COURT FILE NO.: CRIMJ(F)1676/16 DATE: 2018 08 24

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN L. Csele and J. Geiger, Counsel for the Crown

• and -

SUSANA PERALTA S. Stafford, Counsel for the Accused

Accused

HEARD: October 10th, 2017, April 13 and July 18, 2018.

REASONS FOR SENTENCE

LEMAY J.

[1] After a nine day trial before a jury, the offender, Susana Peralta, was convicted of three counts relating to the importation of 198 grams of cocaine into Canada. Specifically, the Offender was convicted of possession for the purposes of trafficking, conspiracy to import the cocaine, and conspiracy to possess for the purposes of trafficking.

[2] The Offender’s counsel seeks a conditional sentence of two years less a day plus three years’ probation, to be served in the community. Currently, the Controlled Drugs and Substances Act (“CDSA”) and the Criminal Code, when read together, do not permit a conditional sentence for these offences. As a result, the Offender’s counsel is challenging the constitutionality of Parliament’s decision to make a conditional sentence unavailable for these offences. The Offender’s counsel is also challenging the constitutionality of the maximum sentences for these offences. The maximum sentence for each of the offences is a term of incarceration of life imprisonment.

[3] The Crown is seeking a term of incarceration of 2.5 years. Crown counsel also opposes the constitutional challenges brought by the Offender.

The Facts

a) The Offender

[4] The Offender is 48 years old, and emigrated to Canada approximately thirty (30) years ago, with her then husband. She had two children with her husband, but the relationship ended in a divorce after eight (8) years. The Offender was abused by her husband during the course of this relationship. The Offender has two sons from this marriage, both of whom are in their late twenties, and both of whom live in the Greater Toronto Area.

[5] After the end of her marriage, the Offender was also involved in an on-again, off-again relationship with Mr. Julio Nunez. She has three children from that relationship, who are currently fifteen, ten and nine. The Offender and Mr. Nunez were not married, and never lived in a common-law relationship.

[6] The Offender testified that Mr. Nunez was abusive towards her during the course of their relationship, and that a police report was filed about this abuse, although no charges were ever laid. There is information in the materials filed on sentencing that the Offender required dental work as a result of a domestic assault. The Offender has not seen Mr. Nunez since the day that she was arrested on these charges.

[7] The Offender graduated from high school in Chile, but did not pursue further education as she and her then husband moved to Canada shortly thereafter. In 2013, she enrolled in an English as a Second Language program, and she completed a ten-week cooking program in 2015.

[8] The Offender has worked in the hospitality and restaurant industries in the past. She has been receiving social assistance for the past ten (10) years and has not been gainfully employed during that time.

[9] The Offender has been connected with Yorktown Child and Family Services (“Yorktown”) since 2001. Yorktown is a shelter for women, where the Offender lived for six months in 2001. She has been a regular volunteer at Yorktown, as well as a user of its services since that time.

[10] The only previous conviction that the Offender has is for being a found-in at a bawdy house in 2001. This conviction is too remote and too dissimilar to the issue before me to have any bearing on my sentencing decision.

[11] On this sentencing hearing, I received a number of letters from people who know the Offender. These letters paint a picture of a person who is community minded and is heavily involved in raising her three younger children.

[12] Finally, even in interviews for the pre-sentence report, the Offender continues to maintain that she did not know what was in the package that was delivered to her on June 24th, 2013.

b) The Offence

[13] As a result of receiving intelligence information, the Canada Border Services Agency (“CBSA”) intercepted a package at Pearson Airport. This package contained 198 grams of cocaine, and was addressed to a Susana Pamalta in Apartment 1106 in the building where the Offender lived.

[14] The RCMP conducted a controlled delivery of these packages to the apartment on June 24th, 2013. The RCMP officer tasked with actually delivering the package was undercover, and dressed as a UPS delivery-person. When he arrived at Apartment 1106, he was told that the Offender, who had previously lived there, had moved to Apartment 1708.

[15] The package was delivered to the Offender in Apartment 1708 at approximately 10:45 am on June 24th, 2013. The Offender signed for the package.

[16] Mr. Nunez was visiting the Offender at that time, and there was a discussion between the two of them about the package. That discussion could not be heard from the hallway by any of the officers, but it is clear that Mr. Nunez was yelling during the discussion.

[17] Shortly after receiving the package, the Offender left the apartment with her children. The Offender was carrying a bag that contained the vases. She was arrested by the police. In the course of the arrest, the Offender soiled herself. She also told the officer arresting her that the bag contained stuff for the children.

