COURT FILE: CRIMJ (F) 799/2015

DATE: 2015 08 12

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

A. L. McKenzie, M. Park, for the Crown

• and -

NEVIN McCREA

J. Goldlist, for the Defence

HEARD: May 8, July 9, 2015

REASONS FOR SENTENCE

HILL J.

INTRODUCTION

[1] Nevin McCrea pleaded guilty to the unlawful importation of cocaine into Canada and to escaping lawful custody.

[2] It falls to be determined what a fit and just sentence is for the offender’s crimes.

FACTUAL BACKGROUND

[3] At about 8:30 p.m. on November 1, 2014, the offender deplaned at Terminal 3 of the Pearson International Airport from a flight originating in Aruba.

[4] The offender was referred to a secondary customs examination. During questioning by Canada Border Services Agency (C.B.S.A.) personnel, the offender was observed to be sweating. He reported that he was unemployed. The authorities determined that Mr. McCrea had a prior criminal record including for drugs. Nothing relevant was discovered in a search of the offender’s luggage.

[5] The offender was detained for a personal search. On the way to the search room, the offender fled from custody. The escape was cut short when a C.B.S.A. officer chased and caught the offender. The offender raised his fists in the air in resisting recapture. The offender was subdued and arrested. During his arrest, bodypacks could be felt under the arrestee’s clothing.

[6] The cocaine seized from the body packs weighed 2.2225 kg. Six samples of the narcotic were sent to Health and Welfare Canada for testing. Three of the six test reports disclosed the purity level of the cocaine – 43%, 40% and 40% respectively.

THE POLICE INTERVIEW

[7] In his November 2, 2014 videotaped statement to the RCMP, the offender provided this information:

(1) he did use cocaine or sell drugs

(2) he paid for his own plane ticket

(3) he had no idea of the weight of the body-packed cocaine

(4) he was unsure what he would get for the cocaine in Canada – it was a chance to “[g]et rich and pay for my kids’ shit…”

(5) he did this for his children

(6) he was not afraid of anyone

(7) he would not “roll over” – “I’m not a snitch” – “It’s not their fault” – “I accept full responsibility” – “Can’t be giving no names”

(8) pressed further in questioning, the offender claimed to have found the cocaine in a bag in a field in Aruba.

THE OFFENDER

[8] Nevin McCrea is aged 25 years (D.O.B. Sept. 6, 1989). The offender has a prior criminal record between 2005 and 2013 consisting of 16 prior convictions many of which attracted short, sharp terms of incarceration. The only drug-related conviction was a June 2012 conviction for simple possession of a prohibited substance for which the offender was sentenced to 22 days’ custody and 12 months’ probation.

[9] The offender was raised by his mother. He never met his father. He has a son and a daughter from different relationships. Although the offender reports having been close to his children prior to his arrest and incarceration, their mothers act as the custodial parent.

[10] The offender attained a grade 10 education. He had ADHD, a learning disability, and was placed in special education classes. He was unemployed when arrested having been sporadically employed prior to that.

[11] The offender reported to the probation officer who authored the presentence report that he committed the offence because he was desperate and took “the easy way to provide for his children”. According to the presentence report, the offender acknowledges that his actions were wrong and illegal, has expressed regret for his behaviour, and “apologizes to the court and realizes the extent of damage his actions could have done to society in general”.

[12] There is no record of the offender failing to comply with the conditions of probation orders to which he has been subject.

[13] While in custody, the offender is reported to have found spirituality through his conversion to Islam.

[14] During pre-sentence custody, the offender has experienced loss of privileges from time to time on account of institutional offences.

[15] The offender has been in pre-sentence custody for over 9 months.

INITIAL POSITIONS OF THE PARTIES

[16] On March 17, 2015, the offender pled guilty to both counts in the indictment. Crown counsel narrated the background facts supporting the pleas. The prosecutor provided the gross weight of the seized substance as 2.2225 kg. Counsel began to follow up with the estimated street value but discovered that she did not possess the actual figure. It was at this point, with counsel stumbling on the valuation descriptor, that the court inquired whether there was a purity analysis. With the Crown reporting purity in the 40% range, the court inquired as to whether purity at that level could have the effect of altering the starting-point range of sentence. Crown counsel questioned whether 40% was “low” stating that in her opinion low meant 10% or 20%. Crown counsel sought more time to consider her position on the issue.

[17] Before adjourning, the court was informed that subject to further consideration of the relevance of the purity factor, counsel were intending to make open submissions, not a joint submission, respecting the appropriate sentence. Defence counsel stated her position to be 4 years on top of 6 ½ months’ credit on a 1.5:1 basis for pre-sentence custody since the November 1, 2014 date of arrest. Crown counsel submitted that a fit sentence for the importing offence would be 6 ½ years before reduction for pre-sentence credit (reducing the requested sentence to about 5 yr. 11 mons.) together with a 60-day concurrent sentence for the escape custody charge.

[18] The order of a presentence report was deferred to March 30, 2015 in order to permit the parties to research the purity issue and to determine whether there could be any narrowing of their respective positions.

[19] On March 30, Crown counsel informed the court that the notion of purity-adjusted weight did not, in this case, affect her earlier stated position respecting the appropriate sentence to be imposed. Counsel indicated that she might be in a position on the sentencing hearing to call evidence, perhaps an expert witness, respecting the purity levels of cocaine seizures at the Pearson International Airport from the past few years. Defence counsel maintained that a purity-adjusted weight approach was appropriate in terms of identifying the correct starting-point range of sentence. On request, a presentence report was ordered. The case was adjourned to May 8 for sentencing.

[20] On May 8, with the presentence report having been filed, submissions were invited from the parties respecting any admissibility issues relating to the report. Ms. Goldlist raised the issue of corrections and omissions. On the subject of mistakes in the report, counsel informed the court that the offender had been providing financial support for his children prior to arrest, and, that he had confirmed that he would be able to acquire his forklift operator’s licence while incarcerated not after release. Further, contrary to information in the report relating to Mr. McCrea having been found guilty of institutional offences at the Maplehurst remand centre while awaiting trial, such as attempted escape and contraband infractions, this was incorrect. Counsel also noted that the report had a major omission in its failure to detail the offender’s life experiences as an adolescent who left home at age 14 years. It was agreed that Ms. Goldlist would provide an addendum to the Crown essentially filling in missing background facts for consideration as agreed facts failing which Mr. McCrea would be called to testify.

[21] A new prosecutor on the file accepted the corrections submitted relating to financial support of the children and the timing of acquisition of the forklift operator’s licence. Crown counsel requested an opportunity to secure the relevant records from the remand centre relating to any history of institutional infractions.

[22] Crown counsel sought to supplement the facts provided to the court on March 17 with a summary, not a transcript, of the offender’s statement to the RCMP at the time of his arrest. With defence counsel objecting to the edited summary being admitted as the context of the information provided to the authorities, the Crown expressed an intention to have a transcript of the offender’s videotaped statement prepared.

