CITATION: R. v. Boyce, 2016 ONSC 1118
COURT FILE NO.: CR14900001420000
DATE: 20160212
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
DEXTER BOYCE
Defendant
Jeremy Streeter, for the Crown
Dean Embry, for the Defendant
HEARD: January 28, 2016
SPIES J.
REASONS FOR SENTENCE
Introduction
[1] On December 1, 2015, following a trial before me, I convicted Dexter Boyce of conspiracy to import a controlled substance into Canada between the dates of November 18, 2011 and December 1, 2011, contrary to s. 6(1) of the Controlled Drugs and Substances Act (“CDSA”), and s. 465(1) of the Criminal Code, as well as attempting to import a controlled substance into Canada during the same timeframe, contrary to s. 6(1) of the CDSA and s. 463(b) of the Criminal Code. My reasons for decision can be found at R. v. Boyce, 2015 ONSC 7672. Mr. Boyce is now before me for sentencing.
The Facts
(a) Circumstances of the Offences
[2] In summary I found that Mr. Boyce was a member of a conspiracy to import cocaine, hidden inside packages of travel brochures, which were shipped via Federal Express (“FedEx”) from Costa Rica to Toronto. The cocaine was discovered when the packages were examined in Panama, a transit point for the shipments.
[3] Based on the contents of intercepted communications and surveillance evidence, I found that Mr. Boyce was a key and essential participant in the conspiracy in that he was the one who instructed the sender of the packages in Costa Rica as to how the packages should be prepared to avoid detection and who the packages should be addressed to. He met with his co-conspirators, Ms. Edwards and Mr. Brown, and had a number of communications with Ms. Edwards in order to facilitate the shipments. The two FedEx packages containing cocaine did not arrive in Toronto but Mr. Boyce and the other members of the conspiracy clearly intended for them to. Had the FedEx packages not been intercepted in Panama or somewhere else along the way, they would have arrived here and a contact Mr. Boyce had at FedEx would have intercepted the packages before they were delivered to what appears to have been a legitimate travel agency.
[4] I also found that in addition to the other known members of the conspiracy, Mr. Boyce was an active member of a group of unidentified people at the receiving end of the drugs in that he had to get some of his instructions from other members of this group. For example, once it appeared to Mr. Boyce and the others that there was a problem with the shipment that ended up in Panama, Mr. Boyce told Ms. Edwards that "they" called him and said things were “getting sticky", that he should go through his phone and erase everything from the phone and throw it away.
[5] The seized drugs were tested in Panama by Mr. Juzado, Head Chemist of the Panamanian Laboratory of Controlled Substances for the Republic of Panama. He prepared a report and I accepted the conclusions set out in that report that the package of white powder that was seized contained cocaine and that the total weight of this cocainewas almost 356 grams. I concluded that whether or not this quantity was pure cocaine could not be determined, although it seems unlikely that the parties to this conspiracy would have taken the trouble to add any significant amount of a cutting agent to the cocaine.
(b) Circumstances of Mr. Boyce
[6] No pre-sentence report was requested in this matter. Mr. Embry provided information to me about Mr. Boyce that Mr. Streeter did not challenge and Mr. Boyce spoke to me at length about his personal circumstances and the hardship that he will suffer as a result of this conviction.
[7] Mr. Boyce was born in Guyana and is now 47 years old. He came to Canada as a permanent resident at the age of 23, when he was sponsored by his grandmother. Mr. Boyce told me about his childhood. He is the second oldest of seven children and never knew his father. He quit school when he was 13 in order to assist in the financial support of his brothers and sisters. They were very poor.
[8] Mr. Boyce has a common law spouse and a 22-year-old daughter. She has significant health challenges and suffers from cerebral palsy and autism. She requires assistance with everyday needs and has the mental capacity of a four-year-old. Mr. Boyce has been helping both her and his spouse with her care.
[9] Mr. Boyce has a dated criminal record commencing in August 1994 and ending in September 2004. There are 12 convictions over nine dates. The record consists of a mixture of assaults, failure to comply with recognizance, obstruct justice and narcotics offences. Of the four narcotics offences, three are possession offences and the fourth, in April 2002, was for possession of cocaine for the purpose of trafficking.
