ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
DAVIDE DUNCAN, KEVIN REILLY, and
RIKARDO ROBINSON
John Dick, Counsel for the Crown
Adam Boni, Counsel for Davide Duncan
Susan Adams, Counsel for Kevin Reilly
Daniel Rechtshaffen, Counsel for Rikardo Robinson
HEARD: February 19, 2016.
REASONS FOR SENTENCE
M.A. CODE J.
A. INTRODUCTION
1The three accused, Davide Duncan, Kevin Reilly, and Rikardo Robinson (hereinafter, Duncan, Reilly, and Robinson), were charged in a two count Indictment with conspiracy to import a controlled substance into Canada and importing cocaine into Canada. They elected trial by jury and on February 4, 2016, after a five week trial, the jury convicted all three accused on both counts.
2Both offences of which the accused have been convicted carry a maximum sentence of life imprisonment. I heard sentencing submissions on February 19th, 2016 and reserved judgment. These are my reasons for sentence.
B. FACTS RELATING TO THE TWO OFFENCES
3The evidence heard at trial is summarized in the Charge to the Jury at pp. 73-147. This is a public document, as it was filed as an exhibit at trial, and I do not intend to repeat the lengthy and detailed review of the evidence that is contained in the Charge. There is also a summary of certain aspects of the evidence set out in my written reasons in relation to two evidence law issues that arose at trial, which I will not repeat. See: R. v. Duncan, Reilly, and Robinson, 2016 ONSC 1126.
4Fact finding in jury trials, at the sentencing stage, involves two distinct processes. They are set out in s.724(2) of the Criminal Code and they are as follows: first, all facts that are “essential to the jury’s verdict” must be taken as proven and facts “consistent only with a verdict rejected by the jury” must be rejected; second, any additional facts that are relevant and necessary to sentencing may be found by the trial judge on the basis of evidence heard at trial and any additional evidence heard at sentencing. Aggravating facts must be proved beyond reasonable doubt and mitigating facts must be proved on a balance of probabilities. The Crown’s failure to prove an aggravating fact does not infer the existence of an opposing mitigating fact. It may be that neither the aggravating or mitigating version of facts can be proven in relation to any given issue and that the trier is “simply left not knowing one way or the other”. See: R. v. Ferguson (2008), 2008 SCC 6, 228 C.C.C. (3d) 385 at paras. 15-22 (S.C.C.); R. v. Gauthier (1996), 108 C.C.C. (3d) 231 at paras. 20-24 (B.C.C.A.); R. v. Smickle (2013), 2013 ONCA 678, 304 C.C.C. (3d) 371 at paras. 17-25 (Ont.C.A.); R. v. Holt (1983), 1983 CanLII 3521 (ON CA), 4 C.C.C. (3d) 32 at 51-2 (Ont.C.A.)
5Most of the facts in the present case were not seriously in dispute. No one suggested to the jury that the 30 kilos of cocaine seized by the police at the Toronto airport was not imported into Canada on or about April 1st, 2007, as alleged in Count Two. Similarly, no one suggested that this act of importing cocaine was anything other than the result of a prior conspiracy between two or more unknown persons, as alleged in Count One. The only issue in the case that was vigorously contested was whether the three accused had participated in the act of importing the 30 kilos of cocaine on April 1st, 2007 and whether the three accused were members of the antecedent conspiracy.
6The six guilty verdicts returned by the jury definitively resolved the above two issues that were in dispute. The jury must have concluded that the three accused were all members of the Count One conspiracy and that they were all parties to the Count Two offence of importing cocaine. The basis for party liability that was left to the jury on Count Two was “aiding or abetting”. There was no suggestion that any one of the three accused was a principal who had personally committed the act of importing or had caused the act of importing cocaine.
7The central facts in the case, which I am satisfied have been proved beyond reasonable doubt for purposes of sentencing, are as follows:
The R.C.M.P. had a wiretap on Davide Duncan’s phone. As a result of that wiretap, they became suspicious about an empty aluminum luggage or cargo container that was on the tarmac or apron near Gate 41 at Pearson International Airport in Toronto on April 1st, 2007. Like all of these large luggage or cargo containers used by the airlines, this particular container had a unique ten digit serial number prominently displayed on its side. The serial number -XKN95255R7- would have been apparent to anyone who approached the container. The container had arrived at the airport that morning at about 2:00 a.m. on an Air Transat flight from Montego Bay in Jamaica. The legitimate luggage or cargo must have been emptied out of the container upon its arrival by airport baggage handlers;
Approximately nine hours after the arrival of the Air Transat flight, at about 11:00 a.m. on April 1st, 2007, the C.B.S.A. and the R.C.M.P. seized the apparently empty container. A subsequent search of the container revealed a secret compartment beneath its floor containing 30 individually wrapped one kilo bricks of cocaine. Aside from being carefully wrapped, each brick was stamped with an insignia which is apparently a practice used by certain South American producers of cocaine in order to identify their product. It therefore appears that the cocaine that arrived in Toronto early that morning was in the same state that it would have been in when it was produced at some clandestine laboratory somewhere in South America;
The price that a Canadian importer of cocaine would have paid for one kilo in 2007, according to the expert evidence of Det. Cst. Canepa, would have been between $33,000 and $35,000. The price that this importer could have obtained by re-selling the cocaine in Toronto in 2007, at the same kilo level, would have been between $38,000 and $46,000 per kilo. If the cocaine was diluted in order to increase its volume, or if the cocaine was sold at the one ounce or four ounce level, considerably more money could have been obtained. In other words, the cost to the importer to bring the cocaine to Toronto in 2007 would have been between $990,000 and $1,050,000. The re-sale value of the cocaine to the Canadian importer would have been between $1,140,000 and $1,380,000 (if sold at the kilo level) and between $1,404,000 and $1,836,000 (if sold at the ounce level). It can be seen that the approximate cost of the cocaine to a Canadian importer was $1 million and the approximate re-sale value of the cocaine was around $1.5 million;
The place where the apparently empty container was found by the R.C.M.P. at about 11:00 a.m. on April 1st, 2007, on the tarmac or apron where planes arrive at the airport gates, is known as the secure “air side”. The only persons who can access this part of the airport are those who are authorized to work in its secure areas, such as luggage or cargo handlers and various airport and airline officials. They are issued a “Restricted Area Identity Card” (or RAIC) which allows them access to the “air side”;