[23] The prosecutor stated that he would not be calling any evidence on the cocaine purity issue being of the view that it “was not going to influence the sentence much” (“not having much of an impact”) in light of other relevant factors. Defence counsel submitted that a main issue was the purity factor which she had researched without being able to find a case with a cocaine purity level as low as 40%. Asking for all the help it could get, the court requested assistance as to whether 40% would be properly considered a “low” level of purity. Crown counsel declined to concede that that was the case and informed the court that the RCMP and Health Canada do not keep statistics relating to the cocaine purity of airport seizures. The court responded, “Well I need help” in terms of evidence as to a reference point for the meaning of “low” purity. Crown counsel also stated that if the defence considered the purity level to be low, it had the onus of establishing that mitigating factor. The court expressed its disinclination to accept that approach where the purity information, frequently appearing in certificates of analysis prepared pursuant to s. 45 of the Controlled Drugs and Substances Act (C.D.S.A.), was peculiarly within the possession of the government.

[24] The prosecution, while accepting that a drug courier plays a subsidiary role at the bottom of the drug hierarchy, raised for the first time that the offender was not a courier but a principal.

[25] Apart from the purity issue, the court further raised with counsel other issues, including (1) the relevance, if any, to the judicially-created starting-point ranges of Parliament entering the field with a mandatory minimum sentence of 2 years for the importation of cocaine exceeding 1 kg. in weight (C.D.S.A. s. 6(3)(a.1)), (2) the relevance of the weight of cutting agents and adulterants to the s. 6(1) reference to “substance”.

[26] The sentencing hearing was adjourned to July 9, 2015.

THE OFFENDER’S TESTIMONY

[27] In his July 9, 2015 testimony, the offender provided this information:

(1) he never met his father – his mother was not home a lot because of her ongoing schooling – because of his behaviour he was kicked out of her home at age 14

(2) in grade 3, he was diagnosed with ADD and was prescribed Ritalin from ages 8 to 11 – in high school, he was in a special education stream – he progressed in school to the point of receiving some grade 12 credits

(3) from ages 14 to 17 he resided in various shelters – subsequently, he had a pattern of short-term employment and was last employed in June or July of 2014

(4) he loves his two children and has voluntarily provided such financial support as he has been able

(5) in mid-2014, when he was in a tight and desperate situation with his back against the wall unable to find a job to be able to continue to help his family, an “opportunity” came up

(6) a female he had known since high school approached him with a proposition relating to “a guy” she had previously worked for – this individual could help the offender if he “took a trip”

(7) the offender met a male person whose real name he did not learn – he came to know his street name – the offender agreed to participate in a cocaine importation for a $10,000 fee, money which could start to help his kids – an unidentified “they” obtained a passport for him and paid for the Aruba airfare and his accommodation – the others involved were not his “partners”

(8) he initially understood that he would babysit or oversee the actual cocaine transporter on the return trip to Canada – however, when she did not make the trip, he became the sole courier

(9) on the date of his departure from Aruba, four males came to his hotel and strapped the cocaine to his body – they then drove him to the airport and followed him inside

(10) he had a cellphone and understood he would be contacted upon his arrival at the airport in Canada

(11) the cocaine was not his – he understood the drug would be distributed by others in Canada on his return

(12) when testifying, the offender declined to identify his Canadian connection as that individual knew where his mom and family were – he could not risk providing disclosure just as he could not give names to the RCMP for fear that his family could be killed

(13) since his incarceration, the offended has embraced the Muslim faith, praying five times daily and trying to become a better person for the sake of his children.

FINAL POSITIONS OF THE PARTIES

The Defence

[28] The defence submitted that on the whole of the evidence, Mr. McCrea ought to be considered a courier not a principal operator. The cocaine did not belong to the offender. He was a relatively unsophisticated person who gave into the temptation of quick profit to help his children.

[29] On behalf of the offender, Ms. Goldlist submitted that the low purity of the imported cocaine was a factor mitigating the actual seriousness of the crime. In her research, she was unable to locate any cocaine importation case with a purity level approaching 40%. In counsel’s view, the 2.2 kg of cocaine was a gross weight at the bottom or low end of the multiple-kilograms range contemplated by Cunningham and, with a purity-adjusted weight of 880 g., the offence here fell outside of the range and into the “mid to high” Madden range of 4 to 5 years’ imprisonment. It was submitted that with a 5-year sentence imposed upon Cunningham for the importation of over 5 kg of cocaine, the offender is entitled to a lower sentence.

[30] The defence argued for presentence credit of 1.5:1.

The Crown

[31] Crown counsel argued that the offender was not a courier but a principal hoping to return undetected to London to traffic the cocaine and to get “rich”. The offender’s failure to name the Canadian organizer tells against the credibility of the account that any such person existed. In the alternative, McCrea, who was prepared to be an overseer on the return flight, had partners in the illegal venture.

[32] On behalf of the prosecution, Mr. Park submitted that a fit sentence in the present case, prior to adjustment for presentence custody, would be 6 ½ years’ imprisonment. Counsel submitted that such a disposition might be considered quite lenient as the 2-year mandatory minimum sentence required by s. 6(3)(a.1) of the C.D.S.A., while not replacing the “pre-ordained ranges”, should now be considered a new inflationary floor with the effect of raising the previously-set guideline ranges (see R. v. Morrissey, 2000 SCC 39, [2000] 2 S.C.R. 90, at para. 75 per Arbour J.; R. v. Delchev, 2014 ONCA 448, at paras. 18-19).

[33] Submitting the overarching need to reflect general deterrence and denunciation in sentencing cocaine importers, Crown counsel noted that the offender has a lengthy and escalating prior criminal record.

[34] Mr. Park accepted that the purity of the cocaine, while not a pre-eminent factor, is nevertheless relevant to the objective seriousness of the particular importation offence especially having regard to how far the drug can ultimately be distributed. Counsel submitted that the gross weight of the cocaine imported by the offender was not near the bottom of the Cunningham range and that, in any event, 40% purity is not low purity but rather “moderate” or “medium” purity.

ANALYSIS

Sentencing Discretion

[35] Reflecting the fundamental principle of proportionality central to the sentencing process (R. v. Nasogaluak, 2010 SCC 6, [2010] 2 S.C.R. 206, at para. 40; R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at paras. 36-9), s. 718.1 of the Criminal Code requires that a sentence be “proportionate to the gravity of the offence and the degree of responsibility of the offender” (see also R. v. McDonnell, [1997] 1 S.C.R. 946, at para. 48 per McLachlin J. (as she then was) dissenting in the result (“A just sentence is one which reflects the seriousness of the crime and fits the individual circumstances of the offender”)).

[36] Review of the seriousness or gravity of the offence requires consideration of “all the circumstances of the offence” (Nasogaluak, at para. 44) including “the harm caused by the crime”: R. v. Nur, 2015 SCC 15, at paras. 43-44.

[37] Similar to starting-point sentences, judicially identified sentence ranges legitimately constrain discretion with the caselaw “setting down circumstances, general ranges of sentences for particular offences, to encourage greater consistency between sentencing decisions in accordance with the principle of parity enshrined in the Code”: Nasogaluak, at para. 44.

[38] Although “there is no legal basis for the judicial creation of a category of offence within a statutory offence for the purpose of sentencing”, appellate courts “may set out starting-point sentences as guides to lower courts”: McDonnell, at paras. 33, 43, per Sopinka J. and as McLachlin, J., dissenting on a different basis, described the starting-point approach at paras. 58, 60, 61, 99:

58 The starting-point approach to sentencing involves two steps. First, the judge determines the range of sentence for a typical case. Using that range as a starting point, a trial judge then adjusts the sentence upward or downward on the basis of factors relating to the particular offence and offender: R. v. Hessam (1983), 1983 ABCA 69, 43 A.R. 247 (C.A.), R. v. Sandercock (1985), 1985 ABCA 218, 22 C.C.C. (3d) 79 (Alta. C.A.). This approach is distinguished from the tariff approach to sentencing which takes no account of the individual circumstances of the offender: C. C. Ruby, Sentencing (4th ed. 1994), at p. 479. The tariff approach looks only at the nature of the offence. In contrast, the starting-point approach mandates consideration of specific aggravating and mitigating factors directly relevant to the individual accused. In this way, the starting-point approach combines general considerations relating to the crime committed with personalized considerations relating to the particular offender and the unique circumstances of the assault.

