Court File and Parties

COURT FILE NO.: CR-13-768 DATE: 20190404 ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN Andrew Wiese, for the Crown

- and -

LINCOLN LEE DAWKINS Paula Seymour, for the Defence

HEARD: January 4, 2019

REASONS FOR SENTENCE

Petersen J.

OVERVIEW

[1] On November 16, 2018, after a 14-day trial, a jury convicted Mr. Dawkins of importing cocaine into Canada, contrary to s. 6(1) of the Controlled Drugs and Substances Act, S.C. 1996, c.19 (“CDSA”) and of conspiracy to import cocaine into Canada, contrary to s. 465(1)(c) of the Criminal Code of Canada, R.S.C. 1985, c. C-46.

[2] These reasons deal with the sentence to be imposed on Mr. Dawkins for these offences.

FACTS

Circumstances of the Offences

[3] On the evening of June 16, 2013, two suspicious packages were located in a men’s public washroom at Toronto Pearson International Airport. The washroom was in Terminal 3, in the secure part of the airport, just outside the Canada Border Services Agency (“CBSA”) primary inspection area.

[4] The packages were located on the floor in a stall of the washroom shortly after the arrival of an international flight from St. Maarten. Mr. Dawkins and his co-accused, Marvis Samuel, were both passengers on that flight. They are both foreign nationals. Mr. Samuel is a citizen of Antigua and Mr. Dawkins is a citizen of Jamaica. Mr. Dawkins is also a permanent resident of Canada. I mention their immigration status because sentencing can impact the right of non-citizens to remain in the country.

[5] Both Mr. Samuel and Mr. Dawkins entered the men’s washroom after disembarking from their flight and prior to entering the CBSA primary inspection area. The two packages were found by an airport employee shortly after they exited the washroom. Airport security officers and CBSA secondary inspection officers were alerted.

[6] The packages were suspected of containing cocaine. It was later confirmed that they did, in fact, contain cocaine.

[7] After clearing the CBSA primary inspection area, Mr. Samuel and Mr. Dawkins were both sent to the CBSA secondary inspection area, where their luggage was searched. Mr. Samuel was found to be in possession of items that linked him to Mr. Dawkins, including a cell phone with a number connected to a cell phone in Mr. Dawkins’s possession, an envelope with handwriting bearing the name “Lincoln” and some phone numbers, and a Customs Declaration Card bearing Mr. Dawkins’s home address in Chateauguay, Quebec. CBSA officers testified that identical empty black backpacks were located in each of Mr. Samuel’s and Mr. Dawkins’s luggage. No drugs were found in either of the men’s possession.

[8] Mr. Dawkins and Mr. Samuel were both arrested in the CBSA secondary inspection area of the Toronto airport on the night of June 16, 2013. Each was charged with importing cocaine and conspiracy to import cocaine into Canada. Both were taken into custody by the Royal Canadian Mounted Police (“RCMP”). Mr. Dawkins was eventually released on a recognizance of bail after 24 days in jail.

[9] On June 17, 2013, the day after their arrests, CBSA and RCMP officers searched the same airport washroom and located an additional 16 bricks of cocaine and a cell phone concealed in a drop ceiling. Of the 16 bricks, 15 had similar packaging to the 2 bricks that were found the day before. The total amount of cocaine seized from the washroom weighed 17.3432 kilograms.

[10] Forensic analysis of the cell phones in Mr. Samuel’s and Mr. Dawkins’s possession revealed text messages and calls between the two phone numbers, including a text from Mr. Dawkins’s phone number at 12:17:16 p.m. on June 16, 2013, stating, “when you chech in wait until i go tru before you come.” Later, at 02:59:26 p.m. that same day, he texted, “ok how much you have” and received a responding text from Mr. Samuel’s phone number stating “9”. The evidence at trial established that Mr. Dawkins boarded the flight in St. Maarten shortly after these messages were exchanged.

[11] Mr. Dawkins testified that these messages were exchanged with a childhood friend in St. Maarten. He said the messages were about Viagra pills that he had purchased from an acquaintance and shared with his friend. He could not explain how Mr. Samuel, a person he claimed was unknown to him, came to be in possession of a cell phone with his friend’s phone number. He also could not explain why or how Mr. Samuel, a purported stranger to him, listed Mr. Dawkins’s home address on the Customs Declaration Card.

