COURT FILE NO.: CR-16-90000552-0000
DATE: 20190228
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
GIUSEPPE URSINO AND COSMIN DRACEA
Defendants
Tom Andreopoulos and Aaron Shachter, for the Crown
Dragi Zekavica for Giuseppe Ursino and Lydia Riva for Cosmin Dracea
HEARD: November 8, 2018 and January 9, 2019
B. P. O’MARRA J.
REASONS FOR SENTENCE
[1] Giuseppe Ursino and Cosmin Dracea were jointly charged on counts 1, 2, 5 and 6 of the indictment as follows:
COUNT #1:
THAT Giuseppe URSINO and Cosmin DRACEA, between December 3, 2014, and December 5, 2014, in the City of Vaughan, in the Region of York, in the Province of Ontario, did traffic in a substance included in Schedule I of the Controlled Drugs and Substances Act, to wit: cocaine, contrary to section 5(1) of the said Act.
COUNT #2:
AND FURTHER THAT Giuseppe URSINO and Cosmin DRACEA, between December 3, 2014, and December 5, 2014, in the City of Vaughan, in the Region of York, in the Province of Ontario, did traffic in a substance included in Schedule I of the Controlled Drugs and Substances Act, to wit: cocaine, contrary to section 5(1) of the said Act, for the benefit of, at the direction of, or in association with a criminal organization to wit: ‘Ndrangheta, thereby committing an offence contrary to s. 467.12 of the Criminal Code.
COUNT #5:
AND FURTHER THAT Giuseppe URSINO and Cosmin DRACEA, between May 7, 2014 and May 23, 2015, in the City of Vaughan, in the Region of York, and elsewhere in the Province of Ontario, in the country of Jamaica, in the country of the Dominican Republic, and in the country of Costa Rica, did conspire together and with Richard AVANES and a person or persons unknown to commit an indictable offence, namely, importing into Canada a substance included in Schedule I of the Controlled Drugs and Substances Act, to wit: cocaine, contrary to section 6(1) of the said Act, thereby committing an offence contrary to section 465(1)(c) of the Criminal Code.
COUNT #6:
AND FURTHER THAT Giuseppe URSINO and Cosmin DRACEA, between May 7, 2014 and May 23, 2015, in the City of Vaughan, in the Region of York, and elsewhere in the Province of Ontario, in the country of Jamaica, in the country of the Dominican Republic, and in the country of Costa Rica, did conspire together and with Richard AVANES and a person or persons unknown to commit an indictable offence, namely, importing into Canada a substance included in Schedule I of the Controlled Drugs and Substances Act, to wit: cocaine, contrary to section 6(1) of the said Act, thereby committing an offence contrary to section 465(1)(c) of the Criminal Code, for the benefit of, at the direction of, or in association with a criminal organization to wit: ‘Ndrangheta, thereby committing an offence contrary to s. 467.12 of the Criminal Code.
[2] Cosmin Dracea was separately charged on count 3 as follows:
COUNT #3:
AND FURTHER THAT Cosmin DRACEA, on December 5, 2014, in the City of Vaughan, in the Region of York, in the Province of Ontario, did have in his possession property, to wit: SIXTY THOUSAND DOLLARS in Canadian currency, knowing that all or part of the said property was derived directly or indirectly by the commission in Canada of an offence punishable by indictment, contrary to section 354(1)(a) of the Criminal Code, in an amount exceeding $5000, contrary to section 355(a) of the Criminal Code.
[3] Giuseppe Ursino was separately charged on count 4 as follows:
COUNT #4:
AND FURTHER THAT Giuseppe URSINO, on December 9, 2014, in the City of Vaughan, in the Region of York, in the Province of Ontario, did have in his possession property, to wit ONE THOUSAND DOLLARS in Canadian currency, knowing that all or part of the said property was derived directly or indirectly by the commission in Canada of an offence punishable by indictment, contrary to section 354(1)(a) of the Criminal Code, in an amount not exceeding $5000, contrary to section 355(b) of the Criminal Code.
[4] The trial proceeded before a jury. Giuseppe Ursino pleaded not guilty to all counts. Cosmin Dracea pleaded guilty to counts 1 and 3. He pleaded not guilty on counts 2, 5 and 6.
[5] On April 27, 2018 Giuseppe Ursino was found guilty on all counts he faced. Cosmin Dracea was found guilty on counts 1, 3, 5 and 6. He was found not guilty on count 2.
[6] Both accused have been on bail throughout their trial and pending sentence. The evidence and submissions on sentence were adjourned for significant time periods at the request of the defence. They were finally completed on January 9, 2019.
OVERVIEW
[7] The key witness for the Crown was a paid agent of the RCMP. He is a career criminal who surprisingly has no criminal record. From a relatively young age he has engaged in crimes including frauds, threats and intimidation to collect debts, carrying firearms and incidents of domestic violence. His agreements with the RCMP included enrolling him in the witness protection program. He was given a new identity and relocated. Evidence at trial included criminal activity he was involved in while in the witness protection program. In accord with R. v. Vetrovec, [1982] 1 SCR 811, the jury were instructed that it would be dangerous to rely on the uncorroborated evidence of such a witness in deciding whether the case against either accused has been proven guilty beyond a reasonable doubt.
[8] The key evidence against both accused were their own voices and images captured on judicially authorized interceptions and videos. The police agent speaks fluent English and Italian. His conversations with Giuseppe Ursino are interwoven with both languages. There was no dispute at trial as to the authenticity or accuracy of the interceptions and translations. Giuseppe Ursino introduced the police agent to Cosmin Dracea. The police agent conversed with Cosmin Dracea in English. The police agent had known Giuseppe Ursino for many years. The imposing physical stature and criminal reputation of the agent gave confidence to both accused that they were dealing with a serious criminal player.