[18] The police took the children, and the bag containing the vases, to the apartment of one of the Offender’s friends. The arresting officers had to return to the apartment to seize the vases.

[19] The Offender maintained throughout her trial that she did not know what was in the vases, and that this was a delivery for Mr. Nunez. Mr. Nunez was originally a co-accused with the Offender, but the charges against him were stayed in October of 2015 at the request of the Federal Crown. The parties were unable to locate him to give testimony in this trial. The Offender continued to maintain, even in her interview for the pre-sentence report, that she is not guilty of these charges.

[20] The jury did not make findings of fact. However, the Supreme Court of Canada’s decision in R. v. Ferguson, 2008 SCC 6 provides guidance to trial judges as to their role in making findings of fact on a sentencing hearing. In that decision, McLachlin C.J.C. states (at paragraphs 16 to 18):

[16] This poses a difficulty in a case such as this, since, unlike a judge sitting alone, who has a duty to give reasons, the jury gives only its ultimate verdict. The sentencing judge therefore must do his or her best to determine the facts necessary for sentencing from the issues before the jury and from the jury’s verdict. This may not require the sentencing judge to arrive at a complete theory of the facts; the sentencing judge is required to make only those factual determinations necessary for deciding the appropriate sentence in the case at hand.

[17] Two principles govern the sentencing judge in this endeavour. First, the sentencing judge “is bound by the express and implied factual implications of the jury’s verdict”: R. v. Brown, [1991] 2 S.C.R. 518, p. 523. The sentencing judge “shall accept as proven all facts, express or implied, that are essential to the jury’s verdict of guilty” (Criminal Code, s. 724(2)(a)), and must not accept as fact any evidence consistent only with a verdict rejected by the jury: Brown; R. v. Braun (1995), 95 C.C.C. (3d) 443 (Man. C.A.).

[18] Second, when the factual implications of the jury’s verdict are ambiguous, the sentencing judge should not attempt to follow the logical process of the jury, but should come to his or her own independent determination of the relevant facts: Brown; R. v. Fiqia (1994), 162 A.R. 117 (C.A.). In so doing, the sentencing judge “may find any other relevant fact that was disclosed by evidence at the trial to be proven.”

[21] This direction from the Supreme Court is codified in section 724(3) of the Criminal Code. Given that, I must remember that the jury convicted the Offender of conspiracy to import cocaine, possession for the purposes of trafficking in cocaine, and conspiracy to possess for the purposes of trafficking. She was not convicted of actually importing the cocaine.

[22] The factual findings that flow from these convictions are as follows:

a) The Offender was involved in planning to have the cocaine shipped into Canada in advance of it arriving in Canada to the extent that she agreed to participate by receiving the shipment. This planning was done with other people, possibly including Mr. Nunez b) The Offender was aware that there was cocaine in the vases when she received them, and when she was moving them out of the apartment when she was arrested. c) The Offender was moving the cocaine out of the apartment in order for it to be trafficked to third parties, who would either sell it or use it. In other words, she was trafficking in cocaine. d) The Offender was part of a group of two or more people who had the common intent to traffic in cocaine, with the group possibly including Mr. Nunez as part of it.

[23] I also note that the acquittal on the charge of importing means that there was insufficient evidence for the jury to conclude, beyond a reasonable doubt, that the Offender actually imported the cocaine into Canada herself.

[24] As was described in R. v. Adelke, 2017 ONCA 665, it is open to a jury to find that the Offender was part of a conspiracy to import without there being evidence that satisfied the jury beyond a reasonable doubt that the Offender knew about the specific arrangements relating to the arrival of the shipment in Canada.

The Issues

[25] In his notice of constitutional question, and factum, Mr. Stafford states a series of question relating to the specific sections of the Criminal Code and the CDSA that his client is challenging. The Offender challenges the operation of a number of these sections, both on their own and when read together. In my view, all of these challenges can be reduced to two separate questions. Once those two separate questions are answered, I can then determine what the fit and proper sentence should be in this case.

[26] Given the foregoing, I must address three issues, as follows:

a) Whether the fact that the sentencing regime under the CDSA and the Criminal Code does not permit a conditional sentence in this case is contrary to either sections 7 or 12 of the Charter? b) Whether the maximum penalty of life imprisonment under the CDSA for these offences is contrary to either section 7 or 12 of the Charter? c) Given my conclusions on the first two issues, what is a fit and proper sentence in this case?

