Court File and Parties

COURT FILE NO.: Crim J(F) 569/14 DATE: 20170330 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN - and - CAROL ANDREA GILMORE Defendant

COUNSEL: M. Dykstra for the Crown M. Mattis for the Defendant

HEARD: March 27, 2017

REASONS FOR SENTENCE Ricchetti, J.

Overview

[1] On November 2, 2016, a jury found Ms. Gilmore guilty of importing 217 grams of cocaine into Canada on May 3, 2013.

The Facts

[2] On May 3, 2013, Ms. Gilmore returned from a trip to Jamaica. She entered Canada at Pearson International Airport. Her personal belongings contained several children’s books. In the soft covers of the books, cocaine had been secretly inserted. The total amount of cocaine found in the books was 217 grams.

[3] The only issue at trial was whether Ms. Gilmore had knowledge of the cocaine in the book covers. The jury determined that Ms. Gilmore knew the books contained cocaine.

Circumstances of the Offender

[4] Ms. Gilmore is 52 years old. She immigrated to Canada from Jamaica when she was about 17 years old.

[5] She completed grade 12 and took business courses at college but did not complete that program.

[6] Ms. Gilmore does not have a consistent and clear employment history. It is unclear whether Ms. Gilmore is employed at this time. There is conflicting evidence on this issue. Ms. Gilmore produced evidence that she was employed at this time. However, she had initially told the probation officer who prepared the Pre-Sentence Report that she was not employed. What is clear is that Ms. Gilmore has attempted several unsuccessful businesses in the past.

[7] She is involved in establishing a humanitarian ministry since 2007. This fact is considerably weakened by the fact that Ms. Gilmore continued to be engaged in the importation of drugs on several occasions while “working” on this humanitarian ministry.

[8] Despite Ms. Gilmore’s unsuccessful business ventures and general lack of employment, Ms. Gilmore owns property in Jamaica and appeared to have put offer(s) to purchase at least two properties in Ontario in 2013.

[9] Turning to Ms. Gilmore’s criminal record, it is as follows: a) 1997 possession for the purpose of trafficking; b) 1997 failing to attend court; c) 2006 importing a controlled substance into Canada – 2 year’s incarceration; d) 2006 failing to attend court – 45 days incarceration; e) 2009 importing cannabis resin in Bermuda – 10 months on appeal; f) 2009 possession of cannabis resin in Bermuda – 10 months on appeal; and g) 2016 failing to comply with Recognizance (while on this 2013 importing charge) – suspended sentence

[10] It is also important to note that, during Ms. Gilmore’s evidence, she told the CBSA Officer: “to be honest with you, I did transport drugs from Panama to Jamaica” during a side trip before returning to Canada on May 2013 to explain why the CBSA Officer found a positive reading for cocaine in her bag. Ms. Gilmore at the trial admitted that she had made this statement to the BSO Officer but said that she had made this story up because the CBSA Officer was rude. This court did not accept her evidence that the “story” had been made up. She had no credibility and her evidence at trial was not reliable as the vast majority of her evidence did not make sense and was internally and externally inconsistent. In particular, her evidence regarding the reason, circumstances and details of her side trip to Panama, return to Jamaica before returning to Canada (all by a person who had been unemployed and not carrying on a business for years) were beyond plausible. This leads this court to conclude, beyond a reasonable doubt, that Ms. Gilmore’s statement that she had transported cocaine from Panama to Jamaica during this side trip was true and accurate. There is no other reasonable or rationale conclusion to be drawn from her statement to the BSO Officer and the rest of her evidence surrounding that side trip. Whether the cocaine found in the children’s book’s covers was from Panama or different cocaine from Jamaica has not been established from the evidence.

[11] Ms. Gilmore provided her elocution to the court in writing. Essentially, Ms. Gilmore suggests that she has made “mistakes in the past” and goes on to describe the negative impact her “mistakes” have had on her life. She deflects some of the blame for her “mistakes” to the men in her life. It is difficult to accept Ms. Gilmore’s alleged remorse when this is her third conviction for importation of drugs and her admission that she has done so on at least one other occasion. This court does not accept that Ms. Gilmore is truly remorseful for having imported cocaine. Importing drugs has been a pattern of behaviour for Ms. Gilmore.

[12] The Defence counsel submitted that this court should consider rehabilitation prospects for Ms. Gilmore as a mitigating factor. Rehabilitation must always be considered. However, the facts in this case show that Ms. Gilmore has been involved in drugs, as a trafficker and as an importer between 1997 through to 2013. This period covers a 16 year period during which Ms. Gilmore was 32 years old through 48 years old. She is now 52 years old. The prospects of rehabilitation are not high in this case.