60 The exercise of choosing a starting point in this way resembles the long-standing practice of setting a range of sentence as a tool to arrive at a just and appropriate sentence that reflects both the crime and the individual circumstances of the offence and the offender. As Ruby, supra, at p. 482, notes, "[i]t certainly is not a new method of sentencing". The starting point may be viewed as the mid-point in the traditional range of sentences for a particular sort of crime.

61 The choice of a starting point is only -- as the phrase makes clear -- a starting point. Based as it is on assumptions as to the harm likely to flow from a typical case of the type of criminal act and the good character of the accused, it could not in fairness or principle serve as a final indication of the appropriate sentence in a particular case. As noted in Sandercock, supra, every case has its own unique characteristics, and every offender his or her own unique history. The goals of sentencing -- deterrence, retribution and rehabilitation -- play out differently depending on the peculiar concatenation of circumstances presented in each case. In short, the sentence must be individualized to the particular crime and the particular offender before the court. Having determined a starting point, the judge must go on to consider these factors and their effect on the appropriate sentence. The factors peculiar to the particular case and offender before the court may mitigate, resulting in a lower sentence than the typical case reflected by the starting point. Or they may exacerbate, resulting in a higher sentence than would prevail in the typical case.

99 The first point is simply addressed. To treat a starting point as the final point without going on to individualize the sentence is to err in law by failing to consider the actual situation of the offender and the particular facts in the case at bar. Trial judges must bear in mind that starting points, like sentencing ranges, are just what the name purports -- starting points. It is essential that they go on to individualize the sentence. If they do not, the sentence may be adjusted upward or downward on appeal.

[39] As cited by McLachlin J. at para. 103 of the McDonnell case, “It is critical that the appropriate starting point be used. To place an offence in a higher category than warranted may result in a sentence which is too harsh”.

Starting-Point Ranges for Drug Importation Sentencing

[40] In emphasizing the “serious nature of drug importation, the continued principle of general deterrence in sentencing remains a preferable option”: R. v. Wilson, 2003 CanLII 34247 (ON CA), [2003] O.J. No. 144 (C.A.), at para. 14.

[41] In sentencing, section 10 of the Controlled Drugs and Substances Act requires acknowledgment of the harm to the community. Cocaine is a highly addictive drug: R. v. H.(C.N.) (2002), 2002 CanLII 7751 (ON CA), 170 C.C.C. (3d) 253 (Ont. C.A.), at para. 271; R. v. Daya (2007), 2007 ONCA 693, 227 C.C.C. (3d) 367 (Ont. C.A.), at pp. 372-3. Enormous profits are available to those engaged in the illegal importation of narcotic substances: R. v. Pearson (1992), 1992 CanLII 52 (SCC), 77 C.C.C. (3d) 124 (S.C.C.), at p. 144.

[42] General deterrence and denunciation dominate the exercise of discretion in sentencing hard-drug importers with the seriousness of cocaine importation reflected in Parliament’s assignment of the prohibited substance to Schedule I of the Controlled Drugs and Substances Act with prescribed harsh penalties. The courts recognize that the conduct of a cocaine importer endangers public safety not merely on account of bringing the narcotic across Canada’s border but also having regard, if unapprehended, to the threat the drug would pose once the courier turned his/her cargo over to the domestic distribution organization. In this regard, just as Lamer J. (as he then was) observed in R. v. Smith, 1987 CanLII 64 (SCC), [1987] 1 S.C.R. 1045, at para. 1, that drug “importers must … be made to bear their fair share of guilt” for the consequences of the further distribution of the drug once in Canada, so too in R. v. Hamilton; R. v. Mason (2004), 2004 CanLII 5549 (ON CA), 186 C.C.C. (3d) 129 (Ont. C.A.), at paras. 103-104, the court stated:

103 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.

104 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.).

(emphasis added)

[43] Similarly, in R. v. Boakye and Others, [2012] EWCA Crim 838, at para. 2, a consolidation of six sentence appeals involving cocaine importation couriers, the court described the gravity of the offences in these terms: “It follows that the drugs that were carried into the country were worth very large sums of money indeed. Moreover, and more significantly, they had the potential to cause untold misery, addiction, further crime and further victims”. In R. v. Wong, [2001] HCA 64, at para. 64, the court observed that the seriousness of the crime of drug importation must take account of “the great social consequences that follow from its commission”.

[44] In the interest of promoting a degree of consistency in drug courier importation sentencing, the Ontario Court of Appeal has set about “fixing the range of sentences” in these cases: Hamilton; Mason, at para. 111.

[45] The definition of a “courier” is generally understood to be a transporter within a drug distribution organization without ownership of the illicit drugs: R. v. Oddleifson, 2010 MBCA 44, at para. 36 (“A courier is the person who transports the drugs from one point to another”); Boakye and Others, at para. 3 (“All of the applicants could properly attract the description of “courier” in the sense that they were all dealt with on the basis that the drugs belonged to others”). A drug courier generally “has no or very limited knowledge of the wider operation of which he/she is a part”: UK Sentencing Council Drug Offences Guideline Professional Consultation paper (March 2011), Section Two.

[46] In many instances, the non-professional courier has some weakness or vulnerability or particular temptation causing them to become “easy prey to those who engage in drug trafficking on a commercial basis”: R. v. Cunningham (1996), 1996 CanLII 1311 (ON CA), 27 O.R. (3d) 786 (C.A.), at para. 19. The reality was put more bluntly in R. v. Mokbel, [2006] VSC 119, at para. 82 (“It is the couriers, the mules and the foot soldiers in the illegal venture who eventually get caught and punished. Usually they are extremely stupid, young, gullible people who, for a few thousand dollars and sometimes a paid holiday overseas, are prepared to put their liberty … on the line”). Frequently, the importer courier is “paid a flat fee regardless of the package’s value” (R. v. Clarke, [2012] NZHC 1692, at para. 17) - one who derives “little or no financial benefit” from the real value of the imported drug: R. v. Atherton, [2009] WASCA 148, at para. 27.

[47] In the ordinary case, where a person travelling alone arrives at a point of entry to Canada with a concealed prohibited substance, it may be inferred, in the absence of evidence to the contrary, that he or she is acting as a principal as there is no evidence that he or she is simply a transporter or courier. That inference may of course be displaced or rebutted by evidence emanating from the accused or other direct or circumstantial evidence demonstrating, on balance, that the accused was likely only a subsidiary link in a larger organized distribution network: R. v. Holder, 1998 CanLII 14962 (ON SC), [1998] O.J. No. 5102 (S.C.J.), at paras. 33-37; R. v. Thompson, 2013 ONSC 3180, at paras. 7-8.

[48] In Ontario, a starting-point range of 3 to 5 years’ incarceration guides sentencing courts respecting:

(1) a first offender

(2) acting as a courier

(3) importing a kilogram more or less of cocaine

(4) for personal gain.

