COURT FILE NO.: CRIM J(F) 17-505 DATE: 2018 07 06
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN S. Weinstock, for the Crown
- and -
TANISHA EVANS and CHANTELLE ROCHESTER Y. Rahamin for Tanisha Evans and D. Embry for Chantelle Rochester
HEARD: June 22, 2018
REASONS FOR SENTENCE
L. SHAW J.
[1] On May 15, 2018, Ms. Evans and Ms. Rochester were found guilty by a jury of one count of importing cocaine, contrary to section 6(1) of the Controlled Drugs and Substances Act (“CDSA”). They appeared before me for the imposition of sentence.
The Facts
Circumstances related to the offence:
[2] Ms. Evans and Ms. Rochester were arrested on June 8, 2016 at Pearson International Airport. They had returned to Canada on a flight from Trinidad and Tobago. They were travelling together. They were both sent to the secondary inspection area, which they attended after retrieving their luggage.
[3] When boarder security officer El Aloul went through Ms. Rochester’s luggage, he initially detected nothing out of the ordinary. After an x-ray of her luggage, he opened and unzipped the liner. Upon further inspection, packages of cocaine were found under the liner of her luggage. The total weight of the cocaine was 2.466 kilograms and would have a value in 2016 in the range of $114,400 to $271,620 depending on how it was sold.
[4] The only issue for the jury was whether Ms. Rochester knew that the cocaine was concealed in her luggage.
[5] Ms. Evans was also sent to secondary inspection. When boarder security officer Sabah went through her luggage, she discovered packages of cocaine hidden under the liner of the suitcase. The total weight of the cocaine was 2.412 kilograms and would have a value in 2016 ranging from $118,000 to $265,320 depending on how it was sold.
[6] The only issue before the jury was whether Ms. Evans knew that the cocaine was concealed under the liner in her luggage.
[7] Ms. Rochester testified that she and Ms. Evans made plans to travel to Trinidad. Before she left Toronto, her friend, Shawn Richards, asked her to pick up some money for him in Trinidad with Ms. Evans as he was having trouble clearing the money. Her evidence was that Mr. Richards told her that she and Ms. Evans were to meet with an individual named Mikey who was to give them the money.
[8] Ms. Rochester testified that she and Ms. Evans met Mikey at the airport in Trinidad and they spent much of their time in Trinidad with him. He told Ms. Rochester that she would be given the money the day she was to leave Trinidad and it would be hidden in her suitcase. He purchased new luggage for Ms. Rochester and delivered it to her the day she was to return to Canada. Ms. Rochester’s evidence was that when the luggage was delivered to her, she inspected the luggage to see where the money was hidden, but she could not locate it. She testified that she did not know that there was cocaine in her luggage and she believed it was money.
[9] Ms. Evans testified that she had gone to Trinidad for a trip to visit family and friends. She planned to travel with Ms. Rochester. Before she left for Trinidad, she was asked by her friend William to help Ms. Rochester return money from Trinidad to Canada for a friend of Ms. Rochester.
[10] Her evidence was that William told her they would be bringing the money back in a suitcase. She and Ms. Rochester met a person named Mikey in Trinidad who told them he would be putting the money in her suitcase. On the day she was to travel back to Canada, Mikey brought a new suitcase to her hotel room in which the money was hidden. Ms. Evans testified that she inspected the luggage and could not locate where the money was hidden. She testified that she did not know that there was cocaine in her luggage and she believed it was money.
[11] The jury’s verdict makes it clear that they rejected Ms. Evans and Ms. Rochester’s evidence and were satisfied beyond a reasonable doubt that they intentionally imported cocaine into Canada.
Circumstances related to the offender - Ms. Evans:
[12] Ms. Evans is 27 years old. She was born in Canada and currently lives with her mother and father and three younger teenage siblings. She is not married and has no children. Ms. Evans completed high school nine years ago and has since worked continuously at various jobs including at a restaurant, a bar, Tim Horton’s and at The Boys and Girls Club. She has no criminal record.
[13] A number of reference letters were filed on behalf of Ms. Evans including letters from her mother and sister. Her family is very supportive of her.
[14] The authors of the reference letters spoke highly of Ms. Evans’ work with the Boys and Girls Club. She has been involved with programs for children and youth. She has led leadership development workshops and facilitated sports events. The reference letters outline the positive impact she has had on the youth in her community. She was described as a mentor and community activist. All the references spoke very highly of Ms. Evans’ commitment and involvement in the community, particularly working with youth.
[15] Her family will continue to be supportive while she is in custody and are committed to helping her reintegrate upon her release.
Circumstances related to the offender - Ms. Rochester:
[16] Ms. Rochester is 31 years of age and lives with her mother and brother. Her mother has worked as a registered nurse for 11 years. Her family is supportive.
[17] When she graduated from high school she obtained a diploma as a food service worker and worked as a dietary aid for five years. She left that job and was working at a cosmetic warehouse at the time of her arrest. Following her arrest she worked as a dietary aid for three months but that work ended when they conducted a police check. She has since been working at Wal-Mart. She is interested in fashion and has been attending sewing classes. She would like to have her own clothing line in the future. She has no criminal record.
Impact on the community:
[18] As noted in R. v. Hamilton et al., 72 O.R. (3d1) (C.A.) Ont. C.A., the importation of dangerous drugs like cocaine has always been considered among the most serious crimes known to Canadian law. The use and sale of cocaine kills and harms both directly and indirectly. It is a violent and serious offence. As cocaine is not indigenous to Canada, it must be imported, often brought in by couriers, such as Ms. Evans and Ms. Rochester.
