COURT FILE NO.: CRIMJ(F) 1806/16

DATE: 20180509

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

S. Thompson, for the Crown

• and -

LUCAS NORMAN

J. Lopez, for the defence

HEARD: February 22, 2018, at Brampton

REASONS FOR SENTENCE

André J.

[1] On July 21, 2017 Mr. Lucas Norman pled guilty to importing cocaine into Canada on February 26, 2015. The Crown seeks a sentence of six years imprisonment, while Lucas’ counsel submits that given Lucas’ Aboriginal status, the appropriate sentence should be a term of imprisonment within the upper reformatory range.

BACKGROUND FACTS

[2] Lucas and a female companion, Ms. Murray, arrived in Canada on February 26, 2015, on a plane from St. Lucia. A Canadian Border Services Agency (CBSA) officer referred him to the secondary area for the search of his luggage. A CBSA officer subsequently discovered a secret compartment at the bottom of his luggage. A search of the area revealed the presence of a white, powdery substance which tested positive for cocaine.

[3] A subsequent search of Lucas and his female companion revealed that each had body packs that contained cocaine. Lucas was found to be carrying 1982 grams of cocaine valued at $80,000. The total amount of cocaine imported by both Lucas and his companion was 4 kilograms. Both accused were charged with the offence of conspiracy to import a controlled substance and importation of a controlled substance. The Crown withdrew the conspiracy charge against Mr. Norman following his guilty plea to importing cocaine.

ADDITIONAL FACTS

[4] Ms. Murray was convicted on both charges. However, she was sentenced for importing 2 kilograms of cocaine. She received a sentence of 4 ½ years imprisonment less pretrial custody. Among the factors considered by the sentencing judge were the fact that Ms. Murray was a vulnerable person and a drug addict.

PRESENTENCE REPORT

[5] Lucas is 29-years old and is the only child of Edith Norman and Bruce Norman. Bruce Norman committed suicide in 2012.

[6] Selena Newell, Lucas’ paternal great-great grandmother, was a member of the Innu Nation from Labrador. She married a non-Aboriginal man named John Newell. They had a son, whom they named John Newell Jr. who was Lucas’s great grandfather. Selena and John Newell had other children. Following John Newell’s death, a missionary, who also served as a physician, took John Newell Jr., then 10 years old, from his mother and placed him in an orphanage in St. Anthony, Newfoundland.

[7] He is a non-status Indian of the Oalipu Band. Lucas’ maternal great-great grandmother was Mi’kmaq.

[8] John Newell Jr. subsequently married a non-Aboriginal, named Katherine Norman. The couple then resolved not to claim Aboriginal status to spare their children the ostracism and discrimination associated with such status.

[9] One of John Newell Jr. and Katherine Norman’s sons was adopted by Katherine’s sister, Olive Norman. This son was named Bruce Norman, Lucas’ father. Bruce found out later in his life that Katherine, rather than Olive, was his biological mother.

[10] Lucas was born in Gander, Newfoundland. His upbringing was uneventful. His parents owned a nightclub, and did not appear to have had any financial problems. However, the family’s financial resources were significantly depleted by Bruce Norman’s struggles with drug and gambling addiction.

[11] Bruce Norman introduced drugs to his son Lucas. Bruce’s drug addiction ultimately led to the breakdown of his marriage, which occurred when Lucas was 15 years old. Following the divorce of his parents, Lucas opened a business and employed his father. The relationship between the two deteriorated when Lucas discovered that his father was taking money out of the business.

[12] Lucas Norman moved to Nova Scotia at the age of 17 but returned to Gander, Newfoundland, less than 2 years later. Following his father’s death in 2012, Lucas’ alcohol consumption increased. He moved to St. John’s, Newfoundland, and worked in the field of carpentry. Following the death of his dog when Lucas was 25 years old, Lucas’ drug use increased. He became a bouncer and purchased an interest in a strip club. He became intimately involved with a bartender, who had drug and mental health issues.

[13] Lucas’ mental health deteriorated during this period. He began to engage in self-harming behaviours. He suffered from depression and was prescribed anti-depression medication. He was hospitalized on two occasions within an eighteen month period.