Regina v. Madden (1996), 1996 CanLII 10228 (ON CA), 27 O.R. (3d) 640 (C.A.), at para. 4.

[49] In Ontario, a starting-point range of 6 to 8 years’ incarceration was established in Cunningham respecting:

(1) a first offender

(2) acting as a courier

(3) importing multiple kilograms of cocaine

(4) for personal gain.

While the upper end of the Cunningham range, relating to importation of cocaine exceeding a kilogram more or less in weight, remains relatively undefined, quantitative descriptions include the following: “multiple kilograms of cocaine” (Cunningham, at para. 1 (5.23 kg)); “multiple kilograms of cocaine”, “several kilograms of cocaine”: R. v. Phillips, 2008 ONCA 726, at paras. 25, 59.

[50] Importation of cocaine in significantly higher gross weight quantities, a less commonly committed crime, where group comparables are less easily identified, attracts sentences generally beyond the Cunningham range specific to the facts of each case: R. v. Singh (2014), 2014 ONCA 791, 122 O.R. (3d) 481 (C.A.) per Laskin J.A. in dissent on conviction appeal (9 yr./53 kg); R. v. Niemi, [2008] O.J. No. 5830 (S.C.J.), affd 2012 ONCA 133 (14 years/593 kg); R. v. Malanca (2007), 2007 ONCA 859, 228 C.C.C. (3d) 90 (Ont. C.A.) (19 yr./270 kg); R. v. Franco-Hernandez, [1991] O.J. No. 3775 (S.C.J.), affd [1993] O.J. No. 2405 (C.A.) (15 yr./14 kg); R. v. Giroux, [1994] O.J. No. 3645 (C.A.) varying [1993] O.J. No. 4588 (S.C.J.) (13 yr./16 kg); R. v. Epp, 2006 BCCA 570 (10 yr./100 kg); R. v. Nalvarte, 2011 ONSC 234 (8 yr./12 kg).

[51] In Ontario, where the imported cocaine is approximately half a kilogram, the bottom of the guideline sentencing range “should be at or near two years”: Hamilton; Mason, at paras. 108-110.

[52] The recognized ranges described in Madden and in Cunningham apply where similar gross-weight quantities of the controlled substance are imported “absent exceptional circumstances”: Wilson, at para. 13; Cunningham, at paras. 15, 19, 23 (“absent exceptional or extenuating circumstances”); H.(C.N.), at pp. 272-3; R. v. Valentini et al. (1999), 1999 CanLII 1885 (ON CA), 132 C.C.C. (3d) 262 (Ont. C.A.), at pp. 303-4; Hamilton; Mason, at paras. 111, 113 (distinction between “common” and “usual” mitigating factors and “extraordinary mitigating factors” or those “so significant”).

[53] These guideline ranges assisting sentencing courts have consistently received confirmation in subsequent years with application of the Madden range where appropriate (Wilson (¾ kg. – 3 years); R. v. Harris, 2014 ONCA 746 (913 g. – 4 years)) as well as the Cunningham range: Phillips (2533 grams – 6 years); R. v. Syblis, 2001 CanLII 24127 (ON CA), [2001] O.J. No. 115 (C.A.) (2.13 kg. – 7 years).

[54] Cocaine consumption does not invoke discussion of doses or tablets. As is evident from the starting-range approach in the jurisprudence, the seriousness or gravity of the offence is predominantly measured by the quantity of the imported cocaine. This was explicitly recognized at p. 189 of R. v. Spencer (2004), 2004 CanLII 5550 (ON CA), 186 C.C.C. (3d) 181 (Ont. C.A.) (leave to appeal refused [2005] S.C.C.A. No. 4): “The range of sentence in Madden is based on the weight of the cocaine imported”.

[55] Mr. McCrea’s crime attracts application of the mandatory minimum sentence described in s. 6(3)(a.1) of the C.D.S.A., legislation enacted long after the Madden and Cunningham guidelines were established:

(a.1) if the subject matter of the offence is a substance included in Schedule I in an amount that is more than one kilogram, is guilty of an indictable offence and liable to imprisonment for life and to a minimum punishment of imprisonment for a term of two years.

[56] It was not suggested on the facts of this case that Mr. McCrea could receive a sentence of less than two years. However, at least indirectly relevant to this case, as suggested by Crown counsel, is whether this 2012 starting-point sentence mandated by Parliament entering the field as it were, leaving a 1 kg.-importer outside the 2-year mandatory minimum regime, impacts on the calibration of the previously set Madden and Cunningham ranges.

[57] Routinely, in these trial courts, whether in the form of expert testimony or agreed facts at trial, certificates of analysis, or in a narrative of recited facts at a sentencing hearing, the prosecution seeks to describe the context and gravity of the importation crime by reference not only to weight but as well to value and/or purity, often triangulating the seriousness of the offence by reference to all three characteristics.

Measuring Quantity by Weight

[58] Section 6 of the C.D.S.A. makes it an offence to import a Schedule I substance into Canada. Schedule I 2. reads:

Coca (Erythroxylon), its preparations, derivatives, alkaloids and salts, including:

Coca leaves (2) Cocaine (benzoylmethylecgonine) (3) Ecgonine (3-hydroxy-2-tropane carboxylic acid).

[59] The courts’ experience, as is evident from the caselaw, is that cocaine is frequently mixed with inactive ingredients, at times referred to as consumable cutting agents, adulterants or diluents, and ultimately sold to consumers in gram quantities in less potent form than when it was shipped from abroad.

[60] Beyond the definition of cocaine as the “substance” described in Schedule I 2. of the C.D.S.A. in terms of its chemical descriptor, this includes as well “all synthetic and natural forms of the substance”: C.D.S.A., s. 2 (2)(b)(i). Reference to importation of a controlled substance like cocaine is further extended by ss. 2(2)(1)(a) and (b)(ii) of the C.D.S.A.:

(2) INTERPRETATION – For the purposes of this Act,

(a) a reference to a controlled substance includes a reference to any substance that contains a controlled substance; and

(b) a reference to a controlled substance includes a reference to

(ii) any thing that contains or has on it a controlled substance and that is used or intended or designed for use

(A) in producing the substance, or

(B) in introducing the substance into a human body.

[61] The weights of containers and packaging are generally not included in determining a sentence “because those items are…clearly not mixed or otherwise combined with the drug”: Chapman v. United States, 500 U.S. 453, 463 (1991).

[62] The total weight of the seizure from the offender was 2.2225 g. In the present case, nothing is known of the approximately 60% non-cocaine part of the seizure from the offender. If multiple other substances, or inactive agents, were constituent parts each amounting to less than 40%, then the issue arises as to whether there is “any substance” that “contains” the cocaine in the sense of enclosing it, having it in, or holding it within.

[63] The impact of the mandatory minimum 2-year penalty, focusing as it does on gross weight exceeding 1 kg., may or may not prove to be significant to cocaine importer sentencing generally. Consider a hypothetical importer of a controlled substance weighing 1050 g. containing cocaine:

(1) An honestly held belief (as in Madden, and H. (C.N.)) that the controlled substance was marihuana, not cocaine, was described at paras. 46-7, 51 of H. (C.N.) as a significant extenuating factor relating to proportionality and the moral blameworthiness of the offender and as such a factor justifying the imposition of a sentence below the relevant starting-point range. It now appears that here, as in the United States, that this factor, touching upon the degree of responsibility of the offender, can no longer serve to mitigate the mandatory penalty: United States v. Jefferson, U.S.C.A. (9th Cir., June 26, 2015; No. 13-50647), at pp. 10-12.

