ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CRIMJ(F) 262/12
DATE: 2015 08 06

BETWEEN:

HER MAJESTY THE QUEEN

Carol Letman, for the Crown

• and -

JUAN CARLOS CARRERA-VEGA AND ROBERTO SABLON-LEAL

Ian Kostman, for J.C. Carrera-Vega
Hans Cedro, for R. Sablon-Leal

HEARD: July 28, 2015

REASONS FOR SENTENCE

FAIRBURN J

Overview

[1] On March 26, 2015, Juan Carlos Carrera-Vega and Roberto Sablon-Leal were convicted by a jury of importing cocaine into Canada, contrary to s. 6(1) of the Controlled Drugs and Substances Act [CDSA]. These are my reasons for sentence.

Facts of the Offences

[2] On December 7, 2011, the accused travelled to Panama together. Late in the evening of December 15, 2011, they arrived back in Toronto through Pearson International Airport. While each accused left the country with a single bag, each returned with two new pieces of Samsonite luggage.

[3] They were referred to the secondary inspection area where their bags were searched. A total of 3,874 grams of cocaine were found in Mr. Carrera-Vega’s bags and 3,937.3 grams in Mr. Sablon-Leal’s. The cocaine was found well concealed behind the lining of each of the four bags. In one of Mr. Carrera-Vega’s suitcases, the cocaine was also found in an inflatable toy.

[4] The cocaine was analysed and found to contain a purity level of between 79-89%, with the average being 84%. The Crown called an expert at trial and his report went in on consent. It suggests that Mr. Carrera-Vega’s cocaine would last a heavy user for 2.12 years. Mr. Sablon-Leal’s cocaine would provide a heavy user with a supply for 2.15 years. If sold at the kilogram level, the amount of cocaine in their bags would have yielded just over $135,000 each. If sold at the gram level, their cocaine would have yielded around $310,000 each.

[5] Both accused testified and denied knowing that they had cocaine in their suitcases. In brief, they testified that they had travelled to Argentina a few months before Panama. Among other things, they said that they went to Argentina together because of their love of Che Guevara. Realizing that they were good travel companions, they decided to go to Panama together. The reason for the travel to Panama was that that Mr. Carrera-Vega had met a doctor who told him of the beauty of Panamanian women.

[6] The accused testified that once in Panama, they met a “Cuban” whose name they do not recall. He told them that he could get them a good deal on luggage. They went with the Cuban to a store selling various forms of bags, including suitcases and knapsacks. They purchased Samsonite luggage sets. Each accused purchased a small and big bag. They testified that they took the bags back to their hotel and packed their belongings by placing them into the big bags only. According to them, they placed nothing in the small bags and, instead, chose to transport the small bags back to Canada empty.

[7] They had their bags shrink wrapped at the airport in Panama. Once the shrink wrap was removed by the Canadian Border Services officers, the accused testified that they were shocked to discover that the small bags had clothing in them and that all of the bags had cocaine in them.

[8] By their verdict, the jury clearly rejected Mr. Carrera-Vega and Mr. Sablon-Leal’s evidence.

The Circumstances of the Offenders

Mr. Carrera-Vega

[9] Mr. Carrera-Vega is 25 years of age. He was 22 at the time he committed the offence. He was born in Cuba. He followed his mother and sister to Canada in 2007. He is a Cuban national who is a permanent resident of Canada.

[10] Owing to what he says is depression, and the charges he has been facing since December of 2011, Mr. Carrera-Vega says that he has not worked since 2013. Prior to that he worked in construction, as a painter, and as a janitor.

[11] Mr. Carrera-Vega has a daughter who was born shortly before his trip to Panama in 2011. I am informed by counsel that she is now four years of age. While he does not live with his daughter, he is supportive of her. Crown counsel took objection to this characterization, suggesting that he could not provide much support for his daughter, seeing as he has not worked in a few years. At a minimum, I accept that he is emotionally supportive of his daughter and provides what financial support he can.

