Her Majesty the Queen v. Adrian Justin McKane Duffus, 2017 ONSC 231

COURT FILE NO.: CRIMJ (F) 1153/15 DATE: 20170113

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN S. Thompson, for the Respondent Respondent

- and -

ADRIAN JUSTIN MCKANE DUFFUS J. Miglin, for the Applicant Applicant

HEARD: October 25 and 26, 2016, at Brampton

RULING ON CONSTITUTIONAL CHALLENGE TO SECTION 6(3)(a)(i) OF THE CONTROLLED DRUGS AND SUBSTANCES ACT

André J.

1Mr. Adrian Duffus seeks a declaration that the mandatory minimum sentencing provision set out in s. 6(3)(a)(i) of the Controlled Drugs and Substances Act, S.C. 1996, C. 19 (“CDSA”) violates s. 12 of the Charter of Rights and Freedoms (the “Charter”), and must be declared null and void pursuant to s. 52 of the Constitution Act, 1982. He submits that not only is the mandatory minimum term of imprisonment in s. 6(3)(a)(i) of the CDSA grossly disproportionate when applied to him; it violates s. 12 of the Charter when applied to other offenders.

BACKGROUND FACTS

2On September 3, 2014, a customs officer saw Mr. Duffus exiting a “family washroom” in an area of the Toronto Pearson Airport where recently arrived passengers on an airplane pass after exiting the aircraft on which they have travelled to Canada. The officer found it strange that the accused would have used this washroom, given that there was a “male washroom” beside the “family washroom”. One officer entered the washroom and searched a paper towel dispenser where he discovered 11 brick shaped objects, which were later found to contain approximately 5 kilograms of marijuana. Another officer arrested Mr. Duffus and discovered a key in his possession which opened the dispenser.

PRIOR CHARTER APPLICATION

3Mr. Duffus brought an application, pursuant to s. 8 of the Charter, for the exclusion of fingerprint evidence and the key found in his possession. I dismissed the application. On March 24, 2016, I found Mr. Duffus guilty of importing a Schedule II substance into Canada, contrary to s. 6(1) of the CDSA. In that proceeding, Mr. Duffus pleaded not guilty to the offence but opted to call no evidence in reply to the evidence which the Crown called during his unsuccessful pre-trial application. His counsel invited the court to find Mr. Duffus guilty of the charge.

PERSONAL INFORMATION

4Mr. Duffus was 30 years old at the time of the offence. He has no criminal record. He is a Canadian citizen of Jamaican descent.

5Mr. Duffus completed high school. He was not working at the time of the offence. He found employment approximately one month following the offence and has worked ever since.

6Mr. Duffus has two children. His mother resides in Jamaica; however, he has a number of siblings and relatives in Canada. He has filed a number of reference letters which collectively indicate that he enjoys a lot of support from friends and family.

THE LAW

7Section 1 of the Charter guarantees the rights and freedoms set out in it, subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

8Section 7 of the Charter provides that everyone has the right to life, liberty and security of the person and the right not to be deprived thereof in accordance with the principles of fundamental justice.

9Section 12 of the Charter provides that everyone has the right not to be subjected to any cruel and unusual treatment or punishment.

10Section 52 of the Constitution Act provides that the Constitution of Canada is the Supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.

11Section 6(3) of the CDSA provides the following:

(3) Punishment - Every person who contravenes subsection (1) or (2)

(a) if the subject matter of the offence is a substance included in Schedule I in an amount that is not more than one kilogram, or in Schedule II, is guilty of an indictable offence and liable to imprisonment for life, and to a minimum punishment of imprisonment for a term of one year if

(i) the offence is committed for the purposes of trafficking,

(ii) the person, while committing the offence, abused a position of trust or authority, or

(iii) the person had access to an area that is restricted to authorized persons and used that access to commit the offence;

(a.1) if the subject matter of the offence is a substance included in Schedule I in an amount that is more than one kilogram, is guilty of an indictable offence and liable to imprisonment for life and to a minimum punishment of imprisonment for a term of two years;

(b) where the subject-matter of the offence is a substance included in Schedule III or VI,

(i) is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years, or

(ii) is guilty of an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months; and

(c) where the subject-matter of the offence is a substance included in Schedule IV or V,

(i) is guilty of an indictable offence and liable to imprisonment for a term not exceeding three years, or

(ii) is guilty of an offence punishable on summary conviction and liable to imprisonment for a term not exceeding one year.