[10] Mr. Embry advised that when Mr. Boyce’s daughter was born with her serious health challenges, Mr. Boyce began to use crack cocaine and that is when his criminal behaviour began. He also advised that since before Mr. Boyce’s arrest in this matter he has been on Ontario Disability Benefits for a physical disability. Mr. Embry submitted that his involvement in the current offences is as a result of his financial situation when he lost his employment which had the effect of resurrecting his criminal behaviour.
[11] Mr. Boyce confirmed the information provided by Mr. Embry as to how he got involved with cocaine following the birth of his disabled daughter. He told me that he quit cocaine “cold turkey” more than ten years ago. He attributed the current conviction to his meeting Ms. Edwards and getting involved with her.
[12] By virtue of his conviction in 2002 for possession of cocaine for the purpose of trafficking, Mr. Boyce became subject to a deportation removal order. In September 2008 the order was stayed for four years. However, Mr. Boyce was arrested prior to the stay ending and so that removal order is still in effect. Mr. Embry advised that pursuant to s. 68(4) of the Immigration and Refugee Protection Act, Mr. Boyce’s conviction in this matter cancels the stay and forecloses any appeal. His removal order is now automatic; with no right of appeal, and once Mr. Boyce serves the sentence I impose, he will be deported back to Guyana. Mr. Embry submitted that this in itself will be a hardship as he will be leaving his wife and child behind.
[13] Mr. Embry submitted that Mr. Boyce’s custody will cause some difficulty but was quite cryptic about how or why. He advised me that the environment could make Mr. Boyce’s “symptoms” worse but indicated that he does not suffer from a psychological disorder. Furthermore, it is not a situation where there is a concern of a lack of treatment. I understand there may be some behavioural issues that would put Mr. Boyce in a unique situation. Mr. Boyce also told me about his reasons for why he does not want to go to the penitentiary which include a fear for his personal safety.
Legal Parameters
[14] Pursuant to s. 6(3)(a) of the CDSA, the maximum sentence for these convictions is imprisonment for life. There is no minimum sentence.
Positions of Crown and Defence
[15] Mr. Streeter requested a three-year sentence less pre-sentencecustody. He also acknowledged that some reduction in sentence should be made for the fact that Mr. Boyce has been subject to strict house arrest terms.
[16] Mr. Embry submitted that a two-year sentence would be appropriate in this case less pre-sentence custody, particularly since Mr. Boyce will be deported as a result of this conviction.
[17] Mr. Boyce was arrested on January 24, 2012 and was released on April 3, 2012. Accordingly, Mr. Boyce served 70 days in pre-sentence custody. There is no dispute that he is entitled to an enhanced credit on a 1.5:1 basis which amounts to a credit of 105 days or about three and a half months.
[18] In addition Mr. Embry submitted that an adjustment ought to be made because of Mr. Boyce’s strict house arrest conditions. Since his release on April 3, 2012 Mr. Boyce has been on 24/7 house arrest which permitted him to only be out of his home when he was in the constant company of his common law spouse. This is a period of about 45.5 months. Mr. Embry suggested that the adjustment be about one year which is a little more than a credit of a quarter day per day on house arrest. Mr. Streeter submitted that one-sixth a day per day spent on house arrest would be more appropriate which would amount to about seven and a half months. I accept Mr. Streeter’s position given that there is no evidence of any unusual hardship as a result of the house arrest given that during this period Mr. Boyce was not employed: he was receiving disability payments from the province.
[19] Mr. Streeter also requested a mandatory s. 109 order for life and a discretionary DNA order pursuant to s. 487.051(3). Mr. Embry took issue with the necessity of a DNA order. It is his submission that given that Mr. Boyce will be deported and given the nature of these offences, being ones that are not typically solved by DNA evidence, the grounds for a DNA order are not present.
Case Law - Sentencing
[20] Both counsel agree that the range of sentence in this case, given the quantity of cocaine, is somewhere between “at or near two years” and five years; see R. v. Hamilton, [2004] O.J. No. 3252 (Ont. C.A.) at para. 108. Mr. Streeter submitted that this range of sentence includes first offenders and those persons who are merely couriers of the drugs. Mr. Embry did not suggest otherwise.