The Relevant Legislative Provisions

[27] I do not intend to set out the relevant provisions of the Charter. However, it is useful to set out the provisions of the CDSA and the Criminal Code that are being challenged. The relevant sections of the CDSA are sections 5(3)(a) and 6(3)(a), which read as follows:

5 (3) Every person who contravenes subsection (1) or (10)

(a) subject to paragraph (a.1), if the subject matter of the offence is a substance included in Schedule I or II, is guilty of an indictable offence and liable to imprisonment for life; and

(c) the person carried, used or threatened to use a weapon in committing the offence, or

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

(a) if the subject matter of the offence is a substance included in Schedule I in an amount that is not more than one kilogram, or in Schedule II, is guilty of an indictable offence and liable to imprisonment for life, and to a minimum punishment of imprisonment for a term of one year if

(i) the offence is committed for the purposes of trafficking,

(ii) the person, while committing the offence, abused a position of trust or authority, or

(iii) the person had access to an area that is restricted to authorized persons and used that access to commit the offence.

[28] Section 6(3)(a) contains a minimum sentence of one year, but the Crown conceded that this minimum did not apply. It was not considered for the purposes of this proceeding.

[29] The relevant section of the Criminal Code is section 742.1 (c), which reads as follows:

742.1. If a person is convicted of an offence and the court imposes a sentence of imprisonment of less than two years, the court may, for the purpose of supervising the offender’s behavior in the community, order that the offender serve the sentence in the community, subject to the conditions imposed under section 742.3, if

(c) the offence is not an offence, prosecuted by way of indictment, for which the maximum term of imprisonment is 14 years or life:

Issue #1- The Lack of a Conditional Sentence Option

[30] Mr. Stafford argues that the fact that a conditional sentence is not available makes both section 742.1(c) and the combined operation of the impugned sections of the CDSA arbitrary, overbroad and grossly disproportionate to the offences in question. Arbitrary and overbroad are principles that arise under section 7 of the Charter, while gross disproportionality arises under both section 7 and section 12 of the Charter.

[31] Mr. Stafford argues that, when all of the Offender’s circumstances are considered, a conditional sentence comes into play as one of the sentencing options in this case. The absence of a conditional sentence, therefore, is a violation of sections 7 and/or 12 of the Charter.

[32] I disagree with Mr. Stafford’s assertion that a conditional sentence comes into play in this case for two reasons. First, a conditional sentence is not generally a sentence that is within the range of fit and proper sentences for these offences. In that respect, I note the comments of Doherty J.A. in R v. Hamilton and Mason (2004), 72 O.R. (3d) 1 where he stated, at paragraph 113:

If a sentence of less than two years is appropriate, there is no presumption that conditional sentences are unavailable for those convicted of importing cocaine. However, the reality is that the crime of importing cocaine is so serious and harmful to the community that conditional sentences will, in the vast majority of cases, not adequately reflect the gravity of the offence or send the requisite denunciatory and deterrence message. …

[33] At the time that Hamilton was decided, conditional sentences were available as an option to judges. Although there are mitigating factors in this case, this case has none of the extraordinary factors that Doherty J.A. describes as permitting a conditional sentence, even if one were otherwise available. Those extraordinary factors would include things like cooperation with the authorities.

[34] Second, as will be seen below, I do not view a conditional sentence as being a fit and proper sentence for this offender. It must be remembered that we are dealing with the importation and trafficking of almost 200 grams of cocaine. A period of incarceration is necessary in this case.

[35] In light of that conclusion, addressing the constitutional issues will not have any effect on the sentence imposed on this Offender. I am mindful of the view that judges should generally limit their decisions to what is necessary to decide the case before them. However, I acknowledge that conditional sentences were a possibility pursuant to Hamilton, and that the provisions that the Offender challenges have eliminated that possibility, which is what gives rise to the Offender’s challenge.

[36] Section 52 of the Constitution Act, 1982 does not require that the impugned provision violate the rights of the Applicant in order for the Court to consider whether the provision passes constitutional muster (see R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773 at paragraph 51, and the cases cited therein). Therefore, I will now address the analysis under sections 7 and 12 of the Charter.

a) The Section 7 Analysis

[37] The section 7 analysis requires a consideration of whether the offence is arbitrary or overbroad. Gross disproportionality also arises, but I will address that issue in my section 12 analysis. Arbitrariness and overbreadth are related concepts. A legislative provision is arbitrary if its effect has no relation to its objectives. A legislative provision is overbroad if, having some relation to its purpose, it goes too far and interferes with some conduct that has no connection to its objective. (see the discussion in Canada (A.G.) v. Bedford, 2013 SCC 72)

[38] Therefore, in determining whether a provision is a violation of section 7 of the Charter is overbroad or arbitrary, the first step is to set out the purposes of the section (see R v. Safarzadeh-Markhali, 2016 SCC 14 at paragraph 24).