12The Federal Government enacted s. 6(3)(a)(i) of the CDSA in 2012 as part of an omnibus piece of legislation entitled the Safe Streets and Communities Act, S.C. 2012, c.1, ss. 39-46. In R. v. Boulton, 2016 ONSC 2979, at para. 6, the court noted that the avowed purpose of the amendments to the CDSA sentencing regime, through the introduction of mandatory minimum sentences, was to “clearly send the message that Canadians find this type of criminal behaviour unacceptable”.

13Hitherto, the sentencing of drug offenders was a matter of a trial judge exercising his or her discretion to fashion a sentence which, pursuant to s. 718.1 of the Criminal Code (the “Code”), reflected the gravity of the offence and the personal circumstances of the offender. The broad range of sentencing options, prior to the 2012 legislative amendments, included the imposition of conditional sentences even for those convicted of drug importation: see R. v. B.(A.) (2004), 27 C.R. (6th) 180 (Sup. Ct.); R. v. Z.Z.V.F., [2000] O.J. No. 5222 (Ont. Ct. J.); R. v. Johnston, at para. 39; R. v. Cumberbatch (noted in Johnston, at para. 39); R. v. Binger, [2002] O.J. No. 5368 (Ont. Ct. J.); R. v. Almeida and Medeiros, (unreported); R. c. Borges, [2000] J.Q. No. 4732 (Que. C.A.); R. c. Saintyl, 2001 CarswellQue 334 (C.Q.); R. v. Shaw, [2000] O.J. No. 2646 (Sup. Ct.); R. v. Rahaman, unreported 2005 (Ont. Sup. Ct.).

ANALYSIS

14The intersection of s. 12 of the Charter and many of the mandatory minimum penalty sections of the Code has been the subject of a number of recent decisions: see R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773; R. v. Lloyd, 2016 SCC 13, [2016] 1 S.C.R. 130; R. v. Vu, 2015 ONSC 5834; R. v. Vu, 2015 ONSC 7965; R. v. E.R.D.R., 2016 BCSC 1759; R. v. Boulton, 2016 ONSC 2979; R. v. Pham, 2016 ONSC 5312; R. v. Antwi, 2016 ONSC 4325. These decisions appear to follow the analytical framework set out by the Supreme Court of Canada in Nur in determining whether or not a mandatory minimum sentence provision violates s. 12 of the Charter. Writing for the majority, McLachlin C.J. noted the following:

When a mandatory minimum sentencing provision is challenged under s. 12, two questions arise. The first is whether the provision imposes cruel and unusual punishment (i.e. a grossly disproportionate sentence) on the particular individual before the court. If the answer is no, the second question is whether the provision’s reasonably foreseeable applications would impose cruel and unusual punishment on other offenders. This approach is consistent with the long and settled jurisprudence of this Court relating to Charter review generally and to s. 12 review in particular, is workable, and provides sufficient certainty. There is no reason to overrule this jurisprudence, especially as the effect would be to diminish Charter protection.

Where mandatory minimum sentencing laws are challenged under s. 12 on the basis of their reasonably foreseeable application to others, the question is what situations may reasonably arise, not whether such situations are likely to arise in the general day-to-day application of the law. Only situations that are remote or far-fetched are excluded.

15McLachlin C.J. further noted at paras. 65 and 68 that:

I conclude that a mandatory minimum sentence may be challenged on the ground that it would impose a grossly disproportionate sentence either on the offender or on other persons in reasonably foreseeable situations. The constant jurisprudence of this Court and effective constitutional review demand no less. In the result, a mandatory minimum sentencing provision may be challenged on the basis that it imposes cruel and unusual punishment (i.e. a grossly disproportionate sentence) on the particular offender before the court, or failing this, on the basis that it is reasonably foreseeable that it will impose cruel and unusual punishment on other persons.

The reasonable foreseeability test is not confined to situations that are likely to arise in the general day-to-day application of the law. Rather, it asks what situations may reasonably arise. It targets circumstances that are foreseeably captured by the minimum conduct caught by the offence. Only situations that are “remote” or “far-fetched” are excluded: Goltz, at p. 515. Contrary to what the Attorney General of Ontario suggests there is a difference between what is foreseeable although “unlikely to arise” and what is “remote [and] far-fetched”: (A.F., at para. 66). Moreover, adoption of the likelihood standard would constitute a new and radically narrower approach to constitutional review of legislation than that consistently adhered to since Big M. The Court has never asked itself whether a projected application of an impugned law is common or “likely” in deciding whether a law violates a provision of the Charter. To set the threshold for constitutional review at common or likely instances would be to allow bad laws to stay on the books.