Impact on the Community

[13] Little needs to be said about the very serious impact on society arising from the importation, distribution and use of cocaine. As stated by Doherty J. in R. v. Hamilton (2004) 2004 ONCA 5549, 186, C.C.C. (3d) 129 (Ont. C.A.):

“The importation of dangerous drugs like cocaine and others found in Schedule 1 of the Controlled Drugs and Substances Act has always been considered among the most serious crimes known to Canadian law…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(s). Cocaine importation begets a multiplicity of violent acts. Viewed in isolation from conduct which inevitably follows the importation of cocaine, the act itself is not a violent one in the strict sense. It cannot, however, be dissociated from its inevitable consequences.”

Legal Parameters

[14] Subsections 1 and 3(a) of Section 6 of the Controlled Drugs and Substances Act provides as follows:

s.1 Except as authorized under the regulations, no person shall import into Canada or export from Canada a substance included in Schedule I, II, III, IV, V or VI.

s.3 Every person who contravenes subsection (1) or (2) (a) where the subject-matter of the offence is a substance included in Schedule I or II, is guilty of an indictable offence and liable to imprisonment for life

[15] The Criminal Code sets for the purpose and principles of sentencing

718. The fundamental purpose of sentencing is 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; (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 and to the community.

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

718.2 A court that imposes a sentence shall also take into consideration the following principles: (a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing, (b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

[16] Section 10(1) and (2) of the Controlled Drugs and Substances Act provides as follows: (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.

(2) If a person is convicted of a designated substance offence for which the court is not required to impose a minimum punishment, the court imposing sentence on the person shall consider any relevant aggravating factors including that the person (b) was previously convicted of a designated substance offence; or

Positions of Crown and Defence

[17] The Crown seeks a sentence of 5 years before credit for pre-sentence custody. The Crown also seeks a DNA order and a Weapons Prohibition Order for life.

[18] The Defence seeks a sentence of time served after credit for pre-sentence custody. The Defence does not dispute a DNA order or a Weapons Prohibition Order is required by the Criminal Code but submits that the Weapons Prohibition Order be limited to 10 years.

Case Law

[19] The difficulty in this case is that many of the legal authorities set out an appropriate range for first time offenders.

[20] In R. v. Hamilton, 2004 ONCA 5549, 72 OR (3d) 1; 241 DLR (4th) 490; 186 CCC (3d) 129; 22 CR (6th) 1 (C.A.) the Court of Appeal dealt with the appropriate range where the amount of cocaine imported is less than a kilogram:

[108] Madden suggests a range of three to five years for the importation of one kilogram of cocaine "more or less". Where the amount of cocaine imported is approximately half of that amount, the bottom end of the range should be adjusted downward. I do not suggest that the adjustment should follow any mathematical formula, but rather that it should recognize that the importation of lesser amounts of cocaine renders the crime somewhat less serious. In my view, where the amount of cocaine imported falls below the amounts described in Madden, the bottom end of the appropriate range of sentences should be at or near two years. I see no reason to vary the upper end of the appropriate range.

[21] Justice Durno in R. v. Gordon-Cummins, 2013 ONSC 5901 made the following statement regarding the sentencing range for importation of cocaine:

[22] For a very few number of offences, our Court of Appeal has provided ranges of sentences. One of the offences for which they have provided ranges is the importation of cocaine. There are three: in the area of a half kilogram up to a kilo, more or less, is around two years to five years; a kilogram, more or less, three to five; and multi-kilos, six to eight years. However, the range is really a starting point with respect to sentence. In terms of another area where there are ranges, our Court of Appeal has said ranges are not embedded in stone. Given their nature as guidelines only, I do not view them as being fixed in law as is the case with binding legal principles. The Supreme Court of Canada said it would be wrong to assume there is a precise range that will apply in every case. And of particular importance, in Hamilton and Mason, Justice Doherty spoke about fixing sentences in a case that dealt with the importation of cocaine.

Fixing the range of sentence for a particular offence, of course, does not determine the sentence to be imposed on a particular offender. The range is in large measure a reflection of the “objective seriousness” of the crime ... Once the range is identified, the sentencing judge must consider specific aggravating and mitigating factors. The mitigating factors may be so significant as to take the case below the otherwise appropriate range.