[39] In this case, it is the effect of sections 5(3)(a) and 6(3)(a) of the CDSA, when read together with section 742(1)(c) of the Criminal Code that are challenged. The effect of these sections, when read together, is to eliminate a conditional sentence as an option for the purposes of sentencing. It is, however, section 742.1(c) that is the operative section, and I will focus my analysis on that section.

[40] The purposes of section 742.1(c) include providing consistency, coherence and clarity to the sentencing regime, promoting public safety and security, establishing the paramountcy of denunciation and deterrence in sentencing for offences covered by section 742.1(c) and treating non-violent serious offences seriously for the purposes of sentencing. These principles have been accepted in a number of cases (see, for example, R. v. Anderson, 2016 ONSC 7501 at paragraphs 14, 15 and 22-28, and R v. Neary, 2017 SKCA 29 at paragraphs 34-37).

[41] These purposes must be considered in light of the Supreme Court’s comments on proportionality in sentencing. In Markhali, supra, the Supreme Court stated (at paragraph 71):

To say that proportionality is a fundamental principle of sentencing is not to say that proportionality in the sentencing process is a principle of fundamental justice for the purpose of determining whether a deprivation of liberty violates s. 7 of the Charter, notwithstanding the obiter comment of LeBel J. in Ipeelee. The principles and purposes for determining a fit sentence, enumerated in s. 718 of the Criminal Code and provisions that follow—including the fundamental principle of proportionality in s. 718.1 – do not have constitutional status. Parliament is entitled to modify and abrogate them as it sees fit, subject only to s. 12 of the Charter. Parliament can limit a sentencing judge’s ability to impose a fit sentence, but it cannot require a sentencing judge to impose grossly disproportionate punishment. It follows, then, that the Court of Appeal erred in declaring proportionality in the sentencing process to be a principle of fundamental justice under s.7.

[42] In other words, the principles of proportionality that are applied in sentencing offenders are not principles of fundamental justice under section 7 of the Charter. In light of that conclusion, it is difficult to see how the legislature’s decision to reduce the number of sentencing options by removing only one type of sentence can amount to a breach of section 7 of the Charter.

[43] In any event, however, when the purposes of section 742.1(c) are analyzed under the section 7 framework, it is clear that they pass constitutional muster. I reach this conclusion for a number of reasons. First, it is a conclusion supported by the case-law. For example, Neary, supra and Anderson, supra, both accept that the exclusion of conditional sentences from the sentencing options available to judges for some offences is a reasonable legislative choice. I find the reasoning in both of these decisions persuasive.

[44] Second, the elimination of conditional sentences is not overbroad when the purposes of the legislation are compared to the effects. The purpose behind eliminating conditional sentences is, in large part, to ensure that serious crimes are treated seriously by the Courts. This, in turn, enhances the public perception of the administration of justice.

[45] Importing and trafficking in Schedule 1 substances are among the most serious offences known to our law. As noted in Hamilton, supra, cases where a conditional sentence would be a fit and proper sentence are very rare, even if a conditional sentence was available. Parliament’s decision to eliminate conditional sentences for importation and trafficking is not overbroad, as it ensures that these serious crimes are treated seriously by the Courts and it establishes the paramountcy of denunciation and deterrence.

[46] Although a conditional sentence can provide significant denunciation and deterrence (see R. v. Proulx (2000), 140 C.C.C. (3d) 449 (SCC), at paragraph 127), when a judge imposes a conditional sentence for a crime, he or she is usually less concerned about those principles and more concerned about rehabilitation. The elimination of conditional sentences for particular crimes puts a more significant emphasis on denunciation and deterrence when those crimes are considered. This was the legislature’s intention. The legislation is not overbroad.

[47] I am fortified in this conclusion because other possible sentencing options remain available. These include an intermittent sentence, a suspended sentence and probation and a discharge. In light of the continued availability of these options, it cannot be said that the legislation is overbroad. Parliament has still left judges with a broad, and reasonable, array of sentencing options.

[48] Having found that the provisions are not overbroad, it would be impossible to conclude that they were arbitrary.

b) Section 12

[49] The argument under section 12 can be very briefly dealt with. First, in order for the removal of conditional sentences as an option to be a violation of section 12, it would have to result in a sentence that was grossly disproportionate to the offence. This has been the law since R. v. Smith, [1987] 1 S.C.R. 1045 was decided in 1987, and it was recently re affirmed in R. v. Lloyd, 2016 SCC 13.