Position of the parties:
[19] The Crown submits that an appropriate sentence is six to six and one-half years. In addition, the Crown seeks ancillary orders including a DNA order, under section 487.05 of the Criminal Code, a mandatory firearms prohibition under section 109(2)(a)(ii) of the Criminal Code, a victim fine surcharge and a forfeiture order. The ancillary orders are not contested by the defence.
[20] It is the Crown’s position that given the amount of cocaine, based on the guidelines in R. v. Cunningham, (1996), 27 O.R. (3d) 768, the range for a first offender acting as a courier importing multiple kilograms of cocaine is in the range of six to eight years. The Crown’s position is that there is an absence of exceptional or extenuating circumstances for which the court can exercise its discretion below this guideline range.
[21] Both Ms. Evans and Ms. Rochester take the position that while there are a number of mitigating factors, the appropriate sentence would be six years. As Ms. Evans was in custody for pre-trial custody for ten days, her position is that it should be given credit at the rate of 1.5 to 1 making it 15 days of pre-trial credit.
[22] Both defendants acknowledge that there is an absence of exceptional or extenuating circumstances to place the sentencing range outside of the Cunningham guideline. Their position is that as a result of mitigating factors, the sentence should be towards the bottom of the applicable range but not below the floor of the guideline.
Applicable Legal Principles:
[23] Section 718 of the Criminal Code sets out the following purpose and objective 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.
[24] Section 718.1 of the Criminal Code provides that:
Fundamental principle
718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
[25] Section 10 of the Controlled Drugs and Substances Act, S.C. 96, C.19 states the following with respect to the purpose of sentencing:
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.
[26] Section 6 of the Controlled Drugs and Substances Act provides that the maximum penalty for importing a schedule I substance is life. The main sentencing principle to consider in the imposition of sentence for importing are general deterrence and denunciation. The maximum penalty is an indication of the seriousness of the offence.
[27] While the importation itself is not a violent act, as noted in R. v. Hamilton, the consequences can be characterized as both serious and violent.
[28] The range of appropriate sentence has been well established by the Court of Appeal in Cunningham and has since been affirmed.
Analysis
There are mitigating factors for both defendants to consider in determining the appropriate sentence. Mitigating factors for Ms. Evans are that she is a relatively youthful first offender, she has the benefit of a supportive family and she also has a consistent employment history since her graduation from high school. The many reference letters filed by co-workers and friends describe a young women who is very involved and committed to the work she does with youth. She has been on bail since June 2016 for a period of two years five days without any incidents.
[29] The mitigating factors for Ms. Rochester are that she is a first time offender, has a consistent work history since she obtained her diploma and has been working since her arrest.
[30] I am also mindful that the trial was conducted in a very efficient manner with an agreed statement of facts leaving knowledge as the only issue to be determined by the jury.
[31] The aggravating factor for both Ms. Evans and Ms. Rochester is that they were convicted of importing approximately 2.4 kilograms of cocaine into Canada.
[32] The Crown referred to R. v. Peters, 2018 ONCA 493 wherein the Court of Appeal upheld the trial judge’s sentence of 6.5 years. In that case the accused was convicted of importing 2.827 kilograms of cocaine. He was 44 years of age with no criminal record, but had a number of health issues.
[33] The Crown also referred to R. v. Carrera-Vega and Sablon-Leal, 2015 ONSC 4958, where the court imposed a sentence of 6.5 years for importing almost 4 kilograms of cocaine.
[34] The defence referred to R. v. Abad-Robertson, 2015 ONSC 6338. In that case the accused was convicted of importing 4.1 kilograms of cocaine. The court noted that while there were mitigating factors it did not justify a downward departure from the sentence range and sentenced the defendant to six years and six months in jail. She was 25 years of age and did not have a criminal record. She had a two year old son for whom she was the main caregiver and had gone back to school and had been gainfully employed. The judge noted that she had excellent prospects for rehabilitation.
[35] Neither Ms. Evans nor Ms. Rochester are career criminals. They are young women who have been gainfully employed. They have strong support systems.
[36] Both Ms. Evans and Ms. Rochester have excellent prospects for rehabilitation. They both appear to have had a positive trajectory in their lives before making a very poor decision to agree to be couriers to import cocaine.
[37] Given all of the circumstances, I find that a fit and proper sentence is six years for both Ms. Evans and Ms. Rochester.
Ancillary Orders:
[38] There shall be a weapons prohibition order under section 109(2) of the Criminal Code, for a period of ten years after Ms. Evans and Ms. Rochester’s release from custody.
[39] There will also be an order that Ms. Evans and Ms. Rochester provide a sample of their DNA under section 487.051(3) of the Criminal Code.
[40] An order shall be issued for forfeiture, the terms of which shall be agreed to by the Crown and defence counsel.
Final Conclusion:
[41] In conclusion, Ms. Evans sentence is as follows:
- Six years in prison with 15 days credit for pre-trial custody
- Forfeiture of the cocaine
- A DNA order
- A weapons prohibition for ten years
[42] Ms. Rochester’s sentence is as follows:
- Six years in prison
- Forfeiture of the cocaine
- A DNA order
- A weapons prohibition for ten years