[9] Counts 1 and 2 alleged that between December 3 and 5, 2014 both accused trafficked in cocaine and that they did so for the benefit of or related to a criminal organization, to wit the ‘Ndrangheta.
[10] Counts 5 and 6 alleged that between May 7 and 23, 2015 both accused conspired together and with Richard Avanes and a person or persons unknown to import cocaine into Canada, and that they did so for the benefit of or related to a criminal organization, to wit the ‘Ndrangheta.
[11] On count 3 Cosmin Dracea was charged that on December 5, 2014 he possessed $60,000 knowing it was derived from the commission of a crime. He was captured on video and audio exchanging 998.3 grams of cocaine for $60,000 cash from the police agent. The cocaine was later tested with a purity of between 82 and 84 percent.
[12] On count 4 Giuseppe Ursino was charged that on December 9, 2014 he possessed $1000 knowing it was derived from the commission of a crime. This was money paid to Giuseppe Ursino by the police agent for setting up the cocaine for cash deal between the police agent and Cosmin Dracea. At trial Giuseppe Ursino testified that this money was given to him as a gift and had nothing to do with a drug transaction.
[13] There were recorded conversations between Giuseppe Ursino and the police agent where they discussed various schemes to import cocaine. In some of the conversations Giuseppe Ursino tells the police agent he is not interested and does not want or need to know more about it. Some of the conversations include references to quantities of cocaine to be imported and how the proceeds will be shared. There were also meetings Giuseppe Ursino had with the police agent and Cosmin Dracea related to an agreement to import cocaine. At trial Giuseppe Ursino testified that some of the recorded conversations related to the importation of cocaine. However, he also testified that he had no intention to participate in any scheme to import cocaine. He said he wanted to keep the police agent close to him in hopes of collecting some or all of the $6000 owed to him by the police agent related to a prior unsuccessful joint venture running a social club.
[14] In many of the recorded conversations between Cosmin Dracea and the police agent, Cosmin Dracea said he had been in contact with other persons in Jamaica, Dominican Republic and Costa Rica about importing cocaine into Canada by various means. Cosmin Dracea testified that in fact he had no contact with anyone in those countries. He testified that he simply made up various scenarios based on information from the internet, movies and other sources. There was no evidence, other than what Cosmin Dracea told the police agent in their recorded conversations, of contacts between Cosmin Dracea and anyone outside Canada related to the conspiracy.
[15] At trial both accused testified that the ongoing references to a scheme to import cocaine was “just talk” and that neither intended to carry through with it. By their verdicts the jury did not accept those explanations. In support of their positions at trial both accused portrayed the alleged schemes as so ludicrous they could not be taken seriously. This included talk of importing hundreds of kilograms of cocaine in barrels of jerk sauce, in cardboard or in frozen fish. They also referred to the fact that no cocaine was ever imported or seized in regard to the alleged schemes.
[16] At the sentence hearing both accused continue to refer to the alleged schemes as so impractical and unattainable that the conspiracy alleged should not be taken seriously. The jury by their verdicts found otherwise.
THE FACTS – DETAILED CONVERSATIONS ABOUT THE PLAN TO IMPORT COCAINE – MORE THAN “JUST WORDS”
[17] From and including May 7, 2014 and May 27, 2015, there were a series of meetings and conversations involving Giuseppe Ursino, Cosmin Dracea and the police agent. Specific details of a plan to import cocaine are discussed and a kilogram of high-grade cocaine is sold by Cosmin Dracea to the police agent for $60,000. The meetings and conversations involving the three during this time period include the following:
May 7, 2014 and September 25, 2014 – Giuseppe Ursino tells the police agent about an opportunity to import cocaine through an import/export company in Canada. The police agent says he has such an import company.
October 15 and 20, 2014 – Giuseppe Ursino tells the police agent that the cocaine will come in shipping containers from the Dominican Republic and South America. The amount will be 100 kilograms. They discuss how the profits will be shared. Giuseppe Ursino tells the police agent he will introduce him to “Chris” who the police agent would deal with. Giuseppe Ursino says he will step back after he introduces Chris to take the heat off himself.
October 22, 2014 – Giuseppe Ursino, “Chris” (Cosmin Dracea) and the police agent meet and discuss the drug importation plan. The cocaine will come from the Dominican Republic in a container. They agree everybody is going to make money.
December 2, 2014 – Cosmin Dracea later meets the police agent and says he has access to companies in the Dominican Republic and Costa Rica. They discuss importing 100 kilograms. Cosmin Dracea offers to sell one kilogram to the police agent for $60,000.
December 3, 2014 – The police agent updates Giuseppe Ursino about his meeting with Cosmin Dracea. The police agent says he will pay Giuseppe Ursino if he buys the cocaine from Cosmin Dracea.
December 4 and 5, 2014 – Cosmin Dracea sells one kilogram of cocaine to the police agent for $60,000. The police agent meets Giuseppe Ursino four days later and pays him $1000 for setting up the drug deal with Cosmin Dracea.
January 15, 2015 – Cosmin Dracea tells the police agent that he has known Giuseppe Ursino for a long time.
February 10, 2015 – Cosmin Dracea tells the police agent that they have to change the plan and import the cocaine from Jamaica instead. He says it will be imported in “jerk sauce”. Cosmin Dracea tells the police agent to order a skid of jerk sauce to create a transaction history for the company. Cosmin Dracea also mentions that cocaine could possibly be imported hidden in fish.
February 17, 2015 – Giuseppe Ursino has further meetings with the police agent to confirm the importation scheme and their share of the profits.
March 10 and 12, 2015 – Cosmin Dracea gave $3000 to the police agent to pay for a test shipment of the jerk sauce. Cosmin Dracea tells the police agent that he can also order cocaine from Costa Rica and it will arrive in two weeks. Cosmin Dracea later tells the police agent they can bring in 500 kilograms of cocaine from Costa Rica hidden inside cardboard.
