing jurisprudence. It is remedial in nature. Its purpose is to ameliorate the serious problem of overrepresentation of aboriginal people in prisons, and to encourage sentencing judges to have recourse to a restorative approach to sentencing. There is a judicial duty to give the provision's remedial purpose real force.

4. Section 718.2(e) must be read and considered in the context of the rest of the factors referred to in that section and in light of all of Part XXIII. All principles and factors set out in Part XXIII must be taken into consideration in determining the fit sentence. Attention should be paid to the fact that Part XXIII, through ss. 718, 718.2(e), and 742.1, among other provisions, has placed a new emphasis upon decreasing the use of incarceration.

5. Sentencing is an individual process and in each case the consideration must continue to be what is a fit sentence for this accused for this offence in this community. However, the effect of s. 718.2(e) is to alter the method of analysis which sentencing judges must use in determining a fit sentence for aboriginal offenders.

6. Section 718.2(e) directs sentencing judges to undertake the sentencing of aboriginal offenders individually, but also differently, because the circumstances of aboriginal people are unique. In sentencing an aboriginal offender, the judge must consider:

(A) The unique systemic or background factors which may have played a part in bringing the particular aboriginal offender before the courts; and

(B) The types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular aboriginal heritage or connection.

7. In order to undertake these considerations the trial judge will require information pertaining to the accused. Judges may take judicial notice of the broad systemic and background factors affecting aboriginal people, and of the priority given in aboriginal cultures to a restorative approach to sentencing. In the usual course of events, additional case-specific information will come from counsel and from a pre-sentence report which takes into account the factors set out in #6, which in turn may come from representations of the relevant aboriginal community which will usually be that of the offender. The offender may waive the gathering of that information.

8. If there is no alternative to incarceration the length of the term must be carefully considered.

9. Section 718.2(e) is not to be taken as a means of automatically reducing the prison sentence of aboriginal offenders; nor should it be assumed that an offender is receiving a more lenient sentence simply because incarceration is not imposed.

10. The absence of alternative sentencing programs specific to an aboriginal community does not eliminate the ability of a sentencing judge to impose a sanction that takes into account principles of restorative justice and the needs of the parties involved.

11. Section 718.2(e) applies to all aboriginal persons wherever they reside, whether on- or off-reserve, in a large city or a rural area. In defining the relevant aboriginal community for the purpose of achieving an effective sentence, the term "community" must be defined broadly so as to include any network of support and interaction that might be available, including in an urban centre. At the same time, the residence of the aboriginal offender in an urban centre that lacks any network of support does not relieve the sentencing judge of the obligation to try to find an alternative to imprisonment.

12. Based on the foregoing, the jail term for an aboriginal offender may in some circumstances be less than the term imposed on a non-aboriginal offender for the same offence.

13. It is unreasonable to assume that aboriginal peoples do not believe in the importance of traditional sentencing goals such as deterrence, denunciation, and separation, where warranted. In this context, generally, the more serious and violent the crime, the more likely it will be as a practical matter that the terms of imprisonment will be the same for similar offences and offenders, whether the offender is aboriginal or non-aboriginal.

[71] Section 718.2 of the Criminal Code states:

(e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.

[72] This section directs judges to undertake the sentencing of such offenders individually but also differently, because the circumstances of aboriginal people are unique. In these types of sentencing hearings the Pre-Sentence Report is accompanied by a Gladue Report to assist the sentencing judge in complying with the statutory requirement set out in section 718.2(e).

[73] In 2003 our Court of Appeal dealt squarely with a defence submission that there was a similarity between the plight of aboriginal Canadians and black Canadians and as such the court should adopt a similar form of analysis for the purpose of sentencing. In R. v. Borde, 2003 CanLII 4187 (ON CA), [2003] O.J. No. 354, Rosenberg, J.A. at paras. 1 to 3 identifies the issue on appeal:

The appellant appeals from the sentence totalling five years and two months imprisonment imposed by Brennan J. following the appellant's plea of guilty to a number of offences including possession of a loaded restricted weapon, aggravated assault and using a firearm in the commission of an indictable offence. The appellant submits that the sentence should be reduced because of systemic and background factors. The appellant applies to admit fresh evidence to inform the court about the impact of those factors on young black males; especially those growing up, like the appellant, in the Regent Park community. This issue was not raised before the trial judge.