The three accused all worked for a company located at the Toronto airport known as VCC Cargo. It is a cargo handling company that receives and sends cargo on flights to and from the Toronto airport. It has a cargo warehouse and office located at the airport with access to the “air side”. All three accused had been issued a RAIC, allowing them access to the secure “air side” of the airport. Employees of VCC Cargo would sometimes have to pick up cargo containers from “the ramp”, as the area where planes are loaded and unloaded is known. Empty cargo containers would be loaded at the VCC Cargo warehouse and full containers would be unloaded at the same warehouse;
The most important evidence in the case was the intercepted telephone and text message communications between the three accused (the wiretaps). These wiretaps indicate that the three accused knew the unique serial number of the container that held the 30 kilos of cocaine secreted beneath its floor. The wiretaps also indicate that the accused were looking for the container in the days leading up to its arrival on April 1st, 2007. The manner in which the three accused communicated about this subject in their phone calls and text messages was covert and surreptitious, indicating their awareness of the unlawful nature of their activities and their consciousness of police surveillance;
The wiretaps indicate that others were involved in the importing of the cocaine in the container. It was self-evident that someone, presumably in Montego Bay, must have placed the 30 bricks of cocaine in the openings to the compartment under the floor of the container and must have closed the openings with the use of sheet metal or metal tape, and that someone must have caused that container to be used by Air Transat on its flight to Toronto from Montego Bay. The wiretaps included numerous references by the three accused to other involved persons such as, “his guys down there” or “your guys” or “them down there” or “your people” or “my people” or “the man down there”;
The wiretaps indicate that the conspiracy was ongoing, both before and after the April 1st, 2007 importation and seizure of 30 kilos of cocaine. For example, there were telephone discussions between Duncan and Robinson on March 20th, 2007 about moving “any two of the three” containers to Gate C40, in the context of a March 17th, 2007 text message from Robinson to Reilly that covertly referred to three container serial numbers. In addition, there were numerous surreptitious telephone discussions between Duncan and Reilly and Robinson, in the two months after April 1st, 2007, about the anticipated arrival of containers, about Duncan bringing “it” to Reilly, about “only 7 come”, and about Reilly giving a particular phone to Robinson in order to “communicate with that guy” about “the thing…still supposed to happen next Saturday”. Finally, on June 13, 2007 the police seized two pieces of paper from Reilly’s bedroom on which six different container serial numbers were written. One of these serial numbers was referred to in surreptitious terms in a March 27th, 2007 text message from Reilly to Duncan. That container was subsequently seized by the C.B.S.A. and was examined by the R.C.M.P. It appeared to have a false interior wall panel. Also on June 13th, 2007, the police seized about $15,000 in cash in a locked safe underneath Robinson’s bed. The wiretaps indicate that Reilly paid an amount of money to Duncan and Robinson on or about May 18th, 2007. When Duncan asked “how much”, Reilly replied “five”, and Duncan later told Robinson that the money was “a fifth element for you”. In all these circumstances, I am satisfied that the conspiracy was ongoing, both before and after the April 1st, 2007 seizure of 30 kilos of cocaine.
8Given the above factual record, the theory of “aiding or abetting” that was left to the jury on Count Two was that the accused “facilitated the importation at the Toronto airport.” The issue was framed in the following terms in the Charge to the Jury (at pp. 69-70):
In the particular circumstances of this case, the act or acts of assistance or encouragement alleged against the three accused are that they made themselves available to the principal or co-principals, in advance of the importation of container XKN95255R7, as insiders at the airport who had access to the secure “air side” and who would be ready and willing to pick up that specific container once it arrived. It is alleged that having this kind of inside person available at the airport would encourage the principal or co-principals to then go ahead and carry out this particular means of importing the cocaine found in container XKN95255R7. In order to perform this role, the accused would need to know the number of the container in which the cocaine was concealed and the time when the flight was arriving. Much of the evidence in the case focuses on alleged efforts by the accused to learn the container number and the date and time of its arrival on a flight to Toronto.
9The jury must have been satisfied that the three accused knowingly and intentionally “aided or abetted” in the above manner, as that was the only basis for party liability that was left to them in the Charge. At the sentencing hearing, the Crown made the realistic concession that the three accused did not have the financial resources required to import 30 kilos of cocaine as a principal or co-principal. The evidence at trial was that they earned about $16 an hour from their employment at VCC Cargo. When they were arrested, and their residences were searched by the police on June 13th, 2007, there was nothing to suggest a lavish lifestyle. Reilly lived in a modest basement flat, Robinson lived with his parents in a modest high rise apartment building, and Duncan lived in a basement flat in his parents’ home. There is no basis to infer that they had access to the approximately $1 million that would have been needed in order to bring this quantity of cocaine to Toronto.
C. FACTS RELATING TO THE OFFENDERS
10Counsel filed various written materials and made thorough submissions setting out the background, antecedents, and general character of the three accused. In addition, the general manager at VCC Cargo had testified at trial that all three accused were good workers.
11In the case of Duncan, he was born on July 31st, 1972 and so he is 43 year old. He would have been 34 at the time of the offences in 2007. He has no criminal record. He was born and raised in Toronto. He completed grade 12 high school and has worked steadily at various jobs up until the present. He has five children as a result of three different relationships. He has remained close to his children, and their mothers, and has supported them financially. The three older children have all attended university and are in professional programs. Duncan is understandably proud of their success and he deserves credit for his contributions to their education. He continues to pay support to the two younger children. Their mother has filed a character reference letter that speaks highly of Duncan. He is in a current relationship with a woman who attended court in order to show her support.
12In April 2007, at the time of the present offences, Duncan had separated from the mother of his two youngest children and he had moved into his parents’ home. His father was the Deacon at a church. He died in 2011, while Duncan was awaiting trial, and Duncan thereafter became a strong support to his 74 year old mother. She has filed a character reference letter that speaks highly of her son.
