COURT FILE NO.: CR/16/90000/3100000 DATE: 20170505 ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N: HER MAJESTY THE QUEEN - and - DIRK INNISS
Counsel: Chris Greene, for the Crown Fariborz Davoudi, for Mr. Inniss
Heard: December 12, 2016, April 10 and 11, 2017
M. Forestell J.
reasons for sentencing
Introduction
[1] On December 12, 2017, Mr. Inniss entered a guilty plea to a charge of importing cocaine, contrary to section 6(1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (the “CDSA”).
[2] The agreed facts supporting the plea were the following:
(i) Project Olgun began on August 22, 2011 when a 20-foot refrigerated sea container holding 436 boxes of pineapples arrived in St. John, New Brunswick from Guyana. CBSA officers discovered 19 kilograms of cocaine secreted within the hollowed out cores of 87 of the pineapples. A part VI authorization was obtained to intercept the communications of those believed to be involved.
(ii) The consignee for the shipment was a company that had been registered by Denise Edwards seven days before the arrival of the shipment. The listed destination of the shipment was the registered address for the company – the address of a storage facility (Access Storage).
(iii) Also listed on shipping documents as a contact was a ‘Mr. Edwards’, telephone number 647-622-1795. Dirk Inniss was the sole user of this number during the investigation. Mr. Inniss identified himself on this line with his name, date of birth, and social insurance number.
(iv) Numerous intercepts show Mr. Inniss’s involvement in the importation of the shipping container. This involvement included:
- Acting as a go-between for communications between those on the supply-side in Guyana and others on the Canadian side;
- Arranging and paying for a Customs Broker to expedite the shipment clearing customs (with money supplied by others);
- Arranging and Paying for the transportation of the shipment from the bonded warehouse to its intended ultimate destination in Scarborough (with money supplied by others); and,
- Arranging and paying for the storage facility where the shipment was ultimately intended to be unloaded (with money supplied by others).
Mr. Inniss performed these actions with the intention of importing the narcotics in the shipping container.
[3] The sentencing hearing proceeded before me on April 10 and 11, 2017.
Issues and Positions of the Parties
[4] There is one contested factual issue in the sentencing hearing and that is Mr. Inniss’s placement in the hierarchy of the drug importation scheme as compared to his co-conspirator, Denise Edwards.
[5] Denise Edwards received a sentence of 10 years. Mr. Inniss submits that he and Ms. Edwards held similar positions in the drug importing hierarchy. Ms. Edwards, in her guilty plea, admitted to involvement in two additional importing schemes that post-dated this scheme. Mr. Inniss argues that, in these circumstances, the parity principle demands that he receive a lower sentence than Ms. Edwards. He submits that a sentence of 8 years before credit for pre-sentence custody would be appropriate.
[6] The Crown submits that a sentence of 10-12 years before credit for pre-sentence custody is appropriate for Mr. Inniss. The Crown’s position is that Mr. Inniss was higher in the drug hierarchy than Ms. Edwards. The Crown also argues that the very early plea by Ms. Edwards and the joint submission distinguish her case from that of Mr. Inniss.
Role of Mr. Inniss in the Importing Scheme (as compared to Denise Edwards)
[7] As evidence of the role played by Mr. Inniss in the importation scheme, the Crown filed a ‘Comprehensive Synopsis’ on a disc with links to documentary exhibits, photographs and the audio and transcripts of relevant intercepted communications.
[8] The intercepts include conversations between Mr. Inniss and two co-conspirators based in Guyana: ‘Fatman’ and ‘Laffy’. These two men are clearly higher in the hierarchy than Mr. Inniss.
[9] Denise Edwards registered the company that was the consignee for the shipment of pineapples. She rented the space at the storage facility that was the intended destination for the shipment.
[10] I am satisfied that Mr. Inniss recruited Ms. Edwards. In an intercept from September 4, 2011 a co-conspirator, ‘Laffy’, says to Mr. Inniss in relation to Ms. Edwards, “you recruit she”. [1] It is also apparent from the intercepts that Mr. Inniss recruited the customs broker, Kana Sundaram, through Abdool Hakeek. Abdool Hakeek acted as an intermediary between Mr. Inniss and Ms. Edwards and the customs broker. [2]
[11] There are intercepts that support the inference that Mr. Inniss directed Ms. Edwards with respect to the storage facility after initial contact was made by a person identified as ‘Colin’. The Crown’s position is that Mr. Inniss was ‘Colin’ and that Mr. Inniss made the contact with the storage facility and later directed Ms. Edwards to attend and sign the contract. Mr. Innis used the name “Colin”, [3] but this in itself is insufficient to support an inference that he was the man using that name who dealt with the storage facility. While I am satisfied that Mr. Inniss was involved in the rental of the storage facility and directed Ms. Edwards in relation to the rental, [4] I cannot conclude that Mr. Inniss personally attended the facility and made the initial arrangements.