I have reviewed the extensive material filed by counsel for the appellant on this appeal. Systemic racism and the background factors faced by black youths in Toronto are important matters and in another case I believe that they could affect the sentence. In this case, the crimes are so serious that the systemic and background factors could not affect the length of the sentence. Accordingly, I would dismiss the application to admit the fresh evidence.

However, this appellant was only 18 when he committed these offences. In my view, the trial judge did not give proper consideration to the appellant's youth and that a first penitentiary sentence should be as short as possible. I would therefore reduce the sentence to four years and two months.

[74] Justice Rosenberg goes on to state the following at paras. 27 to 34 in part:

The admission of this evidence fails because it cannot meet the criterion that the proposed fresh evidence would likely affect the result. The appellant's fundamental submission is that because of the similarity between the plight of Aboriginal Canadians and African Canadians, the court should adopt a similar form of analysis for the purposes of sentencing. Further, he submits that the background of the appellant exhibits many of the same factors often found in the background of Aboriginal offenders including poverty, family dislocation, chaotic child rearing and alcoholism. I accept that there are some similarities and that the background and systemic factors facing African Canadians, where they are shown to have played a part in the offence, might be taken into account in imposing sentence. However, for the following reasons, the evidence is not relevant in this case.

In Gladue and R. v. Wells (2000), 2000 SCC 10, 141 C.C.C. (3d) 368 (S.C.C.) the court explained the approach courts must take to the sentencing of aboriginal offenders in light of s. 718.2(e).

Some of the same things could be said of the over-representation of African Canadians in our jails and penitentiaries. I think that in an appropriate case a sentencing judge might find assistance from the approach described by the court in Gladue and Wells, even though that approach is grounded in the special reference to aboriginal offenders in s. 718.2. However, this is a matter that should be addressed at trial where the evidence can be tested and its relevance to the particular offender explored.

Further, an important part of the Gladue analysis hinged on the fact that the traditional sentencing ideals of deterrence, separation, and denunciation are often far removed from the understanding of sentencing held by aboriginal offenders and their community. At para. 70 the Gladue court noted, "most traditional aboriginal conceptions of sentencing place a primary emphasis upon the ideals of restorative justice. This tradition is extremely important to the analysis under s. 718.2(e)." This link for the African Canadian community is missing from the fresh evidence. The importance that the Supreme Court attached to the sentencing conceptions of aboriginal communities results from the specific reference to aboriginal offenders in s. 718.2(e). In this regard, aboriginal communities are unique. However, the principles that are generally applicable to all offenders, including African Canadians, are sufficiently broad and flexible to enable a sentencing court in appropriate cases to consider both the systemic and background factors that may have played a role in the commission of the offence and the values of the community from which the offender comes.

I would not dismiss the application to admit the fresh evidence in this case because it was not adduced before the trial judge or because of this gap in the evidence. Instead, I would not admit the evidence because the proposed evidence would not affect the result.

[75] In Borde at para. 36 Justice Rosenberg indicated that the overwhelming factor was the accused’s youth, he was 18 years old.

[76] In two recent decisions from the Supreme Court of Canada, the Court again dealt with the issues surrounding Aboriginal offenders. The two decisions are R. v. Ipeelee and R. v. Ladue. The two appeals, heard together by the Court, involved two different Aboriginal men. Each of them had a long history of violence and substance abuse. Each had been designated as a long-term offender and both faced sentencing for breaches of their long-term supervision orders.

[77] Ipeelee, an alcoholic with a history of violent offences committed when intoxicated, had been sentenced to 6 years in jail followed by an LTSO for a conviction for sexual assault causing bodily harm.