13Duncan spent 17 days in pre-trial custody after his arrest. He has been on bail continuously since June 2007, that is, for over eight and a half years. There have been no breaches, he has maintained his employment, and he has provided financial support to his children. His terms of bail included a curfew, from 11:00 p.m. to 6:00 a.m. with an exception for work, and a requirement that he remain in Ontario. The curfew was removed in late 2014.
14The letters filed on Duncan’s behalf indicate that his family is hard working and pro-social. They are all very supportive of Duncan and indicate that he has changed in the last few years. His father’s death apparently had a significant impact on Duncan and he has become much more involved with his children in recent years.
15In the case of Reilly, he was born on June 6th, 1968 and so he is 47 years old. He would have been 38 at the time of the offences in 2007. He has no criminal record. He grew up in Toronto in a large family with eight children. He was particularly close to his mother but she died of cancer in 1985, when Reilly was 17 years old. Reilly had left high school after grade 9 and went to work at age 14, in order to help support the family, because his father was in poor health. His father died in 1986 of heart disease when Reilly was 18 years old. Reilly worked steadily at various jobs for approximately 30 years until recent health problems interfered with his ability to work.
16He was married briefly in 2001 but the marriage broke up, apparently due to his wife’s infidelity. This had a significant impact on Reilly and he drank heavily for a number of years, until 2010. He has recently developed health problems. He had a heart attack and underwent triple by-pass surgery in April 2014. He then suffered kidney failure and was hospitalized in November 2014. He also suffers from diabetes and he underwent urology surgery in November 2015 due to ulcers. He is under the care of a number of specialists.
17Reilly spent 16 days in pre-trial custody after his arrest. He was released on bail in June 2007 and he has remained on bail for over eight and a half years without any breaches. His terms of bail included a curfew, from 1:00 a.m. to 6:00 a.m. with an exception for work, and a requirement that he remain in Ontario.
18Three character reference letters from long time friends were filed on Reilly’s behalf. They describe him, in convincing detail, as a kind, considerate, and unselfish man who had a “one time lapse in judgement”.
19In the case of Robinson, he was born on November 24, 1979 and so he is 36 years old. He would have been 27 at the time of the present offences in 2007. He has no criminal record. He was born in Jamaica and came to Toronto with his parents in 1996 when he was 16. He graduated from high school in Toronto and completed one year in an accounting program at Centennial College. He has worked steadily since that time. His current employer filed a strong reference letter on Robinson’s behalf, speaking highly of his performance at work. He has been promoted at both of the two jobs where he has worked in the last 16 years.
20Robinson spent 17 days in pre-trial custody after his arrest. He was released on bail in June 2007 and has remained on bail for over eight and a half years without any breaches. Like the other two accused, his terms of bail included a curfew with an exception for work. The curfew was removed in late 2014.
21A number of impressive character reference letters from family and friends were filed on behalf of Robinson. These detailed letters consistently portray Robinson as a loyal, thoughtful, hard working, and unselfish person, referring to the present offences as “out of character” and a “one-off event”. In this regard, I was advised that Robinson was in financial difficulties due to consumer loans, which may help to explain why he was tempted by the money to be made from facilitating these offences. He continues to live with his parents, who remain close and supportive. He also has a long term common law relationship with a woman who is a nurse. They have bought a condominium together and she intends to wait for him and start a family with him, once he has served his sentence.
D. THE POSITIONS OF THE PARTIES
22The Crown submitted that 12 to 15 years imprisonment is the appropriate range of sentence in this case. Mr. Dick cited a large body of mainly British Columbia case law in support of his position. In particular, he relied on R. v. Von Holtum (2013) 109 W.C.B. (2d) 96 (B.C.C.A.), where 12 years was imposed. That case appears to be the closest, on its facts, to the case at bar. The Court’s reasoning is helpful, as I will explain below, in situating the role of “corrupt insiders” at the airport who act as “facilitators”, within the hierarchy of roles in an importation scheme. Mr. Dick conceded, as noted previously, that the three accused were not the principals who owned the 30 kilos of cocaine in this case and who caused the act of importation. However, drawing heavily on Von Holtum, he submitted that they are more than mere couriers because of their position and authority as corrupt airport workers willing to commit a serious breach of trust on behalf of large scale hard drug importers.
23Mr. Boni and Ms. Adams, on behalf of Duncan and Reilly, took broadly similar positions. They submitted that eight to nine years (in Duncan’s case) and seven to nine years (in Reilly’s case) were the appropriate ranges. They relied on a body of Ontario case law, in particular, R. v. Cunningham (1996) 1996 CanLII 1311 (ON CA), 104 C.C.C. (3d) 542 (Ont. C.A.), and submitted that six to eight years is the appropriate range for first offender couriers of multi-kilo amounts of cocaine. They generally acknowledged the reasoning in Von Holtum and conceded the breach of trust in this case. Nevertheless, they submitted that each accused acted, in substance, as an aggravated form of courier. They also pointed to several mitigating circumstances. In particular, the eight and a half year delay in bringing the case to trial, while the accused led exemplary lives on bail, meant that rehabilitation and specific deterrence were no longer in issue. Mr. Boni and Ms. Adams also submitted that the Crown’s twelve to fifteen year range of sentence, when the Ontario authorities are analyzed, is reserved for principals and leaders in large scale cocaine importation schemes.
24Mr. Rechtshaffen submitted that Robinson played the least serious role in the conspiracy. He conceded that the breach of trust and the large quantities involved in this case were aggravating factors. However, he submitted that the delay of the trial and Robinson’s complete reformation while on bail brought the case below the Cunningham range and that five to six years was the appropriate sentence.
E. ANALYSIS
25The principles of sentencing are set out in ss. 718, 718.1, and 718.2 of the Criminal Code and I am bound by those principles. The fundamental principle of sentencing is proportionality, as set out in s.718.1, which states that a “sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender” .
26The proper approach to sentencing in cases involving the importation of hard drugs, like cocaine, was explained by Doherty J.A. (O’Connor A.C.J.O. and Gillese J.A. concurring) in R. v. Hamilton and Mason (2004) 2004 CanLII 5549 (ON CA), 186 C.C.C. (3d) 129 at paras. 104-106 (Ont. C.A.):
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.).