[14] Lucas had twin daughters with the bartender. They moved to Ontario a few years ago but his partner moved to Nova Scotia in June 2017 to be closer to her family. Lucas pays her child support for the two children. He is now in another relationship with another woman, who is very supportive of him.

[15] Lucas has accepted responsibility for importing drugs, which he attributes to his drug habits and lifestyle. He has been diagnosed with bi-polar disorder and has been treated for depression, ADHD, and borderline personality disorder.

[16] Since being charged with importing cocaine, Lucas has resumed employment in carpentry. He has a passion for horses, and has developed a new relationship. He is also co-parenting his twin children. He no longer uses non-medically prescribed drugs, and is receiving medical care from his doctor.

GLADUE REPORT

[17] Edith Norman, Lucas’ mother, advised Margaret Larochelle, the Gladue writer of Aboriginal Legal Services, that Lucas’ paternal great-grandfather, Mr. John Newell Jr., who was taken away from his parents and sent to an orphanage, taught his kids never to seek Indian status or tell anyone about their status. Lucas advised the writer that:

I think being Aboriginal impacted my father, the fact that it was hidden and they were shunned by it and the disassociation with the Aboriginal community. I think he struggled to find his father and about his past. I think it has impacted my family as far as a lack of identity. My father’s addiction problems led to my unstable home life. His suicide was the catalyst which led me toward the path I’m on right now.

[18] Ms. Larochelle observed that:

Lucas’ experience with his Aboriginal identity is not uncommon. Cultural identity is important, without it people can feel lost or adrift with no real attachment to a group or to a place. Thus, the aspect of providing and making connections to Aboriginal place and space is important.

REFERENCE LETTERS

[19] Mary Louise Reid, Lucas’ paternal aunt, described the impact of her brother’s death on the accused. She wrote:

The Pandora’s Box that my brother’s death opened in my nephew has been painful to watch. For several years we watched him spiral from a happy well adjusted young man into someone that so resembled his father, that, at times, we feared for his life.

[20] Edith Norman, Lucas’ mother, wrote that following the death of Lucas’ father, Lucas’s life “started to spiral out of control”. Regarding her son’s present circumstances she notes that:

Lucas has been living with family, has a full time job and is dad to beautiful twin children. He has turned his life around.

[21] Lucas’ cousin, Cindy Davis, writes of Lucas that, “[o]ver the last two years I got to see him take responsibility for his two babies that he did not know was his but as soon as they were born he fell in love with them and wanted to do anything and everything he possibly could to be a good father to them.”

[22] Vicki Bull, Lucas’ childhood friend, writes that Lucas “had difficulty coping with his father’s suicide.” She writes that the accused has grown and matured and has found a new purpose as a father to his children.

[23] Lorraine Duley, who has known Lucas since he was a child, also believes that Lucas has turned his life around since his arrest. Dr. Carmel Casey, Lucas’ family doctor, has confirmed that Lucas suffered from depression which Dr. Casey treated between December 2012 and July 2013.

[24] Lucas has written a letter to the court in which he accepts responsibility for his actions and asserts that he has turned his life around.

GOVERNING PRINCIPLES

[25] Section 718.1 of the Criminal Code (the “Code”) states that “a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender”.

[26] Section 718.2(e) of the Code provides that:

718.2 A court that imposes a sentence shall also take into consideration the following principles:

(e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.

[27] Section 6(1) of the Controlled Drugs and Substances Act (CDSA) provides that:

6 (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.

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

(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.

[28] In R. v. Gladue, 1999 CanLII 679 (SCC), [1999] 1 S.C.R. 688, the Supreme Court of Canada noted at para. 86-88 that:

Section 718.2(e) does not require or result in an automatic reduction of a sentence simply because the offender is Aboriginal.

[29] In R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, the Supreme Court of Canada noted at para. 60 that the court must “take judicial notice of matters such as the history of colonialism, displacement and residential schools, and how that history continues to translate into lower educational attainment, lower income, high unemployment, higher rates of substance abuse and suicide, and of course higher levels of incarceration for Aboriginal peoples”. While these matters do not necessarily justify a different sentence, they do provide the necessary context for understanding and evaluating the case-specific information in the offender’s Gladue report.