[12] The forensic evidence at trial showed that Mr. Dawkins’s cell phone had also been used to text other phone numbers. At 2:13:25 p.m. on June 16, 2013, while he was in the St. Maarten airport, Mr. Dawkins texted a message that stated, “before we go on plane them search I see them setting up table”. Shortly thereafter, he texted several messages to yet another phone number including, “Sorry a mistak i make a me take up too much i have 10 him haVe everything good”. There was also evidence that he had texted the address of a hotel in St. Maarten to two different phone numbers on the afternoon of June 15, 2013, one of which was the same number to which he texted the “mistak I make” message.

[13] The above messages are not all the incriminating texts adduced as evidence by the Crown, but rather a sample of key messages upon which the Crown relied. Mr. Dawkins denied the Crown’s suggestion that these text messages referred to a drug importation scheme and to bricks of cocaine that were being carried by him and Mr. Samuel into Canada via their flight from St. Maarten. His Viagra explanations were not credible and must not have been believed by the jury.

[14] At no time did Mr. Dawkins suggest that he had been duped into importing cocaine into Canada. His defence was that he knew nothing about the bricks of cocaine and had no involvement in their importation or their concealment in the airport washroom. The jury obviously rejected his testimony to that effect as being not credible.

[15] Forensic analysis was performed on the bricks of cocaine. RCMP witnesses testified that Mr. Dawkins’s fingerprints were located on the exterior of 3 of the 16 bricks that were found in the washroom ceiling. Mr. Samuel’s fingerprint was located on one of the bricks found in the ceiling. Mr. Dawkins maintained that his prints could not have been on the bricks because he never touched them. The forensic expert witness’s testimony was forthright and compelling. It persuaded me of the presence of Mr. Dawkins’ fingerprints on the exterior packaging of three bricks.

[16] Mr. Samuel pleaded guilty to conspiracy to import cocaine. He admitted to being personally involved with respect to two of the bricks found in the airport washroom. He received a sentence of nine years’ imprisonment (six years plus two years of pre-trial custody, for which he was credited with three years). He served a portion of his sentence, was paroled and was deported from Canada back to Antigua, where he resides.

[17] Mr. Dawkins maintained his innocence at trial and has continued to do so since his conviction. He has not accepted any responsibility for the offences and has not expressed any remorse for his actions.

Circumstances of the Offender

[18] Mr. Dawkins was born in December 1978 in Jamaica. He has four siblings. He was 34 years old at the time of the offences and was 40 years old on the date of his sentencing hearing.

[19] Mr. Dawkins immigrated to Canada in June 1998 and subsequently became a permanent resident. His mother resides in Quebec and his father resides in Jamaica. They separated during his youth but both remained involved in his upbringing. He had a positive childhood. He maintains a good relationship with both of his parents. He also has a close relationship with his siblings, two of whom reside in Canada and two of whom reside in Jamaica.

[20] Mr. Dawkins has five biological children and a step-son with different partners. The children range in age from 8 months to 22 years. Some of them reside in Jamaica and some reside in Canada. Prior to his arrest, he travelled regularly to Jamaica and spent time with his children there. He provides some financial support for all of his children. He also assists his father financially. He maintains amicable relationships with his ex‑partners, one of whom is one of his sureties.

[21] Mr. Dawkins married his current wife in June 2017. They have an infant daughter and are expecting their second child. His wife is also originally from Jamaica but is a Canadian citizen. She and Mr. Dawkins are both very concerned about the impact of his conviction and sentence on his immigration status and the consequences for their family.

[22] The immigration implications for Mr. Dawkins are potentially extremely serious. Under current immigration law, a permanent resident who is convicted in Canada of an offence that is punishable by a maximum term of imprisonment of at least ten years is deemed “inadmissible” on grounds of “serious criminality”. Mr. Dawkins’s convictions therefore make him vulnerable to a removal order that could result in his deportation. Moreover, he will have no right to appeal the removal order if he is sentenced to more than six months’ imprisonment: Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 36(1)(a) and 64 ; R. v. McKenzie, 2017 ONCA 128, 136 O.R. (3d) 614, at para. 24 ; and R. v. Stankovic, 2015 ONSC 6246, at para. 47 .