[12] As for his upbringing, Mr. Carrera-Vega’s mother and father separated when he was young. He informed the author of the pre-sentence report [“PSR”] that his mother remarried and her new partner was abusive toward him. His father also stopped communicating with him for some time. He told the author that his father’s sporadic contact “destroyed his heart”. His mother and father have rekindled their relationship in the fairly recent past. They are both supportive of their son.

[13] The PSR suggests that the accused has attention deficit disorder and is diagnosed with Tourette’s syndrome. He is apparently on medication for both conditions. I was provided a list of prescription medications dating back to March of 2014. It is unclear to me whether any of them are for these conditions.

[14] There is no evidence that the accused has a drug or alcohol problem. He does not have a criminal record. His uncle, with whom he is close, suggests that the accused was associated with bad influences at the time of the offence, that it was the result of “bad judgment”, and that he has learned his lesson and will not make the same mistake again. In a June 2, 2015 letter written by the accused’s uncle, Pedro Conde Rodriguez, he clarifies that his comments to the author of the PSR were based on the “outcome of the trial and not on any knowledge or suspicions” he has of the accused. The accused denies that he committed the offence.

[15] Dr. Cooper is one of the accused’s physicians. The only information from Dr. Cooper is that contained in the PSR. He told the author that he feels Mr. Carrera-Vega presents with certain symptoms resulting from the magnitude of the charges. He sees hope for the accused and has hope for his rehabilitation.

[16] As for Dr. Alexander, he is Mr. Carrera-Vega’s family doctor. His comments to the author of the PSR stand in stark contrast to Dr. Cooper’s comments. He does not seem as hopeful for the accused, seeing him as unmotivated to work and a potential for re-offending. Mr. Carrera-Vega filed a follow-up letter from Dr. Alexander, dated July 13, 2015. He saw the accused for the first time almost two years following his arrest on these charges. Dr. Alexander admits that he does not know much about the accused’s personal life or “the person he is”. He says that he was “incorrect” to tell the author of the PSR that Mr. Carrera-Vega may re-offend. I accept this fact and do not take into account any comments in the PSR about re-offending.

[17] The PSR also attributes certain comments to Constable Jeff Smith, the officer-in-charge of the investigation. He is said to have expressed the view that, while Mr. Carrera-Vega does not have a criminal record, this was not likely his first time smuggling drugs into Canada. Officer Smith is purported to have said that he believed Mr. Carrera-Vega was a drug courier and that he was attempting to make “quick and easy money”.

[18] The PSR concludes by saying that the offence appears to have been “motivated by greed and an opportunity to make easy money”. The PSR addresses the general societal harm done by drugs and the issues associated with drug trafficking, including guns, gangs and organized crime. The PSR refers to the author’s “belief” that the offence “would have further contributed to this problem and affected society as a whole had the subject not been arrested”.

[19] Counsel says that I should only give effect to the parts of the PSR that outline the personal and education history of the accused. Counsel argues that I should give no weight to the parts of the PSR referring to the officer-in-charge’s suspicions about drug importing from Argentina, the nature of the offence, and the Dr. Alexander information. The Crown accepts that the author may have stepped over the line when it came to the information from the officer-in-charge.

[20] PSR’s are intended to provide the court with a context against which the principles of sentencing can be more accurately applied. Section 721 of the Criminal Code governs what should be included in a PSR. Among other things, s. 721(3) requires that a report contain information on the following matters: “the offender’s age, maturity, character, behavior, attitude and willingness to make amends”. PSR’s should address the offender’s background and the author’s views about the offender’s future. PSR’s are intended to provide an “accurate, independent and balanced assessment of the offender, his background and his prospects for the future”: R. v. Junkert, 2010 ONCA 549, at para. 59 [Junkert].

[21] In striving to reach this goal, probation officers who author these reports must be guided by principles of fairness and endeavor to be as thorough as possible. This can be accomplished by canvassing all relevant information, including speaking with police officers involved in the matter before the court who may provide relevant information about the offence and the offender: Junkert, at para. 60.

