COURT FILE NO.: 585/17 DATE: 2018/06/29 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – SHANICE WALDRON

Counsel: David Quayat, for the Crown Tonya Kent, for the Accused

Heard: June 18, 2018

REASONS FOR SENTENCE

wOOLLCOMBE j.

[1] On April 18, 2018, Ms. Waldron was found guilty by a jury of one count of importing cocaine, contrary to s. 6(1) of the Controlled Drugs and Substances Act (“CDSA”). She is before me for the imposition of sentence.

The Facts

Circumstances Related to the Offence

[2] I will summarize the facts of the offence very briefly.

[3] Ms. Waldron was arrested on November 13, 2015 at Pearson International Airport. She had returned to Canada on a flight from Jamaica and was accompanied by her son, who was almost two years old at the time. Ms. Waldron was sent to the secondary inspection area, which she attended after retrieving her luggage. When Border Services Officer Gilbey went through her luggage, he found a number of food item containers. Concealed within six such containers was cocaine. The total weight of cocaine retrieved was 2.753 kilograms. The purity was between 70 and 75 per cent. The value of the cocaine was between $99,106 and $220,240, depending on the manner of distribution. Based on the prevailing price of cocaine in Jamaica in 2015, the potential profit margin was approximately $77,084.

[4] The only issue for the jury was whether Ms. Waldron knew that the cocaine was concealed in food containers in her luggage.

[5] Ms. Waldron testified that she had no idea that there was cocaine in the food containers. It was her evidence that she had gone to Jamaica because her son’s father, Sheldon, wanted their son there for Sheldon’s birthday. Sheldon was living in Toronto but had family in Jamaica. She said that he had told her that he wanted their son introduced to his family in Jamaica. She thought it was important for the son to have a relationship with his father and his family and so agreed to go.

[6] It was Ms. Waldron’s evidence that she and Sheldon stayed with his Uncle Shorty in Jamaica. She said that before she left to come home, Uncle Shorty and Sheldon drove her to a market where she purchased food. Uncle Shorty purchased food items as well and asked her to bring them back to Canada for a friend of his named Devon. She agreed to do so and put them into her luggage. She said that plans were made for Devon to pick her up in Toronto.

[7] The jury’s verdict makes clear that they rejected Ms. Waldron’s evidence and were satisfied beyond a reasonable doubt that she intentionally imported cocaine into Canada.

Circumstances Related to the Offender

[8] Ms. Waldron is 25 years old now and was 22 at the time of the offence.

[9] She grew up in Brampton with her mother and two siblings and completed high school. Counsel advises that Ms. Waldron was the subject of sexual abuse at the age of 12 and that this has affected her relationships with men since and left her vulnerable to being manipulated.

[10] After high school, Ms. Waldron attended at a private hair school and completed a cosmetology certificate. Following this, she worked in that field from her home for a year or two. When she did not have enough clients, counsel says that, out of desperation, she turned to exotic dancing in 2012, which she did until June 2013.

[11] While working in this capacity at one of the clubs, Ms. Waldron met Sheldon. They dated on and off for six months, during which time she became pregnant. The submission is made that he was able to manipulate and control her. Counsel indicates that she gave him money while she was working.

[12] It is unclear what, if any, role Sheldon played in the importation. I am reminded that Ms. Waldron testified that Sheldon was on a different flight from her back from Jamaica and so was not present with her when she was arrested.

[13] Ms. Waldron’s counsel advises that Sheldon has shown no interest in their son and is not involved in his life. Ms. Waldron is a single parent who has always supported her son on her own. She says that her mother will look after the boy while she is incarcerated.

[14] Since her arrest, Ms. Waldron has continued to pursue her education and training. She has completed a dental assistant program, obtained a dental assistant certificate and works as a dental assistant. Following her incarceration, she plans to take courses to pursue her ambition of becoming a dental hygienist.

[15] Ms. Waldron has a criminal record. Prior to the commission of this offence, she had been convicted of identity fraud, for which she received a suspended sentence and probation on December 12, 2012. The other offences for which she has been convicted post-date this offence and are not relevant to the sentence that is to be imposed for importing.

[16] When she addressed the court at her sentencing hearing, Ms. Waldron indicated that at the time of the offence, she was still trying to figure her life out. She says that she is still doing so, but that she has turned her life around and that she wants to rehabilitate herself and to be a better mother for her son.

Impact on the Community

[17] There can be no question that the importation of cocaine has a profound and significant impact on a wide community. Cocaine is a “destructive, insidious, and powerfully addictive substance that causes great devastation and misery to those whose lives it touches”: R. v. Nalvarte, 2011 ONSC 234 (S.C.J.)

Positions of the Parties

[18] The Crown submits that an appropriate sentence is seven years. In addition, the Crown seeks ancillary orders, including a DNA Order under s. 487.051 and a mandatory firearms prohibition order under s. 109(2)(a)(ii) for 10 years and s. 109(2)(b) for life.