(2) Lack of knowledge of the weight of the substance, or an honest belief that it was less than 1 k., is irrelevant to imposition of a mandatory sentence: Jefferson; United States v. Dado, 759 F.3d 550, (6th Cir., cert. denied, 135 S. Ct. 510 (2014)) with the dissent noting at p. 572:

Important principles are also at play here. The majority’s rule runs against the strong presumption against strict liability crimes. Staples v. United States, 511 U.S. 600, 607 n.3 (1994); supra at 24. The majority’s opinion disregards the presumption that the more serious the penalty at issue, the more important intent is to guilt. Staples, 511 U.S. at 616; supra at 24. In Dado’s case, he is facing two mandatory minimum sentences of 20 years triggered by a fact that he did not necessarily even know about. If the measure of mens rea is that it “require[s] that the defendant know the facts that make his conduct illegal,” Staples, 511 U.S. at 605, then Dado’s knowledge of the amount of drugs involved in his crime is a necessary condition for his guilt and the application of the mandatory minimum sentences in this case.

(3) The penalty applies even if the “controlled substance” (with its extended definition in s. 2(2) of the C.D.S.A.) contains only 1 g. of cocaine.

(4) Because the mandatory penalty applies without regard to purity or concentration of the cocaine, it is of no moment that the detectable amount of cocaine in the seizure may have been diluted past the point of useability by any consumer.

(5) If, instead of bringing into Canada 1050 g. composed of 500 g. of cocaine and 550 g. of other dry substances, the importer had entered Canada with the 500 g. of cocaine suspended in liquid in a liquor bottle, he or she would not face a mandatory minimum sentence as that cocaine, as has been the practice in this jurisdiction, would be extracted from the liquid and not comprise part of the controlled substance: United States. v. Salgado-Molina, 967 F.2d 27, 28 (2d Cir. 1992) (cocaine in liquor bottles – chemical extraction necessary – the law does not mandate “inclusion of the uningestible liquid in the weight calculation”); United States v. Acosta, 963 F. 2d 551 (2d Cir. 1991) (cocaine suspended in crème liqueur not included in guidelines weight).

(6) Assuming the facts in (5) above with the 500 g. of pure cocaine in the 1050 g. substance (48% purity), the importer would be caught by the mandatory sentence whereas the importer of a 950 g. substance at 90% cocaine purity would not, although the cocaine imported by the second courier (855 g. pure cocaine) would be more valuable and a significantly greater threat to public safety given the number of consumers dilution of the drug would reach.

[64] In relation to the latter two discussion points, this observation of the court in United States v. Tizoc, 656 F.3d 740, 746 (7th Cir. 2011), captures the issue:

Adjusting for potency makes more sense than adjusting for weight. Emphasis on the weight of a defendant’s drugs (in this case the weight of the dilute drugs sold by customers of defendants), whether or not they are diluted, has the perverse effect of giving drug dealers an incentive to possess and sell drugs of high purity or potency and makes the length of sentences depend perversely on the weight of the inactive ingredients in the drugs. Johnathan P. Caulkins et al., “Mandatory Minimum Drug Sentences: Throwing Away the Key or the Taxpayers’ Money?” 22 (RAND Corp. Drug Policy Research Center 1997).

Value as a Relevant Circumstance

[65] Many caselaw references to drug value exist in importation cases of which the following are but a few examples: Cunningham, at para. 3 (the “5.231 kilograms of cocaine would retail for over half a million dollars at street level”); R. v. Oliynyk, 2010 BCCA 249, at para. 5 (“if broken down into smaller amounts and sold at the “eight ball” or 1/8th ounce level, the profit margin would range between…”); Wilson (Ont. C.A.), at para. 10 (“The street value of the cocaine brought into the country was $112,000.00 if sold in individual grams”); Phillips, at para. 8 (“the street value of the cocaine in the Toronto area was between $495,800 and $618,500”); R. v. Harris, 2012 ONSC 27, at para. 47, affd 2014 ONCA 746:

Cocaine is normally sold at the street level in half grams, grams, eight balls, (an eighth of an ounce or 3.5 grams), quarter ounces, half ounces and ounces. Typically a user will normally purchase cocaine in half or gram weights.

Value - Street level prices for Cocaine in the Greater Toronto in 2009 are outlined below:

Gram $80.00 - $110.00

Ounce $1,000.00 - $1,400.00

Pound $18,000.00 - $22,000.00

Kilogram $30,000.00 - $35,000.00

The value of cocaine seized in this case sold in grams would be in the price range as follows:

913 grams x $80.00 = $73,040.00

913 grams x $100.00 = $91,300.00

913 grams x $110.00 = $100,430.00

[66] As I noted in R. v. Hamilton, R. v. Mason (2003), 2003 CanLII 2862 (ON SC), 172 C.C.C. (3d) 114 (Ont. S.C.J.), at paras. 171-174, the assessment of value can be a shifting and elusive variable:

170 At the time of Ms. Hamilton's plea, the prosecution provided a weight of 465 g cocaine with a per gram sale total street value of $69,750.00. No valuation was attached to Ms. Mason's importation. In each instance, the initially reported weights were reduced by 25% eliminating the weight attributable to the pellet receptacles.

171 The assessment of the gravity of the importation offence based on retail value is steeped in the ambiguity of multiple variables affecting costing. In this regard, in Regina v. Hoang and Pham, supra, an ecstasy importation case, at para. 86, I observed:

The relevant factors in the profit-costing exercise include price of raw chemicals, laboratory manufacturing costs, courier expenses, distribution costs, and market value affected by such variables as the current availability of the drug, amount purchased, and relationship between seller and buyer. The use of street value as the touchstone for the gravity of a drug importation crime is not without its critics. Quite apart from the inherent difficulty in valuing illegal drugs, there is a logical inconsistency in basing a sentencing disposition on drug street value. In Regina v. Aranguren et al., supra at 351, the court rejected this approach noting that to follow the street value route would mean that since street value lowers as supply is more plentiful, so the more of the illicit substance imported the lower the price and in turn the lower the sentence. In Regina v. Warren and Beeley, supra at 122, the court described reliance on this logic as contrary to public policy. Street value should, at best, be limited to secondary use as a rough guide or cross-check as to the magnitude of the operation and available profits: Regina v. Aranguren et al., supra at 351; Regina v. Patel (1987), 9 Cr. App. R.(S.) 319 (C.A.) at 321 per Watkins L.J.; Regina v. Hurley, supra at 303; Regina v. Marshaollahi, supra at 109-110; Sentencing Appeal Panel - Advice to the Court of Appeal - 3. Importation and Possession of Opium, May, 2000 at para. 15.

172 Unlike ecstasy, which is imported market-ready for consumer ingestion, imported cocaine is almost invariably subjected to a cutting or purity dilution process prior to trafficking to consumers of the illicit drug. In these circumstances, the appropriate valuation is rendered even more uncertain.

173 …All counsel in the present case agreed that cocaine importation cases ought to be assessed on this basis as described in Regina v. Aranguren and Others (1994), 99 Cr. App. R. 347 (C.A.) at 351 per Lord Taylor CJ:

…The effect of this imprecision is that prosecution figures for average purity or average price may be challenged and where this occurs, the judicial response may vary. Some judges may follow the prosecution figure, some may take a mean figure between those of the prosecution and defence experts and some may assume, in the defendant's favour, that his expert is right.