16Challenging the constitutionality of s. 6(3)(a)(i) of the CDSA must therefore commence with the question of whether the section imposes cruel and unusual punishment (i.e. a grossly disproportionate sentence) on Mr. Duffus.

17To answer this question, I must assess a number of factors including the following: see Nur; R. v. Morrisey, 2000 SCC 39, [2000] 2 S.C.R. 90, at paras. 27-28:

• the gravity of the offence;
• the personal characteristics of the offender;
• the particular circumstances of the case;
• the effect of the punishment on the accused;
• the penological goals and sentencing principles reflected in the challenged minimum;
• the existence of valid effective alternatives to the mandatory minimum; and
• a comparison of punishments imposed for other crimes.

18Each of these factors will be assessed in turn.

Gravity of the Offence

19There can be no question that the importation of any drug is a serious offence. Importation of a controlled substance violates the integrity of Canada’s borders and diminishes our country’s duty to rid our society from the scourge of illegal substances imported from abroad: see R. v. Ashley, 2012 ONSC 1678, at para. 44.

20That said, both the legislature and the courts have recognized a clear difference between the “hard drugs” in Schedule I of the CDSA and Schedule II substances, such as cannabis sativa and its preparations and derivatives.

21For example, in the book Sentencing Drug Offenders (Aurora, Ontario: Canada Law Book, 2005) by S. Armstrong et. al., at page 4:300:20; the authors stated that:

The distinction between so-called “hard” and “soft” drugs such as marijuana … is implicit and is clearly outlined in the statutory scheme of the CDSA. The CDSA, unlike its predecessor the Narcotic Control Act, is structured in such a way so that “hard” drugs such as cocaine and heroin and “soft” drugs such as cannabis marijuana and resin are contained in separate schedules … In view of the rigid structure imposed by the CDSA, the distinction between hard and soft drugs is axiomatic.

22In R. v. Malmo-Levine; R. v. Caine, 2003 SCC 74, [2003] 3 SCR 571, the Supreme Court of Canada, while noting the harmful effects of marijuana, nevertheless stated at paras. 60-61 that: “It seems clear that the use of marijuana has less serious and permanent effects than was once claimed …” In R. v. Newall (1982), 141 D.L.R. (3d) 26, the British Columbia Supreme Court noted at para. 29 that:

Most cases distinguish between “soft drugs” such as cannabis and cannabis derivatives and drugs such as heroin where the long-term effects are more severe. The range of penalties is usually less when it comes to hashish and hash oil than when one is dealing with heroin or perhaps cocaine.

23Finally, in R. v. H.(C.N.) (2002), 62 O.R. (3d) 564 (C.A.), Rosenberg J.A. noted at para. 47 that:

There is a considerable difference in the moral blameworthiness of a person who believes he is importing marihuana, a so-called "soft drug" that is grown in Canada, and one who knows he is importing cocaine, a dangerous drug that has no domestic source.

24In considering the seriousness of the offence, I am permitted to take judicial notice of the fact that there has been an increasing acceptance in Canada of the use of medicinal and even recreational marijuana. Indeed, the Canadian government has publicly announced its intention to introduce legislation in the spring of 2017 decriminalizing the possession of marijuana for recreational purposes in some way. To that end, it established a task force in June 2016, comprised of a former minister of justice and health, five doctors and a retired RCMP officer to propose changes to the existing legislative regime that, in the words of Justice Minister Raybould, would “keep pace with the changes in our society while protecting public health and safety”. The task force has recently recommended that marijuana should legally be sold to any person who is at least eighteen years old, with a personal possession limit of 30 grams.

Personal Characteristics of the Offender

25Mr. Duffus is a 32-year-old first offender. He is gainfully employed and enjoys the support of his community. There is no evidence, as the Crown suggests, that he occupies a position on the drug importation hierarchy higher than that of a drug courier. The fact that he had a key to a paper towel dispenser at the airport is equally consistent with a conclusion that he was a courier hired to import the drug as it is that he was a member of the importing hierarchy. The Crown bears the burden of proving an aggravating factor for sentencing purposes beyond a reasonable doubt. In my view, the Crown has not met this burden.