[23] Mr. Dawkins wishes to remain in Canada, not only because of his wife and young children here, but also for economic reasons. He owns a livestock farm in Jamaica, which is operated by his father. It was formerly a successful farm, which enabled him to support his father and his children in Jamaica. His farm used to sell to hotels in Jamaica, but he has not been able to return to Jamaica to renew his farm licence since his arrest, so his farm now only sells to locals. Consequently, the farm has been generating less income, which results in him having to send money to his family in Jamaica from his employment earnings in Canada. He believes that, if he is deported to Jamaica, he will not be welcome because of his conviction and no one will want to purchase from his farm. He believes that he will confront employment barriers in Jamaica and will not be able to earn the same income that he earns in Canada. He needs money to support his wife and children in Canada, as well as his family in Jamaica.

[24] Moreover, when he was interviewed by the Probation and Parole Officer who prepared his pre-sentence report, Mr. Dawkins expressed fears of possibly being killed if he returned to Jamaica. The pre-sentence report did not elaborate on the basis for this fear; I am unable to assess its sincerity or validity.

[25] Mr. Dawkins’s mother advised the Probation and Parole Officer that his charges are viewed as a “disgrace to Jamaica”. She explained that they have therefore not informed their extended family or friends in Jamaica of his current involvement with the criminal justice system in Canada.

[26] Despite having limited education, Mr. Dawkins has led a productive, industrious and successful life for the past 20 years in Canada. He has consistently demonstrated a strong work ethic and a commitment to his community. He has had no prior involvement with the criminal justice system.

[27] When he first moved to Canada, he worked as a machinist for a number of years. He also played professional soccer for a team in Montreal. He excelled at soccer and won a number of athletic awards. He retired from the sport as a result of an injury. He then secured employment at a Caribbean restaurant in Montreal and eventually became the restaurant’s manager and head chef.

[28] In addition to his full-time work at the restaurant, Mr. Dawkins worked part-time as a producer of the Montreal Reggae Festival from 2005 until his arrest in 2013. The festival is a high-profile annual cultural event in Montreal. Prior to his arrest, Mr. Dawkins also produced music shows in and recruited reggae artists from various Caribbean countries, which required significant travel.

[29] In 2015, Mr. Dawkins opened his own West Indian restaurant in Montreal, with financial assistance from his mother and his church. His mother and sister now operate the restaurant, as Mr. Dawkins is living in Ontario with his wife and daughter. He has found work in Ontario and is currently gainfully employed by a company that manufactures and installs window blinds and shades. His employer is aware of his convictions and anticipated incarceration. The office administrator indicated that he would be welcome to return to work upon his release from prison.

[30] Since his arrest, Mr. Dawkins has become extensively involved in the Bethlehem United Church of Jesus Christ (“Apostolic Church”), which is how he met his wife. He has severed ties with a number of his prior associates and currently devotes his non‑working time exclusively to his family and church community. Numerous members of his church community provided letters of support for him. A number of his family members also provided supportive letters.

[31] A total of 22 letters were submitted by defence counsel at the sentencing hearing. All of the authors expressed the view that Mr. Dawkins’s offences are out-of-character. They consistently described Mr. Dawkins as dependable, kind, caring, compassionate, honourable, hard-working and respectful. They said he was a devoted father and a loyal brother, son and friend. They commended his work ethic, family-orientated mindset and community service. They all expressed a willingness to support him despite his convictions and confidence in his ability to lead a pro-social life.

[32] In one of the letters, the Lead Pastor of the Apostolic Church explained that one of the primary roles of the church is to help people make necessary changes in their lives, often from criminal conduct or moral failings. He stated that the church supports individuals in their transformation, without trying to absolve them of the consequences of their prior actions.

[33] It is clear from the documents in the record that Mr. Dawkins has contributed positively to the lives of many people and benefits from extensive family and community support.

POSITIONS OF THE CROWN AND DEFENCE

[34] Crown and Defence counsel both submit that the appropriate sentencing range for offences of this nature is 9 to 12 years’ imprisonment. They disagree on where Mr. Dawkins’ sentence should fall within this range.

[35] The Crown takes the position that Mr. Dawkins should be sentenced to 12 years in prison. Defence submits that his sentence should be nine to ten years’ imprisonment.

STATUTORY PARAMETERS

[36] Conspiring to import and importing 17.34 kilograms of cocaine into Canada are serious offences punishable by up to life imprisonment: CDSA, s. 6(3)(a.1); and Criminal Code, s. 465(1)(c).

[37] The fundamental purpose and objectives of sentencing are set out in s. 718 of the Criminal Code. The Court of Appeal has identified a need to stress the goals of denunciation and deterrence in sentencing all drug importers, even vulnerable first offenders: R. v. Hamilton and Mason (2004), 72 O.R. (3d) 1 (C.A.), at para. 105 .