[78] Ipeelee had been raised by his grandparents, after his alcoholic mother froze to death. He began drinking at age eleven, became an alcoholic and spent most of his life in prison or under community supervision.

[79] Ladue had also been raised by his grandparents after the death of his mother, who may have been murdered. At the age of five, Ladue was sent to a residential school where he suffered physical, sexual, emotional and spiritual abuse. He lost the ability to speak his traditional language and soon began drinking and taking drugs. He spent a lot of time in institutions and later in prison. He became addicted to drugs and alcohol with a history of committing sexual assaults while intoxicated.

[80] Justice LeBel allowed the appeal by Ipeelee and reduced the sentence to one year.

[81] In Ladue, the trial judge sentenced Ladue to three years less credit of pre-sentence custody of 7.5 months. Ladue appealed the sentence and a majority of the B.C. Court of Appeal, reduced his sentence to one year. The Supreme Court dismissed the Crown appeal.

[82] In Ipeelee, LeBel J. set out the following at paras. 58, 59, 60, 76, and 77, in part:

The overrepresentation of Aboriginal people in the Canadian criminal justice system was the impetus for including the specific reference to Aboriginal people in s. 718.2(e).

When sentencing an Aboriginal offender, a judge must consider: (a) the unique systemic or background factors which may have played a part in bringing the particular Aboriginal offender before the courts; and (b) the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular Aboriginal heritage or connection (Gladue, at para. 66). Judges may take judicial notice of the broad systemic and background factors affecting Aboriginal people generally, but additional case-specific information will have to come from counsel and from the pre-sentence report (Gladue, at paras. 83-84).

To be clear, courts must take judicial notice of such matters as the history of colonialism, displacement, and residential schools and how that history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and of course higher levels of incarceration for Aboriginal peoples. These matters, on their own, do not necessarily justify a different sentence for Aboriginal offenders. Rather, they provide the necessary context for understanding and evaluating the case-specific information presented by counsel.

A third criticism, intimately related to the last, is that the Court's direction to utilize a method of analysis when sentencing Aboriginal offenders is inherently unfair as it creates unjustified distinctions between offenders who are otherwise similarly situated. This, in turn, violates the principle of sentence parity. This criticism is premised on the argument that the circumstances of Aboriginal offenders are not, in fact, unique. As Professors Stenning and Roberts put it (at p. 158):

This critique ignores the distinct history of Aboriginal peoples in Canada. The overwhelming message emanating from the various reports and commissions on Aboriginal peoples' involvement in the criminal justice system is that current levels of criminality are intimately tied to the legacy of colonialism (see, e.g., RCAP, p. 309). As Professor Carter puts it, "poverty and other incidents of social marginalization may not be unique, but how people get there is. No one's history in this country compares to Aboriginal people's" (M. Carter, "Of Fairness and Faulkner" (2002), 65 Sask. L. Rev. 63, at p. 71). Furthermore, there is nothing in the Gladue decision which would indicate that background and systemic factors should not also be taken into account for other, non-Aboriginal offenders. Quite the opposite. Cory and Iacobucci JJ. specifically state, at para. 69, in Gladue, that "background and systemic factors will also be of importance for a judge in sentencing a non-aboriginal offender".

[83] Mr. Duncan filed the following literature to support his position:

1. Mandatory Minimum Prison Sentencing and Systemic Racism by Faizal R. Mirza, 2001;

2. Arrested Contact – The Criminal Justice System, Race and Father Engagement by Rachael A. Woldoff and Heather M. Washington;

3. “They Be Doing Illegal Things”, Early Adolescents Talk About Their Inner-City Neighborhoods, by Nicole Schaefer-McDaniel;

4. An article in the National Post – Inner-city youth need positive role models.

[84] Although this literature is informative and expresses the views and research and observations of the authors I cannot conclude that they are relevant to the circumstances of this case or this offender.

