ONTARIO

SUPERIOR COURT OF JUSTICE

Court File No. CR-09-3597

HER MAJESTY THE QUEEN

v.

JAYDE GORDON-CUMMINS

REASONS FOR SENTENCE

BEFORE THE HONOURABLE MR. JUSTICE DURNO

on July 5, 2012, at BRAMPTON, Ontario

APPEARANCES:

C. Afonso Counsel for Direct of Public Prosecutions

P. Rochman Counsel for Jayde Gordon-Cummins

ONTARIO

SUPERIOR COURT OF JUSTICE

T A B L E O F C O N T E N T S

REASONS FOR SENTENCE Page 1

Transcript Ordered: .......................... September 2013

Transcript Completed: ...................... December 9, 2013

Ordering Party Notified: ................... December 9, 2013

THURSDAY, JULY 5, 2012

REASONS FOR SENTENCE

DURNO J. (Orally):

[1] Jayde Gordon-Cummins entered a plea of guilty to importing cocaine into Canada on the 30th day of July 2008. A plea was entered on June 4th, 2012. She acknowledged, as part of her plea, that she had imported 2.2 kilograms of cocaine into Canada in a suitcase and in a laptop. The total amount was 2.2 kilograms.

[2] The guilty plea was based on the position that she was wilfully blind with respect to what she was bringing back. The suspicions were raised. She knew she should have made inquiries and deliberately chose not to do so, preferring to remain ignorant knowing what the answer would be.

[3] The Crown seeks a sentence of six years citing Court of Appeal judgments with respect to the range for multi-kilo importations. The defence seeks a sentence of four years. There does not appear to be any issue with respect to the corollary orders.

[4] Ms. Gordon-Cummins is now 24 years of age. She lives at home, attends Seneca College, works at Telus. It is apparent from the comments I will come to in a few moments with respect to the letters, that she has exceptional family and community support.

[5] In the R. v. Hamilton and Mason (2004), 2004 5549 (ON CA), 186 C.C.C. (3d) 129 judgment from the Court of Appeal, Justice Doherty starts the judgment with some comments that are particularly appropriate in this case. “The imposition of a fit sentence can be as difficult a task as any faced by a trial judge. That task is particularly difficult where otherwise decent, law-abiding persons commit very serious crimes,” he went on to say, “in circumstances that ... attract understanding and empathy.” Those two cases, His Lordship determined, fell within that category. “As difficult as the determination of a fit sentence can be, that process has a narrow focus. It aims at imposing a sentence that reflects the circumstances of the specific offence and the attributes of the specific offender.”

[6] Both Hamilton and Mason, and I take it His Lordship’s comments with respect to their personal circumstances, were in serious financial difficulties and both were single mothers.

[7] As with any sentencing, there are aggravating and mitigating ones. First, with respect to those in aggravation. Importing drugs into Canada is one of the most serious offences in the Criminal Code. When the drug imported is cocaine, it aggravates the situation.

[8] Third, the 2.2 kilograms here, while not as large as some, and certainly larger than many that have been referred to, the amount here is still aggravating. Justice Doherty put it this way:

The importation of dangerous drugs like cocaine and others found in Schedule I of the Controlled Drugs and Substances Act has always been considered among the most serious crimes known to Canadian law. ... 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[s]. 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 dissociated from its inevitable consequences.

[9] Justice Doherty concluded that he characterized cocaine importation as both a violent and a serious offence. That judgment is from the highest court in Ontario.

[10] There are also significant mitigating factors here. Ms. Gordon-Cummins had no record at the time. She was, I take it, about 20, so was a young, not youthful but a young first offender.

[11] Second, I take it that since her arrest four years ago, there has been no further difficulty.

[12] Third, I accept that the offence is out of character for her. She has filed with the court a series of letters from family and friends, from her mother, from her father, indicating she is bright, she is passionate, she is community-minded, she has contributed to the community. She has, I take it, played as well as coached basketball. There is a letter from her sister that talks about her as her best friend. Grandmothers talk about her coming from a loving Christian home. An aunt spoke of her as being “one of the most sensitive, kind, loving and devoted people I know. She puts so much of herself into the people she loves and loves her family and cherish friends wholeheartedly.” She regards her as an amazing young lady.

