COURT FILE NO.: CRIMJ(F) 25/17
DATE: 20180618
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
M. Park, for the Crown
- and -
NADINE ALTHEA REID
M. Owoh, for the defence
HEARD: April 6, 2018, at Brampton
REASONS FOR SENTENCE
André J.
[1] A jury convicted Nadine Althea Reid (Ms. Reid) of the offence of importing cocaine into Canada. The Crown seeks a sentence of 11 years imprisonment while defence counsel submits that the court should sentence Ms. Reid to 6 years imprisonment.
BACKGROUND FACTS
[2] Ms. Reid arrived at the Pearson International Airport on a flight from Jamaica on June 18, 2015. An examination of her luggage led to the discovery of a number of canned and packaged food products all of which appeared to have been professionally sealed. After the items were opened, it was found that they all contained 11.5 kilograms of cocaine. Ms. Reid was subsequently arrested and released following a bail hearing.
ANALYSIS
[3] Both the Crown and defence concede that pursuant to s. 718.1 of the Criminal Code (the “Code”), a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
[4] Both concede that the determination of an appropriate sentence necessarily involves a scrupulous weighing of the aggravating and mitigating factors in the case and a consideration of the applicable sentencing principles and relevant jurisprudence.
Aggravating Factors
[5] The aggravating factors in this case are as follows:
(1) The large quantity of cocaine imported;
(2) Cocaine is a dangerous and addictive drug that has wreaked untold havoc in our community;
(3) The offence involved a violation of Canada’s international borders;
(4) Ms. Reid is 43 years old and should have known better than getting involved in the importation of an illegal and dangerous drug; and
(5) Ms. Reid was motivated by the hope of financial gain.
Mitigating Factors
[6] These include the following:
(1) Ms. Reid has no criminal record;
(2) Ms. Reid is a courier and was not part of the drug importation hierarchy;
(3) Ms. Reid has four children two of whom reside with her. The other two are adults who have mental health issues;
(4) Ms. Reid is unemployed and receives state assistance;
(5) A positive Presentence Report.
Applicable Jurisprudence
[7] In R. v. Hamilton and Mason, O.J. No. 3252 (OCA), the Court of Appeal reiterated the longstanding principle that in sentencing persons convicted of importing cocaine, general deterrence and denunciation are of paramount importance.
[8] The Court of Appeal also noted in R. v. Cunningham, [1995] O.J. No. 4369 (OCA), that absent exceptional circumstances, the appropriate sentence range for an offender who imports multi-kilograms of cocaine is 6 to 8 years imprisonment. However, in R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, the Supreme Court of Canada noted at para. 57 that sentencing ranges “should not be considered “averages””, or “straitjackets but as historical portraits for the use of sentencing judges who must still exercise their discretion in each case.” Similarly in R. v. Foster, 2018 ONCA 53, at para. 133, the Ontario Court of Appeal stated that sentencing ranges “are primarily guidelines, not ossified rules”.
[9] That said, it is conceded that there is nothing exceptional about the background of Ms. Reid that would justify a marked deviation from the applicable sentence range for the importation of 11.5 kilograms of cocaine. She generally matches the profile of the single, unemployed, racialized mother who is hired as a courier to import drugs into Canada: see R. v. Hamilton, 2003 2862 (ON SC), [2003] O.J. No. 532, paras. 102, 180-181, 191.
[10] Ms. Reid is older than the “average” racialized drug courier who appears before this court with regular frequency. On one hand, one would think that her maturity should have inured to her advantage in resisting the enticements to import cocaine. On the other hand, she has led a crime free life for decades and should receive significant credit for having led, before her unfortunate involvement in this offence, a crime-free life.
[11] Mr. Owoh seeks a sentence of six years imprisonment, the bottom of the range suggested in Cunningham. That case involved 5 kilograms of cocaine, an amount significantly less than that in this case. Indeed, the cases which have resulted in a six year sentence of incarceration involved the importation of significantly less cocaine than 11.5 kilograms. These cases include R. v. Lodge, 1996 O.J. No. 5156 (Ont. Ct. Gen. Div.) where a 26-year-old mother of five who imported 1,155 grams of cocaine received a 6 year term of imprisonment; R. v. Mothersill, 1988 ABCA 228, 43 C.C.C. (3d) 228, where the Alberta Court of Appeal upheld a 7-year prison sentence for an offender who imported 1,100 grams of cocaine; R. v. Phillips, 2008 ONCA 726, 2008 O.J. No. 4194 (O.C.A.), where the Court of Appeal upheld a 6-year sentence of imprisonment for a 21-year-old female recidivist who imported 3,533 grams of cocaine; R. v. Nassar, 1988 ABCA 305, 1988 90 A.R. 375, where an offender received a 6-year sentence of imprisonment for importing 3,000 grams of cocaine; and R. v. Cameron, 2003 O.J. No. 5717 (SCJ), where a first time female offender received a 7-year term of imprisonment after pleading guilty to importing 5,080 grams of cocaine.
[12] The above decisions are clearly fact specific but they do provide some guidance with respect to an appropriate sentence based on the amount of cocaine imported into Canada.
[13] The Crown’s position is not unreasonable. The most important mitigating fact stems from the fact that Ms. Reid’s children, some of whom live with her, are quite young. I can take judicial notice of the fact that a prolonged period of separation will have a deleterious impact on them. Ms. Reid advised the court that her last two children are now separated from her on account of her impending incarceration.
CONCLUSION
[14] In my view an appropriate sentence in this case is a period of incarceration of 9 years. There will be a s. 109(a) order for life, s. 109(b) for 10 years and a DNA order.
André J.
Released: June 18, 2018
COURT FILE NO.: CRIMJ(F) 25/17
DATE: 20180618
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
TAMMY ANNETTE REID
REASONS FOR SENTENCE
André J.
Released: June 18, 2018