[38] Although cocaine is not the most dangerous of hard drugs available on the streets, it is nevertheless a highly addictive substance that inflicts grievous harm on users, their families and their communities. It is not indigenous to Canada. Without cocaine importers, there would be no cocaine problem in this country: Hamilton and Mason, at para. 105 . Those like Mr. Dawkins, who participate in its importation, contribute significantly to the spread of grief and misery in society. Their actions must be condemned by the court. Others who would contemplate engaging in similar activity need to know that the cost of a poor decision will outweigh any potential financial gain. It falls to the courts to warn would-be couriers and other importers, in no uncertain terms, that they will pay a heavy price for choosing to import large quantities of hard drugs for quick personal gain: R. v. Cunningham (1996), 27 O.R. (3d) 786 (C.A.), at p. 9.

[39] Denunciation and general deterrence are not, however, the only objectives that should be served by the sentence imposed in this case. Rehabilitation remains a goal. Section 10 of the CDSA specifically recognizes rehabilitation as one of the objectives of sentencing: R. v. H. (C.N.) (2002), 62 O.R. (3d) 564 (C.A.) at para.25.

[40] Furthermore, s.718.2 of the Criminal Code requires me to take into consideration the principles of totality, parity and restraint in sentencing: Hamilton and Mason, at para.95.

[41] Finally, the Supreme Court of Canada has made it clear that the cardinal principle of sentencing is proportionality: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 12 . This means that a sentence must be proportionate to the gravity of the specific offence and the degree of responsibility and moral blameworthiness of the particular offender: Criminal Code, s. 718.1; and R. v. Loor, 2017 ONCA 696, at para. 32 .

Mr. Dawkins’s Degree of Responsibility and Moral Blameworthiness

[42] There is no evidence upon which to conclude that Mr. Dawkins is a drug user, let alone a cocaine addict. The implication of this finding is that his act of importation was not for personal consumption but rather was a commercial transaction. The quantity of the drug imported would, in any event, exceed an amount that might reasonably be for personal consumption. Mr. Dawkins therefore does not benefit from the mitigating effect that an addiction can have on the moral blameworthiness of an offender in some drug cases: R. v. Smith, [1987] 1 S.C.R. 1045, at p. 1053.

[43] It is not apparent from the verdict of the jury whether Mr. Dawkins was found to be a principal acting on his own behalf or a courier. I need to make that determination in order to assess the degree of Mr. Dawkins’s responsibility and decide the appropriate sentence in this case. As Hill J. explained in R. v. Holder (1998), 21 C.R. (5th) 277 (Ont. S.C. (Gen. Div.)), at para. 34,

This is an issue which frequently arises in cases involving unlawful importation of a narcotic or a controlled drug or substance. If indeed the offender is a courier, it is seen uniformly as being a mitigating circumstance in sentencing. In these circumstances, the accused is viewed as a lesser player in the organization, an employee, a “runner” or a “mule”. A principal on the other hand, is one who is a more active participant, more substantially involved, likely to receive more profit and certainly more intricately involved in domestic sub-distribution of the narcotic or controlled substance.

[44] A convicted importer is presumed to be a principal, but an offender can rebut that presumption with proof to the contrary on a balance of probabilities: Holder, at para. 35 .

[45] During the sentencing hearing, Crown counsel argued that Mr. Dawkins was a principal in the drug importation scheme. He submitted that Mr. Dawkins appeared to be directing Mr. Samuel via their text messages and through actions captured on the airport video surveillance recordings. The Crown urged the court to take this into consideration in determining the length of Mr. Dawkins’s sentence and in assessing the parity between his sentence and the sentence imposed on Mr. Samuel.

[46] I reject the Crown’s submissions on this point. The evidence presented at trial does not support a conclusion that Mr. Dawkins was directing Mr. Samuel’s participation in the importation scheme. The text messages between them and other evidence show that Mr. Dawkins was coordinating efforts with Mr. Samuel, but the record does not establish that Mr. Dawkins was in control. On the contrary, the evidence establishes on a balance of probabilities that he was reporting to other unknown persons, who were providing instructions and controlling the operations.