[30] The Supreme Court in Ipeelee further noted that it is not necessary for an Aboriginal offender to establish a causal link between the systemic or background factors of the offence: Ipeelee, at para. 82; R. v. Kreko, 2016 ONCA 367, 131 O.R. (3d) 685.

[31] In Gladue the Supreme Court of Canada held at para. 91 that s. 718.2(e) applies to all Aboriginal offenders, whether they reside on or off reserve, in a rural or urban area.

[32] In cases of violent offenders, there will be very little difference between the sentence meted out to Aboriginal offenders and that to other offenders: Gladue, para. 79; R. v. Borde, 2003 CanLII 4187 (ON CA), 63 O.R. (3d) 417, at para. 35.

[33] The sentencing range for the importation of multiple kilograms of cocaine into Canada is 6 to 8 years imprisonment absent exceptional circumstances: R. v. Cunningham (1990), 1996 CanLII 1311 (ON CA), 27 O.R. (3d) 786, at page 790.

[34] In R. v. C.S., 2018 ONSC 1141, at para. 85, Hill J. noted the following:

[85] While it has been observed that “[i]t is impossible to catalogue the factors that in combination could justify a sentence below the usually applicable range” (R. v. Drabinsky, 2011 ONCA 647, at para. 166 (leave to appeal refused [2011] S.C.C.A. No. 491)), in Ontario Court of Appeal cases, the “absent exceptional circumstances”-type language has been consistently repeated, for example: Hamilton and Mason, at paras. 111, 113; Wilson, at para. 13; Downes, at para. 9; R. v. Murray, 2007 ONCA 799, at para. 3; R. v. Sidhu, 2009 ONCA 81, at para. 14; R. v. Valentini et al. (1999), 1999 CanLII 1885 (ON CA), 43 O.R. (3d) 178 (C.A.), at p. 212; C.N.H., at paras. 23, 38, 45, 46, 51; Zeisig, at para. 12.

[35] Sentencing ranges are primarily guidelines, not ossified rules. As the Court of Appeal noted in R. v. Foster, 2018 ONCA 53, at para. 133, “[d]eviations from sentencing ranges are not synonymous with errors of law or of principle”.

ANALYSIS

[36] Pursuant to s. 718.1 of the Code, the fundamental principle of sentencing is that a “sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender”. This element of proportionality in sentencing clearly suggests that the process of determining a proportionate sentence is not merely one of mechanically applying the quantum of imported drugs to the judicially prescribed sentence range established in R. v. Cunningham, 1996 CanLII 1311 (ON CA), 27 O.R. (3d) 786 (C.A.).

[37] Indeed, in R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, Wagner J. noted at para. 57 that sentencing ranges “should not be considered “averages”, let alone straightjackets, but should instead be seen as historical portraits for the use of sentencing judges, who must still exercise their discretion in each case.” More recently, the Court of Appeal cautioned in R. v. Foster, at para. 133, that sentencing ranges “are primarily guidelines, not ossified rules. Deviations from sentencing ranges, are not synonymous with errors of law or of principle”: Nasogaluak, at para. 44.

[38] The sentencing of an offender therefore involves an inquiry into the antecedents of the accused to determine his or her moral culpability for the offence. This is the reason that in many appellate decisions, courts have emphasized that sentencing is an individualized process which must be tailored to reflect the seriousness of the offence and the culpability of the offender: R. v. Nur, 2015 SCC 15, 1 S.C.R. 773, at para. 43; R. v. M. (C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500, at para. 92; R. v. Chambers, 2012 ONCA 487, 294 O.A.C. 261, at para. 33.

[39] It therefore follows that while general deterrence may be of paramount importance in cases involving the importation of cocaine, it is the prerogative of the sentencing judge to determine which sentencing objective should be accorded the greatest weight, based on the circumstances of the case: R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at para. 43.

[40] In answering this question, I must consider the gravity of the offence and Mr. Norman’s personal circumstances. The gravity of the offence emerges from the following factors:

(1) Cocaine is a highly addictive drug which is not indigenous to Canada: C.S., paras. 70-72; R. v. Hamilton (2004), 2004 CanLII 5549 (ON CA), 72 O.R. (3d) 1 (Ont. C.A.) at paras. 104-105.