March 13, 2015 – The police agent meets Giuseppe Ursino and tells him about the $3000 he received from Cosmin Dracea for the test shipment of jerk sauce. The police agent tells Giuseppe Ursino that Cosmin Dracea and his group are serious. Giuseppe Ursino tells the police agent he would not have gotten the police agent involved if he did not think they were serious.
March 25, 2015 – Giuseppe Ursino later meets the police agent again who tells him of the plan for Cosmin Dracea’s group to send 100 kilograms from Jamaica and 500 kilograms from Costa Rica.
April 1, 2015 – Cosmin Dracea meets the police agent and tells him the buckets of jerk sauce are ready and he will tell him when to place the order. He also tells the police agent that the order from Costa Rica will be in frozen fish and contains 200 kilograms of cocaine.
April 2, 2015 – The police agent updates Giuseppe Ursino on the jerk sauce and Costa Rica importation plans. Giuseppe Ursino tells the police agent to finish the Jamaica transaction before doing the Costa Rica transaction.
April 7, 2015 – Cosmin Dracea meets the police agent and tells him the Jamaican importation is ready. The police agent tells Cosmin Dracea that he received an email from the company in Costa Rica. Cosmin Dracea tells the police agent that he had given the company the police agent’s business card. Cosmin Dracea confirmed that the Costa Rica shipment would be for 200 kilograms.
April 9, 2015 – Cosmin Dracea gives the police agent a list of fish to order from Costa Rica and says the shipment will be 100 kilograms.
April 16, 2015 – Giuseppe Ursino, Cosmin Dracea and the police agent meet and discuss the progress of the cocaine importations from Jamaica and Costa Rica. They discussed the split of profits and risks involved.
April 18, 2015 – Cosmin Dracea later meets the police agent and mentions the possibility of importing cocaine from the Dominican Republic.
April 21, 2015 – Cosmin Dracea later meets the police agent and provides an email address and instructions to obtain the name of a company in the Dominican Republic. Cosmin Dracea says the importation will contain 50 kilograms and they will receive 25%. Cosmin Dracea tells the police agent to start corresponding with the company in the Dominican Republic.
April 23, 2015 – Cosmin Dracea meets the police agent and gives him the name of a contact person in the Dominican Republic for the importation. Cosmin Dracea tells him there was a problem with the jerk sauce from Jamaica. They will have to put the cocaine in new buckets and then have them shipped.
April 28, 2015 – Giuseppe Ursino later meets with the police agent for updates on the progress of the cocaine importation from Jamaica and the Dominican Republic.
May 23, 2015 – Cosmin Dracea brought his “uncle” Richard Avanes to meet the police agent. Avanes told the police agent about his efforts to import cocaine. They discussed the pending cocaine shipments from the Dominican Republic, Costa Rica and Jamaica. Avanes said the shipment from the Dominican Republic is leaving imminently and the cocaine from Costa Rica will ship in two weeks. Avanes assured the police agent that the cocaine shipments will happen.
May 27, 2015 – The police agent meets Giuseppe Ursino and updates him on the importation. They discuss how their profit will be shared.
June 2015 – Both accused are arrested and charged.
THE CRIMINAL ORGANIZATION CHARGES
[18] There was an agreed statement of facts filed at the outset of the trial related to the ‘Ndrangheta. It was based on information supplied by an officer in the Carabinieri, a police force that operates throughout Italy. He is an expert in the ‘Ndrangheta; its structure, practices and activities.
[19] The agreed statement of facts included the following information:
OVERVIEW
The ‘Ndrangheta is an organized crime group based in Calabria, Italy;
The ‘Ndrangheta is separate and distinct from other organized crime groups in Italy, such as the Cosa Nostra;
The ‘Ndragheta is a highly structured and complex organization that is involved in numerous crimes, including drug trafficking, extortion, loan sharking, theft of public funds, robbery, fraud, electoral crimes, and crimes of violence;
There are members and structures of the ‘Ndrangheta outside Calabria in Italy, elsewhere in Europe, and internationally, including Canada. All of these structures outside Calabria are part of the same unified ‘Ndrangheta organization, with its operational centre in Calabria.
STRUCTURE
- The ‘Ndrangheta is a hierarchical organization with different levels of authority.
a) “Locale/Locali” or “Ndrine”
The basic structure of the ‘Ndrangheta are cells called Locale. Locali are associated to particular towns or geographical locations.
There are also groups called ‘Ndrine, which are smaller groups that arise out of a Locale. The term ‘Ndrine identifies a specific mafia family. In the Ndrangheta, there is often significant overlap between the mafia family and the blood family. The ‘Ndrine may be distant geographically from the Locale, but are responsible to the Locale from which they come.
Within each Locale, there is a hierarchy. There is a boss known as the “capo locale.” This position is held for life.
The members of the ‘Ndrangheta are divided into ranks. Within each Locale, there are two sections: the Societa Minore, which is the lower level, and Societa Maggiore, which is the higher level. Those in the Societa Maggiore are of a higher rank and have more power within the organization.
The Societa Minore and Societa Maggiore are further subdivided into ranks.
The ‘Ndrine and Locale are free to carry out criminal activities within their territory autonomously. However, they are not independent. The Locale and ‘Ndrine are subject to the control of the ‘Ndrangheta structures above them.
b) Camera Di Controllo (Board of Control)
Above the Locale are intermediate structures known by various names.
These intermediate structures exist because it is impossible for the highest level of authority in the ‘Ndrangheta to give orders in real time to the lower levels.
c) Provincia or Crimine
At the top of the hierarchy is a body known as the “Provincia” or “Crimine” that has authority over the entire organization. It is led by a boss known as the Capo Crimine. The Provincia does not get involved in the day-to-day criminal dealings of the units underneath. It is in charge of the organizational direction, unity, and fundamental rules of the organization as a whole.