However, there is another and very important reason for considering weight rather than street value. If cocaine or heroin is readily available, the price to the consumer drops. So the more imports the drug profiteers can achieve, the lower the street value per gramme. By taking street values as the criteria rather than weight, the sentencing level for like quantities of the drug becomes lower as supplies become more plentiful. Although making large profits from importing prohibited drugs is morally reprehensible, the main mischief to which the prohibitions are directed by Parliament is the widespread pushing of addictive drugs harmful to the community. It cannot serve Parliament's purpose if the more drugs imported and therefore the lower the street price, the lower the level of sentencing.

We therefore propose to revise the sentencing yardsticks by expressing them in terms of weight rather than street value of the drugs. Clearly, it would not be fair to take the actual weight of the consignment regardless of its purity. To achieve an accurate and fair standard applicable to all cases, we agree with the experts that it is necessary to calculate what weight of the drug at 100 per cent purity is contained in each seizure. We are told and accept that no importation is in fact at 100 per cent strength since it is not prepared under laboratory conditions, though strengths of percentages in the 80s and 90s are achieved. However, by calculating in each case the weight at 100 per cent strength, a consistent approach can be made to the significance of each consignment.(emphasis added)

174 The purity-adjusted weight measurement, though seldom known to the individual importer, is nevertheless an objectively valid and levelling comparator case-to-case of the gravity of the offence. For example, importation of 2 k of cocaine at 47% purity and importation of 1 k of cocaine at 94% purity will each contain 940 g of pure cocaine. The respective importers ought not to be subjected to sentencing guidelines of differential harshness.

See also UK Sentencing Council Drug Offences Guideline Professional Consultation (March 2011) (“street value is rarely useful as a determinant of seriousness…because of its highly variable nature”); R. v. Tshisa, [2006] NZCA 236, at para. 22 citing this passage from its 1998 unreported decision in R. v. Liava’a & Ors: “Value, if capable of accurate assessment, generally could be expected to reflect these factors [i.e. purity and potency], but experience has shown how difficult it is to obtain reliable values for quantities of narcotics”.

Purity of the Drug as a Relevant Sentencing Factor

[67] On appeal, the court in Hamilton; Mason, at paras. 151-153, rejected purity-adjusted weight as the preferred approach to weight determination when identifying the appropriate starting range for a cocaine importer:

[151] I agree with the trial judge that the purity of the cocaine imported, while usually not known to the courier and therefore irrelevant to personal culpability, can have some effect on the seriousness of the specific offence (para. 174). The purer the cocaine, the wider its potential distribution, and therefore the greater the harm it may cause in the community. However, I do not think that the purity of the cocaine imported will be a particularly significant factor in assessing the seriousness of the offence. Certainly, there should be no mathematical-like reduction in the seriousness of the offence based on the exact purity of the cocaine. I see little difference, for the purposes of assessing the seriousness of the crime, between cocaine that is 80 per cent pure and cocaine that is 90 per cent pure.

[152] I also do not agree with the trial judge's tentative view (para. 176) that the range of sentencing referred to in Madden should be read as referring to the importation of nearly pure cocaine. The ranges set in Madden and Cunningham were based on weight. Purity was not a factor. In deciding whether a particular case fits within the Madden range or the Cunningham range, the relevant comparison is between the weights referred to in those cases and the weight of the cocaine imported in a particular case.

[153] In so holding, I do not suggest that the purity of the drug is irrelevant. If the weight of the cocaine imported brings it within the Madden range, its purity will have some relevance to the determination of where in the range the sentence should fall. In cases where the purity is low and the weight near the bottom end of the "a kilogram more or less" amount referred to in Madden, the offence may fall outside of the Madden range entirely.

(emphasis added)

[68] In R. v. John Doe [J.D. #33], [2005] O.J. No. 3261 (S.C.J.), at para. 46, the court sought to summarize the purity-adjusted issue:

46 Reading the Hamilton/Mason and the Spencer cases together, the following guidelines or principles emerge:

(1) The ranges in Madden and Cunningham were based on the weight of the cocaine without reference to the purity of the respective importations: R. v. Spencer, at para. 20. Effectively, the purity of the cocaine was irrelevant to setting the starting ranges.

(2) For the purpose of determining whether the Madden range is applicable, the weight of the cocaine imported should be compared to the "kilogram more or less" standard described in Madden: R. v. Spencer, at para. 20; R. v. Hamilton; R. v. Mason, at para. 152.

(3) The purity of the cocaine imported will not be a particularly significant factor in assessing the seriousness of the offence: R. v. Hamilton; R. v. Mason, at para. 151.

(4) Nevertheless, "If the weight of the cocaine imported brings it within the Madden range, its purity will have some relevance to the determination of where in the range the sentence should fall" (emphasis added): R. v. Hamilton; R. v. Mason, at para. 153. In other words: "The purity of the cocaine imported has some relevance in fixing where within the range of sentences the specific sentence should fall" (emphasis added): R. v. Spencer, at para. 21.

(5) Where the purity is "low" and the weight toward the lower end of the Madden range, the offence may fall below the one kilogram more or less range: R. v. Hamilton; R. v. Mason, at para. 153; R. v. Spencer, at para. 21.

(7) Crown counsel in this case believed that on the basis of judicial notice, "low" and "high" purity levels have been identified by the appellate court with respect to some external reference point or points. It has been determined that there is little difference between cocaine that is 80 or 90% pure for the purpose of assessing the seriousness of the crime – cocaine which is 82% pure is of “high” purity: R. v. Hamilton; R. v. Mason, at para. 151; R. v. Spencer, at para. 21.

[69] When Hamilton; Mason (O.C.A.) was decided, the court was aware of purity levels, generally in the range of about 80%, and higher, coming before trial courts, for example: Hamilton (78-79%), Mason (87-91%), Madden (92%), Spencer (82%), Smith (85-90%). Since 2004, courts have continued to refer to the purity factor: R. v. Wilcox, 2014 BCCA 65 (approx. 90% purity); R. v. Armeni, 2011 QCCA 1574, at para. 114 (85% purity); Oddleifson, at para. 7 (“The cocaine was very pure (75-96% purity)”); John Doe [J.D. #33] (avg. 80% purity); R. v. Wilson, 2008 ABQB 588, at paras. 1, 19 (“very pure cocaine”; 94% pure) – sentence increased on appeal, 2009 ABCA 257, at paras. 1, 22 (“cocaine of great purity”; purity level a factor tending “to push the sentence higher than the starting point”).

[70] We see similar references in the jurisprudence of other jurisdictions: United States v. Stewart, 761 F.3d 993, 1001 (9th Cir. 2014)(“a downward variance for a mixture of unusually low purity may be justified in appropriate circumstances to better reflect the nature and seriousness of the offence”; “The purity and usability of a drug mixture are but a few of the many relevant factors that weigh into the imposition of an individualized sentence…”); R. v. Hall, [2013] EWCA Crim 82, at para. 9 (cocaine at “the very high purity level of 83%”); R. v. Dika & Gill, [2011] EWCA Crim 2459, at para. 8 (importation of cocaine with “consistently high level of purity of between 76 and 82 percent”); R. v. Aoun, [2011] NSWCCA 284, at para. 63 (“purity as a factor relevant to an assessment of objective gravity”); R. v. Paxton, [2011] NSWCCA 242, at para. 129 (“purity of the drug is one of the factors to be considered when determining where an offence falls in the range of objective seriousness”); Atherton, at paras. 27, 125 (“The quantity of the drug involved and the purity has to be ascertained and considered”; “The degree of purity is often regarded as significant”); Borbil v. The State of Western Australia, [2007] WASCA 24, at para. 52 (“the quantity of the drug involved and its purity remain important considerations”); Clarke, at para. 2 (cocaine imported at 80% purity); Mokbel, at para. 56 (purity of imported cocaine was 65.9%).

