Court File and Parties

COURT FILE NO.: CrimJ(F) 622/17 DATE: 20190521

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN - and - NATALIA SAFRONI Defendant

COUNSEL: S. Aujla for the Crown M. Simrod for the Defendant

HEARD: April 26 and May 14, 17, 2019

REASONS FOR SENTENCE

Ricchetti, J.

Contents

• The Charge and Finding of Guilt
• The Background
• The Gardiner Hearing
• The Circumstances of the Offender
• The Circumstances of the Offence
  • Opium
  • The importation
• Position of the Parties
• The Law
  • The Principles of Sentencing
  • Sentencing Authorities
  • Mitigating and Aggravating Circumstances
• Analysis
  • Quantity, Purity and Amount Imported
  • A Fit Sentence
  • Viewing the Residue/Solvent as the “Controlled Substance” regardless of its purity
  • Viewed as a Substantial amount of the 3.1 Kilograms is Opium
  • Pre-Sentence Custody
• Conclusion
• Ancillary Orders
• Conclusion

The Charge and Finding of Guilt

[1] The Defendant was charged with importing opium.

[2] The sole issue for the jury to decide at trial was whether the Defendant knew her suitcases contained a controlled substance, namely opium.

[3] On August 16, 2018, a jury found the Defendant guilty.

[4] A Gardiner hearing was held for sentencing.

The Background

[5] On July 31, 2014, Ms. Safroni and her daughter travelled to Turkey.

[6] On August 7, 2014, Ms. Safroni and her daughter returned from Turkey with two suitcases. Ms. Safroni’s suitcases were inspected at Pearson Airport. The CDSA officer found that both suitcases had black packages hidden behind the linings of both suitcases. Upon opening the black packages, the CDSA officers discovered eight felt materials, impregnated with black tar like substance, which they believed was opium. In the first suitcase, the felt lining materials weighed approximately 1514 grams. In the second suitcase, the felt lining materials weighed approximately1664 grams. The total weight of the felt materials with the opium was approximately 3828 grams.

[7] A portion of the felt materials was sent to Health Canada for analysis. Health Canada determined that the felt materials contained opium. However, Health Canada did not and could not determine the quantity of opium in the sample of the felt materials.

[8] During the trial, a voir dire was conducted regarding the admissibility of the opinion evidence of Sargent Gray to opine on the quantity of opium in the felt materials based on a certain methodology used to extract the opium.

[9] In essence, Sargent Gray placed the felt materials in water, thereby allowing the water soluble opium to be dissolved in the water. The felt materials were removed, leaving the water with any dissolved content. Sargent Gray then evaporated the water tent. A black residue/solvent weighed in total approximately 3032.7 grams. The felt cloths (after this process) weighted in total approximately 835 grams. This residue/solvent appeared to Sargent Gray to look and smell like opium. Based on his knowledge of and experience relating to opium, he opined that the residue/solvent of 3032.7 grams was opium.

[10] I determined that Sargent Gray’s evidence was not admissible. The primary reason for this ruling was that Sargent Gray was not qualified, by experience or education, as an expert to conduct such a process; the methodology used was unique, not previously used for this purpose; the process had not been shown to be a scientific or reliable process; and the failure to have any scientific and reliable analysis of the residue/solvent.

[11] At trial, the Defence conceded that the amount of opium in Ms. Safroni’s suitcases was more than de minimus. As a result, the sole issue before the jury was whether Ms. Safroni knew that the suitcases contained any opium.

[12] The jury determined the Crown had proven, beyond a reasonable doubt, that Ms. Safroni knew her suitcases contained opium. Accordingly, the jury found Ms. Safroni guilty.

[13] A sentencing hearing was scheduled. A Pre-Sentence Report was requested. The Crown requested a Gardiner hearing to establish the quantity of opium in Ms. Safroni’s suitcases.

[14] A Gardiner hearing was held.

The Gardiner Hearing

[15] The Crown called two witnesses. The Defence called no evidence.

[16] The Crown’s first witness was Dr. Christin Lamparter, a technologist with the Centre of Forensic Sciences, Ministry of Community Safety and Correctional Services.

[17] Dr. Lamparter is an expert in drugs, including isolation, detection, identification of drugs and the water solubility of opium. She was so qualified by this court.

[18] Dr. Lamparter described that opium contains a variety of opioids including morphine, codeine, and heroine. Opium is water soluble. Opium can be dissolved in water and can be recovered from the opium and water solution.

[19] Dr. Lamparter could not opine as to the quantity or quality of the opium in the residue/solvent recovered using Sargent Gray’s process nor could she opine whether the residue/solvent from Sargent Gray’s process would or would not contain contaminants or impurities other than opium.

[20] The second witness was Sargent Gray. The parties agreed that Sargent Gray’s evidence on the voir dire was evidence in this Gardiner hearing. Sargent Gray’s evidence included Certificates of Analysis of the residue/solvent recovered by him using his methodology. In all cases, Health Canada confirmed that the residue/solvent contained opium.

The Circumstances of the Offender

[21] Ms. Safroni is now approximately 32 years old. She has a 12-year-old daughter. Any period of incarceration will no doubt be a hardship on her relationship with her daughter.

[22] Ms. Safroni immigrated to Canada in 2001.

[23] Ms. Safroni has no criminal record.

[24] Ms. Safroni was, at the time of the offence, gainfully employed as a law clerk. She has since lost that employment as a result of this offence.

[25] Ms. Safroni has a mother who has supported her over the years financially and otherwise and continues to do so.

[26] The PSR does not disclose any circumstances of Ms. Safroni’s past personal, education or employment circumstances which would explain the reason(s) for the commission of this offence.

