COURT FILE NO.: 17-483 DATE: 11-13-18 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen – and – Massud Nawabi Defendant
COUNSEL: S. Tsai, Counsel for the Crown R. Christie, Counsel for the Defendant
HEARD: October 5, 2018
LEMON J.
REASONS FOR SENTENCE
Overview
[1] On August 1, 2018, Mr. Nawabi was convicted by a jury of importing cocaine into Canada. He is now to be sentenced for that offence.
The Background
[2] It was admitted that Mr. Nawabi brought the cocaine into Canada on February 29, 2016; the question at trial was whether Mr. Nawabi knew that the cocaine was in his bag. The jury found that he did.
[3] There are two factual issues to be determined before sentence can be passed.
[4] The first is whether continuity has been proven for all of the cocaine. The second is what the total weight of the cocaine was.
Continuity
[5] The Crown submits that Mr. Nawabi imported 4.04 kilograms of cocaine. The defence submits that 1.96 kilograms of that amount was not proved. The Crown must prove this aggravating factor beyond a reasonable doubt. The only evidence on this point comes from RCMP officer Kenneth Weber.
[6] Officer Weber arrested Mr. Nawabi based on information that he received from a Border Services Agency officer at the Toronto airport. He seized all of the exhibits from that BSA officer. He then escorted Mr. Nawabi and the exhibits to the RCMP holding cells.
[7] He photographed and fingerprinted Mr. Nawabi and transported him to the Peel police cells for processing. He then took all of Mr. Nawabi’s belongings and the exhibits to the RCMP detachment and placed them in a locker in the exhibit room.
[8] There were four packages taken from Mr. Nawabi and sampled for cocaine. A box of “Jet Cruji” chocolate; a box of “Jumbo Explosion” chocolate; a bag of Nestle “Nesquick” chocolate powder and a bag of Nestle “Milo”. The contents of each package were emptied into a separate plastic bag. Officer Weber took samples from each bag. Each sample was approximately .5 grams. In chief, Officer Weber testified that he processed the four samples taken from the four packages and obtained certificates of analysis for each. Each sample was found to contain cocaine.
[9] He took samples from both of the boxes. He put the contents of each box into one exhibit bag and took one sample from each bag. Those samples from the boxes were sent to Health Canada on September 21, 2017 in a secure package. That package was left in a dropbox for Health Canada. The samples were found to be cocaine. There is no dispute with respect to the contents of these packages. The contents of those bags totaled 2.072 kilograms of cocaine.
[10] However, the samples taken from the two Nestle’s bags were taken on March 9, 2016 and sent to Health Canada on March 20, 2016. Thereafter, Officer Weber was advised by Health Canada that those secure packages were not sealed properly. When he attended at the Health Canada office on April 6, 2016, he found that the seals of the secure package had been folded over but not sealed so that the sample was not sealed in the secure package.
[11] He observed the samples and put them into another secure package and sealed them. The exhibit bags that he found in the secure pack looked similar or identical to the packages that he had placed in the secure packs. However, he could not say that they were the same. He was not aware of Health Canada’s procedures and protocols for such samples but he did not believe that anyone other than police or Health Canada officials handled the samples. The labels that he saw on the secure packages were the same as what he sent to Health Canada. The sample bags that he used were different than the usual sample bags as they had run out of the usual ones when he was packaging the samples. The bags that he saw inside the secure packages were the same unusual kind of bags that he had put in the secure packages.
[12] These samples tested for cocaine and their total weight was 1.97 kilograms.
[13] It is the position of the defence that the exhibit bags of March, 2016 were left unsealed for 17 days. Officer Weber could not be sure that the plastic sample bags that he placed into the secure packs were the same as what he found at Health Canada. Accordingly, I should have a reasonable doubt about the continuity of this amount of cocaine.
[14] The Crown submits that the law regarding continuity has long been settled and that, in this case, the Crown has proven this matter beyond a reasonable doubt. The Crown relies on R. v. Dawdy, 1971 CarswellOnt 781 (CA), R. v. Oracheski, 1979 CarswellAlta 478 (ASC), R.v. DeGraaf, 1981 CarswellBC 444 (BCCA) and R. v. Scott, 2018 ONSC 5836 (SCJ). The Crown submits that on the uncontradicted evidence, any suggestion that the sample had been tampered with would be speculation.
[15] In my view, the evidence in its entirety supports the Crown position on this issue. While the secure package may have been unsealed, there is no evidence to suggest any tampering of any kind to the samples themselves. As said in Oracheski, there was not a “tittle of evidence” to support that the exhibit was interfered with. Officer Weber was candid that he could not be certain but the sample was packaged in the same unusual package in which he had placed it. The cocaine was of a similar purity as the other samples.
[16] The exhibits disclose that the package sent on March 20, 2016 was received by Health Canada on March 21, 2016 and found to be unsealed on April 4, 2016. On that basis, there is no suggestion that the unsecure package was with anyone other than RCMP officers or Health Canada staff. The Crown is not required to negate every possible conjecture that the defence may suggest. Throughout, the secure pack may have been unsealed but that does not mean that the samples were unsecured on their route to analysis. The only rational inference to be made on this evidence is that the samples taken from the Nestle bags found in the possession of Mr. Nawabi contained cocaine.
[17] I find that, to that point, Mr. Nawabi should be sentenced with importing 4.04 kilograms of cocaine.
Weight and Purity
[18] The defence submits that since the cocaine was approximately 80% pure, Mr. Nawabi should be sentenced on the basis that he brought in 20% less weight than as submitted by the Crown. Given the case law with respect to sentences for importing cocaine, the defence acknowledges that little turns on this issue.
[19] In my view, the law is clear that weight is not to be adjusted based on the purity level. While purity may make a difference to sentence, it does not adjust the weight of what is being imported. See: R. v. McCrea [2015] O.J. No. 4632 para. 67.
