COURT FILE NO.: CR-16-1578-00
DATE: 20180629
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
D. Quayat, for the Crown
- and -
TAMMY ANNETTE FERGUSON
S. Hinkson, for the defence
HEARD: May 11, 2018, at Brampton
REASONS FOR SENTENCE
André J.
[1] A jury convicted Ms. Ferguson on January 26, 2018 of the offence of importing 1.34 kgs. of cocaine into Canada, contrary to s. 6(1) of the Controlled Drugs and Substances Act. The Crown seeks a sentence of 45 months imprisonment, while Ms. Ferguson’s counsel submits that a 30-month term of imprisonment is appropriate, given Ms. Ferguson’s past and present circumstances.
BACKGROUND FACTS
[2] Ms. Ferguson imported 1.34 kilograms of cocaine from Curacao on June 18, 2015. During her trial Ms. Ferguson testified that she had been coerced into importing the drugs by a male with whom she had had a close relationship. The jury either disbelieved Ms. Ferguson’s testimony about having been coerced to import drugs, or concluded that even if she had been coerced, she nevertheless had a safe avenue of escape upon arriving in Canada.
ANALYSIS
[3] Section 718.1 of the Criminal Code (the “Code”) provides that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. The section requires a consideration of both the aggravating and mitigating factors in the case, the sentencing principles set out in s. 718.1 and s. 718.2 of the Code and the sentencing jurisprudence relating to the importation of cocaine into Canada.
Aggravating Factors
[4] The aggravating factors in this case are as follows:
(1) Cocaine is a very addictive drug that has wreaked untold havoc in Canada.
(2) The offence involves a violation of Canada’s international borders.
(3) The amount of the imported cocaine is relatively high.
(4) Ms. Ferguson has a criminal record; albeit a dated one.
Mitigating Factors
[5] Forty-six year old Ms. Ferguson has had a difficult upbringing evidenced by the following:
(1) When she was five years old, her four siblings and herself were apprehended by child protective services and placed in foster care because of parental neglect. Her father suffered from alcoholism, while her mother had mental health issues and did not care for her children.
(2) While in foster care, Ms. Ferguson was separated from her siblings. She was deemed a Crown ward when she was nine years old.
(3) Ms. Ferguson lived in a number of foster homes where she experienced physical and emotional abuse. She ran away on numerous occasions and lived on the streets until she was returned to a foster home.
(4) Ms. Ferguson has lived on her own since the age of 16. She had her first child when she was 20 years old. Her common law spouse physically and emotionally abused her. She attempted to commit suicide when she was 19 years old. She had a second child with her common law spouse. She ended this relationship after four years.
(5) Ms. Ferguson was in a 16-year relationship which ended in 2015.
(6) Ms. Ferguson, who lives in Brantford, Ontario, has worked for a local Tim Hortons company for the past 18 years.
(7) Ms. Ferguson has suffered from a number of health issues most particularly degenerative disc disease that has required her to use a walker. She has also suffered from depression that has worsened because of her deteriorating physical condition.
(8) Ms. Ferguson has expressed remorse.
(9) Ms. Ferguson’s conviction for possession of property obtained by crime occurred in 1989 and is therefore of no significance.
(10) Ms. Ferguson has the support of her friends and employer.
(11) Ms. Ferguson is a drug courier and on the lowest rung of the drug importing hierarchy.
Applicable Jurisprudence
[6] In R. v. Madden, 1996 CanLII 10228 (ONCA), the Court of Appeal noted that absent exceptional circumstances, such as cooperating with the authorities, the range of imprisonment for the importation of a kilogram of cocaine, “more or less”, is 3 to 5 years. In R. v. Lacasse, 2015 SCC 64, the Supreme Court of Canada noted at para. 57 that sentence ranges are not to be considered a straightjacket while in R. v. Foster, 2018 ONCA 53, at paras. 133 and 139, Watt J.A. added that judicially imposed sentence ranges should not be construed as “ossified” or “hard and fast” rules.
[7] While courts have reiterated that in sentencing drug importers, general deterrence and denunciation are of paramount importance, other sentencing principles, such as rehabilitation, may be important as well in determining a proportionate sentence.
[8] Ms. Ferguson is clearly a vulnerable offender who has faced significant personal hardship even before she was five years old. She has endured physical and emotional abuse, economic hardship, severe health challenges and even attempted to take her own life. Despite these hardships, Ms. Ferguson has managed to maintain steady employment in Brantford and an excellent work record to the extent that her employer is prepared to offer her employment after she serves her sentence.
[9] The Crown submits that Ms. Ferguson’s medical condition, on its own, cannot justify a deviation of sentence below the judicially established sentence range. Accordingly, in the circumstances of this case, the appropriate sentence should fall within the range established in Madden.
[10] To accede to the Crown’s submission, would, in effect, treat the sentence range in Madden as if it was a straightjacket from which there is no release. Ms. Ferguson has faced continuous and persistent hardship from a very early age. What is remarkable about her situation is that she has not become addicted to drugs or alcohol, and has maintained steady and continuous employment for 18 years even in the face of a debilitating illness that has significantly reduced her mobility. She has maintained a crime free life for over 25 years.
[11] In my view, the unique circumstances of this case justify a sentence which falls below the range established in Madden.
CONCLUSION
[12] In my view an appropriate sentence in this case is a term of incarceration of 33 months. There will be a s. 109(a) order for 10 years and a s. 109(b) order for life. There will be no DNA order.
André J.
Released: June 29, 2018
COURT FILE NO.: CR-16-1578-00
DATE: 20180629
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
TAMMY ANNETTE FERGUSON
REASONS FOR SENTENCE
André J.
Released: June 29, 2018