OUTSIDE CALABRIA
The ‘Ndrangheta has expanded beyond Calabria to places throughout Italy, as well as internationally. There are members and Locali in Switzerland, Germany, the United States, Australia, and Canada. The members and Locali in Canada are in the Greater Toronto Area and in Thunder Bay.
The Locali outside of Calabria replicate the structure from Calabria, and are connected to their mother-Locale in Calabria.
All Locali, both in Calabria and abroad, are subordinate to the governing structure of the organization in Calabria. Like all Locali, the Locali in Canada are also autonomous in criminal activity, but ultimately accountable to the organization and its structures in Calabria.
Although the ‘Ndrangheta has become an international phenomenon, the unified nature of the organization means that all cells of the ‘Ndrangheta, even those abroad, follow the same rules and structure as those in Calabria, and are dependent on the structures in Calabria for their existence.
MEMBERSHIP
Within each Locale and ‘Ndrine, there is significant overlap between the criminal family and the blood family.
While there is no known rule prohibiting non-Italians from attaining membership in the ‘Ndrangheta, the expert has not, in his extensive experience, personally encountered a person not of Italian descent who is a member of the ‘Ndrangheta.
For those not born into the organization, to be admitted one must be selected by the members and be deemed criminally worthy. They must also undergo an initiation ceremony. In that ceremony, the person takes an oath to disown his family of origin and recognize only his ‘Ndrangheta family, and agree to respect the rules of the ‘Ndrangheta. This oath is for life.
Members are bound by a set of common rules, such as an oath of “Omerta”, meaning silence about the nature of the organization. Co-operation with the authorities is prohibited. The organization has formal mechanisms in place to punish those who do break the rules. These formal processes are, in effect, a parallel legal system.
The secrecy of the ‘Ndrangheta and its membership operates in two ways. There is external secrecy towards outside world, which is meant to prevent non- members from learning the criminal activities of the group.
There is also internal secrecy, in that people inside the ‘Ndrangheta are given only the information necessary to carry out their activities, and nothing more. They are not told of the ranks or roles of those above them. This secrecy is aimed at preventing possible leaks that could damage the organization and allow police infiltration.
It is not possible to know exactly how many members there are, but there are thousands of members worldwide.
CRIMINAL ACTIVITIES
The ‘Ndrangheta’s main activities are drug trafficking, extortion, loan sharking, theft of public funds, robbery, fraud, electoral crimes, and crimes of violence. Some members are involved directly in the commission of offences, while other members oversee criminal activities.
Members do engage with non-members in the commission of certain criminal activities. The ‘Ndrangheta has entrenched connections in South America through which they are able to facilitate the trafficking of cocaine.
While the ‘Ndrangheta are involved in non-criminal activities in Calabria, they are able to do so because their historical use of violence creates a culture of fear and intimidation. The principle of “Omerta” or silence, extends beyond the organization to law abiding members of the community. Because of its reputation for violence and criminal efficiency developed over time, it is often unnecessary for ‘Ndrangheta members to resort to violence in order to achieve their aims.
There have been conflicts between and within Locali. For example, there was a war between ‘Ndrangheta members in Reggio Calabria in which approximately 1000 people were killed.
BENEFITS OF MEMBERSHIP
The rules and structures of the organization facilitate criminal activity. The management of criminal activities by the organization results in benefits for the organization and its members, including financial benefits, and enhancing criminal power.
The structure of the organization, and its hierarchy, serve to insulate higher ranking members from police investigation. Those at a higher level also share in the proceeds of criminal activity.
The force of intimidation also protects members from violence, due to a fear of reprisals from the organization. Members can commit crime not hiding their face, but revealing their mafia membership, so the force of intimidation that comes from the ‘Ndrangheta can operate. The concept of Omerta means that police infiltration is very difficult, which allows members to commit crime with virtual impunity.
The existence of criminal cells related to the ‘Ndrangheta facilitates all kinds of criminal activities. For example, when it comes to trafficking narcotics, members of the ‘Ndrangheta will choose countries where its own associates are already present, or draw upon the connections of the organization, to facilitate the sale of narcotics.
[20] The Crown alleged that Giuseppe Ursino was not only a member of the ‘Ndrangheta but he was a local “boss”. This was based significantly on his recorded conversations with the police agent. Giuseppe Ursino denied in testimony that he was a member, let alone a “boss”. He admitted in his testimony that he referred to himself as such but said he was only bragging to string the police agent along.
[21] The Crown did not allege that Cosmin Dracea was a member of the ‘Ndrangheta. They alleged that he trafficked in cocaine and conspired to import cocaine for the benefit of, at the direction of, or in association with the ‘Ndrangheta. Some of the recorded conversations between Cosmin Dracea and the police agent include references to the connection of Giuseppe Ursino to the ‘Ndrangheta and his status as a “boss” in that criminal organization. Cosmin Dracea denied having any connection or affiliation with organized crime activities. He also denied the predicate offence of conspiracy to import cocaine.
[22] The conspiracy charges in counts 5 and 6 refer to Richard Avanes as a co-conspirator. He was separately charged on an information that alleged the following:
(1) Importing 53.5 kilograms of cocaine into Canada on or about August 25, 2013; and
(2) Between April 1, 2015 and May 23, 2015 he did conspire with Cosmin Dracea, Giuseppe Ursino and others to import cocaine into Canada.
On November 12, 2015 he pleaded guilty to both counts and received concurrent prison terms of 14 years. He had no prior criminal record.
POSITION OF THE PARTIES
[23] The Crown submits that the global sentences should be 16 years for Giuseppe Ursino and 14 years for Cosmin Dracea. Counsel for Giuseppe Ursino submits that a sentence of 7 years is appropriate. Counsel for Cosmin Dracea submits that a sentence range of 5-7 years is appropriate.