[13] There are also letters from friends. One referring to her as a delightful, positive and inspiring young individual. She is regarded as hardworking, a taxpaying and positive individual. There is also a letter supporting again the position that she has assisted with basketball program in Whitby.

[14] Four, I find that she has strong family support and accept from the letters that she comes from a hardworking and loving family.

[15] Five, I accept that she is truly remorseful from her comments today and from the comments of her counsel and just from my observations of her on the date of the plea and today. She spent a couple of days in pre-trial custody, which is a consideration. She entered a plea of guilty. That is indicative of remorse. It is indicative of potential for rehabilitation. The plea saves court time. It saves the public the expense of a trial and the witnesses from having to come to court.

[16] Ms. Afonso appropriately pointed out four years after the offence from offence to sentencing date, this is not an early plea. An early plea would have merited the greatest mitigation. But nevertheless, a plea of guilty in a very busy jurisdiction is a significant mitigating factor.

[17] I am required to apply the purposes and principles of sentencing. What is a fit sentence for this young woman, for this offence, in this community? Higher courts have indicated that sentencing judges speak for the community.

[18] First of all, the sentence has to address general deterrence. General deterrence is to send a message, and the higher courts have repeatedly indicated that this is the most important factor in sentencing for this offence. It is not like this is an isolated incident of the importation of cocaine into Canada. There are many, many cases that go through this building, and during trial weeks, there is usually one or two importing cases, the vast majority dealing with cocaine. So higher courts have indicated it is important to send a significant message that sentences, that some may regard as severe, must be imposed for this offence.

[19] Second, the sentence must address denunciation to show society’s condemnation for this type of offence. Those are not the only factors to consider. I have to consider specific deterrence to send a message to this offender. I find that the message has already been delivered loud and clear.

[20] I also have to consider her rehabilitation. She is in school. She is working. She is a contributing member of society. It is not a significant consideration here in terms of steps that have to be taken to help in her rehabilitation.

[21] Parliament has also indicated that when sentencing, judges should look at what is called the parity principle. Similar offenders who commit similar offences in similar circumstances should receive similar sentences.

[22] For a very few number of offences, our Court of Appeal has provided ranges of sentences. One of the offences for which they have provided ranges is the importation of cocaine. There are three: in the area of a half kilogram up to a kilo, more or less, is around two years to five years; a kilogram, more or less, three to five; and multi-kilos, six to eight years. However, the range is really a starting point with respect to sentence. In terms of another area where there are ranges, our Court of Appeal has said ranges are not embedded in stone. Given their nature as guidelines only, I do not view them as being fixed in law as is the case with binding legal principles. The Supreme Court of Canada said it would be wrong to assume there is a precise range that will apply in every case. And of particular importance, in Hamilton and Mason, Justice Doherty spoke about fixing sentences in a case that dealt with the importation of cocaine.

Fixing the range of sentence for a particular offence, of course, does not determine the sentence to be imposed on a particular offender. The range is in large measure a reflection of the “objective seriousness” of the crime ... Once the range is identified, the sentencing judge must consider specific aggravating and mitigating factors. The mitigating factors may be so significant as to take the case below the otherwise appropriate range.

[23] I would add that there are also cases where the aggravating factors take it above. The factors have to be considered in terms of where within the range the sentence is.

[24] While in at least one of the letters, and I am not being critical of it being included in the letters, the approach was suggested inferentially that it really comes down to taking other cases and dividing by how much cocaine was involved in this case, compare it to the other sentence and wind up with what the appropriate sentence here is. Sentencing is a fact-specific endeavour with respect to the offence and the offender.

[25] Counsel have provided cases which reflect sentences in some cases for larger amounts, in some cases for smaller amounts, but they provide a useful outline as to the sentences that have been imposed. There are a number of variables whether it is a guilty plea or a trial. If it is a guilty plea, when it was entered. Whether there is a record. Whether there was cooperation. The amount is, because of the ranges that have been suggested within the context that I just referred to from Justice Doherty, that is a very important factor. The personal circumstances. The age of the individual. Whether they have dependants. Whether there are health issues. That is a non-exhaustive list.