(2) Cocaine is a dangerous and violent drug which has wreaked untold harm on our community: see Hamilton and Mason, at para. 104; R. v. Lloyd, 2016 SCC 13, [2016] 1 S.C.R. 130, at para. 26.

(3) Mr. Norman imported approximately 2 kilograms of cocaine, a significant amount of drugs.

(4) The offence involved a violation of Canada’s borders.

(5) While Mr. Norman was not prosecuted for the offence of conspiracy to import cocaine, the offence involves elements of conspiracy given that the importation was committed with another person.

[41] These aggravating factors raise the question whether the applicable judicially established range, without a consideration of the extenuating factors, is that established in R. v. Madden, (1996) 1996 CanLII 10228 (ON CA), 27 O.R. (3d) 640 (C.A.) or that established in Cunningham.

[42] In Madden, the court established a sentencing range of 3 to 5 years imprisonment for the importation of one kilogram or less of cocaine absent exceptional circumstances. In Cunningham, the court established a range of 6 to 8 years imprisonment for the importation of multiple kilograms of cocaine.

[43] What is the appropriate sentence range in this case, based on the quantum of cocaine imported? In my view, the range exceeds that set out in Madden given that approximately 2 kilograms of cocaine significantly exceeds the “one kilogram more or less” which attracts a sentence within the Madden range. In C.S., where the quantum of imported drugs was 1.97 kilograms of cocaine, Hill J. concluded at para. 80 that: “I am prepared to assume, without deciding, that the cocaine imported here might attract the Cunningham starting range.”

EXCEPTIONAL CIRCUMSTANCES

[44] Courts have held that the existence of exceptional circumstances, justify a downward departure from the sentence ranges in Madden and Cunningham. The following circumstances have been held to be exceptional circumstances:

(1) Meaningful cooperation with the authorities: R. v. C.N.H. (2002), 2002 CanLII 7751 (ON CA), 170 C.C.C. (3d) 253 (Ont. C.A.), at paras. 39 and 45; R. v. Downes, 2011 ONSC 4855, cited in C.S., at para. 190; R. v. Sullivan, 1992 CanLII 3112 (Q.C.A.), at para. 10; R. v. Saintyl, 2001 CanLII 286 (QC SC), at paras. 17, 29-32.

(2) Compulsion short of duress: Foster, at para. 21.

(3) An honest belief that the imported drug was a soft drug: Hamilton, paras. 111 and 113; C.S., para. 86.

(4) Where an accused who had imported 2144 grams of cocaine was the sole caregiver of her 18-year-old daughter who had cerebral palsy: R. v. Shaw, [2000] O.J. No. 2646 (S.C.).

(5) An offender with serious health issues for which he or she would not receive the requisite medication and/or treatment while incarcerated, thereby jeopardising his or her life.

[45] As Hill J. noted in C.S., at para. 86: “While there may be no exhaustive list of exceptional circumstances… their number will be constrained by their extraordinary nature (see for example, R. v. D.A.H. (2003), 2003 CanLII 48216 (ON CA), 171 C.C.C. (3d) 309 (Ont. C.A.)).”

Section 718.2(e)

[46] In Gladue, the Supreme Court of Canada noted that in the case of an Aboriginal offender, a sentencing court “must give attention to the unique background and systemic factors which may have played a part in bringing the particular offender before the court”. This analysis is warranted irrespective of whether the offender is a status or non-status offender. It is also warranted, contrary to the Crown’s submission, irrespective of when the offender was aware that he or she had Aboriginal ancestry.

[47] Gladue has also made it clear that sentencing courts must take judicial notice of the historical pattern of discrimination, deprivation, and displacement that Aboriginal communities have experienced in Canada. The Supreme Court noted in Ipeelee at para. 60 that:

To be clear, courts must take judicial notice of such matters as the history of colonialism, displacement and residential schools and how that history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and of course higher levels of incarceration for Aboriginal peoples. These matters, on their own, do not necessarily justify a different sentence for Aboriginal offenders. Rather, they provide the necessary context for understanding and evaluating the case-specific information presented by counsel.

