CITATION: R. v. Ali, 2016 ONSC 2600

COURT FILE NO.: 2342/12

DATE: 2016 04 19

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

John North, for the Crown

• and -

Shakir ALI

Stephen Hebscher, for the Defence

HEARD: March 8, 2016

REASONS FOR SENTENCE

Woollcombe J.

Overview

[1] On December 14, 2015, Mr. Ali was found guilty by a jury of one count of importing cocaine. He is to be sentenced today.

[2] The Crown and defence have placed before me a joint position for a five and a half year sentence, less credit for pre-trial custody. For the reasons that follow, I am prepared to accede to the joint position.

Facts of the Offence

[3] I will briefly summarize the facts of the offence.

[4] Mr. Ali was arrested on December 22, 2011 in Toronto at Lester B. Pearson International Airport. He had arrived from Guyana on a Caribbean Airlines flight that transited through Port of Spain, Trinidad. After being sent by a roving Border Security Officer to secondary inspection, his suitcase was searched. Hidden in the lining of his checked suitcase was powder cocaine. The cocaine weighed 2.9379 kilograms (approximately 6.47 pounds). Counsel agree that the value of the seized cocaine was between $117,516 and $323,070 in Toronto, depending on the manner of distribution. The value of the cocaine in Guyana was between $13,803 and $19,090. All of these values are in Canadian dollars.

Facts Relating to the Offender

[5] After the jury’s verdict, a pre-sentence report was ordered. That report sets out some of Mr. Ali’s background.

[6] Mr. Ali is 54 years old. He is a permanent resident in Canada but is not a citizen.

[7] He has one 2002 conviction for assault with a weapon, for which he received a suspended sentence and one year of probation. This was in a domestic context.

[8] He was born in Guyana and raised on his family’s rice farm. He remains a citizen of Guyana. He completed grade ten there. He held various jobs in Guyana and became involved in a common law relationship which produced three children, now adults ages 26, 25 and 22. At the age of 30, he left Guyana and immigrated to Canada. His mother had come to Canada years before and four of his siblings moved to Canada as well.

[9] Mr. Ali married in Canada and had two children, now ages 19 and 16. In 2002, he and his wife divorced.

[10] Mr. Ali reports having constant communication with his children in Guyana and in Canada. He has a sister and brother in Brampton, and two sisters in New York. He maintains a good relationship with all of them.

[11] Mr. Ali describes himself as considerate, helpful and responsible for others. His sister has confirmed that he has done an excellent job in caring for their elderly mother, effectively assuming the role sole care-giver. She is almost 80 and in failing health. She told the author of the pre-sentence report that she is extremely dependent on Mr. Ali and cannot imagine living in her apartment without him.

[12] Mr. Ali takes a number of medications daily. He has been diagnosed with Psoriasis over his entire body, has left hearing loss, dilated cardiomyopathy, sleep apnea, type II diabetes, high cholesterol and hypertension. He denies any drug or narcotic addictions. He also denies any alcohol concerns or issues.

[13] Mr. Ali has been receiving social assistance on and off since 2011. He says that he has an export business in used clothing and appliances in which he ships these goods to Guyana where they are re-sold. He testified about this business during the trial.

[14] Mr. Ali maintains his innocence. He continues to advance the position that was rejected by the jury: that he was set-up and had no knowledge that there was cocaine in his suitcase.

[15] In preparation for sentencing, Mr. Hebscher retained Dr. Sandy Wiseman, a psychologist, to prepare an assessment of Mr. Ali’s cognitive abilities. Dr. Wiseman reports the following:

• Mr. Ali’s verbal comprehension score (indicating how well he reasoned and solved tasks requiring him to listen to questions and give spoken answers) was at the extremely low range, below the first percentile.

• Mr. Ali’s perceptual reasoning score (indicating how well he did on tasks that required him to think about things such as designs, pictures or puzzles) was at the third percentile.

• Mr. Ali’s working memory score (requiring him to hold information while performing some operation with it) was at the extremely low range at the 2nd percentile.

• Mr. Ali’s processing speed score (requiring him to process visual information and written responses) was at the 3rd percentile.

[16] Overall, Mr. Ali’s cognitive abilities were at the extremely low range, below the 1st percentile, at the 0.3 percentile, with low scores throughout the range of cognitive abilities assessed.