[50] In order for a sentence to be “grossly disproportionate”, it must be a punishment that is more than merely excessive (see R v. Smith). Removing conditional sentences from the available sentencing options will not result in punishments that are more than merely excessive. This is because, as noted at paragraph 47 above, other sentencing options that would allow for minimal penalties remain available to judges.

[51] Second, the case law that I cited at paragraph 40 also addresses this argument and, again, I find the reasoning in those decisions persuasive. Similarly, the decision in R. v. Sawh, 2016 ONSC 7797 sets out in detail the reasons that the removal of conditional sentences as a sentencing option does not violate section 7 of the Charter.

[52] In the result, I dismiss the Offender’s application to have the provisions relating to conditional sentences found unconstitutional. It is wholly without merit.

Issue #2- The Maximum Sentence- Is It Unconstitutional?

[53] The Offender argues that the maximum sentence of life imprisonment is arbitrary, overbroad and grossly disproportionate.

[54] The Crown argues that the Offender’s entire focus is on the immigration consequences of a maximum sentence of life imprisonment, and that this is not a proper focus for the Court’s inquiry. It is not necessary for me to resolve that question. It is only necessary for me to remember what the law says about immigration consequences and sentencing. The law is clear that immigration consequences can be considered when two possible sentences are both appropriate (see R. v. Pham, 2013 SCC 15, [2013] 1 S.C.R. 739). However, it is not appropriate to have the immigration consequences be the focal point of the inquiry into the constitutionality of sentencing provisions (Pham at para. 15). I have kept this directive in mind in fashioning my reasons in this case.

[55] I start by considering the argument relating to section 12 of the Charter. This can be briefly dealt with. In R v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773, the Supreme Court set out the test to be adopted in assessing whether mandatory minimum sentences breach section 12, and confirmed Smith, supra. That test requires a consideration of whether the mandatory minimum results in a grossly disproportionate sentence on the individual before the Court.

[56] If the answer to this question is no, then the Court must consider whether the mandatory minimums’ reasonably foreseeable applications will impose grossly disproportionate sentences on other potential offenders. The meaning of grossly disproportionate has already been discussed at paragraph 50, supra.

[57] There is no corresponding test for the constitutionality of the maximum sentence under section 12. The only part of the test for considering the constitutionality of mandatory minimum sentences that could also apply to the maximum is whether there is any reasonably foreseeable person who could be caught by the maximum term of life imprisonment. It is not difficult to construct such an example.

[58] Specifically, consider someone who is at the top of the importing scheme, and directs a large organization of importers, distributers and couriers. Also assume that this potential offender has a lengthy criminal record for both drug related and violent offences. Finally, assume that they have been caught for either the importation or trafficking of a couple of tons of cocaine or heroin. In those circumstances, a sentence of life imprisonment might very well be a fit and proper sentence for either offence.

[59] It is certainly conceivable that a sentence of life imprisonment for the offences described could be meted out. Therefore, the maximum, which is still subject to judicial discretion, cannot be a violation of section 12 of the Charter.

[60] Further, there is the fact that the maximum can only be imposed after the exercise of judicial discretion, which will allow for the consideration of the unique circumstances of an offender.

[61] In addition, there is at least one case in Ontario where a maximum sentence of life in prison was imposed under these sections. In R. v Murtaza, 2013 ONSC 4239 Fragomeni J. imposed a sentence of life in prison for the importation of 108 kilograms, more or less, of heroin. The conviction in Murtaza was upheld by the Court of Appeal (see 2018 ONCA 579), but the Court of Appeal did not comment on the sentence. I also note that the Ontario Court of Appeal has observed in obiter (in R. v. Malanca, 2007 ONCA 859 at paragraph 57) that there may be a case which “cries out” for the imposition of a life sentence. The fact that such a case would be very rare does not mean it does not exist.

[62] I also note that the maximum sentences for the more serious offences in the Criminal Code tend to be ten years, fourteen years or life imprisonment. I am not aware of a maximum sentence for any offence that falls between fourteen years and life imprisonment. There are innumerable cases in which the Courts have imposed a sentence in excess of fourteen years for the importation and/or trafficking of drugs. As a result, a maximum sentence of life imprisonment fits with the overall hierarchy of penalties in the Criminal Code. Rewriting that provision would be engaging in an exercise of judicial legislative drafting.