Cocaine is not indigenous to Canada. Without the cocaine importer, whatever his or her motive or involvement, there would be no cocaine problem. Both before and after the amendments to the sentencing provisions in Part XXIII of the Criminal Code and the introduction of the sentencing provision (s. 10) into the Controlled Drugs and Substances Act, S.C. 1996, c. 19, this court has emphasized the gravity of the crime and, therefore, the need to stress denunciation and deterrence in sentencing all drug importers, even vulnerable first offenders. In Cunningham, supra, at pp. 546-47, the court, in fixing a range of six to eight years for couriers who smuggle large amounts of cocaine into Canada, said:
We recognize as well that the suggested range will often require the imposition of a severe penalty for first offenders. We are not insensitive to this concern, mindful as we must be that in many instances, couriers tend to be weak and vulnerable, thereby becoming easy prey for those who engage in drug trafficking on a commercial basis.
Sympathetic though we are to the plight of many couriers, such concerns must give way to the need to protect society from the untold grief and misery occasioned by the illicit use of hard drugs [Emphasis added by Doherty J.A.].
This court has repeatedly reiterated the approach set out in Cunningham, e.g. see R. v. H. (C.N.) (2002), 2002 CanLII 7751 (ON CA), 170 C.C.C. (3d) 253 (Ont. C.A.); R. v. Wilson, (2003) 2003 CanLII 34247 (ON CA), 167 O.A.C. 351.
27The reason for giving primacy to denunciation and general deterrence, when sentencing in this kind of case, was explained by Rosenberg J.A. (Doherty and Cronk JJA. concurring) in R. v. C.N.H. (2002) 2002 CanLII 7751 (ON CA), 170 C.C.C. (3d) 253 at paras. 35-6 (Ont. C.A.). He stated that “general deterrence as the animating objective of any offence must be approached with caution” but that “there are, however, offences that are more likely to be influenced by a general deterrent effect” and that “importing large quantities of cocaine for personal gain” is one of those offences because they “ordinarily require some degree of planning”. It is apparent that there was considerable planning and preparation in this case over an extended period of time.
28In my view, the aggravating circumstances in this case are the following:
first, cocaine is a hard addictive drug that causes significant harm and it is not indigenous to Canada;
second, the importation of very large quantities of the drug (at least 30 kilos in this case) increases the harmful consequences of this conduct. These quantities also indicate that the highest and most organized levels of the drug trade were involved in this scheme. However, the role of these three accused in the importation scheme was as aiders or abettors and not as principals;
third, the conspiracy was ongoing for some period of time and was not limited to the one act of importation on April 1st, 2007 which was frustrated as a result of police intervention. As noted above, there must have been planning and preparation over a period of time and that planning would have required some sophistication. Given the ongoing nature of the conspiracy, the exact quantities of cocaine that were successfully imported cannot be determined; and
fourth, there was a breach of trust by airport workers who had been granted security clearance (and issued a RAIC). That security clearance gave the accused special access to the secure “air side” of the airport where imported goods first arrive in Canada, prior to any inspection by the authorities.
29On the other hand, the mitigating circumstances in the case are the following:
first, all three accused are first offenders. However, they were mature adult working men at the time of the offences and they were not poor or vulnerable like the accused in many of the cases involving “mere couriers”;
second, all three accused have led otherwise exemplary lives. They have all worked steadily at various jobs, they have supportive pro-social families, and excellent character references were filed on their behalf;
third, eight and a half years of delay in bringing this case to trial, although not in breach of s.11(b) of the Charter, has some mitigating effect; and
fourth, the accused’s conduct and apparent changes while on bail, since these offences were committed in 2007, infers that they have been reformed and that the offences can now be seen as “out of character” compared to the kind of person presently before the court.
30In light of the above four mitigating factors, I agree with defence counsel that specific deterrence and rehabilitation are no longer significant concerns in sentencing the accused. Although their characters were such that they were susceptible, at the time of the offences in 2007, to the lure of what they must have believed was “easy money”, they appear to have now changed and to have learned their lesson. As a result, the primary sentencing objectives that remain are general deterrence and denunciation.
31In my view, there are two bodies of case law that assist in identifying the appropriate range of sentence in this case. One group of authorities deals with less serious cases than the case at bar and the second group of authorities deals with more serious cases than the case at bar. In other words, the present case should be situated somewhere between these two bodies of case law.
32The first group of cases involve the sentencing of “mere couriers”. These authorities hold that, “absent exceptional or extenuating circumstances”, the normal range of sentence for a first offender courier convicted of “importing a kilogram, more or less, of cocaine for personal gain” is three to five years. Where a first offender courier is convicted of importing “multiple kilograms of cocaine for personal gain”, or “large amounts of cocaine”, the normal range of sentence is six to eight years. For example, in the latter category, a 21 year old female courier living on social assistance who brought in 5.2 kilos of cocaine received a sentence of five years in addition to 16 months credit for pre-trial custody. In other words, she was situated towards the bottom end of the six to eight years range. Another first offender courier who brought in 6.5 kilos of cocaine, apparently in somewhat less sympathetic circumstances, received a sentence of eight years, at the top end of the range. See: R. v. Madden (1996) 1996 CanLII 10212 (ON CA), 104 C.C.C. (3d) 548 (Ont. C.A.); R. v. Cunningham, supra; R. v. Bayne, March 26, 1991, Ont.C.A.; and R. v. C.N.H., supra.
33The Madden and Cunningham ranges, with their rough guidelines relating to the amount of cocaine imported by a “mere courier”, are necessarily imprecise. Subsequent cases, where the courier imported “amounts of cocaine below ‘the one kilogram more or less’ range identified in Madden”, have held that “the bottom end of the range should be at or near two years” but that the five year upper end of the range should remain unchanged. See: R. v. Hamilton and Mason, supra at paras. 107-111.