[22] Reports cross the line when they focus on an officer’s views of an offence or offender, to the exclusion of other information. They also cross the line where an investigator’s “impressions of the facts relating to the offence charged” are related: R. v. Rudyk, 1975 2445 (NS CA), [1975] N.S.J. No. 33 (C.A.), at paras. 17-18; R. v. Green, 2006 ONCJ 364, at paras. 13-14.

[23] While there was nothing wrong with Officer Smith providing information to the probation officer, his views as to whether the accused had imported drugs prior to this offence find no proper place in the report. This is a matter for which the accused has never been convicted, let alone charged. It is an unsubstantiated view held by the officer and I disregard it in arriving at a fit disposition.

[24] As above, I also disregard the information provided by Dr. Alexander about re-offending. As for the comments about the societal harm done by drugs, and what may have happened had the accused’s cocaine not been intercepted, while perhaps over the line in terms of a PSR, I see these comments as stating the obvious. There is no need to disregard these comments seeing as they track the jurisprudence on the subject.

[25] Mr. Carrera-Vega seems to be supported by a large community of people. Numerous letters of support were filed. They range from letters authored by old friends, former employers, family members, the mother of the accused’s child, and his girlfriend. Among other things, he is described as a good person, a hard worker, a good father, and partner. His current girlfriend has expressed her strong support for Mr. Carrera-Vega.

[26] He claims he did not commit the offence. His supporters seem to share this view. A unanimous jury thought otherwise.

Mr. Sablon-Leal

[27] Mr. Sablon-Leal is 60 years of age. He was 56 years old at the time of the offence.

[28] He was also born in Cuba and came to Canada in 1997 as a political refugee. He became a Canadian citizen in 2005.

[29] Mr. Sablon-Leal is a first-time offender with no criminal record. Unlike Mr. Carrera-Vega, he is reported to have had a happy childhood. He was raised in a spiritual family. The accused is well educated and learned English as a young man, then serving as a military interpreter in the Angolan Civil War. Once he returned from the war, he taught English at a night school and worked in the tourist industry. Once in Canada, he worked at various jobs, including as a cleaner. He also worked as a yoga teacher and led spiritual meetings.

[30] He has been a teacher of yoga and heavily involved in religious and spiritual pursuits. The PSR suggests that he has been devoted to a “spiritual life characterized by personal discipline, non-violence, meditation, and yoga”. This description is consistent with Mr. Sablon-Leal’s evidence during the trial.

[31] He had two children, now aged 29 and 24. He appears to have the complete and unreserved support of his children. Mr. Sablon-Leal says that he suffers from Ménière’s disease, for which he is medicated. This disease is said to have been diagnosed in 2000 and results in dizziness, vomiting, loss of balance and exhaustion.

[32] Mr. Sablon-Leal has not worked since 2006. This is said to result from his disease. He has been receiving Ontario Works since that time. He receives $640/month, which includes $550 for rent. He has applied for the Ontario Disability Support Program.

[33] He has recently been remarried. His new wife, Ava Gonzalez, is a real estate agent in Florida who has no plans to move to Canada. She will visit him once a month and does not mind supporting him as long as she has a job.

[34] Mr. Sablon-Leal has no addictions. He says that he is philosophically opposed to alcohol because of its negative effects on the brain. The PSR suggests that numerous collateral sources were contacted and all said that he has led an exemplary ethical and spiritual life. The views expressed by the sources are summarized as follows: he is a “spiritual, religious, polite, patient, kind, zealously principled, wise, unselfish, compassionate, healthy, honest, responsible, reliable, humble, supportive, and idealistic” person. These descriptors are consistent with the many letters of support received from family members, to his wife, to his ex-wife, and friends.