The Appropriate Range of Sentence

[17] Section 718 of the Criminal Code sets out the following purpose and objectives of sentencing:

718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.

[18] Further, s. 718.1 of the Criminal Code provides that:

718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[19] Section 10 of the Controlled Drugs and Substances Act S.C. 1996, c. 19 provides, the following with respect to the purpose of sentencing:

10 (1) Without restricting the generality of the Criminal Code, the fundamental purpose of any sentence for an offence under this Part is to contribute to the respect for the law and the maintenance of a just, peaceful and safe society while encouraging rehabilitation, and treatment in appropriate circumstances, of offenders and acknowledging the harm done to victims and to the community.

[20] In R. v. Cunningham (1996), 1996 CanLII 1311 (ON CA), 27 O.R. (3d) 786, 88 O.A.C. 143 (C.A.) at para. 20, the Court of Appeal set a range of six to eight years in the penitentiary as the appropriate sentence for first time couriers who import a large amount of cocaine into Canada for personal gain. A large amount of cocaine in this context means at least two kilograms.

[21] Recently, in R. v. Jackman, [2016] O.J. No. 738, 2016 ONCA 121 at paras. 55-56, the Court of Appeal affirmed that the usual range of sentence is six to eight years incarceration for first time importers.

The Positions of the Parties

[22] Experienced counsel have invited me to consider their joint position. They ask me to conclude that the appropriate sentence for Mr. Ali is five and a half years, less time served.

[23] While counsel agree that the usual range for this offence is six to eight years, they both ask me to impose a lower sentence. Mr. North highlights the profound nature of Mr. Ali’s cognitive limitations as an unusual mitigating circumstance. Mr. Hebscher also asks me to impose a sentence less than the usual range because of the significant immigration consequences that Mr. Ali will face. As a non-Canadian citizen, Mr. Ali will almost certainly be deported to Guyana, resulting in his separation from his mother, for whom he has been caring, and other family members in Canada, and therefore considerable hardship.

Analysis

[24] I wish to address firstly the joint position that has been put before me.

[25] While the issue of when a trial judge should depart from a joint position is before the Supreme Court of Canada in the case of R. v. Anthony-Cook 2015 BCCA 22, the law is clear that I am required to give careful consideration to a joint position of counsel. Indeed, the law in Ontario is that I should depart from that joint position only if I conclude that it would bring the administration of justice into disrepute or would otherwise be contrary to the public interest (R. v. Dorsey, 1999 CanLII 3759 (ON CA), [1999] O.J. No. 2957 (C.A.) at paras. 11, 13-15; R. v. Cerasuolo, 2001 CanLII 24172 (ON CA), [2001] O.J. No. 359 (C.A.) at paras. 6-9; R. v. Downey, [2006] O.J. No. 1289 (C.A.) at paras. 2-5).

[26] In determining whether the joint position would bring the administration of justice into disrepute or would otherwise be contrary to the public interest, I have reflected upon the two reasons why counsel submit that the sentence imposed on Mr. Ali should be below the usual range of sentence.

[27] I accept that one of the mitigating factors in this case is the significant degree of Mr. Ali’s cognitive deficit: R. v. Green, [2010] O.J. No. 2974; 201 A.C.W.S. (3d) 528 (S.C.J.). I find Mr. North’s position as to why this is relevant compelling. As he puts it, a reasonable inference may be drawn that Mr. Ali was unsophisticated and may have taken a risk that others without his cognitive limitations would not have taken. I accept that the evidence about Mr. Ali’s cognitive deficit also goes to his moral blameworthiness in that he may well not have appreciated either the seriousness of his offence or its detrimental impact on the community.

[28] In my view, the very significant degree of impairment of Mr. Ali’s cognitive abilities and judgment is an unusual mitigating circumstance. Having seen and heard Mr. Ali during the trial, and read Dr. Wiseman’s assessment of him, I am prepared to accept counsel’s position that in this case, this unusual factor justifies the imposition of a sentence slightly below the usual range.