34Similarly, the Cunningham and Bayne range of six to eight years for “multiple kilograms” was established in two cases that involved just over five and six kilos of cocaine. Subsequent cases, involving couriers importing substantially larger quantities, have increased the upper end of that range. For example, in R. v. Singh (2014) 16 C.R. (4th) 95 at paras. 126-130 (Ont. C.A.), the accused was “a long haul truck driver” who brought 53 kilos of cocaine across the border concealed in his trailer amongst legitimate commercial goods. The majority of the Court allowed a conviction appeal. As a result, Laskin J.A. in dissent was the only member of the Court to address the sentence appeal. He held that the top end of the Cunningham range had to be adjusted upwards, in light of the much larger quantities involved in Singh. He stated the following:
Because of the appellant’s personal circumstances, in my view, justice would be done by imposing a nine-year sentence (less the agreed four months’ credit).
The appellant’s sympathetic personal circumstances support a relatively lenient sentence: he is a first offender; he was but 29 years old at the time of sentencing; since arriving in Canada in his teenage years, he has worked steadily to support his wife, small children and extended family; his sole involvement in this case was as a courier; he received a “very positive” presentence report; and he has been on bail for about four years without a hint of trouble.
In Cunningham, at p. 790, this court said that “absent exceptional or extenuating circumstances, the range of sentence for first-offender couriers who smuggle large amounts of cocaine into Canada for personal gain should be six to eight years in the penitentiary”. In Cunningham itself, the accused imported just more than five kilograms of cocaine into Canada. The appellant imported ten times that amount. Decisions in this province after Cunningham, both at trial and in this court, have imposed sentences higher than the six-to-eight-year range where larger amounts of cocaine have been imported. See, for example, R. v. Couture, 2009 ONCJ 655; and R. v. Niemi, 2012 ONCA 133, aff’g [2008] O.J. No. 5830.
As is invariably the case, there is no one right sentence. As we have said many times, including in Cunningham, at p. 790, sentencing “is not an exact science”. Trial courts – and, I would argue, this court, too – “must retain the necessary degree of flexibility to do justice in individual cases”: Cunningham, at p. 790.
Here, though I recognize the gravity of the appellant’s crime, taking into account his personal circumstances, I would sentence him to eight years and eight months in prison – in other words, nine years less four months’ credit for presentence custody. [Emphasis added].
35Adopting Laskin J.A.’s reasoning in Singh, nine years has become “a relatively lenient sentence” in this province for a first offender whose “sole involvement…was as a courier”, albeit a courier of 53 kilos of cocaine in a relatively sophisticated commercial trucking operation. Indeed, in R. v. Couture [2009] O.J. No. 5822 (O.C.J.), one of the cases cited by Laskin J.A. in Singh, Dean J. imposed a sentence of 12 years on a first offender truck driver who imported 120 kilos of cocaine hidden amongst a trailer load of lettuce from California. In the most recent case in this line of authority, R. v. Aujla, 2015 ONCA 350, the Court imposed a 12 year sentence on a first offender truck driver who transported 37 kilos of cocaine across the border in his trailer, secreted in a load of ice cream from California. Accordingly, 12 years is now the high end of the range for large scale first offender couriers. A co-accused’s conviction in the Aujla case was reversed on further appeal. See: R. v. Riar, 2015 SCC 50, 2015 S.C.C. 50.
36The second group of cases involves accused whose role was not as a “mere courier”. The accused in these cases were principals in cocaine importation schemes and were often characterized as leaders in the conspiracy. The sentences in these cases fall in a range that is significantly above the six to eight year Cunningham range and above the 9 to 12 year Singh and Aujla range. The following are examples of this second line of authority:
R. v. Malanca (2007) 2007 ONCA 859, 228 C.C.C. (3d) 90 (Ont. C.A.) is one of the cases at the top end of the range. The Court imposed a sentence of 19 years on a 26 year old first offender who was one of the leaders in a 270 kilo importation of cocaine that utilized a private jet. Malanca went to trial. The other more senior leader of the conspiracy had a prior record, he pleaded guilty at an early stage, and he also received a 19 year sentence. The commercial pilot of the private jet was sentenced to 14 years after trial. See: R. v. Niemi [2008] O.J. No. 5830 (S.C.J.); aff’d 2012 ONCA 133;
R. v. Sevillano et al (1995) 1995 CanLII 1609 (ON CA), 104 C.C.C. (3d) 189 (Ont. C.A.) is another case at the top end of the range. The Court imposed a sentence of 17 years, in addition to 1 ½ years pre-trial custody, on one of the “very high level” leaders of a conspiracy involving the transportation from the U.S.A. to Canada “of hundreds of kilos of cocaine hidden in cars”. In other words, the effective sentence was between 19 and 20 years (depending on how the credit is calculated for the period of pre-trial custody) for an accused who was said to have a “previously unblemished record” and who went to trial. The two drivers of the cars received sentences of 13 years and 12 years (which, like Couture and Aujla, suggests the top end of the courier range in cases involving very large quantities);
Two cases that are somewhat lower in the range than Malanca and Sevillano, because they involved somewhat smaller quantities of cocaine, are R. v. Franco-Hernandez [1991] O.J. No. 3775 (O.C.J.), aff’d [1993] O.J. No. 2405 (C.A.), and R. v. Giroux [1993] O.J. No. 4588 (S.C.J.), rev’sd [1994] O.J. No. 3645 (C.A.). In both cases an effective sentence of 17 years was imposed. Franco-Hernandez was the person who “orchestrated and coordinated the shipment” of 14 kilos of cocaine by airplane in a scheme involving some “sophistication and degree of professionality”. He was “a good family man” and he went to trial. Giroux was a 39 year old with a serious prior record, including for trafficking. He imported 16 kilos of cocaine, concealed in two windsurfing boards. The trial judge found that Giroux was “more than a mere courier. He was involved at a level beyond that of simply a carrier of the drug”. Giroux was sentenced to 13 years, in addition to two years pre-trial custody. Franco-Hernandez was sentenced to 15 years after receiving “a credit of two years” for his pre-trial custody. In other words, the sentences in both cases were about 17 years;