STATUTORY FRAMEWORK PROVISIONS
[24] The following provisions of the Criminal Code must be considered in this matter:
Purpose
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.
Fundamental principle
718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
Other sentencing principles
718.2 A court that imposes a sentence shall also take into consideration the following principles:
(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,
(iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization,
shall be deemed to be aggravating circumstances;
(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;
(c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;
Definitions
467.1 (1) The following definitions apply in this Act.
Criminal organization means a group, however organized, that
(a) is composed of three or more persons in or outside Canada; and
(b) has as one of its main purposes or main activities the facilitation or commission of one or more serious offences that, if committed, would likely result in the direct or indirect receipt of a material benefit, including a financial benefit, by the group or by any of the persons who constitute the group.
It does not include a group of persons that forms randomly for the immediate commission of a single offence.
Serious offence means an indictable offence under this or any other Act of Parliament for which the maximum punishment is imprisonment for five years or more, or another offence that is prescribed by regulation.
Facilitation
(2) For the purposes of this section, section 467.11 and 467.111, facilitation of an offence does not require knowledge of a particular offence the commission of which is facilitated, or that an offence actually be committed.
Commission of offence
(3) In this section and in sections 467.11 to 467.13, committing an offence means being a party to it or counselling any person to be a party to it.
Regulations
(4) The Governor in Council may make regulations prescribing offences that are included in the definition serious offence in subsection (1).
Commission of offence for criminal organization
467.12 (1) Every person who commits an indictable offence under this or any other Act of Parliament for the benefit of, at the direction of, or in association with, a criminal organization is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.
Prosecution
(2) In a prosecution for an offence under subsection (1), it is not necessary for the prosecutor to prove that the accused knew the identity of any of the persons who constitute the criminal organization.
Sentences to be served consecutively
467.14 A sentence imposed on a person for an offence under section 467.11, 467.111, 467.12 or 467.13 shall be served consecutively to any other punishment imposed on the person for an offence arising out of the same event or series of events and to any other sentence to which the person is subject at the time the sentence is imposed on the person for an offence under any of those sections.
Power of court to delay parole
743.6 (1) Notwithstanding subsection 120(1) of the Corrections and Conditional Release Act, where an offender receives, on or after November 1, 1992, a sentence of imprisonment of two years or more, including a sentence of imprisonment for life imposed otherwise than as a minimum punishment, on conviction for an offence set out in Schedule I or II to that Act that was prosecuted by way of indictment, the court may, if satisfied, having regard to the circumstances of the commission of the offence and the character and circumstances of the offender, that the expression of society’s denunciation of the offence or the objective of specific or general deterrence so requires, order that the portion of the sentence that must be served before the offender may be released on full parole is one half of the sentence or ten years, whichever is less.
Power of court to delay parole
(1.1) Notwithstanding section 120 of the Corrections and Conditional Release Act, where an offender receives a sentence of imprisonment of two years or more, including a sentence of imprisonment for life imposed otherwise than as a minimum punishment, on conviction for a criminal organization offence other than an offence under section 467.11, 467.111, 467.12 or 467.13, the court may order that the portion of the sentence that must be served before the offender may be released on full parole is one half of the sentence or ten years, whichever is less.
Power of court to delay parole
(1.2) Notwithstanding section 120 of the Corrections and Conditional Release Act, where an offender receives a sentence of imprisonment of two years or more, including a sentence of imprisonment for life, on conviction for a terrorism offence or an offence under section 467.11, 467.111, 467.12 or 467.13, the court shall order that the portion of the sentence that must be served before the offender may be released on full parole is one half of the sentence or ten years, whichever is less, unless the court is satisfied, having regard to the circumstances of the commission of the offence and the character and circumstances of the offender, that the expression of society’s denunciation of the offence and the objectives of specific and general deterrence would be adequately served by a period of parole ineligibility determined in accordance with the Corrections and Conditional Release Act.
Principles that are to guide the court
(2) For greater certainty, the paramount principles which are to guide the court under this section are denunciation and specific or general deterrence, with rehabilitation of the offender, in all cases, being subordinate to these paramount principles.
THE SERIOUSNESS OF CRIMINAL CONSPIRACY AND PLANS TO IMPORT COCAINE
[25] In R. v. Hamilton, [2004] O.J. No. 3252 (Ont. C.A.), paras. 101-105 referred to the objectives of sentencing in general and the importation of cocaine in particular:
101 In addition to complying with the principles of sentencing, sentences must promote one or more of the objectives identified in s. 718:
(a) to denounce 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 acknowledgement of the harm done to victims and to the community.
102 The relevance and relative importance of each of the objectives identified in s. 718 will vary according to the nature of the crime and the circumstances of the- offender: R v. Lyons, [1987] 2 S.C.R. 309 at 329; R. v. Morrisey (2000), 2000 SCC 39, 148 C.C.C. (3d) 1 at 23 (S.C.C.).
103 If the offence is particularly serious in that it causes or threatens significant harm to an individual or segment of the community, the objectives of denunciation and general deterrence will usually dominate the other objectives identified in s. 718. Prior to the introduction of the conditional sentence, where the objectives of deterrence and denunciation dominated, imprisonment was almost inevitable.
104 The importation of dangerous drugs like cocaine and others found in Schedule I of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 has always been considered among the most serious crimes known to Canadian law: Sentencing Reform: A Canadian Approach. Report of the Canadian Sentencing Commission, Ottawa Ministry of Supply and Services (1987), p. 205. The immense direct and indirect social and economic harm done throughout the Canadian community by cocaine is well known: Pushpanathan v. Canada (Minister of Citizenship and Immigration) (1998), 160 D.L.R. (4th) 193 at 235-37 (S.C.C.), per Cory J., in dissent on another issue; R. v. Smith (1987), 34 C.C.C. (3d) 97 at 123-24 (S.C.C.). 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 and strongly associated with violent crime. Cocaine importation begets a multiplicity of violent acts. Viewed in isolation from the conduct which inevitably follows the importation of cocaine, the act itself is not a violent one in the strict sense. It cannot, how ever, be disassociated from its inevitable consequences. Unlike the trial judge (para. 224), I characterize cocaine importation as both a violent and serious offence: see R. v. Pearson (1992), 77 C.C.C. (3d) 124 at 143-44 (S.C.C.).