[21] The Court in Hamilton found that the importation of dangerous drugs like cocaine has always been considered among the most serious crimes known to Canadian law and characterized the offence of cocaine importation as both “a violent and serious offence” at para. 104. As Doherty J.A. noted at para. 105, cocaine is not indigenous to Canada and without the cocaine importer there would be no cocaine problem in this country. Hence, the Court found there is a “need to stress denunciation and deterrence in sentencing all drug importers, even vulnerable first offenders.” (at para. 105)
[22] Mr. Streeter also relied on the decision of R. v. Cummings, 2014 ONSC 3187, in support of his position on sentence. In that case Justice Donohue sentenced the offender to two and a half years for importing 474 grams of liquid cocaine. The offender showed no remorse. His criminal record consisted of one prior conviction for assault which resulted in a conditional discharge but there were no prior drug offences. The offender was employed in two jobs supporting a young family. The sentence imposed was the offender’s first period of incarceration. It is clear that this case is distinguishable from the case at bar. In terms of parity, the sentence that would be fit for Mr. Boyce would be greater than two and one half years.
[23] In Cummings Justice Donohue also referred to the decision of Justice Baltman in R. v. Ebanks, 2012 ONSC 5002, where an offender who imported 406 grams of cocaine was sentenced to two and a half years’ imprisonment. Justice Baltman’s considerations in imposing a sentence at the lower end of the range were that the offender was young, had no prior record, had the support of his family, a favourable pre-sentence report and had been compliant with bail conditions. Again these mitigating circumstances are not present in the case of Mr. Boyce.
Case Law – Impact of Deportation
[24] Mr. Embry also relied on cases in support of his position that I should take into account the fact that Mr. Boyce will be deported as soon as he completes his sentence when determining a fit sentence. The cases he referred to included R. v. Critton, [2002] O.J. No. 2594 (S.C.J.), where Justice Hill, at paras. 77-86, considered whether or not the offender’s deportation was relevant to the imposition of punishment either as a mitigating factor or a consideration capable of tempering the severity of the sentence to be imposed. At para. 77 he noted that the jurisprudence is not entirely uniform as to the legal significance of an accused’s pending deportation. He concluded, after a review of authorities between 1970 and 1999, that he preferred the view that the offender’s deportation be a factor which can, in some circumstances, serve to mitigate the severity of the sanction imposed by the court, at least when the offender was not in Canada illegally. He concluded that deportation is relevant to sentencing in certain respects, including the fact that any risk of incomplete rehabilitation on release from custody is not a risk imposed on the Canadian people and Canadians are spared considerable expense of continued incarceration.
[25] This issue was also considered in Hamilton, where Doherty J.A. noted that there are two types of cases where deportation can be considered; one where deportation is inevitable and where for pragmatic reasons as set out in Critton, there may be “some reduction” in the term of imprisonment and the second, where deportation can be avoided by a modest adjustment to the sentence.
[26] In considering this issue I must also consider the recent decisions from the Supreme Court of Canada; R. v. Pham, 2013 SCC 15, [2013] 1 S.C.R. 739 and R. v. Edwards, 2015 ONCA 537. In Pham, at para. 14, the Supreme Court made it clear that:
[A] sentencing judge may exercise his or her discretion to take collateral immigration consequences into account, provided that the sentence that is ultimately imposed is proportionate to the gravity of the offence and the degree of responsibility of the offender.
[27] In that case the court reduced a sentence imposed by the trial judge of two years to two years less a day to avoid deportation of the offender. Although the trial judge’s decision was in accordance with a joint submission, apparently neither counsel nor the trial judge was aware that the sentence would result in deportation.
[28] The court concluded (at para. 11) that any consequences that impact on the particular offender before the court, which would include deportation, may be taken into account as personal circumstances of the offender. They are not strictly speaking mitigating factors but:
… [t]heir relevance flows from the application of the principles of individualization and parity. The relevance of collateral consequences may also flow from the sentencing objective of assisting in rehabilitating offenders…Thus, when two possible sentences are both appropriate as regards the gravity of the offence and the responsibility of the offenders, the most suitable one may be the one that better contributes to the offender’s rehabilitation.
However, the weight to be given to collateral consequences varies from case to case and should be determined having regard to the type and seriousness of the offence. …
[29] The Court went on to caution, however, that collateral consequences related to immigration may be relevant to “tailoring” a sentence (at para. 13) but they cannot be misused by imposing a sentence outside the appropriate range of sentence in order to avoid the collateral consequences intended by Parliament (at para. 15).