Effects of the Punishment on the Accused

26If subjected to the mandatory minimum sentence, Mr. Duffus will be incarcerated for a significant period. However, there is no evidence that he is the sole caregiver of his children. Neither is there any evidence that incarceration will deprive him of vital medical treatment for any medical problem. Being a Canadian citizen, he would not be subjected to deportation. Accordingly, there are no exceptional hardships that Mr. Duffus would face on account of the mandatory minimum sentence.

Penological Goals and Sentencing Principles Reflected in the Challenged Minimum

27The declared justification for the mandatory minimum sentence in s. 6(3)(a)(i) of the Code was to clearly send the message that Canadians find the importing of controlled substances unacceptable. Accordingly, the mandatory minimum sentence was meant to deter persons from this type of criminal activity.

28The existing jurisprudence, as will be shown later, reveals that courts have held that absent exceptional circumstances, the importation of large amounts of a Schedule II drug will attract a significant custodial sentence. The avowed justification for the minimum sentence is therefore not new. On the contrary, it has informed the punishment of drug importers for decades.

The Existence of Valid Effective Alternatives to the Mandatory Minimum Sentence

29One alternative to the mandatory minimum sentence in s. 6(3)(a)(i) is its elimination. The judicially established sentencing ranges established for the importation of one kilogram of cocaine or multiple kilograms, which are 3 to 5 years and 6 to 8 years in R. v. Madden (1996), 27 O.R. (3d) 640 (C.A.) and R. v. Cunningham (1996), 27 O.R. (3d) 786 (C.A.) respectively, reflect the seriousness of the offence. They also give the courts the latitude to impose sentences below those ranges, which may be warranted by exceptional circumstances in a particular case. Such circumstances have typically included substantial cooperation with the authorities, debilitating illness, duress short of a defence and exceptional personal hardship exacerbated by a history of physical and/or sexual abuse; see Johnston; Z.Z.V.F.; Almeida and Medeiros; Shaw and Rahaman.

Comparison of Punishments Imposed for Other Crimes

30This factor involves a consideration of existing cases involving the importation of marijuana and a comparison of the mandatory minimum penalty to the range of sentences imposed in such cases.

31A review of this jurisprudence has produced the following results.

32In R. v. Munroe, [1998] O.J. No. 5421 (Ont. Ct. Gen. Div.), Hill J. sentenced a mother of two, who had been convicted of importing 3,190 grams of cannabis and 570 grams of resin, to 18 months imprisonment.

33In R. v. Holder (1998), 21 C.R. (5th) 277 (Ont. Ct. J. (Gen. Div.)), Hill J. sentenced a single mother, who a jury convicted of importing 414 grams of cannabis resin, to 15 months imprisonment.

34In R. v. Wellington (1999), 132 C.C.C. (3d) 470, (1999), 43 O.R. (3d) 534 (C.A.), the Court of Appeal substituted a 15-month conditional sentence for the 15-month jail sentence imposed by a trial judge on an offender who had been convicted by a jury of importing approximately 2 kilos of hashish into Canada. The Court noted however, at page 475 that: “This court has not changed its policy of significant sentences for importing drugs into Canada with the advent of conditional sentences”.

35In R. v. McPartland (1981), 63 C.C.C. (2d) 88 (Ont. C.A.), the Ontario Court of Appeal increased the sentence for importing 17.5 pounds of cannabis resin from 2 years less a day in jail to one of 3 years.

36On the other hand, there are cases where, prior to 2012, the importation of fairly large amounts of marijuana resulted in the imposition of conditional sentences.

37For example, in R. v. Brisset (2002), 157 O.A.C. 271, the Court of Appeal upheld an 18-month conditional sentence for importing 3818 grams of cannabis resin.

38In R. v. Berbeck, [1997] O.J. No. 5978 (Ont. Ct. J. (Gen. Div.), an accused who had been convicted of importing 14 lbs of marijuana received an 18-month conditional sentence.

39In R. v. Clarke, [1999] O.J. No. 1897 (Ont. Ct. J. (Gen. Div.)), a first offender received a 14-month conditional sentence for importing 1.012 kilograms of hashish.

40Finally in R. v. Gagnon, the Quebec Court of Appeal varied a 12-month jail sentence for the importation of 331 grams of hashish to a 12-month conditional sentence.