[12] In addition to instructing Ms. Edwards in relation to the storage facility, Mr. Inniss instructed Ms. Edwards on actions to be taken by her in relation to the shipment [5]. Initially, Ms. Edwards had no contact with the individuals in Guyana, (Fatman and Laffy). As time went on, Mr. Inniss became increasingly concerned that he was being followed. He left his home, made arrangements to get his passport and stopped communicating with the others in the scheme for periods of time. [6]
[13] During the time that Mr. Inniss stepped back from his role in the scheme, Ms. Edwards stepped up and took over some of Mr. Inniss’s prior responsibilities. Ms. Edwards appeared to be interested in developing a relationship with Fatman in order to be involved in future ventures. [7] Ms. Edwards, in pleading guilty to her role in the importing scheme with Mr. Inniss, also admitted involvement in two subsequent schemes.
[14] The roles played by Mr. Inniss and Ms. Edwards were not identical and their roles were not static. Mr. Inniss was higher in the hierarchy at the outset of the conspiracy. He recruited and directed Ms. Edwards. However, Mr. Inniss became less involved as time progressed and Ms. Edwards became more involved. Ms. Edwards effectively moved up in the hierarchy as Mr. Inniss withdrew. Having considered the totality of the evidence, I am satisfied beyond a reasonable doubt that the roles played by Ms. Edwards and by Mr. Inniss in the scheme were roughly the same.
Circumstances of the Offender
[15] Mr. Inniss is 49 years-old. He was 43 years-old at the time of the offence. He has two daughters. He is a Canadian citizen.
[16] Several letters of support were filed on behalf of Mr. Inniss. These letters indicate that Mr. Inniss has a close family that will provide support to him upon his release from the sentence imposed for this offence. His family and friends speak of him as a caring and generous person. He is reported to have a close bond with his children.
[17] Mr. Inniss has no prior criminal record in Canada. There is evidence that he was found guilty of possession of cocaine for the purpose of trafficking in Trinidad and Tobago in 2009 and sentenced to two years of hard labour. He was discharged from prison in December of 2010.
[18] Counsel for Mr. Inniss argues that the evidence of the conviction in Trinidad and Tobago, while admissible, has less weight, or is less aggravating, than a conviction in Canada. Counsel relies on the decision in R. v. Froesse-Friessen, [2011] O.J. No. 4592 (SCJ) [8] for this proposition. The Court in Froesse-Friessen considered whether a foreign conviction was captured by the language in s. 745 (b) of the Criminal Code, R.S.C., 1985, c. C-46 (the “Code”) which provides for an increased parole ineligibility period where the offender has been previously convicted of murder. Thomas J. concluded that the foreign conviction did not engage the mandatory sentencing provisions. Thomas J. also made it clear that this conclusion did not mean that the foreign conviction could not be considered as an aggravating factor. On the contrary, the Court in that case held that the court was obliged to consider the prior conviction in considering the “character of the offender” as required by s. 745.4. [9]
[19] I must, in my view, consider the prior conviction in Trinidad and Tobago as an aggravating factor. Although the conviction is in a foreign jurisdiction, the offence is related and the conviction is recent. Mr. Inniss became involved in the offence before this Court less than one year after his release from prison.
Appropriate Sentence before Credit for Pre-sentence Custody
[20] Deterrence and denunciation are the primary sentencing objectives for importation of large quantities of cocaine. This is an offence that requires planning and preparation. It is not an impulsive crime. Cocaine is associated with serious societal harm, including addiction and violence. It was greed that motivated Mr. Inniss to participate in this importation scheme.
[21] The range of sentence for this type of offence was recently considered by Code J. in R. v. Duncan, 2016 ONSC 1319 [10]. Code J., after a review of the case law, concluded that the range of sentence for a mere courier of multiple kilograms of cocaine is 9 to 12 years; and the range for leaders of conspiracies to import multiple kilograms of cocaine is 12 to 19 years. In Duncan, the offenders were neither ‘mere couriers’ nor ‘leaders’. The offenders in that case were characterized as ‘corrupt insiders’. Code J. held that 12 years was the appropriate sentence before credit for delay.
[22] I will not repeat the thorough review of the case law contained in Duncan. I agree with Code J.’s analysis and conclusions on the appropriate range of sentence.
[23] Mr. Inniss, while not a ‘mere courier’ played a role that is more comparable to a courier than to a principal or leader. Mr. Inniss’s prior conviction in Trinidad and Tobago and the amount and nature of the drug are aggravating factors. Mitigating factors are that he had no record prior to 2009; he has strong family and community support and he has entered a guilty plea which is indicative of remorse.