[63] The Supreme Court has acknowledged, on many occasions, that it is not the role of the Courts to micromanage the legislature. For example, in R. v. Malmo-Levine, 2003 SCC 74 the Supreme Court stated (at paragraph 133):

We do not agree with Prowse J.A. that harm must be shown to the court’s satisfaction to be “serious” and “substantial” before Parliament can impose a prohibition. Once it is demonstrated, as it has been here, that the harm is not de minimis, or in the words of Braidwood J.A., the harm is “not [in]significant or trivial”, the precise weighing and calculation of the nature and extent of the harm is Parliament’s job. Members of Parliament are elected to make these sorts of decisions, and have access to a broader range of information, more points of view, and a more flexible investigative process than courts do. A “serious and substantial” standard of review would involve the courts in micromanagement of Parliament’s agenda. The relevant constitutional control is not micromanagement but the general principle that the parliamentary response must not be grossly disproportionate to the state interest sought to be protected, as will be discussed.

[64] Tinkering with the maximum sentences for offences, particularly when there is no requirement for a judge to impose the maximum sentence in any case (other than murder), would be micromanaging the legislature’s choices. It would also be usurping the legislative function to establish the scheme of maximum sentences under the legislation, which is not the role of the Courts.

[65] If I find that the maximum sentence of life in prison is unconstitutional, what maximum sentence is constitutional? 28 years? 17 years? 13 years? Picking the maximum sentence is an exercise in categorizing offences that, in my view, is appropriately left to the legislature to determine.

[66] This brings me to the section 7 analysis. In support of the proposition that the maximum sentence of life imprisonment for these offences violates section 7 of the Charter, Mr. Stafford refers me to R. v. Williams, 2017 ONCJ 666. In that decision, Renwick J. of the Ontario Court of Justice found that the maximum sentence of life imprisonment under section 6(3)(a) of the CDSA unconstitutional as it violated section 7 of the Charter, and could not be saved by section 1. Mr. Stafford urges me to apply the same reasoning in this case, although I note that the judge in Williams did not express concerns that the maximum sentence for the importation of cocaine was life. The concerns in Williams were focused on the inclusion of marijuana in the same Schedule as cocaine and heroin.

[67] I am not bound by the decision in Williams. I decline to follow the approach adopted in Williams as I view it as being wrong in law for a number of reasons which I will come to. I also note that Mr. Stafford used the reasoning in Williams in support of his arguments on other issues in this case. In my reasons, I have set out the reasoning that I believe applies. In places where Williams adopts different reasoning than I have set out above, I am of the view that it is wrong in law on those occasions as well.

[68] First, the analysis in Williams is based on a faulty premise. At paragraph 30, Renwick J. states “in terms of the maximum sentence, importation of a marihuana cigarette is the same as importation of one tonne of heroin. In this sense, the effect of the law is heavy-handed”.

[69] There are three problems with this statement. First, it ignores the fact that the two offences that the Judge described would be treated differently for the purposes of sentencing. Judicial discretion ensures that different circumstances are treated differently in sentencing.

[70] Second, and more importantly, when this statement is taken to its logical conclusion, it would result in there being no constitutionally permissible maximum sentences for anything other than murder. Even the maximums for robbery, manslaughter or aggravated assault would not be sustainable, because there would be an offender who should not get the maximum penalty. Therefore, if the reasoning in Williams was applied, these offenders would be subject to “heavy handed” punishment if they could receive the maximum sentence even if they did not actually receive it.

[71] Finally, if a sentence is not fit and proper, it can be corrected through appellate review. The law will not be applied in a heavy-handed manner, as the trial judge and/or the Appellate Courts will ensure that a fit and proper sentence is meted out to the offender.

[72] The second problem with Williams is that, when the reasons are read as a whole, it is clear that the judge was concerned about the categorization of various offences, and the drafting of various schedules of substances under the legislation. Indeed, at paragraph 35 of Williams, the judge refers to the “lack of symmetry” in the various importation sections of the CDSA, and goes on to find that this lack of symmetry is part of the reason why the sentencing provisions of the CDSA are arbitrary in part.

[73] The judge in Williams was concerned that the maximum penalty for offences relating to marijuana was the same as for offences relating to cocaine and heroin. This is a legislative choice, and not one that the Courts should micromanage. The fact that the Courts have recognized that the importation of heroin and cocaine are more blameworthy than the importation of marijuana does not mean that the legislature must choose different maximum sentences for the offences. Murder is more morally blameworthy than manslaughter, but the maximum penalty for both remains life in prison. The relative moral blameworthiness of an offence is taken into account as part of the sentencing judge’s analysis. It is not, however, the sentencing judge’s role to redraft the sentence ranges on the basis of his or her views about the moral blameworthiness of different forms of conduct. That is a choice for the legislature to make.

[74] In other words, the judge in Williams is engaged in precisely the type of micromanaging exercise that the Supreme Court has warned against.