[23] I would add that there are also cases where the aggravating factors take it above. The factors have to be considered in terms of where within the range the sentence is. (emphasis added)

[22] The Defence points to a number of legal authorities where sentences in the range of 2 years to 2.5 years were imposed where the quantities of cocaine imported were less than ½ a kilogram:

• Hamilton, supra - the Court of Appeal determined that the appropriate sentences 20 months and 2 years less a day for two accused where the amount of cocaine imported was 349 and 489 grams of cocaine respectively.
• R. v. Cummings, 2012 ONSC 4619 – 2.5 years in circumstances where the amount was 417 grams of cocaine but the offender was 44 years old, a productive member of society and had no related criminal record.
• R. v. Ebanks, 2012 ONSC 5002 – 2.5 years but for police misconduct in circumstances where the offender was 25 years old with no criminal record and had imported 406 grams of cocaine.

[23] Given that Ms. Gilmore has two prior importing convictions, if the ranges described in Hamilton continue to apply despite the fact the range is for first time offenders, Ms. Gilmore’s prior convictions would put an appropriate sentence in the upper part of the range. Arguably, the range in Hamilton does not apply and the range for an importer with multiple prior conditions would be much higher. This court need not decide this issue as the Crown seeks a 5 year sentence which would be at the very top of the range described in Hamilton and other authorities.

[24] In addition to the importance of general deterrence and denunciation to sentencing in importing cases, specific deterrence takes on a much greater significance in this case making a higher custodial sentence a possibility.

[25] The importance of rehabilitation continues but, where there are multiple prior importing convictions over an extended period of time, the significance of rehabilitation to the overall sentence is significantly reduced.

[26] The court in R. v. Cunningham, 2002 ONCA 7751, 62 O.R. (3d) 564 (C.A.) at para 21 cautioned sentencing judges against allowing sympathy for the “plight of many couriers” to find its way into the sentencing process. Such sympathy should and must give way to the “untold grief and misery occasioned by the illicit use of hard drugs”:

Mitigating and Aggravating Factors

[27] There are no mitigating factors. Ms. Gilmore is not youthful. She does have a criminal record for the exact same offences. She is not truly remorseful. She has not had steady employment or a business, yet she owns properties! Perhaps, the only mitigating factors is that Ms. Gilmore did not had a supportive family while growing up and her age.

[28] The primary aggravating factor is Ms. Gilmore’s prior convictions and prior conduct. The prior convictions and her admitted prior importation into Jamaica suggest a repeat drug courier for profit.

Analysis

[29] The amount of cocaine in this case is not a “large” quantity when compared to many importation cases. No doubt this would have reduced the lower end of the appropriate sentencing range to around or below two years for a youthful first-time offender.

[30] While a 2-year sentence may have been appropriate for a youthful, first time offender, this court is of the view that Ms. Gilmore’s prior convictions and her admitted courier of narcotics from Panama to Jamaica (evidence of being a regular drug courier) require a substantial increase in the appropriate sentence.

[31] A sentence of 4 years is appropriate in these circumstances. This is consistent with the top of the “range” described above and considers all of the circumstances in this case.

[32] While a 4 year sentence for importing 217 grams of cocaine might appear at first blush to be harsh, this court cannot condone repeat offenders who choose to import drugs. The appropriate sentence must necessarily be significant, despite the quantity of cocaine, or, alternatively, be at the upper end of any reasonable range for importing this quantity of cocaine.

Ancillary Orders

[33] A DNA order will issue.

[34] As for the Weapons Prohibition order, there is no evidence that Ms. Gilmore had any prior issues relating to firearms. There were no firearms involved in this case. This court sees no reason why the Weapons Prohibition order should be increased from 10 years to lifetime. A Weapons Prohibition order shall issue for 10 years.

Pre-Sentence Custody

[35] Ms. Gilmore remained in custody for 11 months after arrest. The Defence seeks 1.5 credit for these 11 months. The Crown does not oppose. Ms. Gilmore shall have 16.5 month’s credit to her sentence.

[36] The Defence also seeks credit for 1.5 months for the 5 months that Ms. Gilmore was on bail with ankle monitoring restriction. This court declines to grant any credit for this period of time for the following reasons: a) Ms. Gilmore breached the terms of her Recognizance on this charge. It would be counterproductive to give her credit for the same period during which she breached her Recognizance; and b) Ms. Gilmore has a history of breaching court orders.

Final Decision

[37] Ms. Gilmore is sentenced as follows: a) 31.5 months in custody (after 16.5 month’s credit for pre-sentence custody); b) DNA order; and c) Weapons Prohibition Order for 10 years.

Ricchetti J. Released: March 30, 2017