[71] With the February 27, 2012 UK Sentencing Council Drug Offences Definitive Guideline, the previous purity-adjusted or net weight approach then being applied in every sentencing case, as adopted by this court in Hamilton; Mason, was abandoned and replaced with a gross weight approach as was the result on appeal in Hamilton; Mason. Once gross weight of the substance is ascertained, purity becomes a factor which may have potential aggravating or mitigatory impact on sentence: Boakye and Others, at para. 38 (a court “may determine to adjust up or down, either for very high or very low purity”); R. v. Hall and Others, [2013] EWCA Crim 7499, at para. 33 (“Under the guidelines a high level of purity of the drug is then an aggravating feature”); UK Guideline – ‘…bringing into … UK a controlled drug’ – aggravating factor “increasing seriousness” is “High purity” of cocaine whereas “Low purity” is a factor “reducing seriousness” of the crime).

[72] The purity of the imported cocaine is not usually known to the courier: Hamilton; Mason (OCA), at para. 151; Wong, at para. 68. After over two decades of presiding as a trial judge in the jurisdiction responsible for trying drug importation charges from the Pearson International Airport, I can confidently say that the quantity or weight of the narcotic imported is also not generally known – the great majority of couriers would not be knowledgeable as to whether the cocaine suspended in liquid form in liquor bottles, or hidden in the false bottom of a packed suitcase, weighs three quarters of a kilogram or one and a half kilograms. The concealment is most frequently professionally undertaken by a foreign supplier without a courier’s assistance. Reservations about over-emphasis upon weight in sentencing drug couriers, except in instances of large commercial shipments, have been expressed in some jurisdictions: Wong, at para. 31 per Gleeson CJ (“it may be that an offender’s information and belief about the quantity of [the drug] imported is much more significant than the objective fact as to quantity”), and at para. 68 per Gaudron J. (Gummow, Hayne JJ. concurring); Clarke, at para. 17 (“The quantity of the drug is of prime importance in assessing the culpability of prime organizers or masterminds , but it is not as important for couriers as they do not necessarily know how much they are transporting”); Paxton, at para. 130 (“the size of the importation is a relevant factor and has increased significance when the offender is aware of the amount of drugs imported”).

[73] The jurisprudence from multiple jurisdictions has articulated that, in a particular case, the purity level of the narcotic may be relevant for any of the following reasons:

(1) A higher level of purity may signal a high-level transaction; proximity to the supplier: Armeni, at paras. 114, 119, 122 (85% purity of cocaine was a level usually found in cases where drug bought directly from supplier; high purity an aggravating factor); Wilcox, at paras. 15, 52 (purity of cocaine consistent with “the high end of the distribution hierarchy”); R. v. Kandola & Johal, 2012 BCSC 968, at paras. 167, 180 (“high-grade cocaine”; “The purity levels of the cocaine…were very high which indicates the cocaine is closer to the supplier”); Attorney General Reference Nos 99, 100, 101 & 102 of 2004, [2005] EWCA Crim 294, at para. 21 (“comparatively high level” of cocaine purity suggested accused “must have had a close connection to the importers”); Tizoc, at p. 745 (possession of unusually pure narcotics may indicate a prominent role in the criminal enterprise and proximity to the source of the drugs).

(2) Objective seriousness of the crime in terms of risk of consequential harm to others: Hamilton; Mason (OCA), at para. 151 (“The purer the cocaine, the wider its potential distribution and therefore the greater the harm it may cause in the community”); Wilcox, at para. 52 (high purity cocaine “would normally be diluted and distributed through lower level dealers”); UK Sentencing Council Drug Offences Guideline Professional Consultation paper (March 2011), Section Two (purity “could affect harm, because the higher the purity the greater supply of drug to the end user or addict”; “…for those involved in … importation, a drug of higher purity would allow wider distribution, leading to greater harm, which would increase the seriousness of the offence”).

(3) The pharmaceutical or toxic risk of consumption to any consumer should the high purity cocaine not be further cut or diluted, or mistakes made in the cutting process: Wilson (ABCA), at paras. 31-2 (“cocaine…[with this]…pureness of the drug is particularly dangerous”); R. v. Kanu, [2014] EWCA Crim 67, at para. 10 (cocaine at the 68% purity level “could be harmful to the user”); Tizoc, at p. 744 (drug at high potency level “creates a greater risk of fatal overdoses because of failures, common in the drug trade, of warning and of sufficient dilution”; dilution necessary “to make it safe to consume”… “to avoid killing consumers”).

(4) Profitability of the illegal scheme – impact on street value ultimately available to drug distribution network of which courier is a constituent part: R. v. Bennett (2003) CarswellOnt 6617 (S.C.J.), at para. 20 (“purity impacts on street value”); Kanu, at para. 10 (“far more profitable for the dealer to mix the cocaine up with other substances and then sell a larger quantity”); R. v. Kakkad, [2015] EWCA Crim 385, at para. 35 (could infer cocaine to be cut with benzococaine further “to increase the profit”); Mokbel, at para. 59 (purity affects pricing); R. v. Sangster and Others, [2009] EWCA Crim 2486, at para. 27 (“the drugs were worth about £70,000 wholesale, and if cut to about 30% purity would have had a street value of about £300,000 to £500,000”).

[74] In terms of sentencing consideration as to the degree of responsibility of the offender, a drug courier often is unacquainted with the details of the weight, value or purity of the transported cocaine. Cocaine of high purity is generally couriered because the foreign supplier does not undertake the cutting or dilution process desirous of reducing shipping weight and bulk to more easily facilitate the defeat of interdiction measures against drug smuggling. That said, in considering the objective seriousness of the crime, the purity level could be quite relevant where unusually high or low given its direct relation to the number of consumers impacted by the shipment and the overall profits available to the domestic distributors.

[75] On occasion, as occurred in this case despite the court’s request for the assistance of evidence, the subject of conversion of imported cocaine to street level product has been left to the submissions of counsel: Giroux (SCJ), at para. 2 (“This cocaine was 95 to 98 percent pure and the submissions made before me were that it would…probably have been cut from its existing level of purity to something less than half of its present state”). In some cases, expert evidence is led relating to the contemporary purity levels of cocaine being trafficked at street level, for example: Hamilton; Mason, at para. 21 (use of dextrose, filler and other binding components such that a 1-gram street sale may be reduced to 17% cocaine content); R. v. Marton, [1980] O.J. No. 868 (C.A.), at para. 4 (cocaine imported at 98% purity likely to be cut to street level purity of 5% to 30%); R. v. Grant, [2005] O.J. No. 6129 (S.C.J.), at para. 31 (street sales “generally in the range of 25 to 30 percent pure”); Kanu, at para. 10 (would be “very unusual for cocaine of 68% purity to be sold at street level”); Kakkad, at paras. 17, 38 (cocaine content could be reduced to as low as 8% purity for street dealers to sell users); Mokbel, at para. 59 (“Cocaine is not able to be diluted as much as amphetamines and heroin. It does not retain much potency under about 30 per cent purity”).