[30] In R. v. Grant, [2015] O.J. No. 6971 (O.C.J.), Stribopoulos J., at para. 46, stated that he was of the view that Pham only applied to the second category of cases described by Doherty J.A. in Hamilton. He concluded at para. 51, that the certainty of deportation is a factor that can serve to at least “slightly reduce” a sentence below the range that would ordinarily be required.
[31] It is not necessary for me to decide if there are in fact two categories of cases because in either event the certainty of deportation suggests that only a slight reduction in the appropriate sentence is warranted.
[32] I note that in this case Mr. Embry did not suggest, nor could he, that the consequence of deportation could be avoided by tailoring an otherwise appropriate sentence.
Principles of Sentencing
[33] The fundamental purpose of sentencing, are set out in ss. 718, 718.1 and 718.2 of the Criminal Code and I am guided by those principles. In this case I must give priority to denunciation and deterrence; both general and specific. Furthermore, the principle of proportionality in s. 718.1 is fundamental; the fitness of the sentence must reflect the gravity of the offence and the degree of responsibility of the offender; Mr. Boyce.
[34] Section 10(1) of the CDSA, provides in part that the fundamental purpose of any sentence for an offence is to contribute to respect for the law and the maintenance of a just, peaceful and safe society and acknowledging the harm done to the community. Pursuant to s. 10(2) of the CDSA the fact Mr. Boyce has been previously convicted of a designated substance offence is a factor I must take into account as an aggravating factor.
Determination of a Fit Sentence
[35] I turn then to what is an appropriate sentence in this case. Clearly denunciation and deterrence, both general and specific, given Mr. Boyce’s earlier conviction for possession for the purpose of trafficking, are paramount considerations in this case.
[36] I find that the aggravating circumstances in this case are as follows:
(a) The plan to import cocaine was carefully considered and thought out although it did not need a lot of financial resources. Mr. Embry submitted that this was not a sophisticated scheme save for the FedEx contact, in that they were simply sending the cocaine by mail. I agree that the plan was not overly sophisticated but it was clearly thought out in much more detail than simply putting the cocaine in the mail.
(b) Turning to the role of Mr. Boyce in the conspiracy, Mr. Embry conceded that Mr. Boyce was not simply a courier but suggested that he was something close to that in that he was the person in the most jeopardy. He was the one that would get the drugs from the FedEx contact and presumably turn them over to others. He was not at the operating mind level of this operation. In my view Mr. Boyce’s role was considerably greater than a courier. I found him to be a “key and essential participant” (at para. 152) and found that he was the one who instructed the sender of the packages containing drugs from Costa Rica as to how the packages should be prepared to avoid detection and how the packages should be addressed and that he had a contact in FedEx who would intercept the packages and then presumably deliver them to him. I agree with Mr. Embry, however, that Mr. Boyce had others that he was perhaps getting instructions from and so he was not necessarily at the top of the organization here in Canada.
(c) Mr. Boyce’s criminal record significantly aggravates this sentence in that he has four narcotics convictions including one for possession of cocaine for the purpose of trafficking.
(d) The fact Mr. Boyce was not addicted to cocaine means that his motivation in engaging in the offence was money. Usually that means greed but in this case I accept that Mr. Boyce was under a lot of financial pressure given his disabled daughter and his own disability that resulted in him no longer being able to work and obtaining government assistance.
[37] The mitigating circumstances are as follows:
(a) The amount of cocaine in this case was about 356 grams, which is a relatively small amount as compared to other importing cases. This assists in where this sentence should be in the range for similar amounts.
(b) Mr. Boyce cannot be penalized for insisting on his right to a trial. However, it is relevant that although Mr. Boyce did not plead guilty he made a number of factual concessions throughout the trial saving court time and resources. I am advised that he also waived his right to a preliminary inquiry. This meant that the trial focused on the central issue of the probative value of the documents from Panama. This was a serious issue to be considered and by no means a frivolous defence.
(c) There is no evidence that Mr. Boyce breached any of the terms of his house arrest over the period of four and a half years.