[35] The accused testified that his son and Mr. Carrera-Vega became friends. Over time, he too formed a bond with his co-accused. They eventually travelled together and enjoyed their time in Argentina. As such, when Mr. Carrera-Vega approached him, and asked whether he might want to travel to Panama a few months after their return from Argentina, he decided to go.

[36] At the sentencing hearing, three witnesses testified on his behalf: Jarmarilo Rodriguez Echavarria, Paul Acuna, and Yurislen Sablon (the accused’s daughter). They each spoke about the accused’s good qualities. As for Mr. Rodriguez-Echavarria, he testified that he has known Mr. Sablon-Leal for about ten years. He said that he spoke on behalf of the Cuban community, conveying to the court the blessings and mercifulness that God has given and to say what they feel in their hearts about their brother.

[37] He testified that there are two types of people: those who practice injustices and those who make mistakes. When it comes to the latter, they have the honour to repent and amend and to make up for their mistakes. In cross-examination he testified that, while he did not know, in his friend he sees a man who may have only made a mistake.

[38] Mr. Acuna is the president of the “Great Universal Brotherhood”, a non-profit organization. Their mission is to help people to improve themselves in all aspects, including their physical, mental and spiritual beings. He has known the accused for at least ten years. Mr. Acuna testified that in their philosophy, they do not judge. He knows of Mr. Sablon-Leal’s “impeccable credentials” and, in his view, the accused is only guilty of transforming many people who have come to the organization looking for help through the practice of yoga. Because the importation of cocaine could result in the harm to others, Mr. Acuna believes that Mr. Sablon-Leal did not commit the offence.

[39] Ms. Sablon is the accused’s daughter. She is an impressive individual who has an obvious and abiding love for her father. She has a degree with a double major in psychology and religion. She also has a Masters in psychotherapy. She testified that she pursued these degrees in order to serve humanity, a pursuit that her father encouraged through actions and words. Ms. Sablon testified that her father has been an example of truth and justice throughout her life. She credits him with all that she has and is.

[40] Unlike Mr. Carrera-Vega, when invited to do so, Mr. Sablon-Leal addressed the court at the end of the sentencing proceeding. He was respectful. He said that the Canadian justice system may be the best in the “whole wide world”. He said that he believes in karma, human and divine justice. He says that he is a very law abiding citizen.

[41] Every man is both a man and a symbol. He wants the symbol to be saved. He says that he is innocent and that there has been a miscarriage of justice. He will, nonetheless, abide by the rules and take what comes. He says that I have in him a “most faithful servant”.

Positions of the Parties

[42] The Crown argues that the accused should receive a sentence of between 7-8 years in custody, together with ancillary orders, including DNA and weapons prohibition orders. Crown counsel argues that deterrence and denunciation are the primary sentencing goals when it comes to drug importers. The Crown acknowledges that the accused are couriers, acting on the behalf of others.

[43] The defence argue that 5 years constitutes the appropriate custodial sentence in this case. They each place emphasis on the support that they have in the community. Counsel to Mr. Sablon-Leal also emphasizes the seemingly exemplary life he has led to date, one focused on helping others. While counsel to Mr. Carrera-Vega does not dispute the primary sentencing goals as summarized by the Crown, he says that rehabilitation is also a factor I should take into account for his client.

[44] Mr. Carrera-Vega also argued that I should take into account the fact that he is only a permanent resident in Canada and, as such, this conviction could have serious implications for his status in the country. It was suggested by counsel that a deportation order is a forgone conclusion in this case and that, pursuant to s. 64(1) of the Immigration and Refugee Protection Act, S.C. 2001, c.27 [IRPA], Mr. Carrera-Vega will have no right of appeal. It was suggested that he may end up in detention for a great deal longer than would otherwise be the case if he were a Canadian citizen. It is argued that I should take the lack of predictability arising from the implications of the IRPA into account in imposing a sentence below the accepted range of 6-8 years for this offence.

(Decision continues exactly as in the original judgment through paragraphs [45]–[83], concluding with the sentence and ancillary orders.)

FAIRBURN J

Released: August 6, 2015