105 Cocaine is not indigenous to Canada. Without the cocaine importer, whatever his or her motive or involvement, there would be no cocaine problem. Both before and after the amendments to the sentencing provisions Part XXIII of the Criminal Code and the introduction of the sentencing provision (s. 10) into the Controlled Drugs and Substances Act, S.C. 1996, c. 19, this court has emphasized the gravity of the crime and, therefore, the need to stress denunciation and deterrence in sentencing all drug importers, even vulnerable first offenders. In Cunningham, supra, at pp. 546-47, the court, 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.
[26] In R. v. Duncan et al., 2016 ONSC 1319, the three accused were convicted by a jury of conspiracy to import a controlled substance and importing 30 kilograms of cocaine into Canada. The three accused were ages 34, 38 and 27 years. None of them had prior criminal records. The approximate cost of the cocaine to a Canadian importer was $1 million and the approximate re-sale value was around $1.5 million. The conspiracy was ongoing, both before and after the importation and seizure of 30 kilograms of cocaine. The three accused looked for a company located at the Toronto airport and all had access to the secure “air side” of the airport.
[27] At para. 37, Justice Code referred to the sentencing ranges for the leaders or principals in large scale cocaine importation schemes:
37 In conclusion, this second group of cases discloses a range of 12 to 19 years for the leaders or principals in large scale cocaine importation schemes. Almost all of the accused were first offenders with families and almost all of them went to trial. The variation within the 12 to 19 year range appears to turn mainly on the quantities involved, as a reflection of the relative gravity, sophistication, and dangerousness of the particular schemes. As the Court of Appeal put it in R. v. Niemi, supra, “The sentence is imposed not to deter importing as a business venture but because of the extraordinary damage done by the drugs being imported”. The trial courts bear witness every day to the widespread ravages and criminal consequences of cocaine addiction and cocaine trafficking. Accordingly, the proportionality principle requires a sentence that reflects the very high objective gravity of an offence that causes so much harm, and that objective gravity will vary with the quantities involved. This second group of cases appears to suggest that the 19 year top end of the range is reserved for cases involving “hundreds of kilos”, that the 14 to 17 year middle range is appropriate for cases involving amounts in the high teens (e.g., 14 to 19 kilos), and that the 12 to 13 year bottom end of the range is appropriate for cases involving lesser amounts (e.g., 3 to 12 kilos).
[28] Justice Code found that the breach of trust aspect was a particularly aggravating feature as was the very large quantities of cocaine involved. He imposed a sentence of 11 years on each accused after reducing it by one year based on delays in bringing the matter to trial.
[29] In R. v. Tello, 2018 ONSC 2259, [2018] O.J. No. 2201 (S.C.O.) the accused was found guilty on four counts, including conspiracy to import at least 1000 kilograms of cocaine. The Court found that after participating in the conspiracy for a period of time the accused abandoned it. In fact no cocaine was imported. At para. 110 Justice Campbell commented on the impact of abandonment and non-delivery on sentence:
110 Second, the cocaine importing conspiracy in which the accused was engaged did not, ultimately, result in the importation of any cocaine into Canada. The accused and his co-conspirators were not able to successfully achieve their intended goal – the importation of thousands of kilograms of cocaine. Of course, had they been successful in the execution of their plans, the importation of cocaine into Canada would have been an additional substantive offence, or at least an aggravating circumstance in relation to the conspiracy offence. Moreover, the accused did eventually abandon the conspiracy. I am convinced that he only did so because he became suspicious of UCO Joe and wanted to avoid arrest, prosecution and imprisonment – but he did, in fact, abandon the conspiracy. Other partners in their illegal enterprise continued with lesser importation plans, but Mr. Tello wholly abandoned the project. Whether this is properly characterized as a mitigating circumstance or the absence of an aggravating circumstance ultimately matters little, as in my view it is an important factual reality in this case which must result, one way or another, in a significant reduction in the sentence that might otherwise have been imposed.
[30] In United States of America v. Dynar, [1997] 2 SCR 462, the Court addressed the seriousness of criminal conspiracy at paras. 89 and 90:
89 There can be no doubt that a criminal conspiracy constitutes a serious offence that is properly extraditable. Indeed, it was so recognized in the 1976 treaty between Canada and the U.S. in force at the time of the sting operation. The crime has a long and malevolent history. Conspirators have plotted to overthrow monarchs from biblical times through the time of the Plantaganets and Tudors. Guy Fawkes conspired with others to blow up the parliament buildings. Today conspirators plot to carry out terrorist acts, to commit murders or to import forbidden drugs. Society is properly concerned with conspiracies since two or more persons working together can achieve evil results that would be impossible for an individual working alone. For example, it usually takes two or more conspirators to manufacture and secrete explosives or to arrange for the purchase, importation and sale of heroin. The very fact that several persons in combination agree to do something has for many years been considered to constitute “a menace to society”: O’Brien, supra, at p. 669. In fact, the scale of injury that might be caused to the fabric of society can be far greater when two or more persons conspire to commit a crime than when an individual sets out alone to do an unlawful act.