[48] The Crown submits that the facts in C.S., where Hill J. imposed a 17-month carceral sentence on a young female Aboriginal offender who imported 1.971 kilograms of cocaine into Canada, are markedly different from this case and is therefore not applicable. She submits further that a mere assertion of Aboriginal status will not warrant a sentence reduction, and that Mr. Norman has failed to show how importing cocaine was correlated to his Aboriginal status.

[49] In C.S., Hill J. concluded at para. 225 that C.S. was entitled to a declaration that s. 6(3)(a.1) of the CDSA was inconsistent with s. 12 of the Charter and not justified under s. 1 of the Charter. It was therefore declared to be of no force and effect under s. 52(a) of the Constitution Act, 1982.

[50] Hill J. summarized, at paras. 10 to 15, the personal characteristics and circumstances of C.S. which formed the basis for his sentence. They are as follows:

[10] The offender’s date of birth is February 17, 1995. She is currently 23 years of age and was aged 20 at the time of commission of the offence. The offender does not have a criminal record.

[11] C.S. is of Ojibwa ancestry and a member of the Saugeen First Nation. She is an Aboriginal person as defined by s. 35 of the Constitution Act, 1982.

[12] The offender’s maternal grandmother (G.C.) was an Indian Residential School survivor who was placed in two such institutions between the ages of four and sixteen. G.C. became pregnant at age fifteen and was raped by a half-brother at age sixteen. She became involved in bootlegging and prostitution.

[13] The offender’s mother (C.S.) spent six months in foster care as a child before return to G.C.

[14] At the age of five, the offender witnessed her father being handcuffed and removed by the police. He was subsequently deported to Trinidad where he was tried for murder and sentenced to twelve years’ imprisonment. C.S., and the offender and her siblings then moved in with G.C. and resided in Owen Sound and Toronto.

[15] The Gladue report (Exhibit #9) provides the following additional information about the offender’s background:

(1) the offender first ran away from home at age 13 and began drinking alcohol on a daily basis

(2) at age 13, she was raped by two men

(3) by age 15, she was working as a prostitute and had a near MDMA overdose

(4) at age 15, she met and began dating Michael Bollers

(5) between the ages of 15 and 17, she stayed with different people

(6) at age 16, the offender attempted suicide

(7) at age 16, she briefly enrolled in a Catholic high school but dropped out at she could not afford the school uniform costing $400

(8) in 2012, at age 17, the offender enrolled in a high school program run by The Native Learning Centre Church in Toronto, a Skills Link Program called Miziwe Biik Aboriginal Employment and Training – although the offender notionally attended this training, she earned no credits over a 2-year period due to absence, spending time with her boyfriend, Bollers

(9) further suicide attempts occurred at age 17

(10) the offender became pregnant at age 17 with Bollers’ child – Bollers then left the relationship and was subsequently jailed

(11) on December 15, 2012, at age 17, the offender gave birth to her daughter (Avery)

(12) in early 2013, when the offender was aged 18, she and her daughter resided for 3 months in a Toronto Native Women’s Transitional House until they moved in with C.S. in Toronto

(13) at age 19, along with her daughter, the offender moved into a basement apartment where she resided until the point of her arrest – the child’s father was not providing child support

(14) while on judicial interim release, after spending 16 days in custody at the Vanier Women’s Detention Centre, the offender acted as a caregiver for her ailing mother who was nearly blind and, for a variety of reasons, was unable to care for herself

(15) in September 2016, with some assistance from tutors, the offender began an on-line program to complete her GED through Miziwe Biik Aboriginal Employment and Training.

(footnote omitted)

[51] Based on these characteristics, Hill J. concluded at para. 142 that:

[142] It was undisputed that C.S.’s background fits the profile of a person suffering the experience of intersectional/intergenerational legacies of colonialism and dislocation and systemic discrimination as described in Dr. Murdocca’s evidence, as well as relevant Supreme Court of Canada jurisprudence and reputable formal reports relating to Aboriginal Canadians. On the record here, the systemic and background factors affecting Aboriginal people in Canadian society are clearly linked to the offender and her offence in the sense of inextricably embedded in this offender’s life experiences.

[52] He also noted at para. 266 that:

C.S. is an intergenerational survivor of the government’s residential school effort to eradicate the cultural heritage of her people: see also para. 134.