[85] It is readily acknowledged, as set out by Justice Rosenberg in Borde at para. 32, “that the principles that are generally applicable to all offenders, including African Canadians, are sufficiently broad and flexible to enable a sentencing court in appropriate cases to consider both the systemic and background factors that may have played a role in the commission of the offence and the values of the community from which the offender comes.” In Gladue the Court stated the following at para. 69:

In this case, of course, we are dealing with factors that must be considered by a judge sentencing an aboriginal offender. While background and systemic factors will also be of importance for a judge in sentencing a non-aboriginal offender, the judge who is called upon to sentence an aboriginal offender must give attention to the unique background and systemic factors which may have played a part in bringing the particular offender before the courts. In cases where such factors have played a significant role, it is incumbent upon the sentencing judge to consider these factors in evaluating whether imprisonment would actually serve to deter, or to denounce crime in a sense that would be meaningful to the community of which the offender is a member. In many instances, more restorative sentencing principles will gain primary relevance precisely because the prevention of crime as well as individual and social healing cannot occur through other means.

[86] With that statement in mind, along with the other guiding legal principles articulated in the cases referred to, for the following reasons the position of the defence is not supported by those principles nor does the evidentiary record at this sentencing hearing establish a grounding for the defence position:

1. It is acknowledged that Mr. Duncan grew up in difficult circumstances. Mr. Duncan testified, as did his mother and sister that the area that he spent his early years in was filled with constant criminal activity. It was also during this early period that Mr. Duncan was without a father figure or other positive male role model.

However, it must also be kept in mind that Mr. Duncan’s mother worked hard to support her children. She worked long hours. She was fortunate to have the help of her mother. Mr. Duncan’s grandmother was a positive and strong support to the family.

After his mother re-married she did have financial support as well and at the age of 12 or 13 she moved the family to Brampton and out of that negative and crime ridden area.

It is important to set out this time line because Mr. Duncan, after moving to Brampton, went to school, worked, attended college, worked for his step-father, ran several businesses; in retail; a night club, a car rental agency and promoting concerts. Mr. Duncan had five children that he supported financially and otherwise.

These background circumstances are vastly and starkly different from the circumstances considered in Gladue, Ipeelee and Ladue and Borde.

Further, Mr. Duncan is not a youthful offender. These offences occurred when Mr. Duncan was almost 40 years old. He had matured into a fully grown man.

It is difficult to find any link to the difficulties he faced in his early youth, up to the age of 12 or 13, to the criminal activity he was convicted of by a Jury.

Mr. Duncan engaged in this criminal activity to make money.

The Gladue principles do not apply to Mr. Duncan.

The evidentiary record before this Court does not disclose that Mr. Duncan abused drugs or alcohol or that his involvement in the drug trade was motivated by anything other than commercial profit.

As I indicated, Mr. Duncan was able to provide financial support to his five children. According to the information provided he owned and operated several businesses.

Mr. Duncan readily acknowledges that the dated prior convictions were accumulated at a time in his life when he was young. Further, he was able to successfully obtain a pardon for those convictions.

In all of these circumstances it has not been demonstrated that a very early residency in a difficult neighbourhood establishes a link to this kind of criminal activity.

There is no evidentiary basis to apply the Gladue principles to this case. There is also no evidentiary basis to establish a systemic and racial bias against Mr. Duncan to take this case out of the guiding legal principles applicable to these drug offences.

[87] In Hamilton & Mason, Justice Doherty noted this at para. 103 and 104:

If the offence is particularly serious in that it causes or threatens significant harm to an individual or segment of the community, the objectives of denunciation and general deterrence will usually dominate the other objectives identified in s. 718. Prior to the introduction of the conditional sentence, where the objectives of deterrence and denunciation dominated, imprisonment was almost inevitable.