90 As a result, it is obvious that the reason for punishing conspiracy before any steps are taken towards attaining the object of the agreement is to prevent the unlawful object from being attained, and therefore to prevent this serious harm from occurring. See Glanville Williams, Criminal Law -- The General Part (2nd ed. 1961), at p. 710. It is also desirable to deter similar conduct in the future. Those who conspire to do something that turns out to be impossible betray by their actions a propensity and aptitude to commit criminal acts; and there is no reason to believe that schemers who are thwarted on one occasion will not be successful on the next. Thus, the rationale for punishing conspirators coincides with the rationale for punishing persons for attempted crimes. Not only is the offence itself seen to be harmful to society, but it is clearly in society’s best interests to make it possible for law enforcement officials to intervene before the harm occurs that would be occasioned by a successful conspiracy or, if the conspiracy is incapable of completion, by a subsequent and more successful conspiracy to commit a similar offence.
[31] In R. v. Russo, [1998] O.J. 4143 (Ont. C.A.) there was an agreement to supply four kilograms of cocaine to a drug trafficker. The accused made unsuccessful attempts to obtain the cocaine. He was arrested before the proposed sale when it appeared to the police that it was unlikely that the cocaine would be obtained. The accused was convicted of conspiracy to traffic in cocaine. The trial judge imposed conditional sentences. The Crown successfully appealed and two-year prison terms were substituted for each accused.
[32] At paras. 12, 14 and 15, Doherty J.A. addressed the impact on sentence of the unsuccessful attempts to obtain cocaine for the sale:
12 In deciding that a penitentiary term was not required, the trial judge quite properly put considerable emphasis on the positive features of each respondents’ character and background. I think, however, he fell into two errors in principle when considering the nature and gravity of the offence. First, he emphasized the respondents' inability to actually deliver the drugs they had agreed to deliver to Destefano. He clearly regarded this as a mitigating factor. No doubt, this would have been a significantly worse case had the respondents actually obtained and delivered four kilograms of cocaine. I cannot regard their failure to do so, however, as properly placed on the credit side of the ledger for sentencing purposes. The respondents agreed to deliver four kilograms of cocaine to a drug trafficker. When they did so, they intended to make good on that promise. Discussions to that effect went on for some two months. The respondents did not withdraw from or abandon the conspiracy and their attempts to acquire the promised cocaine continued up to the date of Destefano’s arrest. Neither operated under extenuating circumstances like those found in R. v. Stevens (1997), 115 C.C.C. (3d) 372 which could be said to mitigate their culpability. They deserve no credit for the fact that their criminal aspirations exceeded their grasp. The trial judge erred in principle in discounting the gravity of the offence because the respondents were unable to deliver the cocaine as promised.
14 The exact nature of the criminal conspiracy entered into by the respondents should have been a important consideration in the imposition of sentence. These respondents were prepared to supply a massive amount of cocaine to a person they believed to be a drug trafficker. Their agreement contemplated a large- scale commercial transaction in a deadly substance. While ultimately no profit was made, there can be no doubt that profit was the motive. These respondents were prepared to do significant damage to others so that they could make money.
15 Conspiracies that contemplate the sale of large amounts of a drug like cocaine clearly pose a much more significant danger to the community than do agreements to supply small amounts to others for purely personal use. The amount the respondents agreed to sell to Destefano indicates that they were ready and willing to participate in the drug trade at a very high level. The trial judge erred in principle in giving no weight to the magnitude of the crime contemplated by the agreement made by the respondents.
[33] In R. v. Lawson, [2003] O.J. No. 5040 (ON SC), the accused was convicted of conspiracy to import cocaine and another offence related to a passport application. The conspiracy was frustrated without seizure of the cocaine by the police. The intent of the conspirators was to import a very large quantity of cocaine. At paras. 15 and 36, the Court commented on the role and responsibility of the importer in the cocaine trade:
15 The offender has been convicted of a very serious crime. Imported cocaine plays havoc with the well-being and lives of individuals and with the social fabric of the community at large. Cocaine destroys people. While the importer is removed from the consumer end-user so that the misery caused by the importer may not be visible to him, the reality is clear and certain. An importer of bulk cocaine for resale down the distribution chain is nothing less than a merchant of destruction and death.
36 The consequences of importing cocaine and other hard drugs like it are sufficiently severe to warrant significant penalties to discourage other like-minded greedy persons from attempting to bring illegal drugs into this country.
PERSONAL HISTORY OF GIUSEPPE URSINO
[34] Giuseppe Ursino was born on April 12, 1953 in Italy. He moved to Toronto in 1971 at the age of 18. He has been married for 40 years. He has strong family support through this process. He is described by his family members as “a good-hearted, caring and gentle husband, father and grandfather.” He does not have any prior convictions.
[35] From 1992 to 2002 Giuseppe Ursino owned his own business distributing food products to restaurants and banquet halls. He has been fully retired for two years. He claims he is supported financially by his old age pension and by members of his family.
[36] In the presentence report Giuseppe Ursino denied he had any first-hand knowledge or involvement in the alleged crimes. He maintains he simply said the wrong things to the wrong people and got caught up in feeling important. He denies he received any financial benefit related to the charges he faced. Counsel for Giuseppe Ursino filed materials on sentence related to ongoing medical issues, specifically cardiac issues, that will require ongoing medication and further medical intervention including surgery.
PERSONAL HISTORY OF COSMIN DRACEA
[37] Cosmin Dracea was born in Romania on August 18, 1976. He came to Canada in 2001 at the age of 25 while working for a cruise ship line. He has remained in contact with family members in Romania and New Jersey. He claimed refugee status when it docked in Vancouver. He later travelled to Toronto and is a Canadian citizen. He has been married since 2009 with two children ages 6 and 3 years. His wife is very supportive. She describes him as a wonderful father and husband. Their children are most important to them.
[38] Cosmin Dracea worked in construction from 2001 to 2011. He also worked at banquet halls to supplement his income. In 2011 he stopped work to stay at home with his daughter while his wife worked. From 2015-2018 he was a manager at a Sunset Grill Restaurant.
[39] Cosmin Dracea acknowledged that he formerly had a serious gambling problem. He stopped in 2007 when he met the woman he later married. He has no prior criminal record.