[53] The Crown is correct that the facts in C.S. are different than those in this case, but is wrong that s. 718.2(e) of the Code does not apply given Mr. Norman’s failure to demonstrate a causal link between his Aboriginal heritage and the offence. As the Supreme Court of Canada noted in Ipeelee, at para. 82, the view that an accused bears this evidentiary burden reflects an “inadequate understanding of the devastating intergenerational effects of the collective experiences of Aboriginal peoples”: see also R. v. Collins, 2011 ONCA 182, 104 O.R. (3d) 241, paras. 32-33. What this court must determine is the extent to which Mr. Norman’s unique systemic and background factors bear on his moral culpability for the offence to which he has pled guilty.

[54] The Crown also submits that Mr. Norman’s background is markedly different from that of the accused in C.S., given that none of his forbears were placed in an Indian Residential School, the central purpose of which was the eradication of the cultural heritage of young people from Aboriginal communities.

[55] This distinction however, is of little consequence in this case. Mr. Norman’s great grandfather, John Newell Jr., was taken from his mother, Selina Newell, transported to St. Anthony, Newfoundland and placed in an orphanage when he was only ten years of age. According to the Gladue Report, the person who took that action was Sir Wilfred Thomason Grenfell, a physician and missionary who no doubt believed that he was acting in the Newell family’s best interests by permanently separating John Newell Jr. from his family and culture and placing him in a state institution where he would not go hungry. It does not matter whether Grenfell did so forcefully or whether he believed that the removal of John Newell from his Aboriginal family was in his best interests. Whatever Grenfell’s motivation, John Newell was forced to grow up in an environment where his Aboriginal roots were obliterated.

[56] Three developments in John Newell Jr.’s adult life reveal the repercussions of growing up in such an environment. According to the Gladue report, he was either denied Aboriginal status or never applied for such status. Second, he grew up hiding his Aboriginal status and third, he told his own children that they should never seek Aboriginal status or tell anyone about that status.

[57] John Newell Jr.’s actions appear to have been the result of his conviction, based on his upbringing, that First Nations people faced intense discrimination and prejudicial treatment. He reasonably concluded that the only way to avoid such treatment was to deny his ancestry.

[58] One of John Newell’s sons was Bruce Norman, Lucas’ father. Bruce’s life, manifests what can be described as the iconography of displacement, discrimination and deprivation. Some of the elements manifested included spousal abuse, substance abuse, emotional abuse of his son, gambling, lack of awareness of his heritage, and ultimately suicide.

[59] The systemic and background factors relating to Lucas’ life illustrate that the debilitating effects of systemic racism and discrimination cannot simply be cauterized and/or sutured without any lingering psychological effects. Bruce Norman physically abused his son by having him do illegal drugs while Lucas was still a teenager. Lucas left school before completing grade 12, and left his mother’s home at 18. He moved to Nova Scotia but returned to Newfoundland soon after. He gravitated to using drugs on a regular basis.

[60] Bruce Norman’s suicide, according to the Gladue Report, had a significant impact on Lucas. Lucas obtained a job as a bouncer, which became a front for his use of alcohol and drugs. He was arrested in 2015 after trying to make money by selling drugs. He suffered from depression. He sought medical attention. Lucas has twice attempted suicide.

[61] A medical report from Dr. Carmel Casey, dated September 14, 2014, confirms that Lucas’ medical issues commenced following his father’s suicide. Dr. Casey first diagnosed Lucas with depression on December 12, 2012 and prescribed antidepressant medication. He subsequently saw Lucas on December 21, 2013, January 17, 2013, January 29, 2013, March 25 and May 3, 2013. On the later date, Dr. Jennifer McPhail, an associate of Dr. Casey, opined that Lucas was suffering from significant depression. On July 11, 2013, a doctor at the Gander Hospital in Newfoundland diagnosed Lucas with a possible prolonged adjustment disorder with depressed mood. In February 2017 a Dr. Bahra diagnosed Lucas as suffering from Borderline Personality Disorder.

[62] The sentencing of Aboriginal offenders, as the Supreme Court of Canada noted in Gladue, at paras. 80-81, involves a consideration of the following question: “[h]ow has the offender who is being sentenced been affected, for example, by substance abuse in the community, or poverty, or overt racism, or family or community breakdown?”