[75] Third, in paragraph 34 of Williams, the judge used reasonable hypotheticals to justify his conclusion that the sentencing regime is arbitrary and overbroad. However, the use of hypotheticals with respect to maximum sentences is not sustainable. The fact that someone who imports two marijuana cigarettes would be subject to the maximum penalty does not mean that this penalty would actually be imposed on that offender. Sentencing judges have the ability to impose fit and proper sentences, and the maximums do not have to be imposed in every case.

[76] Finally, the judge in Williams has, in my respectful view, misapprehended the test for arbitrary and overbroad. There is a difference between a law that is overbroad and a sentence that is too long. Sentences that are too long can be adjusted through appellate review. A maximum sentence of life in prison will not be imposed, or sustained on appeal, unless it is a fit and proper sentence.

[77] This brings me to the principles of fundamental justice. In R v. Lloyd, 2016 SCC 13, [2016] 1 S.C.R. 130, McLachlin C.J.C. clearly states that proportionality in sentencing is not a principle of fundamental justice under section 7 of the Charter. She concludes her analysis on this issue by stating (at paragraph 44):

It has been said that “proportionality in sentencing could aptly be described as a principle of fundamental justice”: R v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at para. 36. However, this does not mean that proportionality constitutes a new principle of fundamental justice distinct from the well-established principle of gross proportionality under s. 7 of the Charter.

[78] In the result, a maximum sentence of life in prison for these offences is not a violation of section 7 of the Charter.

Issue #3- A Fit and Proper Sentence

[79] I have not found any of the impugned provisions unconstitutional. As a result, I must review the mitigating and aggravating factors in this case along with the case-law outlining the sentencing ranges for offences such as this.

a) Mitigating Factors

[80] In assessing mitigating factors, one of the issues I must resolve is whether there was any compulsion imposed on the Offender, short of what is required to establish a defence of duress. I note that duress was not a defence that the Offender sought to put to the jury during the course of the case. Indeed, at trial the Offender testified that she did not know that there was any cocaine in the package that she received.

[81] In essence, the Offender argues that she was in an abusive relationship with Mr. Nunes, and that this abusive relationship explained why she had committed the offences. I accept, on a balance of probabilities, that the Offender was in an abusive relationship with Mr. Nunes. I reach this conclusion on the basis of the following evidence:

a) The fact that the Offender has been involved with the Yorktown Shelter for Women since 2001 indicates that she has been involved in abusive relationships in the past. b) The dental records that show that the Offender had lost five teeth, and had to have four more extracted in November of 2011. c) Statements filed from friends of the Offender also indicate that her relationship with Mr. Nunes was abusive.

[82] However, there was no evidence at trial or on sentencing that the Offender committed these offences because she was in an abusive relationship. Indeed, at trial, the Offender testified that she did not know that there was any cocaine in the vases that she received in the package. In the pre-sentence report, the Offender also states that she was “not aware at all what I was signing for.” This evidence is inconsistent with any claim that the Offender was coerced into engaging in these offences as a result of an abusive relationship, and I reject this assertion.

[83] However, the fact that the Offender has been the subject of domestic abuse is part of her circumstances. In Hamilton, supra, Doherty J.A. adopted the following passage from the reasons of Durno J. in R v. G.B. ([2003] O.J. No. 3218 (S.C.J.)) at paragraph 45:

The offender’s background is always a relevant factor on sentencing. A sentence must be appropriate for both the offence and the offender. A person with a disadvantaged background, who has been subjected to systemic prejudices or racism, or was exposed to physical, sexual or emotional abuse, may receive a lower sentence than someone from a stable and peaceful background, where the offence is in some way linked to the background or systemic factors. The relevant factors in one person’s background will be case specific. A single factor will rarely be determinative.

[84] It also must be remembered that the offender spent two days in jail when she was arrested and is therefore entitled to a credit of three days.

[85] In this case, the relevant mitigating factors are as follows:

a) The Offender is a mature first-time Offender. b) The Offender has a family that she is raising, and contributes to society through her volunteer work. c) The Offender has been working to improve her education.

b) Aggravating Factors

[86] The Crown argues that one of the aggravating factors in this case is that, by telling the arresting officers that the bag contained items for the children, the Offender was using the children to try and hide the cocaine. In order to establish that something is an aggravating factor, the Crown must prove it beyond a reasonable doubt.

[87] I am not satisfied that the Crown has demonstrated that the Offender was using the children to hide the cocaine for the following reasons:

a) The evidence at trial demonstrated that the bag did contain items for the children. As a result, the Offender’s statement to the officer in this respect was true. b) The Offender soiled herself when she was arrested by the police. This fact causes me to infer that the Offender was taken by surprise by the arrest, and was not thinking logically. It is, therefore, unlikely that the offender was thinking clearly enough to try and use the children to hide the cocaine. c) The Offender would not have known, and would have no reason to believe, that the Police would not have searched the bag before it was turned over to her friend with the children.