(d) Mr. Boyce will be deported as a direct consequence of his conviction in this matter. I will discuss this further below.
[38] As I stated in my Reasons for Judgment, although I found that the total weight of the shipment was almost 356 grams, I was not able to determine whether that entire quantity was pure cocaine. Counsel did not raise this issue on sentencing, but given my comments in my Reasons for Judgment, I will deal with it briefly. I find that the purity of the cocaine in this case is not a relevant factor: see Hamilton at paras. 151-152. Mr. Embry did not suggest otherwise. Had there been evidence that the purity was low, that might have been a consideration; see Hamilton at para. 153.
[39] Mr. Streeter submitted that his proposal that there be a three-year sentence already took into account the mitigating factors. I agree. His position that a three-year sentence in this case, subject to deduction for pre-sentence custody and bail terms credit, is reasonable. Mr. Boyce is clearly not at the bottom of the range of sentence given the significance of his role in this scheme to import cocaine and his criminal record. Having been addicted to cocaine he must have known how addictive this drug is; Mr. Boyce was very fortunate to be able to quit “cold turkey”. For most, cocaine destroys their life.
[40] Mr. Boyce is not a youthful offender. He was a mature adult when he decided to commit these offences and given the stay of his deportation order, it is surprising that even the fact he must have known he was risking deportation did not deter him from getting involved in this plan. The need for specific deterrence is great.
[41] That said, I appreciate that being deported will be a significant hardship for Mr. Boyce. In light of the cases that I have referred to, I find that deportation is a factor that is relevant when I consider the personal circumstances of Mr. Boyce and the prospect of his rehabilitation and that this fact may warrant a modest discount in sentence. Mr. Boyce has been in Canada for more than half his life and this is where his spouse and child live. I accept that he has nothing to return to in Guyana and will have to start his life over. I believe Mr. Boyce’s statement to me that he is fearful of going to the penitentiary and he gave me some idea of his concern when he spoke to me. Normally in these circumstances I would suggest that Mr. Embry explore this concern with Mr. Boyce and if so advised, take whatever steps he can to ensure Mr. Boyce is incarcerated in a location where he can feel safe. This fear is not a factor that I can consider in mitigation of sentence.
[42] However, although in my view a penitentiary sentence of three years is fit, given that I have concluded that there should be a reduction in Mr. Boyce’s sentence of 11 months for pre-sentence custody and his bail conditions, I am prepared to reduced his sentence further given his certain deportation so that the time remaining for his sentence is two years less a day which will be served as a reformatory sentence. As a result the global sentence will be 35 months with a deduction of 11 months and one day, resulting in two years less a day to be served.
[43] Finally there is the issue of the DNA order which is discretionary in this case. I agree with Mr. Embry that these are not the types of cases where DNA evidence usually assists. The same is true for the more recent convictions set out in Mr. Boyce’s criminal record. Although arguably any DNA order could be considered in the best interests of the administration of justice, for these reasons and given that Mr. Boyce will be deported, I find that the invasion of his privacy and in particular his informational privacy by providing a DNA sample is not warranted.
Disposition
[44] Mr. Boyce would you please stand.
[45] For the reasons I have given with respect to your conviction on Count #1; namely conspiring with Ms. Edwards, Mr. Brown and others to commit the indictable offence of importing a controlled substance into Canada; namely cocaine, I sentence you to 35 months’ imprisonment.
[46] With respect to your conviction on Count #2; namely attempting to import a controlled substance into Canada, I sentence you to 35 months’ imprisonment, to be served concurrently to your other sentence.
[47] After giving you credit for pre-sentence custody on a 1.5 for 1 basis, which is three and one half months, for time served in jail, and a credit of seven and a half months plus one day to reflect the fact you were subject to strict house arrest for four and a half years; for a total credit of 11 months and one day, you have two years less a day remaining to be served.
[48] Finally there will be a mandatory weapons prohibition order pursuant to s. 109(1) of the Criminal Code for life.
SPIES J.
Date: February 12, 2016
Edited Reasons released February 17, 2016
CITATION: R. v. Boyce, 2016 ONSC 1118
COURT FILE NO.: CR14900001420000
DATE: 20160212
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
DEXTER BOYCE
Defendant
REASONS FOR SENTENCE
SPIES J.
Released: February 12, 2016