[20] Accordingly, I find that Mr. Nawabi should be sentenced on the basis of having imported 4.04 kilograms of cocaine.
Positions of the Parties
[21] The appropriate sentence might have changed, dependent on my findings above.
[22] The Crown submits that Mr. Nawabi should serve a sentence of seven to eight years in penitentiary regardless of my findings.
[23] The Crown also seeks an order: i. to take D.N.A. samples from Mr. Nawabi; ii. prohibiting Mr. Nawabi from possessing prohibited or restricted firearms pursuant to s. 109 (2) (a) of the Criminal Code for a period of 10 years, and iii. for the imposition of a victim fine surcharge.
[24] The defence submits that Mr. Nawabi should serve a sentence in the range of three to five years if the submissions on continuity and weight were accepted or, alternatively, six to seven years if not accepted. The defence does not dispute the ancillary orders requested by the Crown.
[25] The defence asks that I recommend that the sentence be served in the province of Quebec since Mr. Nawabi and his family are residents of Montréal.
Circumstances of the Offender
[26] Mr. Nawabi is 33 years of age. He was born in Canada and has spent most of his life in Montréal. He still resides there with his parents. He has a high school degree plus one year of college. He was employed at a laboratory for three years ending about 15 months before this trip. He has also had a variety of part-time employment. At the time of submissions, he was employed as a chef.
[27] Mr. Nawabi had no criminal record before this offence.
[28] There is nothing to suggest that Mr. Nawabi was other than an upstanding member of his community. His family members were in court to support him. Mr. Nawabi addressed me at the end of submissions. He appears contrite and remorseful.
Mitigating and Aggravating Factors
[29] In mitigation, as set out above, it appears that Mr. Nawabi has been a law abiding citizen and will likely return to that life.
[30] I have not been advised of any pre-trial custody.
[31] In aggravation, are the factors of the seriousness of the charge and the amount of cocaine involved.
Legal Parameters
[32] While all of the principles of sentencing set out in s. 718 of the Criminal Code are important to consider, our Court of Appeal has consistently ruled that general deterrence is the overriding factor when fashioning a sentence for importing cocaine. Where the offence is sufficiently serious, imprisonment will be the only reasonable response regardless of the background of the offender.
[33] It has been said that the importation of cocaine has always been considered one of the most serious crimes in Canadian law. The immense direct and indirect social and economic harm caused to the community by cocaine is well known. The use and sale of cocaine kills and harms both directly and indirectly. The direct adverse health effects on those who use the drug are enormous and disastrous. Cocaine sale and use is closely associated with violent crime. The importation of cocaine is not a violent act in the strict sense but it cannot be separated from its inevitable consequences.
[34] In R v. Cunningham, [1996] 27 O.R. (3d) 786 (CA), our Court of Appeal, in fixing a range of six to eight years for couriers who smuggle large amounts of cocaine into Canada, said:
We recognize as well that the suggested range will often require the imposition of a severe penalty for first offenders. We are not insensitive to this concern, mindful as we must be that in many instances, couriers tend to be weak and vulnerable, thereby becoming easy prey for those who engage in drug trafficking on a commercial basis.
Sympathetic though we are to the plight of many couriers, such concerns must give way to the need to protect society from the untold grief and misery occasioned by the illicit use of hard drugs. In this regard, we can do no better than to quote from the majority judgment in R.v.Smith. . . . the remarks made by Lamer J. at the outset of his reasons bear repetition:
Those who import and market hard drugs for lucre are responsible for the gradual but inexorable degeneration of many of their fellow human beings as a result of their becoming drug addicts. The direct cause of the hardship cast upon their victims and their families, these importers must also be made to bear their fair share of the guilt for the innumerable serious crimes of all sorts committed by addicts in order to feed their demand for drugs. Such persons, with few exceptions (as an example, the guilt of addicts who import not only to meet but also to finance their needs is not necessarily the same in degree as that of cold-blooded non-users), should, upon conviction, in my respectful view, be sentenced to and actually serve long periods of penal servitude.
There can be no doubt that commercial traffickers rely heavily on couriers to facilitate their deadly trade. That being so, it falls to the courts to warn would-be couriers, in no uncertain terms, that they will pay a heavy price for choosing to import large quantities of hard drugs for quick personal gain.[Citations omitted]
Analysis
[35] I have applied the principles set out in the case law referred to above. I have considered the sentencing principles set out in s. 718 of the Criminal Code along with the following considerations.
[36] I accept the wisdom of our Court of Appeal as to the range to be considered.
[37] A sentence should be similar to sentences imposed on similar offenders for similar offences in similar circumstances. I must therefore consider the various reported cases on sentences for importing cocaine. Crown counsel has provided me with a number of cases and those cases are not distinguished by the defence. Those cases support the range as submitted.
[38] The cocaine was found to be 80% or more in purity and came from a known source country.
[39] While the amount of cocaine was significant, the method of importing was unsophisticated; the manner of concealment was quickly discerned.
Result
[40] Taking all of those factors into consideration, I find that the appropriate sentence is that Mr. Nawabi shall serve a sentence of seven years in custody.
[41] Pursuant to s. 109 of the Criminal Code, Mr. Nawabi shall be prohibited from possessing prohibited or restricted firearms for 10 years from the date of his release from custody.
[42] There shall be an order pursuant to the mandatory requirements of s. 487.051 of the Criminal Code for the taking of DNA samples.
[43] The Crown made no submissions with respect to a victim fine surcharge other than as set out in the Code; section 737(2) of the Criminal Code shall apply.
[44] I recommend that the sentence be served in the province of Quebec as Mr. Nawabi and his family are residents of Montréal.