[88] As a result, I do not find, beyond a reasonable doubt, that the Offender used the children in order to try and hide the cocaine from the police.

[89] In this case, the relevant aggravating factors are as follows:

a) The nature of the substance that was imported. b) The fact that this was not a spur-of-the-moment crime.

c) The Case-Law and Sentencing Ranges

[90] In assessing the appropriate sentencing range, there is one additional argument that must be addressed. The Offender argues that the amount of cocaine should be reduced from the 198 grams, because the cocaine was not pure.

[91] The Court heard no evidence at trial about the purity of the cocaine. However, on the sentencing hearing, the report of a Corporal Rodney Gray of the RCMP was filed. This report identifies that a cutting agent, Phenacetin, was used to dilute the cocaine. There is no evidence before me as to the extent of the dilution.

[92] Although the purity of the drug is not irrelevant to the sentencing range, it is also not a particularly significant factor (see Hamilton, supra at paragraphs 150 to 153). That is especially true in a case such as this, where there is no indication as to the extent of the dilution of the cocaine. As a result, I will not apply any deduction to the amount of cocaine that was imported.

[93] The starting point for any sentence for the importation of this amount of cocaine is Hamilton, supra, where Doherty J.A. stated (at paragraph 108):

Madden suggests a range of three to five years for the importation of one kilogram of cocaine “more or less”. Where the amount of cocaine imported is approximately half of that amount, the bottom end of the range should be adjusted downward. I do not suggest that the adjustment should follow any mathematical formula, but rather that it should recognize that the importation of lesser amounts of cocaine renders the crime somewhat less serious. In my view, where the amount of cocaine imported falls below the amounts described in Madden, the bottom end of the appropriate range of sentences should be at or near two years. I see no reasons to vary the upper end of the appropriate range.

[94] The range for the importation of a half kilogram of cocaine is 2 to 5 years. The Offence in this case involved just under a quarter of a kilogram, which is about half the amount in Hamilton. As a result, the sentence in this case should be modestly lower.

[95] The parties provided me with a number of cases on the sentencing ranges for these offences. None of these cases are directly on point. However, the most helpful of them are the decisions in R. v. Tulloch, 2016 ONSC 5997 and R. v. Nguyen, 2016 ONSC 1286.

[96] In Tulloch, the offender was convicted of possession of 260 grams of cocaine for the purposes of trafficking. The offender had a previous conviction for trafficking, but had significant mitigating factors, including the preservation of a business that he had established. Emery J. imposed a sentence of two years less a day.

[97] Similarly, in Nguyen, the accused had pled guilty to the possession of 182 grams of cocaine for the purposes of trafficking. In that case, Woollcombe J. acknowledged that a sentence of incarceration for two years less a day was at the low end for a commercial trafficking in cocaine of that scope. However, in considering the circumstances of the offender, Woolcome J. determined that two years less a day was the appropriate sentence.

[98] Counsel for the Offender argued that there should be some reduction in sentence and/or that the principle of proportionality should be applied because the Crown did not take Mr. Nunez’s case to trial. No case-law was cited in support of this argument, and there is no merit to it.

[99] Finally, there is the Crown’s argument that two and a half years is the appropriate sentence. When I asked Crown Counsel about whether a sentence of two years less a day was also appropriate, they argued that it was not. I disagree with this assertion.

[100] I am of the view that, in this case, the proper range of sentence for this offender is somewhere between eighteen months and three years. Giving primary weight to the seriousness of the offence, while also acknowledging the Offender’s personal circumstances, I am of the view that a sentence of two years less a day is appropriate in this case.

Conclusion

[101] For the foregoing reasons, I sentence Ms. Peralta to a period of incarceration of two years less a day on each count of the indictment that she was convicted on. These sentences are to be served concurrently. The three days credit for the pre-sentence custody are to be deducted from that time, so Ms. Peralta will serve a sentence of two years less four days.

[102] In addition, the following ancillary orders are to be made:

a) A DNA Order under section 487.051(3)(b) of the Criminal Code. b) A weapons and firearms prohibition order under s. 109 of the Criminal Code. To the extent that this Order is discretionary, it shall last for ten years from the date it was made.

Given the date of this offence, I have discretion to impose or not impose a victim surcharge. In light of the fact that the Offender’s only known source of income is social assistance benefits, I exercise my discretion not to impose the victim surcharge on her.

LEMAY J.

Released: August 24, 2018