[47] There is no evidence that Mr. Dawkins was going to be involved in trafficking the imported cocaine domestically, as a principal would be expected to do. The packages were left in an airport washroom to be retrieved by others. He and Mr. Samuel were mere couriers. Mr. Dawkins was knowingly and actively involved in a large scale illegal importation scheme. His participation was essential to the success of the scheme. He was not, however, a directing mind of the operation, nor even a middleman.

Aggravating Factors

[48] The nature of the drug imported is an aggravating factor in this case. The social harm caused by cocaine is well known. As the Court of Appeal noted in Hamilton and Mason, at para. 104 ,

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, however, be disassociated from its inevitable consequences.

[49] The large quantity of the drug imported is also a significant aggravating factor in this case. The greater the amount of cocaine imported, the broader its potential distribution, which increases the harmful consequences of the accused’s conduct: R. v. Duncan, 2016 ONSC 1319, at para. 28 .

[50] The fact that the bricks of cocaine were secreted in the airport is another aggravating factor in this case. It suggests a degree of sophistication in the importation scheme that made it more difficult for border security officers to detect the importation of the illicit drugs.

Mitigating Factors

[51] Mr. Dawkins is a first time offender, which is a significant mitigating factor in this case.

[52] Another important mitigating factor is that he has excellent rehabilitation prospects. Since his arrival in Canada 20 years ago, he has been steadily and gainfully employed, often at more than one job. He knows the value of hard work and the meaning of honest work. He has demonstrated responsibility and reliability by financially supporting many people in his life. He has contributed positively to the culture and broader community in Quebec. His involvement with West Indian restaurants and with the annual reggae music festival in Montreal has enriched and promoted Caribbean-Canadian culture. His more recent involvement in his church community in Ontario has touched a wide spectrum of people. He has many positive qualities and enjoys widespread support, both of which bode well for his rehabilitative potential.

[53] There was a five-year delay in bringing these charges to trial. There was no s. 11(b) motion under the Canadian Charter of Rights and Freedoms and no suggestion that the Crown was responsible for an unreasonable period of delay. Still, a lengthy delay between arrest and conviction can constitute a mitigating factor in some cases, even if the delay falls within constitutional norms: Duncan, at paras. 42-48 . For example, delay will mitigate sentence when exceptional hardship would result from re-incarceration after a sentence has already been served or after a period of bail pending appeal. Delay can also mitigate sentence when the accused has changed during the period of delay and is now reformed: Duncan, at para. 44 .

[54] I am not persuaded that Mr. Dawkins has undergone a transformation of the sort that would justify mitigation on account of the years that have passed since his arrest. There is evidence that he has severed ties with previous associates, but there is no evidence that those associates were involved in any criminal activity, let alone drug importation. Since his arrest, Mr. Dawkins has become heavily involved in his church community and has apparently lead a pro-social life. Some of his character references suggested in their supporting letters that he must have changed, but in the absence of any acceptance of responsibility or expression of remorse on his part, I cannot find that he has been “reformed”. His testimony was that he had no involvement in the drug importation and has always been a law-abiding resident of this country. By his own account, nothing has changed in that regard. The delay between his arrest and conviction does not, therefore, in and of itself, constitute a mitigating factor in this case.

[55] The delay is relevant, however, because Mr. Dawkins has been required to comply with bail conditions for an extended period of time, namely five and a half years. There have been no breaches of the conditions. His conduct since his arrest for these offences has been exemplary. This is a relevant mitigating factor to be taken into consideration: Duncan, at para. 29 .

[56] Mr. Dawkins’s personal circumstances are also relevant to the issue of mitigation. He is the father of an infant daughter and is expecting another child with his wife. His incarceration will separate him from these two young children at critical bonding stages of their lives. He will miss key milestones in their development. His incarceration will impede his ability to provide financial support for them, as well as for his older children.

[57] The facts that Mr. Dawkins has an infant daughter for whom he plays a positive role, that his wife is expecting their second child and that he provides support for his older children from prior relationships do not in any way diminish the seriousness of his offences or the degree of his personal culpability. Nor do these personal circumstances detract from the need to impose a sentence that adequately denounces his conduct and hopefully deters others from committing the same type of crime: R. v. Spencer, 2004 ONCA 5550, 72 O.R. (3d) 47, at para. 47 . As Doherty J. noted in Spencer, at para. 46 :

It is a grim reality that the young children of parents who choose to commit serious crimes necessitating imprisonment suffer for the crimes committed by their parents. It is an equally grim reality that the children of parents who choose to bring cocaine into Canada are not the only children who are the casualties of that criminal conduct. Children, both through their use of cocaine and through the use of cocaine by their parents, are heavily represented among the victims of the cocaine importer's crime. Any concern about the best interests of children must have regard to all children affected by this criminal conduct.