R. v. Quidley, September 15, 2005, S.C.J., conviction rev’sd (2008) 2008 ONCA 501, 232 C.C.C. (3d) 255 (Ont. C.A.), involved a scheme that bears some similarity to the case at bar. The trial judge, Dawson J., found that Quidley was “a principal” who “played a leadership role” in a year long conspiracy that succeeded in importing “multiple kilos” of cocaine in individual amounts that ranged between ¼ kilo and over two kilos. The total amount successfully imported in the ongoing conspiracy could not be established. Quidley was also distributing the cocaine as he was convicted of trafficking ½ kilo on one occasion. Quidley was an Air Canada employee who “seemed to be in charge” of a team of airplane groomers at Toronto airport. Dawson J. stated that they were “entrusted with access to the secure areas of Pearson International Airport and had relatively free access to the aircraft on the ground. Mr. Quidley abused his position of trust to remove, and to have co-conspirators remove, drugs that had been hidden on Air Canada planes inbound from Jamaica”. Quidley was a 36 year old first offender with a family. He went to trial. Dawson J. found that Quidley was “prepared to trade on the misery of others and abuse a position of trust in order to profit”. The trial judge imposed a total sentence of 15 years for the ongoing conspiracy, the one half kilo importation that was proved, and the one half kilo trafficking that was proved. The Court of Appeal reversed the conviction, due to an error in the jury charge, and did not address the sentence appeal;
R. v. Valentini et al (1999) 1999 CanLII 1885 (ON CA), 132 C.C.C. (3d) 262 (Ont. C.A.) is a case where the sentence fell in much the same 15 year range as Quidley. Valentini was the abusive leader of a scheme involving three other co-accused. He successfully imported about 16 kilos of cocaine at Toronto airport, using two couriers who he had threatened as well as a common law spouse who he exploited. He was a 45 year old first offender, he was subject to deportation, and he went to trial. Rosenberg J.A. described the 16 kilos as “a very substantial amount of cocaine” and held that 12 years in addition to “credit for the equivalent of 28 months for the pre-trial custody” was the appropriate sentence. In other words, the effective sentence was 14 years and 4 months;
R. v. Ambrose et al (1994) 24 W.C.B. (2d) 280 (Ont. C.A.) was a case involving the importation of 12 kilos of cocaine, that is, somewhat less than the amount in Valentini. The Court upheld a 13 year sentence imposed on Ambrose who was “the leader” and “driving force” behind the scheme. It appears that he had no criminal record and he went to trial. Two co-accused, who were “slightly” less involved, received sentences of 11 years;
in the well-known case of R. v. Garofoli et al (1988) 1988 CanLII 3270 (ON CA), 41 C.C.C. (3d) 97 at 152-4 (Ont. C.A.), the Court of Appeal imposed a sentence of 12 years on Garofoli before the conviction appeal went on to the Supreme Court of Canada. Garofoli was “the central figure” who had caused the importation of three kilos of cocaine, as part of an ongoing conspiracy. He was a 48 year old first offender with a family and he was of otherwise good character. He went to trial. Martin J.A. stated that the offences were “very serious” and were “of particular gravity involving the importation into Canada of a dangerous drug”. Accordingly, the trial judge “was required to impose heavy sentences to reflect the gravity of the offences and to give appropriate weight to the factor of general deterrence”;
finally, R. v. Brown [2008] O.J. No. 2825 (S.C.J.) was a case where the accused was “at the very top of the scheme” involving the importation of at least 25 to 30 kilos of cocaine. The conspiracy was ongoing and “would have continued indefinitely”, but for the police intervention. Brown was a 45 year old first offender with a dependent family. He was subject to deportation and he went to trial. Belleghem J. held that 12 to 15 years was the appropriate range of sentence and that Brown should be situated at the 12 year bottom end of the range, given that “he will inevitably be deported” and given the financial dependence of his family. The trial judge gave Brown an additional two year credit for the fact that he “offered to act as an agent” for the police, after his arrest, in an unrelated investigation.
37In conclusion, this second group of cases discloses a range of 12 to 19 years for the leaders or principals in large scale cocaine importation schemes. Almost all of the accused were first offenders with families and almost all of them went to trial. The variation within the 12 to 19 year range appears to turn mainly on the quantities involved, as a reflection of the relative gravity, sophistication, and dangerousness of the particular schemes. As the Court of Appeal put it in R. v. Niemi, supra, “The sentence is imposed not to deter importing as a business venture but because of the extraordinary damage done by the drugs being imported”. The trial courts bear witness every day to the widespread ravages and criminal consequences of cocaine addiction and cocaine trafficking. Accordingly, the proportionality principle requires a sentence that reflects the very high objective gravity of an offence that causes so much harm, and that objective gravity will vary with the quantities involved. This second group of cases appears to suggest that the 19 year top end of the range is reserved for cases involving “hundreds of kilos”, that the 14 to 17 year middle range is appropriate for cases involving amounts in the high teens (e.g., 14 to 19 kilos), and that the 12 to 13 year bottom end of the range is appropriate for cases involving lesser amounts (e.g., 3 to 12 kilos).
38In my view, the present case should be situated somewhere between the above two lines of authority. The three accused in this case have greater moral responsibility for the offence than a “mere courier”, and the offence itself is more serious because of the breach of trust. On the other hand, the accused were not principals and they were not the leaders in the importation scheme. The Crown conceded this latter point.
39Dealing with the breach of trust aspect of this case, Neilson J.A. (Saunders and Low JJA concurring) addressed this point in R. v. Von Holtum, supra at paras. 37-51. It was a case dealing with a corrupt baggage handler who facilitated the importation of 50 kilos of cocaine at Vancouver International Airport. The trial judge analogized Von Holtum’s role to that of a courier and sentenced him to 10 years. Neilson J.A. held that this was an error and increased the sentence to 12 years. She stated the following:
Of greater concern is the question whether the trial judge gave adequate weight to Mr. Von Holtum’s role in the importation scheme, and properly assessed the extent of his moral culpability.
The trial judge was handicapped in identifying Mr. Von Holtum’s precise position in the drug hierarchy because, apart from the fact the cocaine had come from Mexico, nothing was known about the people who provided the links on either side of him in the chain of actors. She was thus obliged to conclude that he was not “in the upper echelon of a criminal organization”, a finding with which I would not interfere.
