ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR11-871
DATE: 2012 01 27

B E T W E E N:

HER MAJESTY THE QUEEN

Brian Puddington, for the Crown

• and -

KATHRYN TERRILL

Shannon McPherson, for the Defendant

Defendant

HEARD: November 15 – 18, 2011

REASONS FOR SENTENCE

e.j. koke, j.

1. Overview

[ 1 ] On November 18, 2011 the accused, Kathryn Terrill was convicted by a jury of Importing Cocaine into Canada, contrary to section 6(1) of the Controlled Drugs and Substances Act , 1996, Chapter 19, as amended.

2. The Facts:

Circumstances of the offence

[ 2 ] On August 15, 2010 Ms. Terrill arrived at Pearson International Airport in Toronto, arriving on a flight from Trinidad. She presented the Border Services agent at the primary inspection area documents which indicated that she had been away from Canada for 5 days. She had two suitcases with her.

[ 3 ] Ms. Terrill was referred to the secondary inspection area, where a search of her luggage revealed that 2.963 kilograms of cocaine had been concealed in the linings of her suitcases.

[ 4 ] Ms. Terrill was placed in temporary custody at the airport where she was questioned by Constable Benedet and Corporal Lee of the RCMP. Ms. Terrill explained to the officers that she had travelled to Trinidad for a five day vacation with a friend, a woman by the name of Pamela. Several days before they were scheduled to return back to Canada, the friend informed her that she wished to stay in Trinidad longer. Her friend requested that Ms. Terrill exchange suitcases with her for the return trip. Although Ms. Terrill had only taken one piece of luggage with her to Trinidad, it was a very large suitcase and presumably it could hold more than the two suitcases taken by her friend.

[ 5 ] Ms. Terrill informed the officers that she agreed to exchange her suitcase for her friend’s two pieces of luggage, and the cocaine was found in the linings of the suitcases which had been given to her by her friend. Ms. Terrill informed the officers that she felt like she had been “fucked” by her friend Pamela. Although she was unwilling to reveal her friend Pamela’s surname to the officers, at trial she testified that her friend’s last name was Mahoney.

[ 6 ] Constable Benedet testified that the total value of the cocaine which was located in the suitcases was in the range of $100,000.

Circumstances of the offender

[ 7 ] Ms. Terrill was born in Guyana on August 26, 1947 and she is now 64 years old. She was raised in what has been described as a financially secure and stable family environment. She gave birth to a daughter at age 16, and in her early twenties she moved to the United States and then later to Canada. She married the father of her daughter at age 26 but she reports that three years later he was murdered in a robbery.

[ 8 ] Later, Ms. Terrill had two sons from a second relationship that lasted for a few years, which was followed by a third significant relationship which lasted 7 years. She states that she remains on good terms with both men.

[ 9 ] Ms. Terrill’s has a supportive family network which now consists of three adult children, eight grandchildren, three sisters, and her mother. She reports that no members of her immediate family have been in trouble with the law. Her daughter reports that “this situation that we are dealing with right now is only going to make us stronger as a family. We aren’t giving up on my mom and we will be there for her”.

[ 10 ] Ms. Terrill attended a private school on Guyana and reports that she completed secondary school with a B average. IN 1997 she obtained several certificates in computer business skills training through the Academy of Learning. She reports that she also completed numerous training courses through her various employment experiences.

[ 11 ] Ms. Terrill reports that she has been employed for most of her adult life and that she has never been terminated from any position. Her employment includes working for a large telecommunications company for approximately seven years and later for the Ontario Lotto and Gaming Commission for approximately seven years as well. While she was working for the Lotto and Gaming Commission she also worked part time for a bingo company, which turned into a full-time position for approximately 15 years. Although she retired approximately 6 years ago she continues to volunteer at a Bingo company. Presently she is in receipt of an income from Canadian Pension Plan and Old Age Security benefits and has recently applied for her pension from the Lotto and Gaming Commission.

[ 12 ] Ms. Terrill reports that she consumes alcohol on occasion, but there is no indication that she has any current or previous addictions. Although she enjoys playing bingo, she denies that her gambling has ever been problematic, which has been confirmed by family members.

[ 13 ] Ms. Terrill is generally healthy but she disclosed that she does have high blood pressure, high cholesterol, sleep apnea, as well as a dropped uterus that may require a hysterectomy in the near future. She takes medication for these conditions. Family members confirm that she suffers from high blood pressure and uses an oxygen machine to sleep at night.

[ 14 ] Ms. Terrill continues to maintain her innocence. She has no prior criminal record and there is no evidence that she has ever been in conflict with the law. Constable Benedet reports that “for the most part she was polite and cooperative” and added that Ms. Terrill did not express any negative attitudes or disrespect for the justice system.