[58] The principle of restraint nevertheless necessitates tailoring the length of a prison term to preserve the family unit as much as possible, since the long-term safety and security of the community is best served by preservation of family: Spencer, at para. 47 . Mr. Dawkins’s personal circumstances therefore have some mitigating effect on his sentence.

[59] Finally, the collateral immigration consequences for Mr. Dawkins are also relevant in tailoring his sentence. His deportation to Jamaica is virtually inevitable. He may therefore be permanently separated from his wife and children in Canada, as well as from other family members in this country. Although he has some family in Jamaica, he anticipates that he will not be welcome there. He may not enjoy the same degree of support as he does from his church community in Ontario. He likely will not be able to earn a comparable income in Jamaica to what he can make in Canada. His ability to support his dependents will be diminished.

[60] The Supreme Court of Canada has ruled that consideration of collateral immigration consequences “must not lead to a separate sentencing scheme with a de facto if not a de jure special range of sentencing options where deportation is a risk”: R. v. Pham, 2013 SCC 15, [2013] 1 S.C.R. 739, at para. 16 . The immigration consequences may, however, be relevant in tailoring an individualized sentence, provided that the sentence remains proportionate: Pham, at paras. 13 and 18 .

[61] The collateral immigration consequences are also relevant, in my view, to the application of the principle of parity in this case, when comparing Mr. Dawkins’s sentence to that of his co-accused, Mr. Samuel.

Principle of Parity re: Co-Accused

[62] The Crown relies on the principle of parity to argue that Mr. Dawkins should be sentenced to twelve years’ imprisonment. At the sentencing hearing, the Crown submitted that Mr. Samuel entered an early guilty plea, for which he would have received significant mitigation. The Crown argued that the nine-year sentence imposed by Durno J. on Mr. Samuel therefore “sets the floor” for my determination of an appropriate sentence for Mr. Dawkins, who is not deserving of the leniency afforded to Mr. Samuel on account of a guilty plea.

[63] I disagree with this submission. The mere fact of a guilty plea by one accused does not necessarily establish a “floor” for sentencing a co-accused who is convicted after a trial. The principle of parity should not be applied in such a rigid manner: R. v. Kizir, 2018 ONCA 781, at para. 9 ; R. v. Beauchamp, 2015 ONCA 260, 333 O.A.C. 87, at paras. 276-277 ; and R. v. Inniss, 2017 ONSC 2779, at paras. 24-29 . It is only one of a number of principles that must be taken into consideration in imposing an appropriate sentence: R. v. Miller (2002), 163 O.A.C. 63 (C.A.), at para. 9 .

[64] Moreover, in applying the principle of parity, all of the relevant mitigating and aggravating circumstances must be considered. Durno J. placed emphasis on Mr. Samuel’s guilty plea in providing reasons for his determination that the joint submission of a nine-year sentence was appropriate in that case. However, he also noted a number of other circumstances that factored into his reasoning. He cited the nature of the drug (cocaine) and the amount of the drug (in excess of 17 kilograms) as aggravating factors, as well as the fact that the cocaine was secreted in the airport. Durno J. also noted the following mitigating factors: Mr. Samuel had no criminal record, he had a family (including two children) to support and he demonstrated that he was “truly remorseful” for his actions.

[65] The gravity of Mr. Samuel’s and Mr. Dawkins’s offences were essentially the same. Mr. Samuel admitted, during the taking of his guilty plea, that he personally brought 3 kilograms of cocaine (2 bricks) into the country and conspired with other persons to import what amounted to almost 18 kilograms of cocaine into Canada. The statement of agreed facts at Mr. Dawkins’s trial included the fact that Mr. Samuel imported bricks of cocaine from St. Maarten into Canada via a WestJet flight and placed bricks of cocaine in the airport washroom upon his arrival from St. Maarten on June 16, 2013. These are essentially the same findings made against Mr. Dawkins.

[66] As noted earlier, the evidence does not support a finding that Mr. Dawkins was directing Mr. Samuel or that he had any greater involvement or higher degree of responsibility than Mr. Samuel for the illicit importation scheme.

[67] The two men’s personal circumstances are similar in certain respects. Both are mature first time offenders. Both have children and dependents to support. Both were foreign nationals who face deportation as a result of their convictions. However, Mr. Dawkins’s personal circumstances differ from those of Mr. Samuel in other important respects.