41Do these cases, cumulatively support a conclusion that the mandatory minimum penalty in s. 6(3)(a)(i) of the CDSA is grossly disproportionate when applied to Mr. Duffus?

42In my view, they do not. Mr. Duffus would likely have received a term of incarceration in excess of one year prior to the 2012 amendments of the CDSA. At 30 years old, he can be described as a mature offender. He has not been debilitated by any serious illness or medical condition. He is not the sole caregiver of young children. He has not cooperated with the authorities. In his short address to the court, he stated that he no longer associates with his peer group at the time of the offence. His involvement in the importation scheme cannot be attributed to systemic discrimination and/or to its collateral effects. Neither can it be attributed to duress of any kind.

43As a result of the above, I conclude that the mandatory minimum penalty in s. 6(3)(a)(i) is not grossly disproportionate when applied to Mr. Duffus.

Other Offenders

44In analyzing the second question posed by the Supreme Court of Canada in Nur, it is necessary to emphasize a few principles which emerge in that case and others.

45First, the fundamental question is whether it is reasonably foreseeable that the mandatory minimum sentence will result in sentences that are grossly disproportionate to some people’s situations or would be grossly disproportionate in reasonably foreseeable cases: see Nur, at para. 57.

46Second, the accused bears the onus of raising hypotheticals that are “reasonably foreseeable” rather than “marginally imaginable”, “remote” or “farfetched”: Nur, at para. 56; R. v. Hofer, 2016 BCSC 1442, [2016] B.C.J. No. 1656. Justice McLachlin cautioned in Nur that using personal features to construct the most innocent and sympathetic case imaginable should be avoided because “on that basis almost any mandatory minimum could be argued to violate s. 12 and lawyerly ingenuity would be the only limit to findings of unconstitutionality”: at paras. 73-76.

47Third, the impugned section cannot be salvaged by relying on prosecutorial discretion not to charge for importation in certain cases where conviction, in the opinion of the prosecution, would violate s. 12 of the Charter: see R. v. Smith, [1987] 1 S.C.R. 1045; Nur, at paras. 86-88; Lloyd, at para. 37.

48Fourth, the true scope and breadth of s. 6(3)(a)(i) of the Code can best be understood by an examination of the meaning of “trafficking” in s. 2(1) of the CDSA. The section provides that:

“traffic” means, in respect of a substance included in any of schedules I to IV,

a) to sell, administer, give, transfer, transport, send or deliver the substance,

b) to sell an authorization to obtain the substance, or

c) to offer to do anything mentioned in paragraph (a) or (b).

49Significantly, the offence of trafficking of an illegal substance is committed under s. 2(1) of the CDSA, regardless of the quantum of drugs that is sold, administered, given, transferred, transported, sent or delivered. The section applies in the case of a person who visits a friend in jail and passes him 14 grams of marijuana, as in the case of R. v. Charlish, 2001 BCCA 27, 151 C.C.C. (3d) 185 or in a case where an undercover officer made five purchases of marijuana, totalling less than 10 grams, as was the case in R. v. Baldasaro, 2009 CarswellOnt 5609, 2009 ONCA 676 (Ont. C.A.).

50Accordingly, the minimum penalty under s. 6(3)(a)(i) applies even if a small amount of illegal substance is imported as long as it is done for the purposes of trafficking. Indeed, the Ontario Court of Appeal in R. v. Neal, 2010 ONCA 281, 276 C.C.C. (3d) 294, makes it clear that the term “sell” includes distribution with or without consideration. In other words, the importation of 25 grams of marijuana for the avowed purpose of giving a small amount to a relative or friend may well be caught in the dragnet cast by s. 6(3)(a)(i) of the CDSA.

Hypothetical Proposed by the Applicant

51Mr. Duffus proposes the following hypothetical:

[A] young, first time offender that brings a relatively small amount of marijuana or hash into Canada with the intention of sharing or giving some of it to a friend. It may not result in financial gain, but is not done as part of a sophisticated or organized enterprise.

52The Crown makes the following submissions in support of its contention that this hypothetical is not reasonably foreseeable:

(i) It omits from consideration the necessity of proof that s. 6(3)(a)(i) is only triggered where the offence is committed for the purpose of trafficking. Such proof invariably involves witnessing hand to hand transactions, the seizure of exhibits indicative of intent such as scales, multiple cell phones, and large amounts of cash, or expert testimony. Such proof provides an important limiting function to the scope of the mandatory minimum sentence and removes from reasonable consideration a hypothetical involving a “relatively small amount of marijuana or hash”.