[29] The second mitigating factor that counsel urge me to find warrants imposing a sentence below the usual range is the fact that Mr. Ali faces almost certain deportation to Guyana. Mr. Hebscher has provided me with a letter from Dhaman Kissoon, a lawyer with more than twenty-five years of experience in practicing criminal law and immigration law in Ontario. Mr. North consents to the admissibility of this letter. In the letter, Mr. Kissoon has offered his opinion regarding the likely impact of this conviction and any sentence I impose on Mr. Ali’s immigration status.

[30] Mr. Kissoon explains that because importation of cocaine carries a maximum sentence of life imprisonment, Mr. Ali will be caught under s. 36(1) of the Immigration and Refugee Protection Act S.C. 2001 c.27. This section provides that a permanent resident is “inadmissible on the grounds of serious criminality” where he has been convicted of an offence punishable by a maximum term of at least ten years.

[31] Mr. Kissoon further explains that on the basis of the conviction and all of the circumstances, a report will likely be prepared, pursuant to s. 44 of the Act. It is Mr. Kissoon’s view that a section 44 report will lead to a Deportation Order being made at an Admissibility hearing. Section 64(1) of the Act removes from Mr. Ali any right of appeal from such a Deportation Order.

[32] As I understand the position of Mr. Hebscher, it is that Mr. Ali, as a long term permanent resident of Canada, will suffer greatly because of his inevitable deportation and consequent separation from his family in Canada.

[33] In R. v. Pham, 2013 SCC 15, [2013] S.C.J. No. 100; 2013 SCC 15, Wagner J. made clear that the collateral consequences related to immigration may be relevant to tailoring an appropriate sentence, and that their significance depends on the facts of a particular case. In Pham, the Supreme Court did not deal directly with how to address circumstances in which an offender faces certain deportation. However, Doherty J.A. did address this issue in R. v. Hamilton, 2004 CanLII 5549 (ON CA), [2004] O.J. No. 3252, 72 O.R. (3d) 1 (C.A.) at para. 156. In that decision, the Court of Appeal accepted that the certainty of deportation may justify some reduction in the term of imprisonment.

[34] There can be no doubt that the sentence imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender. In my view, when deportation is very likely and will result in an offender being forever separated from family in Canada, the country that he has made his home for twenty-five years, probable deportation may be relevant when considering whether a joint position for a slight deviation below the range of sentence set out in Cunningham is reasonable. See: R. v. Grant, [2015] O.J. No. 6971; 2015 ONCJ 751 at paras 41-51.

[35] Having considered the two reasons advanced as to why Mr. Ali’s sentence should be below the usual range, I turn now to a consideration of the other relevant aggravating and mitigating circumstances.

[36] In terms of aggravating factors, I note that Mr. Ali’s importation appears to have been solely for personal gain. He imported a significant amount of a drug that courts have recognized causes immense social and economic harm, adversely affects the health of users, and leads to a multiplicity of violent crimes in Canada. The importation of cocaine is a violent and very serious offence and any sentence imposed must reflect the important principles of denunciation and general deterrence.

[37] At the same time, there are mitigating factors to be noted. Mr. Ali’s criminal record is minor and dated. He has been a responsible, supportive and caring son to his elderly mother and appears to have a close relationship with a number of other family members.

Conclusion

[38] In all of the circumstances, I conclude that the joint position of five and a half years would not bring the administration of justice into disrepute and is not contrary to the public interest. I accept that notwithstanding that it is below the usual range of sentence to be imposed in these circumstances, it is a fit sentence in that it is proportionate to the gravity of the offence and to the degree of responsibility of the offender, particularly in view of Mr. Ali’s intellectual impairment.

[39] I sentence you to five and a half years in custody. I am advised that you served forty-eight days in custody prior to being released on bail. You are to be credited with this time on a 1.5:1 basis, meaning that you will receive seventy-two days credit, to be deducted from the five and a half year sentence.

[40] There will be a mandatory firearms prohibition order made under s. 109(2) of the Criminal Code.

[41] A D.N.A. order will be made under s. 487.015 of the Criminal Code.

[42] I wish to thank counsel for their assistance in this case.

Woollcombe J.

Released: April 19, 2016

CITATION: R. v. Ali, 2016 ONSC 2600

COURT FILE NO.: 2342/12

DATE: 2016 04 19

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

Shakir ALI

REASONS FOR JUDGMENT

Woollcombe J.

Released: April 19, 2016