[68] Mr. Dawkins is a permanent resident of Canada, having lived here for over 20 years. He has made positive cultural contributions to this country. He has deep roots here, whereas Mr. Samuel was a mere visitor to Canada. There is no indication in Durno J.’s reasons for sentence that Mr. Samuel had any personal connections in this country. The collateral consequence of Mr. Samuel’s deportation to Antigua therefore did not carry the same harsh personal consequences that Mr. Dawkins’s deportation will carry for him and his family. Indeed, it is arguable that Mr. Samuel actually benefitted from being deported back to his home.

[69] Moreover, Durno J.’s reasons do not indicate that rehabilitation was a consideration in the determination of Mr. Samuel’s sentence. Mr. Dawkins has demonstrated very strong rehabilitative potential, which must be given some weight in his sentencing, though it cannot eclipse the primary objectives of denunciation and general deterrence.

[70] Finally, it should be noted that, contrary to the Crown’s submission, Mr. Samuel did not enter an early plea. He was arrested and charged on June 16, 2013. He entered a plea of guilty two years later, on June 8, 2015, after multiple pre-trial court appearances and on the day that his trial was scheduled to commence. Durno J. specifically noted, in his oral reasons for sentence, that Mr. Samuel’s guilty plea was “a late one”: R. v. Samuel (10 June 2015), Brampton, 13-768 (Ont. S.C.), at p. 2 (transcript of proceeding). As Hill J. explained in Holder at para. 15 , the mitigating effect of a guilty plea in setting the appropriate sentence will vary with the circumstances of each case. The timing of the guilty plea will affect its mitigating weight: R. v. O. (C.), 2008 ONCA 518, 91 O.R. (3d) 528, at para.17. In this case, Mr. Samuel’s plea cannot accurately be described as an “early” plea, though it was clearly much earlier in the process than the commencement of Mr. Dawkins’s trial, and Durno J. did consider it as a significant factor.

[71] As noted above, there were two unique mitigating factors in Mr. Samuel’s case, namely his guilty plea and his sincere expression of remorse. The absence of these mitigating factors means that Mr. Dawkins is not entitled to the leniency shown to Mr. Samuel on account of those factors. On the other hand, I have before me evidence of Mr. Dawkins’s strong rehabilitative prospects, which was absent in Mr. Samuel’s case. I am also cognizant of the harsher collateral immigration consequences that Mr. Dawkins faces. These two factors, which are unique to Mr. Dawkins, counter balance to some extent the mitigating impact of Mr. Samuel’s guilty plea and expression of remorse in the application of the principle of parity.

[72] For all of the above reasons, I reject the Crown’s submission that Mr. Dawkins must necessarily be sentenced to more than the nine years’ imprisonment to which his co-accused was sentenced. Rather, an individualized sentencing process must be undertaken, which may or may not result in a longer sentence than what Mr. Samuel received.

Case Law and Principle of Parity re: Other Offenders

[73] I am required to apply the principle of parity not only in relation to Mr. Samuel, but also in relation to the sentences imposed on other similar offenders who have committed similar offences in similar circumstances.

[74] The Crown and Defence counsel provided me with a number of cases for my consideration. The jurisprudence is usefully summarized by Code J. at paras. 31-37 of his decision in Duncan, a case involving three offenders convicted of conspiring to import and importing a large quantity of cocaine. I will not repeat his review of the case law. I agree with his analysis and conclusions.

[75] In summary, the sentencing range for a first time courier who imports multiple kilograms of cocaine for personal gain is usually six to eight years’ imprisonment: R. v. Cunningham (1996), 27 O.R. (3d) 786 (C.A.). However, that range has been increased in cases where substantially more than five kilograms are imported. Nine to twelve years has now become the range for large-scale first offender couriers: Duncan, at paras. 33-35 ; R. v. Singh, 2014 ONCA 791, 122 O.R. (3d) 481, at paras. 126-130 ; R. v. Aujla, 2015 ONCA 350, 395 D.L.R. (4th) 244, at paras. 86-88 , rev’d on other grounds, R. v. Riar, 2015 SCC 50, [2015] 3 S.C.R. 325; and Inniss, at para. 21 .