I am persuaded that the trial judge erred by using couriers such as truckers as her primary reference point in sentencing Mr. Von Holtum, and by failing to fully consider the unique context in which he committed his offences. As Low J.A. noted in Epp, the term “courier” may encompass a wide range of actors and responsibilities. I agree with the Crown that Mr. Von Holtum was not simply moving the cocaine from point A to point B like the truckers in cases such as Sandhu, Epp, and Kang. Instead, he was a corrupt insider whose utility lay in using his position and security clearance to transport the cocaine through the airport, and reduce the risks inherent in this activity by diverting the cocaine from screening by the Canada Border Services Agency (“CBSA”).
Further, I am satisfied that the context in which Mr. Von Holtum operated introduced concerns of public safety and security that set his circumstances apart from what I will call “ordinary couriers”, and that the trial judge ignored.… In using his position as an airport baggage handler to breach security protocol and facilitate the importation of cocaine, Mr. Von Holtum not only betrayed his employer’s trust, but denigrated the public interest in maintaining airport and baggage security.
Both [Kandola and Von Holtum] were corrupt insiders who used their positions to facilitate the importation of large amounts of cocaine. In doing so, they breached both the trust reposed in them by their employers and the integrity of the border, and harmed the public interest in border and airport security. They were… facilitators, whose moral culpability clearly exceeded that of a truck driver transporting drugs across the border. [Emphasis added].
40In my view, the above reasoning in Von Holtum applies to the case at bar. Airport workers with security clearance and access to the “air side” of the airport, such as the accused, are particularly attractive to drug importers. The successful corruption of airport workers, who accept money in return for breaching the trust imposed in them by virtue of their position, significantly increases the moral culpability of the offender beyond that of a “mere courier” who poses as a tourist and boards an airplane. In addition, this kind of offence represents a threat to airport and border security, matters in which there is a high public interest, because it sends the message that an important Canadian institution is open to bribery and corruption. For these reasons, the accused must be sentenced in a range above the six to eight years Cunningham range for multiple kilo couriers. The quantities involved in this case also take it above the Cunningham range.
41One further issue that I must address is whether there should be any distinction between the sentences imposed on the three accused, based on their respective roles. The Crown’s main submission on this point was that the three accused worked as a team and that they should be treated the same. Defence counsel made some effort to diminish the roles played by each accused but these submissions mainly involved re-arguing selective interpretations of the wiretaps that had not succeeded at trial. I was unable to discern any convincing distinction between the roles played by the three accused. At different points in the chronology, each one of them seemed to be in contact with someone (presumably, a principal in the scheme) who was providing that accused with crucial information about a particular flight and/or a particular container that they were to look for. In my view, they all shared this common role of contacting a principal, obtaining information from the principal, and then trying to retrieve particular containers from particular flights. I would not distinguish between them, based on their roles. In addition, their respective antecedents and rehabilitative prospects are similar. All three accused should receive the same sentence.
42The last issue I need to address is the question of sentence mitigation due to delays in the trial. As I stated in one of my trial rulings, the period of over eight and a half years (from arrest on June 13, 2007 to conviction on February 4, 2016) “is an exceptional period of delay by any standards”. See: R. v. Duncan, Reilly, and Robinson, supra at para 4. There was no s.11(b) Charter Motion in this case. No one has suggested that the Crown or the Court was responsible for some unreasonable period of delay. Counsel submitted that the case was complex and they sought to explain each period of delay. Their submission is that lengthy delay between arrest and conviction, as in this case, is an accepted mitigating factor when it comes to sentencing, even if the delay is necessary and within constitutional norms.
43Mr. Boni cited a previous decision of mine, R. v. T.M.B. (2013) 2009 BCPC 347, 299 C.C.C. (3d) 503 at paras. 73-75 (Ont. S.C.J.), in support of this submission concerning the effect of delay on sentence. That case was a summary conviction appeal and it was also a test case concerning the constitutionality of a particular statutory provision. I held that the eight month sentence imposed at trial was appropriate but, on appeal, imposed a shorter sentence of 90 days intermittent due, in part, to the delays in the case. The relevant part of the reasons, concerning the mitigating effect of delay, is as follows:
The second material change is that a further twenty months has now passed since Sparrow J. sentenced B. He has remained on bail throughout, he has not re-offended and has not breached his terms of bail, he has continued to work, and he has maintained his supportive relationship with his wife. He is now almost sixty years old and he has been before the courts, awaiting a final decision in this case, for almost six years. Through no fault of his own, his case has become a “test case” for determining whether this relatively new mandatory minimum sentence violates s. 15(1) equality rights of Aboriginal offenders.
It is settled law that delays in trial proceedings and delays during the appeal period, although within constitutional norms, can have a mitigating effect on sentence. See: R. v. Symes (1989), 1989 CanLII 7173 (ON CA), 49 C.C.C. (3d) 81 (Ont. C.A.) at 96-7; R. v. Boucher (2004), 2004 CanLII 17719 (ON CA), 186 C.C.C. (3d) 479 (Ont. C.A.) at para. 33; R. v. Bosley (1992), 1992 CanLII 2838 (ON CA), 18 C.R. (4th) 347 (Ont. C.A.); R. v. Sheng (2010), 2010 ONCA 296, 254 C.C.C. (3d) 153 (Ont. C.A.) at para. 60; R. v. Williams (2009), 2009 ONCA 342, 244 C.C.C. (3d) 138 (Ont. C.A.) at paras. 29-32. The substantial delays in this case have undoubtedly caused ongoing uncertainty for B. and, equally significantly, if he was now to serve an eight month custodial sentence and likely lose his job, at age 59, there would be additional hardship in attempting to re-enter the job market at age 60.
I am satisfied that a three month or ninety day custodial sentence, served on weekends, would adequately reflect the importance of denunciation and deterrence in this case but would also encourage what appear to be the beginnings of restorative and reformative change in B.
44The line of authority cited above in T.M.B. holds that delay can mitigate sentence, either because the accused has suffered or has changed during the period of delay and is now reformed, or because re-incarceration after a sentence has been served or after a period of bail pending appeal would cause some additional or exceptional hardship. Both of these bases for mitigation existed in T.M.B. In the case at bar, the latter kind of mitigation is not present as the accused have not yet been sentenced and are not being re-incarcerated in new and different circumstances. The former kind of mitigation does exist in this case because I have found, as noted above, that the accused have led exemplary lives on bail, that they have changed and learned their lesson, and that their reformation is no longer in issue.