[40] In the presentence report Cosmin Dracea expressed remorse but said he did not know he could “get into trouble just by talking to people.”
[41] Character reference letters refer to Cosmin Dracea as “hard-working, motivated and caring” and “a loving, dedicated father and husband, who always puts his family first.” Former employees describe him as an “amazing” boss.
AGGRAVATING FACTORS ON SENTENCE
[42] The following aggravating factors are common to both accused:
(1) Cocaine was the specific drug involved in the trafficking and importing scheme.
(2) The quantity, quality and value of the cocaine sold to the police agent by Cosmin Dracea after the transaction was set up by Giuseppe Ursino was significant. One kilogram of high-grade cocaine was readily obtained by Cosmin Dracea and sold for $60,000.
(3) The conspiracy to import involved recorded conversations and video of meetings for plans to bring in hundreds of kilograms of cocaine for huge profits for those involved.
(4) The criminal organization aspect for both accused is an aggravating factor. Based on the evidence at trial Giuseppe Ursino is a high-ranking member of the ‘Ndrangheta who orchestrated criminal conduct and then stepped back to lessen his potential implication. Cosmin Dracea knew he was dealing with members of a criminal organization when he conspired to import cocaine.
(5) General deterrence must be a significant aspect of a sentence dealing with the sale, and a plan to import, large quantities of the dangerous drug cocaine for huge profits.
MITIGATING FACTORS ON SENTENCE
[43] There are some mitigating factors common to both accused:
(1) Both accused have no prior criminal record; and
(2) Both accused are by all accounts good and loving husbands and fathers. Mr. Ursino is also a grandfather. Both continue to have strong support from family and friends even as this case proceeded through the criminal court.
[44] Cosmin Dracea pleaded guilty to counts 1 and 3 and is entitled to some mitigation on that account.
[45] In certain circumstances a genuine expression of remorse may be viewed as a mitigating factor on sentence. For Giuseppe Ursino and Cosmin Dracea this is at best an ambivalent factor. Both accused have maintained the position they took in their testimony. They are entitled to do so and must not receive a harsher sentence for pleading not guilty and having a trial. That was their right. Both continue to assert that in regard to the conspiracy they were “just talking” and had no intent to carry through with any scheme to import cocaine. That assertion by both accused was rejected by the jury. I view the lack of remorse in this case as the absence of what would otherwise be a mitigating factor. It is not an aggravating factor.
CONCLUSIONS
[46] Judicial precedent and statutory provisions make clear that those who traffic and conspire to import cocaine will face long definite jail terms. This is based on the dreadful toll of this drug on society and the need to reflect general deterrence. Parliament has further provided that offences committed in relation to a criminal organization will involve consecutive sentences for that aspect.
[47] A criminal conspiracy when proven beyond a reasonable doubt does not involve “just talking” or “just words.” It involves an agreement of two or more persons for an unlawful purpose and the intent to carry through on the scheme. The fact that cocaine was not actually imported is the absence of what could otherwise be a further aggravating feature.
[48] I am satisfied that significant penitentiary sentences are required in this case for both accused. Their motive was greed. The product they trafficked and conspired to import is a blight on society. However, based on their respective personal circumstances, including no prior convictions, I am not satisfied it is necessary or appropriate to order that either accused must serve an increased portion of their respective sentences before they are eligible for parole. The issues of society’s denunciation of the offences, as well as general deterrence, will be adequately served by a period of parole ineligibility in accord with the Corrections and Conditional Release Act.
ANCILLARY ORDERS
[49] For Giuseppe Ursino there will be the following ancillary orders:
(1) DNA order pursuant to s. 487.051 of the Criminal Code based on the criminal organization charges which are primary designated offences;
(2) Pursuant to s. 109(2) of the Criminal Code prohibiting him from possessing:
(a) any firearm, other than a prohibited firearm or restricted firearm, and any crossbow, restricted weapon, ammunition and explosive substance for 10 years; and
(b) any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life.
[50] For Cosmin Dracea there will be the following ancillary orders:
(1) DNA order pursuant to s. 487.051 of the Criminal Code based on the criminal organization charge which is a primary designated offence;
(2) Pursuant to s. 109(2) of the Criminal Code prohibiting him from possessing:
(a) any firearm, other than a prohibited firearm or restricted firearm, and any crossbow, restricted weapon, ammunition and explosive substance for 10 years; and
(b) any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life.
RESULTS
For Giuseppe Ursino:
Count 5 Conspiracy to import cocaine 6 years
Count 6 Conspiracy to import cocaine related to a criminal organization 4 years consecutive
Count 1 Trafficking 1 kilogram of cocaine 5 years concurrent
Count 2 Trafficking 1 kilogram of cocaine related to a criminal organization 2.5 years consecutive
Count 4 Possession of proceeds of crime 1 year concurrent
TOTAL: 12.5 years Less 1 year credit for 28 days’ pretrial custody and stringent bail terms since July 2015
TOTAL GOING FORWARD: 11.5 years
For Cosmin Dracea:
Count 5 Conspiracy to import cocaine 6 years
Count 6 Conspiracy to import cocaine related to a criminal organization 4 years consecutive
Count 1 Trafficking 1 kilogram of cocaine 5 years concurrent
Count 3 Possession of proceeds of crime 2 years concurrent
TOTAL: 10 years Less 1 year credit for 28 days’ pretrial custody and stringent bail terms since July 2015
TOTAL GOING FORWARD: 9 years
Dated the 28th day of February, 2019.
B. P. O’Marra J.
Released: February 28, 2019
COURT FILE NO.: CR-16-90000552-0000
DATE: 20190228
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
GIUSEPPE URSINO AND COSMIN DRACEA
REASONS FOR sentence
B. P. O’MARRA J.
Released: February 28, 2019