3. Legal Parameters

[ 15 ] The Controlled Drugs and Substances Act provides that a person who is convicted of the offence of Importing a Controlled Substance such as Cocaine into Canada is liable to imprisonment for life.

4. Positions of Crown and Defence

[ 16 ] The Crown argues that Ms. Terrill should receive a sentence of seven years imprisonment, together with ancillary relief comprised of a mandatory order pursuant to section 109(1) (c) of the Criminal Code (firearms prohibition for 10 years) and an order pursuant to section 487.051(3) of the Code (DNA sample).

[ 17 ] In support of its position the Crown argues that the need to stress denunciation and deterrence in sentencing all drug importers has manifested itself in a long line of cases imposing high penitentiary sentences on first time offenders.

[ 18 ] The Crown refers me to the Ontario Court of Appeal Case of Regina v. Hamilton and Mason [1] where Doherty J.A. states:

In Cunningham , supra, at pp. 546-47, the court, in fixing a range of six to eight years for couriers who smuggle large amounts of cocaine into Canada, said:

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 for 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. [2]

[ 19 ] It is the position of the Crown that Ms. Terrill falls within the Court of Appeal’s definition of a courier who has “smuggled large amounts of cocaine into Canada”, and therefore falls within the range of six to eight years.

[ 20 ] The Crown points out that the ranges referred to by the Court in Cunningham came about in the context of a guilty plea and Ms. Terrill does not receive the benefit that usually arises as the result of guilty plea.

[ 21 ] It is the position of the defence that a penalty in the range of a 5 year custodial sentence is appropriate in the circumstances of this case, together with ancillary relief. In support of its position the defence points to the following mitigating facts:

(a) She admitted every aspect of the Crown’s case, with the exception of knowledge or mens rea .

(b) Ms. Terrill acted as a courier, not as a principle offender.

(c) Ms. Terrill’s personal circumstances include the fact that she is a 64 year old grandmother of 8; she was widowed early in life and raised three children alone; she has been hard working and self supporting her entire life.

(d) Ms. Terrill has been on judicial interim release since her arrest in August, 2010, without incident.

(e) She does not have a prior criminal record.

(f) The charge on which she was found guilty is the only charge against her.

(g) She is elderly.

[ 22 ] Although acknowledging that the objectives of denunciation and deterrence are generally considered to be the primary principles of sentencing importing offenders, the defence also asks the court to consider the other principles such as proportionality and rehabilitation. The defence points out that the proportionality principle requires the court to impose a punishment that is not only proportionate to the crime but also to the offender.

[ 23 ] The defence argues that Ms. Terrill is a unique offender. She has lived a crime-free life and is now convicted for the first time. At age 64 she is facing a sentence which could bring her into her seventies. The defence submits that this court must ensure that Ms. Terrill is not unjustly dealt with for the sake of the common good, and argues that a sentence of seven years would be unjust in the circumstances of this case.

[ 24 ] Finally, the defence asks the court to consider the principle of parsimony in sentencing Ms. Terrill, and requests the court to ask itself whether custody for a shorter period would protect the public and still deter criminal behaviour...whether five years would not accomplish the same goal as a seven year sentence?

Case Law

[ 25 ] The Crown has referred me to the case of Regina v. Hamilton and Mason [3] . In this case Doherty J.A. used strong language to emphasize the seriousness of the offence for which Ms. Terrill had been convicted. At paragraphs 104 and 105 of this decision Doherty J. A. had this to say about the importation of drugs like the drugs which were brought into Canada by Ms. Terrill:

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 778 (SCC) , 160 D.L.R. (4th) 193 (S.C.C.) at 235-37 , per Cory J., in dissent on another issue; R. v. Smith (1987), 1987 64 (SCC) , 34 C.C.C. (3d) 97 at 123-24, 40 D.L.R. (4th) 435 (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 52 (SCC) , 77 C.C.C. (3d) 124 (S.C.C.) at 143-44 .

Cocaine is not indigenous to Canada. Without the cocaine importer, whatever his or her motive or involvement, there would be no cocaine problem. Both before and after the amendments to the sentencing provisions in Part XXIII of the Criminal Code and the introduction of the sentencing provision ( s. 10 ) into the Controlled Drugs and Substances Act, S.C. 1996, c. 19 , this court has emphasized the gravity of the crime and, therefore, the need to stress denunciation and deterrence in sentencing all drug importers, even vulnerable first offenders. [4]

[ 26 ] In R. v. C.N.H [5] ., a 2002 decision of the Ontario Court of Appeal the Court had this to say about the Importation of Drugs:

The court (in Cunningham) reaffirmed that "absent exceptional or extenuating circumstances" the range for importing around a kilogram of cocaine was three to five years and held that the range for importing large, multi-kilogram, amounts was six to eight years imprisonment. The court also recognized at p. 546 a fundamental principle of sentencing that "sentencing is not an exact science and that trial judges must retain the necessary degree of flexibility to do justice in individual cases." Recognizing that the suggested range for first offenders is quite severe, the court nevertheless held at p. 547:

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 Smith v. The Queen (1987), 1987 64 (SCC) , 34 C.C.C. (3d) 97 , 40 D.L.R. (4th) 435 , [1987] 1 S.C.R. 1045 . 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 [at p. 123]:

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. [6]

6. Mitigating and Aggravating Factors

[ 27 ] Section 718.2 of the Criminal Code requires me to take into consideration any relevant aggravating or mitigating circumstances relating to these offences or to Ms. Terrill. In this case I find that there are several aggravating factors which it is incumbent on me to consider. These include the following:

(a) Ms. Terrill is engaged in the importation of a substance which causes serious harm to our society. It leads directly to crimes committed by drug addicts to finance their drug habits. It also leads to the destruction of lives, often young lives which at one point were filled with promise and hope. Ms. Terrill has been quite ready to point out that she is a grandmother of eight. I have no doubt that she is a loving and devoted grandmother. I would ask her to consider for a moment however how she would feel if someone introduced one of her grandchildren to the drug culture, and thereafter she would have to witness the gradual deterioration and destruction of this grandchild’s life.

(b) Ms. Terrill was carrying out an importing operation for profit. There is no evidence that she herself is addicted to drugs. Money appears to be the prime motivating factor here...perhaps the term greed is a more accurate term, since Ms. Terrill has an income and cannot claim to be destitute.

[ 28 ] There are a number of mitigating factors to consider. These have been addressed by defence counsel and include the following:

(a) She is a first time offender,

(b) She has no other charges,

(c) She is elderly,

(d) She is a courier,

(e) She has successfully abided by her bail conditions,

(f) She has a great work history as a contributing member of our community,

(g) She admitted all but one element of the Crown’s case.

[ 29 ] I accept that these are all mitigating factors and I am prepared to consider them as such in my decision.

7. Principles of Sentencing

[ 30 ] The Criminal Code sets out principles which provide guidance to judges when sentencing offenders.

[ 31 ] The objectives of sentencing are set out in Section 718 and are to include the following:

(a) To denounce unlawful conduct;

(b) To deter the offender and other persons from committing offences;

(c) To separate offenders from society, where necessary;

(d) To assist in rehabilitating offenders;

(e) To provide reparation for harm done to victims or to the community; and;

(f) To promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

[ 32 ] In cases involving the trafficking of drugs, I accept that the objectives of deterrence and denunciation are generally regarded as paramount. I am cognizant however that in sentencing a guilty party the objective of rehabilitation is not to be ignored, and the principle of proportionality should always be an overriding consideration.

[ 33 ] Defence counsel asks me to consider the principle of parsimony, and questions whether a five year sentence would not accomplish the same goal as a seven year sentence. In my view, if the objectives of denunciation and deterrence are the primary goals, a sentence of five years does not accomplish the same goal as a sentence of seven years. It would fail to send the important message that importing drugs is a very serious offence, and the objectives of denunciation and deterrence are about sending such a message.

8. Decision

[ 34 ] The courts have consistently held that the offence for which Ms. Terrill has been convicted requires a custodial term in the range of six to eight years. I have carefully considered the mitigating facts which have been put forth by counsel for Ms. Terrill but I do not find that these facts are so compelling that I should sentence her to a custodial term which falls outside of this range.

[ 35 ] In considering the circumstances of this case, and Ms. Terrill’s personal circumstances, I am of the view that an appropriate sentence is a sentence at the low end of the accepted range, and accordingly I sentence her to a custodial term of 6 years. In addition I am imposing a firearms prohibition under section 109(1)(c) of the Criminal Code and an order that Ms. Terrill provide a DNA sample pursuant to section 487.051(3) of the Code .

E.J. Koke, J.

Released: 2012 01 27

ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – KATHRYN TERRILL REASONS FOR sentence Koke, J.

Released: 20120127

[1] Regina v. Hamilton and Mason (2004), 2004 5549 (ON CA) , 186 C.C.C. (3d) 129 (Ont. C.A.)

[2] Regina v. Hamilton and Mason (2004), 2004 5549 (ON CA) , 186 C.C.C. (3d) 129 (Ont. C.A.) at paragraph 105 .

[3] Hamilton v. Mason, supra

[4] Regina v. Hamilton and Mason (2004), 2004 5549 (ON CA) , 186 C.C.C. (3d) 129 (Ont. C.A.) at paragraphs 104 – 105 .

[5] R. v. C.N.H. (2002), 2002 7751 (ON CA) , 170 C.C.C. (3d) 253 (Ont. C.A.) at paragraph 23 .

[6] R. v. C.N.H. (2002), 2002 7751 (ON CA) , 170 C.C.C. (3d) 253 (Ont. C.A.) at paragraph 23 .