[63] This question therefore suggests, as the Court of Appeal stated in R. v. Kakekagamick (2006), 2006 CanLII 28549 (ON CA), 81 O.R. (3d) 664 (C.A.) at paras. 34 and 36 that:

[I]t is not a mitigating factor on sentencing simply to be an Aboriginal offender … nor is being an Aboriginal offender a “get out of jail free” card.

[64] In my view, Lucas’ life has been blighted by substance abuse, the intergenerational effects of systemic racism, family and community breakdown and mental instability. He may not have personally been the victim of overt racism but the trajectory of his life has been affected by the dislocation experienced by John Newell Jr. and the negation or erasure of his Aboriginal ancestry since. The transmission of this attitude by successive generations of Newells and its collateral effects such as domestic violence, drug use, child abuse and suicide, clearly affected Lucas and played a role in the choices he made since the death of his father. In my view, this history significantly reduces Lucas’ moral culpability in the commission of the offence to which he has pled guilty.

[65] The following passage of Ducharme J. in R. v. Prevost, 2008 CanLII 46920 (ONSC), at para. 47, is apposite in this case:

[47] Darryl Prevost was not raised with any particular knowledge of his Métis heritage. Thus, it cannot be said that Darryl Prevost has any "different conception of appropriate sentencing procedures and sanctions held by aboriginal people." Indeed, like far too many Aboriginal people in Canada it appears that he has largely been assimilated into the dominant culture. Nonetheless, the principles enunciated in Gladue apply to Darryl Prevost. His assimilation was most immediately the result of his father’s own experiences with racism. Moreover, as Gladue instructs me as a sentencing judge to consider “the distinct situation of aboriginal peoples in Canada,” I would note the broader historical reality that aboriginal assimilation and cultural displacement is the result of conscious policies pursued by past Canadian governments. As noted by the Royal Commission on Aboriginal Peoples, for more than 100 years following confederation the Canadian federal government “attempted to promote the eventual break-up of Aboriginal societies and the assimilation of Aboriginal people into mainstream – that is, non-Aboriginal – society.”

(footnotes omitted)

(emphasis added)

[66] There are other mitigating factors which, on their own, would not justify a sentence outside the Cunningham range or qualify as “exceptional personal circumstances”. However, they add to the systemic and historical background factors that are relevant to the determination of an appropriate sentence in this case. These include the following:

(1) Lucas pled guilty albeit two years after the commission of the offence;

(2) Lucas has no criminal record;

(3) Lucas has a very supportive family;

(4) Lucas has accepted responsibility for his actions and is very remorseful;

(5) Lucas has been on bail for a significant period; and has not breached any condition of his recognizance;

(6) Lucas has reunited with his 3-year-old twins and is now fully supportive of them;

(7) Lucas is now gainfully employed and has become a productive member of the community; and

(8) Lucas is highly motivated to seek professional help for his mental health issues.

[67] The Crown relies on the Ontario Court of Appeal’s decision in R. v. J.N., 2013 ONCA 251, 305 O.A.C. 175, at para. 51, for the proposition that this is “simply one of those cases where the crime is so heinous and the aggravating factors were so compelling, that the appellant’s Aboriginal status should not affect the length of sentence imposed”: see also Gladue, para. 93.

[68] In J.N., the accused was convicted of sexual assault, sexual interference and invitation to sexual touching in relation to his step-daughter, commencing when she was six to seven years old and ending when she was fourteen years of age. The sexual acts included digital penetration and sexual intercourse on one occasion.

[69] In my view, there is no moral equivalence between the impugned acts in J.N. and importing cocaine. Accordingly, it cannot be said in this case that Lucas’ Aboriginal ancestry should not affect the length of sentence. Furthermore, in J.N., the court concluded at para. 16 that the appellant had no history of physical, emotional, or sexual abuse. In this case however, Lucas was subjected to physical and emotional abuse by his father.

Parity of Sentence

[70] To what extent does this reduced moral culpability justify a sentence reduction within the range suggested by defence counsel?

[71] Section 718.2(b) provides that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. In Lacasse, the Supreme Court of Canada noted at para. 53 that:

Proportionality is determined both on an individual basis, that is, in relation to the accused, him or herself and to the offence committed by the accused, and by comparison with sentences imposed for similar offences committed in similar circumstances. Individualization and parity of sentences must be reconciled for a sentence to be proportionate.