[76] The Crown relies on the Duncan case in support of its submission that a twelve-year sentence would be appropriate in this case. The offenders and the offences in Duncan bore many similar characteristics to Mr. Dawkins and his offences. The accused in Duncan were all middle-aged first offenders who spent a few weeks in pre-trial custody, followed by many years on bail pending trial with no breaches. None pleaded guilty; they were all convicted after a trial. They each provided strong character references and letters of support. The trial judge found them to be aiders and abetters, not principals in or leaders of the drug importation scheme for which they were convicted. They were, however, mature adult working men, not poor or vulnerable like the accused in many of the cases involving “mere couriers”. Their importation scheme involved a large quantity of cocaine.

[77] Despite these similarities, the offences in Duncan and the offenders’ degree of moral blameworthiness are distinguishable from and more serious than Mr. Dawkins’s offences and moral culpability. First, the Duncan offenders imported at least 30 kilograms of cocaine, which indicated that the highest and most organized levels of the drug trade were involved in their scheme. While it would not be appropriate to take a granular view of the amounts imported, the 30 kilograms of cocaine in Duncan were significantly more than the 17.34 kilograms in this case.

[78] Second and even more importantly, the offenders in Duncan were all airport employees who had security clearances granting them access the secure side of the airport where imported goods first arrive in Canada, prior to any inspection by authorities. They exploited that privilege and thereby committed a serious breach of trust, which was a major aggravating factor in Code J.’s decision to impose a sentence of twelve years: Duncan, at paras. 40 and 50 . Code J. found that their actions constituted a threat to airport and border security and that their breach of trust significantly increased their moral culpability beyond that of a “mere courier” who poses as a tourist and boards an airplane.

[79] Mr. Dawkins may not match the typical profile of a poor and vulnerable person who is enticed to act as a courier for financial gain, but he was nevertheless only a courier and not a more instrumental figure in the importation scheme in this case. The gravity of his offences is high, given the nature and quantity of the drug imported, but his degree of moral culpability is lower than it would be if he were a principal or leader in the importation scheme, or if his offences had involved the type of breach of trust found in the Duncan case.

[80] For all of the above reasons, I find that the twelve-year sentences imposed by Code J. in Duncan are not appropriate in the circumstances of Mr. Dawkins’s case.

[81] A more comparable case, in my view, is R. v. Reid, 2018 ONSC 3754. Like Mr. Dawkins, Ms. Reid was convicted after a jury trial of importing cocaine into Canada. She arrived at Toronto Pearson airport on a flight from Jamaica with canned and packaged food products that contained 11.5 kilograms of concealed cocaine. She had no criminal record. She fit the typical profile of a racialized, single and unemployed mother who is frequently hired as a courier to import drugs, but she was a mature 43-year-old adult who ought to have known better than to get involved in the importation of such a dangerous drug. She had young children from whom she had been separated on account of her impending incarceration. She had a positive pre-sentence report. André J. sentenced her to a period of nine years’ incarceration.

Principle of Restraint

[82] The twelve-year sentence proposed by the Crown in this case exceeds that which is necessary to satisfy the goals of denunciation and general deterrence. A twelve-year sentence would be crushing and could extinguish any hope for Mr. Dawkins’s rehabilitation.

DISPOSITION

[83] In the context of the relevant authorities discussed and taking statutory requirements into consideration, I conclude that an appropriate sentence in this case is nine years and six months’ imprisonment. This sentence is sufficient to satisfy the primary goals of denunciation and general deterrence, while at the same time reflecting the important principles of restraint and parity, as well as the paramount principle of proportionality.

[84] Mr. Dawkins is therefore sentenced to nine years and six months’ imprisonment for conspiracy to import cocaine into Canada. For his conviction of importing cocaine, he shall receive a concurrent sentence of the same length.

[85] Mr. Dawkins is entitled to credit for 36 days for time served (i.e., 24 days in pre-trial custody).

[86] There will be a mandatory prohibition order pursuant to s. 109 of the Criminal Code. Mr. Dawkins is prohibited from possessing any firearm, crossbow, restricted weapon, ammunition and explosive substance for a period of ten years. He is also prohibited from possessing any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life.

[87] There will also be an order for the taking of DNA samples from Mr. Dawkins. I am not persuaded by Defence counsel’s argument that Mr. Dawkins’s inevitable deportation renders the taking of DNA samples useless. Nor am I persuaded by her submission that the taking of DNA samples is superfluous given the existence of Mr. Dawkins’s fingerprints in the police database.

Petersen J. Released: April 4, 2019