The importation of dangerous drugs like cocaine and others found in Schedule I of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 has always been considered among the most serious crimes known to Canadian law: Sentencing Reform: A Canadian Approach. Report of the Canadian Sentencing Commission, Ottawa Ministry of Supply and Services (1987), p. 205. The immense direct and indirect social and economic harm done throughout the Canadian community by cocaine is well known: Pushpanathan v. Canada (Minister of Citizenship and Immigration) (1998), 1998 CanLII 778 (SCC), 160 D.L.R. (4th) 193 at 235-37 (S.C.C.), per Cory J., in dissent on another issue; R. v. Smith (1987), 1987 CanLII 64 (SCC), 34 C.C.C. (3d) 97 at 123-24 (S.C.C.). The use and sale of cocaine kills and harms both directly and indirectly. The direct adverse health effects on those who use the drug are enormous and disastrous. Cocaine sale and use is closely and strongly associated with violent crime. Cocaine importation begets a multiplicity of violent acts. Viewed in isolation from the conduct which inevitably follows the importation of cocaine, the act itself is not a violent one in the strict sense. It cannot, however, be disassociated from its inevitable consequences. Unlike the trial judge (para. 224), I characterize cocaine importation as both a violent and serious offence: see R. v. Pearson (1992), 1992 CanLII 52 (SCC), 77 C.C.C. (3d) 124 at 143-44 (S.C.C).

[88] In R. v. Oliynyk, Lepage and Ferris 2006 BCSC 572, the Court stated at paras. 94 to 100:

All the accused are intelligent adults. They are not young, vulnerable or naïve. They were always aware of the huge risks they were taking, yet knowingly and willingly exposed themselves to them.

Motivated by profit, the accused had no moral reservations about their activities and the destruction they would cause. Importing and trafficking in drugs causes misery to addicts and their families and it spawns further and other crimes of all sorts. Much serious crime is drug-related. It touches all our society. And these three men imported a very large quantity of cocaine, and planned on importing more.

They know the law. They knew they faced severe, lengthy jail sentences if they were caught. They have been caught. They must be sentenced severely.

Considering Mr. Oliynyk's central role in this conspiracy, the large amount of cocaine involved, and the fact that he was undeterred by a previous sentence of ten years, I sentence him to 18 years in jail.

I also order forfeiture of the cell phones. The various gun and ammunition items specified by the Crown are ordered forfeited for life by Mr. Oliynyk. There will be no sale or transfer by him of any of those items.

For the other two accused, a prohibition under s. 109(2) of the Criminal Code is ordered for 10 years.

Mr. Lepage has no criminal record, but he operated closely with Mr. Oliynyk and had direct dealings with the source of supply for the 32 kilos or 70 1/2 pounds of high quality cocaine. He discussed with Mr. Oliynyk plans to purchase a Winnebago or trailer to facilitate his travels to arrange future importations. He was addicted to cocaine and his counsel suggests that is a mitigating factor. However, the amount of cocaine here takes his involvement well beyond that of one who traffics to support a habit. I sentence him to 12 years in jail.

[89] There is no doubt and it cannot be argued otherwise, that Mr. Duncan’s five children will be affected by his incarceration. Mr. Duncan in his own testimony stated, in reference to his own father leaving them, that he would never do that to his own children. The sad reality is that that is exactly what Mr. Duncan has done to his own children.

[90] Mr. Duncan has to accept that reality - that he is responsible for the loss to his children occasioned by his incarceration.

[91] Mr. Duncan has to realize that the choices he has made not only affected his life but those choices also affect the lives of others, most notably his own children.

[92] Mr. Duncan was not a minor player in the importing, exporting and distribution of these drugs. The contrary is true. He, along with others, was in control and directed what was going on. The trial evidence demonstrates that Mr. Duncan was significantly involved and significantly in control of this drug distribution network.

[93] The world of drug trafficking is the genesis of all kinds of criminal activity and as Justice Doherty so aptly points out in Hamilton & Mason, the social and economic harm is immense.

[94] In conclusion, then, I am satisfied that a lengthy period of incarceration is a necessary response from the court. In making that determination I am guided by the statutory sentencing principles mandated by the Criminal Code. I am also guided by the sentencing principles enunciated by the Supreme Court of Canada and our Court of Appeal.

[95] Before I deal with the principle of totality I wish to set out the sentences related to each of the counts. I find that the following sentences are appropriate:

Counts 1, 2, 4 and 5

[96] Twelve years concurrent on each count.