45Although the accused are entitled to some mitigation because of delay, it should not be significant for three reasons. First, this particular kind of offence is not one where successful rehabilitation plays a significant role on sentencing. As Doherty J.A. explained in R. v. Hamilton and Mason, supra at paras 103-105:
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 [which include rehabilitation]…this court has emphasized the gravity of the crime and, therefore, the need to stress denunciation and deterrence in sentencing all drug importers, even vulnerable first offenders
46Second, facilitating the importation of large amounts of cocaine by way of a deliberate breach of trust is a rationally motivated and premeditated crime that involves a cost/benefit assessment by the accused. The risk of getting caught is the cost and, when that happens, it is rational to suppose that the process of arrest, prosecution, trial, and conviction will have a specific deterrent effect on the accused and will generally cause his reformation. By the end of a successful prosecution, the risk no longer justifies the reward. In my view, it can be inferred that the reformation of the accused in this kind of case, while awaiting trial, is not unusual and it may well be the norm. The many sentencing cases analyzed above, involving large scale drug importation schemes and well-situated accused of otherwise good character, were likely all cases where the accused was reformed and deterred by the process of arrest, prosecution, trial, and conviction.
47Third, I am not persuaded that all of the delays in this case were necessary. The litigation style that was adopted, both on the pre-trial motions before Ducharme J. and Trafford J. and at the trial before me, was often characterized by the pursuit of issues that had little or no merit. I do not criticize counsel for deciding to adopt this approach to criminal litigation, and it certainly cannot be regarded as an aggravating factor. It simply means that the case inevitably took longer than a case conducted with a more focused strategy. As the Court put it in R. v. Schertzer et al. (2009) 2009 ONCA 742, 248 C.C.C. (3d) 270 at para 131 (Ont. C.A.), in an analogous context:
Given the complexity of the case, it is our view that the inherent time requirements are necessarily longer than might otherwise be considered appropriate. In reaching this conclusion, we should not be taken as either validating or criticizing the pace of or the Crown’s approach to disclosure. However, it must be borne in mind that the defence approach to disclosure will impact on the pace of the proceedings. Some counsel may choose to pursue every possible relevant piece of information in the Crown’s possession, while other counsel may choose a more focused attack on specific crucial Crown witnesses. Neither approach is necessarily unreasonable, but the former approach can result in significantly longer inherent time requirements. [Emphasis added]
48For the above three reasons, some mitigating effect should be recognized in this case, due to the lengthy delay, but not significant or exceptional mitigation. I would reduce the sentence by one year, from the otherwise appropriate term of imprisonment that I would have imposed, in recognition of the uncertainty and anxiety that the accused must have felt during their lengthy wait for trial and in recognition of their productive use of the time spent on bail. In this regard, I note that counsel did not suggest that the terms of bail were such as to give rise to the kind of credit that was recognized in R. v. Downes (2006) 2006 CanLII 3957 (ON CA), 205 C.C.C. (3d) 488 (Ont. C.A.). All three accused were able to continue working while they awaited trial and they were never under “house arrest”. In addition, any credit for their approximately two weeks of pre-trial custody can be subsumed in the above one year reduction in sentence.
49In conclusion, the appropriate sentence in this case requires an assessment of s.718.1 proportionality, in the context of the ranges of sentence established by the relevant authorities. Doherty J.A. explained the meaning of proportionality in this kind of case in R. v. Hamilton and Mason, supra at paras. 89-91. He stated the following:
The proportionality requirement, long a touchstone of Canadian sentencing law (see R. v. Wilmott, 1966 CanLII 222 (ON CA), [1967] 1 C.C.C. 171 at 178-79 C.C.C. (Ont. C.A.)), accepts the "just deserts" rationale for state-imposed punishment. Whatever other ends a sentence may hope to achieve, it must first and foremost fit the specific crime and the specific offender: Andrew Ashworth, Sentencing and Criminal Justice, 2nd ed. (London: Butterworths, 1995) at p. 70.
The "gravity of the offence" refers to the seriousness of the offence in a generic sense as reflected by the potential penalty imposed by Parliament and any specific features of the commission of the crime which may tend to increase or decrease the harm or risk of harm to the community occasioned by the offence. For example, in drug importation cases, the nature and quantity of the drug involved will impact on the gravity of the offence. Some of the factors which increase the gravity of the offence are set out in s. 718.2(a).
The "degree of responsibility of the offender" refers to the offender's culpability as reflected in the essential substantive elements of the offence - especially the fault component - and any specific aspects of the offender's conduct or background that tend to increase or decrease the offender's personal responsibility for the crime. In drug importation cases, the offender's role in the importation scheme will be an important consideration in assessing the offender's personal responsibility. [Emphasis added]
50Applying the above principles, the objective gravity of the offence in this case is particularly high. Very large quantities of cocaine were involved and the means of importation required a significant breach of trust. This latter feature of the case compromises border security and raises the spectre of corruption of employees at the airport. In terms of the degree of responsibility of the offenders, it falls in the mid-range as they were not principals or leaders but they were “corrupt insiders” whose breach of trust was essential to “facilitating” the crime, as Neilson J.A. put it in Von Holtum. The two bodies of case law analyzed above suggest that 9 to 12 years is now the range for “mere couriers” in large scale importations like this one and that 12 to 17 years is the range for principals and leaders who import between three kilos (like Garofoli at the bottom end of this range) and up to 20 kilos (like Valentini, Giroux, and Franco-Hernandez at the top end of this range).
51In light of all the above circumstances, 12 years is the appropriate sentence in this case. As explained above, I would reduce the sentence by one year because of the delays in bringing this case to trial. In the result, 11 years is the sentence to be served by each accused from today’s date. That sentence should be concurrent on each of the two counts. In addition, it appears that the ancillary orders sought by the Crown should be granted, that is, s.109(1)(c) firearms prohibitions and forfeiture orders. No submissions were made opposing these ancillary orders. The firearms prohibition is mandatory. If counsel wish to now raise any issue about the forfeiture orders I will hear those submissions.
M.A. CODE J.
Released: February 26, 2016.