[72] Parity in sentencing however, is not a principle that trumps the sentencing principle in s. 718.2(e). Indeed, as the Alberta Court of Appeal noted in R. v. Ellahib, 2008 ABCA 281, [2008] A.J. No. 865, at para. 10, “parity is not an overriding sentencing consideration. Fitness takes precedence over parity.” Furthermore, in R. v. Chambers, 2013 ONCA 680, 311 O.A.C. 307, at para. 31, the Court of Appeal cautioned that “while parity is a guiding principle of sentencing, it is not to be applied in an absolute fashion; rather, it is only one of several principles that must be taken into account by a sentencing judge in crafting a fit sentence.” Finally, in R. v. L.M., 2008 SCC 31, [2008] 2 S.C.R. 163, the Supreme Court of Canada held that disparity of sentence was possible for the same offence where justified by the circumstances.

[73] Parity of sentence therefore, does not require the imposition of identical sentences on co-accused who import almost identical amounts of the same controlled substance, given that sentencing is an individualized process which must reflect the unique circumstances of the offender. To that extent, I am not required to automatically sentence Lucas to four and a half years imprisonment, as Ms. Murray was.

[74] In any event, there is insufficient information before me to conclude that Lucas should receive a similar sentence to that imposed on Ms. Murray. The information before me concerning Ms. Murray is that she was an addict and a vulnerable person. She may also have been a first offender. That information is insufficient to enable me to conclude that her personal circumstances are similar to that of Lucas, such that a sentence within the four and a half year range is a fit sentence.

[75] Similarly, I am unable to conclude that Mr. Norman’s personal circumstances are similar to that of C.S. to such an extent that a 17-month term of imprisonment is appropriate in this case. It appears, based on the evidence, that C.S. was affected by substance abuse, poverty, and family and community breakdown to a greater degree than Lucas. I base this conclusion on the following evidence:

(1) C.S. first ran away from home at age 13 and began consuming alcohol on a daily basis;

(2) Two men raped her when she was only 13;

(3) She was working as a prostitute by age 15;

(4) She made suicide attempts at age 16 and 17;

(5) At 17 years old, she gave birth to a daughter. This was not a matter of poor choices but the logical result of the horrific circumstances of her life at that point;

(6) The father of C.S.’s child did not provide her with any child support.

[76] Two other factors dictate that s. 718.2(b) does not justify, in this case, a sentence within the range of that imposed in C.S. C.S., unlike Lucas, pled guilty at a very early opportunity. Second, the factual matrix in this case is more serious than that in C.S. given that this case involves elements of a conspiracy to import cocaine, even though Lucas did not plead guilty to that charge.

APPROPRIATE SENTENCE

[77] In sentencing persons who import drugs into Canada, the paramount sentencing considerations are general deterrence and denunciation. However, in determining an appropriate sentence, I must apply the principles established in Gladue, and reiterated in subsequent decisions such as Ipeelee, Nasogaluak, and Kakekagamick amongst others. I must consider how Lucas Norman’s life has been adversely impacted by the systemic discrimination and background factors that may have played a role in the commission of the offence with which he has been charged. Not only this, I am obliged to consider the principle of parity, among the other principles noted above in determining a proportionate sentence in this case.

[78] Having regard to the above factors, I conclude that the appropriate sentence in this case is a term of imprisonment of three years. The Crown and the defence have agreed that Lucas Norman has served 26 days in pre-trial custody. He will be given credit for his pre-trial custody on a 1.5 to 1 basis. Accordingly, he will receive credit with having already served 39 days of his sentence.

ANCILLARY ORDERS

[79] There will be a 10-year weapons prohibition order under s. 109(2)(a) of the Code and for life pursuant to s. 109(2)(b) of the Code.

[80] There will also be a s. 487.051(3)(b) of the Code order for the taking of DNA samples (secondary designated offence).

[81] Victim fine surcharge.

[82] The Superior Court of Justice (Ontario) trial coordinator must forward a copy of this decision to the Federal Corrections authorities responsible for administering Lucas Norman’s sentence.

André J.

Released: May 9, 2018