Count 6

[97] One year consecutive. The quantity involved on this conspiracy was significant.

Counts 7, 8 relating to the Ecstasy:

[98] 6 years concurrent to each other but consecutive to counts 1, 2, 4, 5 and 6. I agree with Justice Hill’s analysis in Pinch and find that 6 years is also appropriate for Mr. Duncan.

Counts 9 and 10 relating to the Marihuana:

[99] 3 years concurrent on each.

Count 12

[100] 2 years concurrent. I am satisfied that this count is closely connected to counts 7-10 and as such a concurrent sentence is appropriate.

Counts 13 and 14

[101] 3 years concurrent to each other but consecutive to the other counts. I am satisfied that the minimum sentence of three years is appropriate.

[102] The total, therefore, is twelve plus one plus six plus three = 22 years.

[103] As Justice Doherty sets out in Hamilton & Mason factors such as proportionality and restraint are factors that a court must consider. In addition to those concepts the principle of totality must also be considered.

[104] Section 718.2 (c) states:

A court that imposes a sentence shall also take into consideration the following principles:

(c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh.

[105] The totality principle requires an assessment of the total impact of the sentence being imposed in relation to the seriousness of the offender’s conduct.

[106] In R. v. M. (C.A.) 1996 CanLII 230 (SCC), 105 C.C.C. (3d) 327 (S.C.C.) the Court stated the following at paras. 42 and 43:

In the context of consecutive sentences, this general principle of proportionality expresses itself through the more particular form of the "totality principle". The totality principle, in short, requires a sentencing judge who orders an offender to serve consecutive sentences for multiple offences to ensure that the cumulative sentence rendered does not exceed the overall culpability of the offender. As D. A. Thomas describes the principle in Principles of Sentencing (2nd ed. 1979), at p. 56:

The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate sentence is "just and appropriate".

Clayton Ruby articulates the principle in the following terms in his treatise, Sentencing, supra, at pp. 44-45:

The purpose is to ensure that a series of sentences, each properly imposed in relation to the offence to which it relates, is in aggregate "just and appropriate". A cumulative sentence may offend the totality principle if the aggregate sentence is substantially above the normal level of a sentence for the most serious of the individual offences involved, or if its effect is to impose on the offender "a crushing sentence" not in keeping with his record and prospects.

Whether under the rubric of the "totality principle" or a more generalized principle of proportionality, Canadian courts have been reluctant to impose single and consecutive fixed-term sentences beyond 20 years.

[107] In R. v. Draper (2010) 2010 MBCA 35, 253 C.C.C. (3d) 351 (Man. C.A.) the court stated the following at para. 30:

That procedure is for the sentencing judge to first determine whether the offences in question are to be served consecutively or not. Second, if they are to be served consecutively, then an appropriate sentence for each offence should be determined. Third, the totality principle should be applied to the total sentence thereby arrived at to ensure that the total sentence is not excessive for this offender as an individual. In effect, the sentence must be given a "last look." Fourth, if the judge decides that it is excessive, then the sentence must be adjusted appropriately. In some cases that might require a significant adjustment.

[108] As I indicated in this case a lengthy term of incarceration is necessary to fully and adequately deal with the sentencing principles of denunciation and general deterrence. I am satisfied, therefore, and keeping in mind the totality principle that a total sentence of 15 years would be the appropriate sentence, less the 6 years allocated to pre-trial custody.

[109] Mr. Duncan would you please stand up:

On Counts 1, 2, 4 and 5 you will be incarcerated for a period of 9 years concurrent on each Count.

On Count 6, one year concurrent.

On Counts 7 and 8, 6 years consecutive but concurrent to each other.

Counts 9 and 10, 3 years concurrent

On Count 12, two years concurrent.

On Counts 13 and 14, three years concurrent.

The total sentence, therefore, is 15 years less 6 years of Pre-Trial custody.

A DNA order shall issue.

A s.109 order shall issue for a period of 10 years.

Fragomeni J.

Released: June 18, 2012