[26] Clearly, the Court of Appeal has discussed the range for multi-kilo and there has been some discussion with respect to whether 2.2 would fall within the multi-kilos.

[27] In R. v. Hinds, [1997] O.J. No. 2633, a judgment from an in writing appeal, so that it was not argued in court, the Court of Appeal upheld a five year sentence for somewhere in the range from 1.75 to 2.18 kilograms. The Court looked at, at paragraph eight said, the Court recently reaffirmed that in the absence of exceptional or extenuating circumstances, the range for importing approximately a kilogram of cocaine is three to five years, and for large multi-kilogram amounts, six to eight years. The amount imported by Hinds was in between the amounts and the sentence imposed reflected that.

[28] The Crown relies on R. v. Syblis, 2001 24127 (ON CA), [2001] O.J. No. 115. The case, as most of the importing cases in Ontario are out of this courthouse, where one of my colleagues imposed a seven year sentence after a trial. It involved 2.1 kilograms of cocaine plus a kilogram of hash. I note the Court of Appeal said that there was no prior record of any significance. The Court of Appeal found that the sentence was appropriate. I understand the Crown’s argument that paragraph eight in that judgment can be read as indicating that that would involve multi-kilograms.

[29] The cases show that very severe sentences are imposed for this type of offence. From some of the cases that have been filed from my colleagues and from the Court of Appeal, the sentence sought by the Crown has support in the authorities from here and the Court of Appeal. There has been a suggestion in the letters and today in Ms. Gordon-Cummins’ comments seeking a lenient sentence. While the Crown’s position, as I say, has some merit, in my view the sentence that I am going to impose as was discussed in the pre-trial conference is one that does reflect leniency. In my view, four years would be too low given the factors that I have to take into consideration.

[30] In my view, the appropriate sentence for this particular offender, for this offence in this community is one of five years. Given the material that has been filed, it would be my view that this particular offender would be a very good candidate for parole at the earliest date possible. That, of course, will be for the Parole Board to determine.

[31] So for the reasons dictated, the sentence is five years. You are prohibited from having in your possession any firearm, cross-bow, restricted weapon, ammunition, explosive substance for ten years, and any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life. There will be a DNA order that -- do you have one, Ms. Afonso?

MS. AFONSO: I do, Your Honour.

THE COURT: Okay. Thank you. I take it you have no issue with the fine surcharge being waived?

MS. AFONSO: No, Your Honour. I am providing Your Honour the DNA order. I have drafted it such that the DNA can be provided downstairs today if that suits the authorities, or at the jail itself, which would be at Vanier, I understand, at 655 -- I have the address there, but it would allow, if they don’t get it done before the end of the day today that she could be provided at the institution itself. If Your Honour is not....

THE COURT: I didn’t realize they were doing them at Vanier. Okay.

MS. AFONSO: I understand that that was a possibility. I just -- given the time of day.

THE COURT: Can you just phone down and just see if it can be done now and then I won’t have to sign the second order?

MS. AFONSO: It’s -- it’s drafted currently if Your Honour doesn’t want the second institution on there, it could just be crossed off, the second address.

THE COURT: Okay. It’s not a separate order.

MS. AFONSO: No.

THE COURT: All right.

MS. AFONSO: I’ve just given the option to the authorities.

THE COURT: Well, I’m -- if they say no, I -- there should be somebody there to do it.

MS. AFONSO: And I’ve also canvassed the forfeiture order with my -- with my friend and...

THE COURT: Right.

MS. AFONSO: ...she’s content as it’s drafted.

THE COURT: All right. It can be done downstairs. And I will add to the endorsement forfeiture order in terms of the -- forfeiture order in terms of the draft filed. All right. I thank counsel for your assistance in getting the matter....

MS. AFONSO: Thank Your Honour.

MS. ROCHMAN: Thank you very much, Your Honour.

FORM 2

Certificate of Transcript

Evidence Act, Subsection 5(2)

I, CINDY LOURO, certify that this document is a true and accurate transcription of the recording of

R. v. Jayde GORDON-CUMMINS

in the Superior Court of Justice held at Brampton, Ontario taken from Recording No. 3199-407-20120705-085132 which has been certified in Form 1.

December 9, 2013__ “Original Signed by Reporter”

Date Cindy Louro