[24] In arriving at an appropriate sentence I must consider the principle of parity. In R. v. Beauchamp, 2015 ONCA 260, at paras 276 and 277 [11] our Court of Appeal said:
The principle of parity of sentences is intended to ‘preserve fairness by avoiding disparate sentences where similar facts relating to the offence and the offender would suggest like sentences.’…That said, the parity principle does not require equal or identical sentences for similarly situated offenders, nor is it to be applied in a rigid fashion. Rather, parity is only one of several principles that must guide a sentencing judge’s crafting of a fit sentence. [citations omitted]
[25] In R. v. Lacasse, 2015 SCC 64, at para 58 [12] the Supreme Court of Canada said that “although ensuring parity in sentencing is in itself a desirable objective, the fact that each crime is committed in unique circumstances by an offender with a unique profile cannot be disregarded. The determination of a just and appropriate sentence is a highly individualized process that goes beyond a purely mathematical calculation.” [13] As noted by Clayton Ruby in his text Sentencing (7th Ed. 2008) at page 32, “The principle of parity is not absolute, and must not divert the judge’s attention from the sentencing criteria, such as the nature and seriousness of the offence and the individual characteristics of the offender.”
[26] Counsel for Mr. Inniss argues that the parity principle demands that the sentence imposed on Mr. Inniss be less than the 10-year sentence imposed on Ms. Edwards because they had comparable roles in this scheme but Ms. Edwards participated in two additional importation schemes.
[27] I accept that Ms. Edwards’ role in the scheme was roughly comparable to that of Mr. Inniss. Ms. Edwards’ personal circumstances are also comparable to those of Mr. Inniss. Like Mr. Inniss, she had a foreign conviction for a drug related offence. [14] An aggravating factor that was present for Ms. Edwards and is not present for Mr. Inniss is that Ms. Edwards participated in two subsequent conspiracies to import drugs. She participated in a conspiracy to import cocaine in 2011 and in a conspiracy to import marihuana in January 2012 before her arrest on January 24, 2012.
[28] The sentence of 10 years imposed on Ms. Edwards emanated from a joint submission. This reduces the utility of the sentence for parity consideration. [15] However, the amount of information provided on the Edwards plea allows for some comparison of the circumstances of the offences and the offenders. One important factor that appears to have played a role in the sentence imposed on Ms. Edwards was her very early guilty plea and the pivotal role that her decision to plead guilty played in the decision of her co-accused to resolve their cases. The sentencing judge who was also the judge who judicially pre-tried Ms. Edwards’ case emphasized in his reasons that Ms. Edwards’ plea resulted in significant savings to the court and to the public. The sentencing judge noted that the sentence was at the very low end of the range for this type of offence and offender.
[29] I have considered the parity principle and I have considered the other principles and objectives of sentencing. I find that a sentence of 10 years is a sentence at the very low end of the range for this type of offence and this type of offender. Ms. Edwards received the benefit of such a sentence in spite of additional aggravating factors that are not present with respect to Mr. Inniss. However, Ms. Edwards’ sentence resulted from an early plea and a joint submission. Her plea was pivotal in the resolution of other cases. Those factors are missing in the case before me. Parity is not a mathematical exercise. In all of the circumstances, I find that the parity principle considered with the other sentencing principles and objectives, including denunciation and deterrence, require that I impose upon Mr. Inniss a sentence of 10 years before credit for pre-trial custody.
Credit for Pre-sentence Custody
[30] Mr. Inniss has been in custody since April 21, 2014 or for 36 months and 15 days. Leaving aside consideration of harsh presentence incarceration conditions, he is entitled to credit at 1.5 days to every 1 day served in pre-trial custody or, 54 months and 23 days.
[31] Counsel for Mr. Inniss argues that Mr. Inniss sentence should be reduced in light of the harsh conditions of his presentence detention.
[32] Evidence was called at the sentencing hearing that Mr. Inniss was subject to lockdowns at the Toronto South Detention Centre on 297 days (214 full lockdowns and 83 partial lockdowns). At the Toronto East Detention Centre there were lockdowns on 22 days. Evidence was also provided that of the 218 eligible days at the Toronto East Detention Centre, Mr. Inniss was offered access to fresh air on only 59 days.
[33] Travis Williamson, the representative of the Toronto South Detention Centre who provided and explained the records concerning the lockdowns, indicated that full lockdowns were for 24 hours and partial lockdowns were for part of the day.
[34] When there are no lockdowns, inmates at the Toronto South Detention Centre have access to the common areas of the unit including showers, telephones, television, monitors for visits by video and the fresh air area of the unit. During the lockdowns Mr. Inniss would have been confined to his cell. During partial lockdowns there would have been no access to showers, telephones or fresh air. Mr. Williamson testified that during a full lockdown for 24 hours the institution tries to offer access to showers, phones and visits, but he could not say if this was done. He testified that access to these privileges would be restricted.