(ii) Mr. Duffus has failed to demonstrate that the hypothetical is based in real life. Even if it did, it should be excluded if the court considers it to be “marginal”. The Crown relies on Morrisey, at paras. 32, 33 and 72 for this proposition.

(iii) The mandatory minimum sentence, when applied to the hypothetical, is not grossly disproportionate.

53Is the proposed hypothetical reasonably foreseeable?

54The Crown is correct that typically, it relies on evidence such as hand-to-hand transactions and possession of drug paraphernalia such as multiple phones, scales, dime bags, debt lists and large amounts of money, to prove the charge of possession for the purpose of trafficking. Significantly however, it also relies on the possession of as little as an ounce of an illegal substance and expert testimony to prove that charge.

55In the context of importing marijuana, the Crown can proceed on importing for the purpose of trafficking in circumstances where the importer brings in as little as a few grams of the drug and provides an inculpatory statement that he or she intended to share it with friends or family. In this scenario, the mandatory minimum penalty would apply regardless of the circumstances of the offence or that of the offender. It would apply if the importer, as was the case in Wellington, had a child with behavioural problems and required special classes which might not be available if the child went to live with a relative, while she was incarcerated. It would also apply if the offender was a fulltime mother and nurse to a daughter who was stricken with cerebral palsy for whom there was no reasonable alternative caregiver, as was the case in Shaw.

56These are real life scenarios which cannot be summarily dismissed as examples of over-imaginative hypotheticals. Indeed, in Nur, the Supreme Court of Canada noted at para. 72:

Reported cases illustrate the range of real-life conduct captured by the offence. I see no principled reason to exclude them on the basis that they represent an uncommon application of the offence, provided that the relevant facts are sufficiently reported. Not only is the situation in a reported case reasonably foreseeable, it has happened. Reported cases allow us to know what conduct the offence captures in real life.

57The Crown also submits that it is inconceivable that it would seek the mandatory minimum penalty in a case where the quantum of the imported marijuana was small even if there was evidence of trafficking. The Crown also submits that Mr. Duffus’ hypothetical is not based on real life and that even if it did, it should be excluded if the court considers it to be “marginal”. The Crown relies on Morrisey, at paras. 32, 33 and 72 for this latter argument.

58In Smith, Lamer J., who concluded that the 7-year mandatory minimum term of imprisonment for anyone who imported an illegal substance into Canada, constituted cruel and unusual punishment under s. 12 of the Charter, relied on the following hypothetical at para. 2 of his decision:

[A] judge who would sentence to seven years in a penitentiary a young person who, while driving back into Canada from a winter break in the U.S.A., is caught with only one, indeed, let's postulate, his or her first "joint of grass", would certainly be considered by most Canadians to be a cruel and, all would hope, a very unusual judge.

59The Crown counters that the Smith hypothetical does not apply given that the case drew a clear distinction between possession for personal consumption and for trafficking: at para. 66.

60In my view however, the applicant’s hypothetical is entirely reasonable. It is conceivable that a young man or woman, who, following a euphoric episode during Spring break in the U.S.A., is caught, while driving back to Canada, with a few “joints” or grams of marijuana and who, in a moment of contrition, advises a Canada Border Services Officer that he or she intended to share them with friends and/or relatives. The Crown may choose not to seek the mandatory minimum penalty in this situation but as noted in Smith, Nur and Lloyd, the exercise of the Crown’s discretion cannot salvage a statutory provision which, in certain situations, may run roughshod over s. 12 of the Charter. Furthermore, as noted by Lamer J. in Smith, even if such a case has not actually occurred, “the potential that such a person be charged with importing is lurking”: at para. 5. Indeed in R. v. Disanto, [1999] O.J. No. 4223, Mr. Disanto was charged after coming into Canada with a “small joint” in his luggage. The Crown however, exercised its discretion and proceeded on a charge of possession of marijuana rather than on a charge of importing a controlled substance.

61Is the mandatory minimum sentence as applied to the hypothetical grossly disproportionate?

62The Crown submits that it is not. It points out that the maximum penalty for the importation of a Schedule II substance is life imprisonment. Furthermore, that the Supreme Court of Canada noted in Steele v. Mountain Institute, [1990] 2 S.C.R. 1385, at paras. 80-81, that only on “rare unique occasions” will a court find a sentence so grossly disproportionate that it violates s. 12 of the Charter.