[19] It is the Crown’s position that this is a fairly unremarkable case and fits squarely within the six to eight year range set by the Court of Appeal in R. v. Cunningham (1996), 27 O.R. (3d) 786 at paras. 19-20 for first offenders who, acting as couriers, import multiple kilograms of cocaine for personal gain. The Crown submits that an additional aggravating feature here is that Ms. Waldron had with her, at the time of the offence, her young son and that she attempted to pass the food off to the Border Services Officer as being for her son. He says that her attempt to use her child as a shield is aggravating.

[20] The defence position is that a sentence in the range of five and a half to six and a half years is appropriate. No issue is taken with the weapons prohibition order. Counsel submits that the DNA order should not be made.

[21] The defence position is that there are a number of mitigating factors. These include that the accused is relatively young and is a single mother who supports her child and always has. She has taken steps to upgrade her education and training, indicating that she has strong prospects for rehabilitation. She has a relatively minor criminal record. The defence says that Ms. Waldron did not put her child at risk or in danger and that it is not aggravating that he was present with her on the flight.

Applicable Legal Principles

[22] Section 718 of the Criminal Code sets out the following purpose and objectives of sentencing:

718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.

[23] Further, s. 718.1 of the Criminal Code provides that:

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

[24] Section 10 of the Controlled Drugs and Substances Act S.C. 1996, c. 19 provides, the following with respect to the purpose of sentencing:

10 (1) Without restricting the generality of the Criminal Code, the fundamental purpose of any sentence for an offence under this Part is to contribute to the respect for the law and the maintenance of a just, peaceful and safe society while encouraging rehabilitation, and treatment in appropriate circumstances, of offenders and acknowledging the harm done to victims and to the community.

[25] Section 6 of the Controlled Drugs and Substances Act provides that importing a schedule 1 substance carries a maximum penalty of life. This is some indication of the seriousness of the offence. There is no question that the main sentencing principles to consider in the imposition of sentence are general deterrence and denunciation.

[26] The range of appropriate sentence set by the Court of Appeal in Cunningham, has been affirmed multiple times. See: R. v. Hamilton, [2004] O.J. No. 3252; R. v. Phillips, 2008 ONCA 726, [2008] O.J. No. 4194 (C.A.) at para. 59; R. v. Jackman, 2016 ONCA 121 at paras. 55-56.

[27] This range takes into account the enormous health effects that people who use cocaine may experience. While the importation itself is not a violent act, importation leads to violent consequences such that the offence is characterized as being both serious and violent. Because cocaine is not produced in Canada, and must be imported, the significant sentences imposed are intended to deter those who might otherwise be inclined to import it for financial gain.

The Sentence to be Imposed

[28] The Crown says that this case has the usual sympathetic features that do not warrant imposition of a sentence outside the Cunningham range.

[29] Crown counsel points to R. v. Peters, [2016] O.J. No. 4060. The accused in that case was convicted of importing 2.827 kilograms of cocaine, concealed in bags of dried food in checked luggage when he returned to Canada from Jamaica. The accused was 44 years old with no criminal record. He had a number of health issues. Letters of good character were filed on his behalf. He had family support and a history of employment. The trial judge found that a fit sentence was six and a half years.

[30] Crown counsel also points to R. v. Roache, [2006] O.J. No. 3180 (C.A.) in which the Court of Appeal considered the seven year sentence that had been imposed on an accused who imported 2.97 kilograms of cocaine. The Court reduced the sentence to six years on the basis that the trial judge had failed to credit the accused for cooperating with the police by providing information relating to the offence to them.

[31] Finally, the Crown has provided R. v. Syblis in which the Court of Appeal considered the sentence of seven years imposed on an accused convicted after trial of importing cocaine and hashish. The accused had imported 2.13 kilograms of cocaine and 1 kilogram of hashish. The Court of Appeal found that the trial judge’s sentence did not reflect error and was not demonstrably unfit and dismissed the accused’s sentence appeal.

[32] The defence has provided a number of cases that counsel says support the range she proposes. She submits that these show that the higher sentence sought by the Crown is appropriate for more cocaine or more aggravating factors, and that a lower sentence is appropriate when there are mitigating factors present. I will review the authorities provided by the defence that are the most helpful.

[33] At the higher end of the range, defence counsel points to R. v. Potts, [2016] O.J. No. 343 (S.C.J.). There, the two first offenders who imported 7.86 kilograms of cocaine would each have received seven year sentences, but for the terms of their house arrest, which warranted a reduction to six and a half years. Counsel highlights that there was a much larger amount of cocaine involved in that case.

[34] Similarly, counsel provides R. v. Carrera-Vega, 2015 ONSC 4958, [2015] O.J. No. 4126 (S.C.J.). In it, Fairburn J., as she then was, imposed sentences of six and a half years on co-accused found guilty of importing cocaine. Each of them had slightly under four kilograms of cocaine in luggage after returning to Canada from Panama. Both were first time offenders and had support around them. Counsel points out that the amount of cocaine was higher than that which Ms. Waldron imported.