[76] These expert opinions in other cases, not uniformly consistent as drawn from constantly changing drug markets, and not from 2014 when Mr. McCrea’s crime was committed, and in some instances not in this jurisdiction, cannot become evidence in the present case. In R. v. Attallah, [2005] NSWCCA 277, at para. 221, the court held that the trial court was in no position to determine solely from the purity of the cocaine associated to the offender (38 to 39%) that it could be considered an aggravating feature of sentencing as being a high degree of purity. Also see United States v. Martinez-Duran, 927 F.2d 453, 456 (9th Cir. 1991) (similar observation re heroin – “no evidence in the record to support a finding that heroin of forty-six percent purity is “of unusually high purity”; “no factual proof”).

The Fit Sentence in this Case

[77] The parties properly acknowledged general deterrence and denunciation as predominant animating principles in crafting a fit sentence in instances of C.D.S.A. Schedule I drug importation. The direct and indirect consequences of the availability of cocaine in the community are notorious requiring the courts to contribute to elimination of its available supply. Given Mr. McCrea’s prior criminal history, specific deterrence remains a concern as earlier involvement in the criminal justice system has failed to redirect his life to law-abiding behaviour.

[78] On balance, on the totality of the evidence, the offender has established that he acted as a courier in importing the cocaine. Leaving to the side that this appeared to be the view of the RCMP interrogator in his questioning of the offender, the offender related to the police that he would not snitch on the others involved in the operation and denied being a cocaine trafficker selling the drug. During the offender’s testimony, accepted by the court, it became apparent that, for an anticipated flat fee, he acted as the transporter link between the Aruba and Canadian ends of the illegal enterprise. The credibility of the offender’s account was not diminished by his failure to identify accomplices given his reason for not risking discovery as an informer.

[79] Apart from resort to any starting-point range guidance, the offender here is subject to a mandatory minimum of two years’ incarceration by virtue of s. 6(3)(a.1) of the C.D.S.A.. Leaving more intensive discussion of the issues identified in paras. 58-64 above for another day, the provision is presumptively constitutional. On the record before this court, it is not clear what impact Parliament’s inclusion of a mandatory minimum regime in s. 6 of the C.D.S.A. will have on pre-existing judicially-established sentencing ranges.

[80] The offender imported cocaine of an average purity of 41% or about 910 grams of pure cocaine. Although in the United Kingdom, the Home Office publishes an annual report setting out the average purity of drugs analyzed in the preceding year (Sentencing Council, Drug Offences Guideline Professional Consultation (March 2011)), this court was informed that such statistical tracking is not maintained by Health Canada or the RCMP. Despite the court’s plea for assistance, no evidence was produced to assist in the characterization as to whether cocaine purity in the 40% range is “low” as described by the defence or “medium” level as advocated by the prosecution.

[81] As has been cautioned when using the gross weight of cocaine as a measure of the seriousness of an importation offence, outside a codified mandatory minimum regime based on quantity, there is no mathematical or tariff approach to the determination of a fit sentence. The seizure of 2.2 kg of cocaine is toward the bottom of the multiple kilogram range identified in Cunningham. In addition, the purity of the cocaine imported by McCrea is significantly lower than the purity level of imported cocaine as described in two decades of caselaw from jurisdictions across Canada. The combination of these factors supports a starting point falling outside the Cunningham range.

[82] Be that as it may, built into admission criteria to the Madden and Cunningham guideline ranges is the prerequisite that the offender not have a prior criminal record. Accordingly, to the extent that a sentencing court looks to the guidelines for assistance, it would seem that the aggravating fact of a prior record could operate to escalate the applicable range of sentence. Mr. McCrea is far from a first offender and undeserving of the leniency represented by the floor of a guideline range generally reserved for a first offender.

[83] In the present case, the mitigatory benefit of the low purity of the imported cocaine is effectively offset by the offender’s prior criminal history leaving the Cunningham range as a general guide for this court’s exercise of sentencing discretion.

[84] The aggravating features of the present case are manifestly apparent including the following:

(1) the offender imported a dangerous, non-indigenous C.D.S.A. Schedule I substance which is highly addictive and responsible for other serious consequences to society

(2) the controlled substance was body-packed to defeat interdiction measures

(3) the offender temporarily escaped lawful custody during the border investigation

(4) the mature offender is a recidivist in the criminal courts with a prior criminal record.

[85] There are no exceptional circumstances in this case. However, in the balance, in mitigation, the court must consider that:

(1) the offender entered pleas of guilt and expressed regret for his conduct

(2) as a courier, the offender played a subsidiary role in the distribution scheme with limited compensation for the risk he assumed

(3) Mr. McCrea contributes to the support of two young children

(4) the cocaine was of unusually low purity in comparison to other cases coming before the courts.

[86] The totality of circumstances warrant a total sentence of 6 years’ incarceration for the crimes committed.

[87] As of this date, the offender will have served 286 days or just short of 9 ½ months in pre-sentence custody as a result of his November 1, 2014 arrest for the charges before the court. As observed in R. v. Geddes, 2014 ONCA 838, at para. 3, “In R. v. Summers, 2014 SCC 26, [2014] S.C.J. No. 26, the Court held that the loss of early release alone will generally be a sufficient basis on which to award enhanced credit of 1.5:1”. That view was also expressed in R. v. Ayati-Ghaffari, 2014 ONCA 812, at paras. 5-6 with the court noting that, “Enhanced credit is the norm not the exception”. That said, “credit is not…automatic” without considering the circumstances of a particular offender: R. v. Abdullahi, 2015 ONCA 549, at para. 18. There is no evidence of contraband or escape custody institutional infractions as alleged in the presentence report. The physical skirmishes in which the offender was involved while in presentence custody do not on their facts support an inference that the offender would not be eligible for early release on Federal parole: see R. v. Slack, 2015 ONCA 94, at paras. 11-20; R. v. Nelson, 2014 ONCA 853, at paras. 52-3. Accordingly, for a total of 429 days (286 x 1.5), it is appropriate to credit the offender with the equivalent of 14 months’ custodial detention prior to sentencing.

CONCLUSION

[88] With credit for 14 months of presentence custody, the offender is sentenced to a further 4 years and 10 months of incarceration on the cocaine importation charge and to 60 days concurrent on the escape custody charge.

[89] In addition, there will be s. 109(2)(a)(b) Criminal Code weapons prohibition orders for life. It is in the best interests of the administration of justice, if such an order has not previously been executed upon the offender, that an order issue pursuant to s. 487.051(3) of the Code respecting the s. 6 C.D.S.A. crime for the taking of bodily substances by Correctional Services Canada for the purpose of forensic DNA analysis.

Hill J.

DATE: August 12, 2015

COURT FILE: CRIMJ (F) 799/2015

DATE: 2015 08 12

ONTARIO

SUPERIOR COURT OF JUSTICE

RE: R. v. NEVIN MCCREA

COUNSEL: L. McKenzie, for the Crown

J. Goldlist, for the defence

HEARD: May 8, 2015

REASONS FOR SENTENCE

Hill J.

DATE: August 12, 2015