63The Crown also relies on the following passage of Justice McLachlin in Lloyd, at para. 24:

This Court has established a high bar for finding that a sentence represents a cruel and unusual punishment. To be “grossly disproportionate” a sentence must be more than merely excessive. It must be “so excessive as to outrage standards of decency” and “abhorrent or intolerable” to society: Smith, at p. 1072, citing Miller v. The Queen, [1977] 2 S.C.R. 680, at p. 688; Morrisey, at para. 26; R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, at para. 14.

64In my view, what the Supreme Court of Canada stated in Lloyd, at paras. 28, 30, applies with equal force to s. 6(3)(a)(i) of the Code: Section 7(2)(b)(i) applies “irrespective of the reason or reasons for importing and regardless of the intent to make a profit”. Section 6(3)(a)(i) applies to persons importing for the purpose of trafficking any quantum of marijuana, ranging from a few grams to hundreds of kilograms. It also captures all importers whose reasons range from sharing the drug with friends and family to sophisticated commercial enterprises. It applies regardless of the circumstances of the offence or that of the importer. It is therefore applicable in a number of situations “varying greatly in an offender’s blameworthiness”.

65In my view, a one year sentence for an importer who brings into Canada a small amount of marijuana for the declared purchase of sharing it with friends, with no expectation of financial return, would shock the conscience of Canadians and would appear to be so excessive as to outrage standards of decency. The application of the sentencing minimum to a person who similarly imports a small amount of the drug to give to a friend or relative who is afflicted by a debilitating illness would have a similar effect. These scenarios, in my view, are not simply figments of someone’s imagination but are real life situations that cannot be ignored by this court.

66I therefore conclude that the mandatory sentence imposed in the case of the reasonable hypothetical would be grossly disproportionate. To that extent, s. 6(3)(a)(i) of the CDSA will sometimes sanction sentences that contravene s. 12 of the Charter. Accordingly, s. 6(3)(a)(i) violates s. 12 of the Charter.

SECTION 1 OF THE CHARTER

67The Crown must justify a violation of a constitutional right by meeting the following test established by the Supreme Court of Canada in R. v. Oakes, [1986] 1 S.C.R. 103, at para. 70:

(a) First, the court must be satisfied that the objective of the law is of sufficient importance to warrant the overriding of the constitutionally protected right in issue. The objective must be pressing and substantial.

(b) Second, the court must be satisfied that the means are “reasonably and demonstrably justified”. This involves a form of “proportionality test” with the following three important components, all of which must be satisfied:

i. There must be a rational connection between the means chosen by the legislature and the legislative objective.

ii. The means must impair the right as little as possible in order to achieve the legislative objective.

iii. There must be proportionality between the legislative objective and the effect of the legislation on the Charter-protected interests that it limits.

68There is no question that the objective of s. 6(3)(a)(i) is important. However, the importance of the objective does not, in my view, override the constitutionally protected right against cruel and unusual punishment of some persons who may be sentenced under s. 6(3)(a)(i) of the Code.

69Regarding the second prong of the Oakes test, there is a rational connection between the means chosen by the legislature and the legislative objective. However, s. 6(3)(a)(i) fails the test requiring that the means chosen to achieve the legislative objective must impair the right as little as possible in order to achieve the legislative objective. The legislature could easily have drafted a more restrictive section which imposes a mandatory minimum penalty on persons involved in a commercial enterprise who import a certain amount of a Schedule II controlled substance. The section could have targeted recidivist offenders who engage in drug importation for the lucre it affords, rather than its recreational or even medicinal value. Alternatively, the legislature could have left the issue of sentencing to a judge who could craft a sentence which reflects not only the gravity of the offence, but also the moral blameworthiness of the offender.

70Finally, there is no proportionality between the legislative objective and the effect of the legislation on the Charter-protected interests that it limits. Violating the constitutional right against cruel and unusual punishment of an undetermined number of “hypothetical” offenders is the very antithesis of legislation which meets the test of proportionality between the means chosen by the legislature and the legislative objective.

71For the above reasons, the part of s. 6(3)(a)(i) which provides for a minimum punishment of one-year imprisonment if the Schedule II offence is committed for the purpose of trafficking is declared to be unconstitutional and is therefore of no force and effect.