[35] In Phillips, the Court of Appeal affirmed a six year sentence for an offender who imported more than 2 kilograms of cocaine. The accused was a 21 year old single mother with a criminal record who was on probation at the time. Her youth, relationship with her young daughter, steady employment and her improved attitude between conviction and sentence were found by the trial judge to be mitigating circumstances warranting the imposition of a sentence at the low end of the Cunningham range.

[36] In McCrea, [2015] O.J. Hill J. imposed a sentence of four years and ten months, in addition to 14 months of pre-trial custody (for an effective sentence of six years) for importing and escape custody charges. The cocaine imported weighed 2.2225 kg. The offender had pleaded guilty, played a subsidiary role in the distribution scheme, with limited compensation for the risk he assumed and contributed to the support of his two young children. The cocaine was of an unusually low purity. However, he had escaped lawful custody during the border investigation and had a significant criminal record consisting of 16 prior convictions.

[37] In R. v. Cameron, [2003] O.J. No. 5717 (S.C.J.), Hill J. imposed a sentence of six years for a 33 year old first offender, who was a mother of three children (ages 11, 5 and 7 months). She had imported 5.08 kilograms of cocaine. The offender had pleaded guilty. Hill J. concluded that despite the guilty plea and absence of criminal record, there were no exceptional or extenuating circumstances that warranted departing from the six to eight year range.

[38] In Jackman, the Court of Appeal affirmed a sentence of five years and nine months for an accused who imported four kilograms of cocaine. In that case, the trial judge had set out the accused’s “sympathetic circumstances and background” and concluded that these justified a sentence slightly below the six to eight year range. Again, this was more cocaine than Ms. Waldron imported.

[39] In R. v. Ali, 2016 ONSC 2600, I acceded to a joint position of five and half years for an individual found guilty by a jury of having imported 2.9379 kilograms of cocaine. Distinguishing that case from this are the facts, firstly, that the accused in this case had a medically-documented, severe cognitive limitation that was an unusual mitigating circumstance and, secondly, there was a joint position proposed.

[40] To state the obvious, it is critical that the sentence imposed on Ms. Waldron give effect to both the aggravating and mitigating factors present in her case, bearing in mind the legal principles and case law.

[41] It is an aggravating factor that Ms. Waldron is not a first offender, although I observe that her criminal record is for an unrelated offence.

[42] I am not persuaded that the fact that Ms. Waldron had her son with her when she returned from Jamaica, and that she told the Border Services Officer that the food in her luggage was for him, is really aggravating. I do not see her as having tried to use her son to shield herself from culpability as the Crown suggests. Her son was not put in any real danger. He was young enough that he would have been oblivious to what was happening when she was in the secondary inspection area. I cannot conclude that she was using her son to escape detection by the authorities.

[43] There are a number of factors that I think are mitigating. Ms. Waldron is a relatively young adult. She has sole responsibility for her son and appears to take this responsibility seriously, having been his main provider since she was about 20 years old. She has spoken of her desire to become a better mother, which I accept.

[44] Ms. Waldron clearly has strong prospects for rehabilitation. She seems to have had some challenges in her teen years. She has taken job training and plans to continue that training after her release from jail. While the Crown submits that she only turned her life around once she was caught importing drugs, the reality is that she now appears to have some insight into the terrible decisions that she made and seems to genuinely want to turn her life around. I accept that she has allowed herself to be manipulated and that she has learned the dangers of doing so.

[45] Sadly, the sympathetic and mitigating features of this case are frequently present in cases of importing narcotics. The jurisprudence is replete with stories of young, single mothers, often first offenders, acting as couriers in importing drugs. None of these mitigating factors are extraordinary in this sort of case.

[46] In my view, there are no exceptional circumstances that would warrant the imposition of a sentence outside the usual range. I conclude that the sentence should be within the Cunningham range.

[47] Given the amount of cocaine imported and the fact that Ms. Waldron has a criminal record, the sentence imposed should not, in my view, be at the bottom end of the Cunningham range. However, given all of the other relevant factors, including that she is relatively young and clearly has strong rehabilitative prospects, I conclude that a fit sentence is six and a half years.

[48] In addition, there will be a mandatory weapons prohibition order for 10 years pursuant to s. 109(2)(a)(ii) and for life pursuant to s. 109(2)(b).

[49] Finally, while the defence submits that it is an unwarranted invasion of Ms. Waldron’s privacy, it is my view that, given the fact that she has a criminal record, it is in the best interests of the administration of justice, if such an order has not previously been executed on the offender, that an order issue pursuant to s. 487.051(3) of the Code for the taking of bodily substances for the purpose of forensic DNA analysis.

Woollcombe J.

Released: June 29, 2018