[35] I have considered the endorsement of the Court of Appeal in R. v. Duncan, 2016 ONCA 754 [16]. In Duncan, the Court of Appeal found that, in appropriate circumstances, particularly harsh presentence incarceration conditions can provide mitigation apart from and beyond the 1.5 day credit set out in s. 719(3.1) of the Code. The Court of Appeal held that “in considering whether any enhanced credit should be given the court will consider both the conditions of the presentence incarceration and the impact of those conditions on the accused.” In Duncan there was no evidence of any adverse effect on the accused flowing from the lockdown conditions. In Duncan, the evidence before the sentencing judge was a letter setting out the lockdown dates, duration and reasons. The letter established that the vast majority of the lockdowns still permitted that Appellant to have access to facilities. There were 192 lockdowns, but 169 of those lockdowns were for less than 6 hours. The Court of Appeal therefore upheld the decision of the sentencing judge to give no credit for harsh conditions.
[36] I do not read the endorsement in Duncan as requiring evidence of the specific impact on the offender in every case. Where, as in the case before me, the evidence establishes that the offender was confined to a cell for extended periods of time on multiple days and denied access to fresh air for a total of over one year of his incarceration, hardship may be inferred.
[37] In the case before me I have evidence that Mr. Inniss was offered fresh air only 59 times in 218 days at the Toronto East Detention Centre. I have evidence that he was confined to a cell for 24 hours 214 times at the Toronto South Detention Centre and for some period less than 24 hours on a further 83 days at that detention centre. I have evidence that access to visits, phones, programmes and showers is denied or restricted during these lockdowns.
[38] I note that the United Nations Standard Minimum Rules for the Treatment of Prisoners [17] provides that every prisoner should have at least one hour of suitable exercise in the open air daily. Mr. Inniss was denied access to fresh air for over one-third of the time he was in custody (159 days at the Toronto East Detention Centre and 214 days at the Toronto South Detention Centre based on the number of full day lockdowns.) It is shocking that detention centres in Toronto in 2017 are consistently failing to meet minimum standards established by the United Nations in the 1950’s.
[39] I am satisfied that in this case the conditions of detention were particularly harsh. In the three years Mr. Inniss has spent in presentence detention he has been subject to lockdowns for almost one-third of that time. He was denied fresh air over one-third of the time. The evidence on this hearing satisfies me that the conditions had an adverse effect on Mr. Inniss. In my view, it is appropriate to reduce Mr. Inniss’s sentence by one year in light of the harsh conditions of his pre-sentence detention.
Conclusion
[40] Therefore, the sentence that I would have imposed absent harsh conditions of pre-sentence custody would have been 10 years’ imprisonment. In light of the mitigating factor of harsh conditions, I reduce that sentence to 9 years’ imprisonment. With credit of 54 months and 23 days pursuant to s. 719(3.1) of the Code there remains a sentence of 53 months, 7 days’ imprisonment for Mr. Inniss to serve.
[41] In addition, there will be an order under s. 109 of the Code prohibiting Mr. Inniss from possessing any firearm, cross-bow, restricted weapon, ammunition and explosive substance for 10 years after his release from prison and any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life.
[42] In light of the nature of the offence there will be a further order under s. 487.051 of the Code authorizing the taking of samples of bodily substances for the purpose of forensic DNA analysis.
Forestell J.
Released: May 5, 2017
COURT FILE NO.: CR/16/90000/3100000 DATE: 20170505 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN - and - DIRK INNISS reasons for sentencing Forestell J. Released: May 5, 2017
[1] Exhibit 4, session 568 Tab 42 [2] Exhibit 4, session 568 Tab 42, session 311 Tab 29, session 137 Tab 14 [3] Exhibit 4, session 299 Tab 27 [4] Exhibit 4, session 133 Tab 13 [5] Exhbit 4, session 133 Tab 13, session 171 Tab 19 [6] Exhibit 4, session 303 Tab 28, Exhibit 5 session 163, session 145 [7] Exhibit 5, session 145 page 2 [8] [2011] O.J. No. 4592 (SCJ) [9] Froesse-Friessen, supra, at para. 21 [10] 2016 ONSC 1319, [2016] O.J. No. 1013 (S.C.J.) [11] 2015 ONCA 260 at paras 276 and 277 [12] 2015 SCC 64 [13] Lacasse, supra, at para. 58 [14] Conspiracy to distribute hash oil in the United States in 2003. [15] R. v. Reader, 2008 MBCA 42 at paras 17-19 [16] 2016 ONCA 754 [17] Adopted by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held at Geneva in 1955, and approved by the Economic and Social Council by its resolutions 663 C (XXIV) of 31 July 1957 and 2076 (LXII) of 13 May 1977.