SENTENCE

72The Crown submits that the appropriate sentence range is 1 year to 4 years’ incarceration and that the court should sentence Mr. Duffus to 3 years imprisonment.

73Mr. Duffus’ counsel suggests that the appropriate sentence range is a suspended sentence or a 60 to 90-day intermittent sentence.

74The Crown is correct that even where the imported substance is a soft drug, such as marijuana, general deterrence and denunciation are of paramount importance. As already noted, the importing of illegal substances of any kind necessarily involves a violation of Canada’s borders. The amount of the imported drug, 5 kilograms, is not an insignificant amount. Mr. Duffus’ background is not exceptional in that he cannot claim to have been economically, socially or racially disadvantaged. To that extent, the Crown submits, the appropriate sentence for Mr. Duffus is three years’ imprisonment.

75In my view, however, the Crown’s position is excessive and is not supported by many of the cases she relies upon.

76In R. v. Ashley, 2012 ONCA 576, the Ontario Court of Appeal upheld an 18-month jail sentence imposed on a first offender who had been convicted of importing more than 20 kilograms of marijuana.

77In Berbeck, the accused, who had been convicted of importing 14 lbs of marijuana, received an 18-month conditional sentence.

78In R. v. Brissett, the Ontario Court of Appeal upheld an 18-month conditional sentence imposed on an accused who had imported 3,818 grams of cannabis resin into Canada.

79The court in R. v. Menyongai, [1998] O.J. No. 3129 (Ont. Ct. (Gen. Div.)), sentenced an accused who had imported 2 pounds of hash pellets into Canada to an 18-month conditional sentence.

80In R. v. A.A.W., [1997] O.J. No. 4644 (Ont. Ct. (Gen. Div.)), Hill J. sentenced a 29-year-old mother of three who had imported 587 grams of cannabis resin to two and one half years imprisonment. This decision appears to support the Crown’s position that a three-year term of imprisonment is appropriate for someone who imports 5 kilograms of marijuana. Significantly however, the offender had accumulated nine convictions between 1986 and 1994 including one for importing drugs for which she had been sentenced to 13 months’ imprisonment.

81In Munroe, Hill J. sentenced a mother of two, who had been convicted of importing 3,190 grams of cannabis and 570 grams of resin, to 18 months’ imprisonment.

82In R. v. Mayers, 2014 ONCJ 160, the court sentenced a 33-year-old mother who had imported 62 pounds of marijuana to 3 months imprisonment largely because she had pled guilty, had no criminal record, had been in dire economic circumstances when she committed the offence and had excellent prospects for rehabilitation.

83In McPartland, the Ontario Court of Appeal increased the 2 years-less-a-day jail sentence, for importing 17.5 pounds of cannabis resin, to 3 years’ imprisonment.

84Similarly, I find that Mr. Miglin’s submission that a suspended sentence or an intermittent sentence is warranted in this case is not supported by the sentencing jurisprudence. He justifies his position by submitting that: “We are in a Watershed moment”, in that the federal legislature may soon decriminalize the offence of simple possession of marijuana.

85I fully agree that the growing acceptance of recreational marijuana and its possible decriminalization may undermine the traditional justification for sentencing marijuana importers to significant terms of imprisonment. However, until the legislation is changed, the existing jurisprudence continues to apply. It cannot simply be cast by the wayside in anticipation of the change in legislation.

86In my view, the appropriate range of sentence for importing 5 kgs of marijuana is a term of imprisonment in the mid to upper reformatory range.

87In determining a proportionate sentence pursuant to s. 718.1 of the Code, I must also consider the following mitigating factors:

(1) Mr. Duffus has no record. (2) He is gainfully employed. (3) Mr. Duffus no longer associates with his old peer group. (4) Mr. Duffus enjoys a broad degree of support from numerous friends and family members. (5) While Mr. Duffus did not plead guilty, he nevertheless saved a considerable amount of court time by resolving the matter short of a trial. (6) Mr. Duffus was a courier rather than an organizer in the drug importation scheme. (7) Marijuana is a soft drug. (8) Mr. Duffus has excellent prospects for rehabilitation.

88Based on these factors, the appropriate penalty in this case, after considering the gravity of the offence and Mr. Duffus’ personal circumstances, is one of 12 months’ imprisonment.

89There will be a s. 109 order for 10 years.

André J.