The Circumstances of the Offence

Opium

[27] There are few cases dealing with opium. However, as can be seen from the recent sentencing authorities below, importing opium is becoming more prevalent in the past few years.

[28] Justice Dawson in R. v. Rajaei-Mehrabadi, 2016 ONSC 3362 described opium as follows:

[17] Of considerable assistance is the factual information about opium that is set out at paras. 6 and 7 of Justice Lacourciere’s judgment in R. v. Abolmolouk, [1987] O.J. No. 926 (C.A.). The evidence in that case included that while opium is a hard narcotic which can be converted to morphine and heroin, it is only one-tenth the strength of heroin. Opium is a physically addictive drug which has a “dependence liability” similar to morphine. However, the modes of consumption of opium are typically by smoking it or eating it. Those modes of consumption produce a lower dependence liability than does the injection of morphine or heroin. Opium was described as having limited marketability in Canada except in certain ethnic groups. I observe that the accused in most of the cases I have been referred to are of Iranian background. In Abolmolouk the court noted that opium cannot be equated to hashish even though its street value, at least as of the date of that case, was only slightly higher than hashish.

[18] In the absence of any contradictory or more current evidence I find these comments to be of assistance in assessing the gravity of the offence of importing opium. I also take into account that there is no evidence in the present case that the opium was being refined into morphine or heroin. That would be a seriously aggravating circumstance that is not present in this case. (emphasis added)

[29] Opium is a Schedule 1 controlled substance, the schedule containing hard narcotics. As can be seen from Schedule 1, there are many preparations, derivatives, alkaloids and salts of opium. This makes the quantification of opium difficult. Opium is a hard narcotic, although, one of the lesser potent opiates.

[30] Little further needs to be said about the impact of hard narcotics on society. As stated by the Ontario Court of Appeal on numerous occasions, importation of drugs is a very serious offence. In Hamilton, the Court of Appeal stated:

[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:…

The importation

[31] Ms. Safroni had been to Turkey with her boyfriend 3 times in the prior year. Ms. Safroni travelled to Turkey with her daughter on July 31, 2014. She testified she was to go on this trip with her boyfriend, who cancelled at the last minute. Nevertheless, Ms. Safroni decided to use the tickets and go on the trip with her daughter.

[32] She testified that her suitcases (the ones she took from Canada) did not arrive in Turkey. As a result, Ms. Safroni bought the subject two suitcases at a store.

[33] She testified that her boyfriend’s relatives in Turkey had access to her hotel room on a particular day just before her return to Canada. Ms. Safroni speculated that the relatives must have been the ones who secreted the 8 felt material packages behind the suitcase linings. She explained why she did not notice the significantly increased weight of the suitcases. She denied she knew the suitcases contained a controlled substance. The boyfriend and his relatives remain unknown.

[34] The jury did not believe Ms. Safroni and found her guilty.

Position of the Parties

[35] The Crown seeks a 3 ½ year custodial sentence and the following ancillary orders:

a) A s. 109 order for life; b) A DNA order; and c) A forfeiture order of all offence related property seized and retained by the CDSA and police.

[36] The Defence seeks a suspended sentence. The Defence opposes a DNA order but not the other ancillary orders sought.

The Law

The Principles of Sentencing

[37] Under s. 718 of the Criminal Code, the fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society by imposing a just sanction. The "fundamental principle" of sentencing, pursuant s. 718.1 of the Criminal Code, is that a sentence "must be proportionate to the gravity of the offence and the degree of responsibility of the offender."

[38] Any sentence imposed must be the result of a fair and balanced consideration of the need to:

(a) Denounce the unlawful conduct; (b) Deter the offender, and others, from committing such an offence; (c) Separate the offender from society, where necessary; (d) Assist in the rehabilitation of the offender; (e) Provide reparation for harm done to “victims”, or the community; and (f) Provide a sense of responsibility in the offender, while acknowledging the harm done to the “victims” and the community.

[39] Section 718.2 provides that (as applicable to this case):

a) a sentence should be increased or decreased to account for any aggravating and mitigating circumstances; and b) a sentence be similar to other sentences imposed on similar offenders in similar circumstances.

[40] The purpose of sentencing under the Controlled Drugs and Substances Act (CDSA)is set out in s. 10 (1) which provides:

s. 10 (1) Without restricting the generality of the Criminal Code, the fundamental purpose of any sentence for an offence under this Part is to contribute to the respect for the law and the maintenance of a just, peaceful and safe society while encouraging rehabilitation, and treatment in appropriate circumstances, of offenders and acknowledging the harm done to victims and to the community.

[41] Opium, its preparations, derivatives, alkaloids and salts are listed in Schedule 1 to the CDSA.

[42] The relevant portions of s. 6 of the CDSA provide:

6 (1) Except as authorized under the regulations, no person shall import into Canada or export from Canada a substance included in Schedule I, II, III, IV, V or VI.

6 (3) Every person who contravenes subsection (1) or (2) (a.1) if the subject matter of the offence is a substance included in Schedule I in an amount that is more than one kilogram, is guilty of an indictable offence and liable to imprisonment for life and to a minimum punishment of imprisonment for a term of two years;

Sentencing Authorities

[43] Justice Dawson in R. v Rajaei-Mehrabadi, 2016 ONSC 3362 canvassed the sentencing authorities on importing opium.

The Nature of Opium and the Range of Sentence

[14] There are relatively few cases dealing with sentencing for the importation of opium. I have been referred to five authorities; three from Ontario and two from British Columbia. Based on these few authorities counsel agree that sentences in British Columbia seem to be shorter than those imposed in Ontario. I will refer briefly to each of the cases I have been provided with. I will start with the Ontario authorities.

[15] In R. v. Abolmolouk, [1987] O.J. No. 926 (C.A.) the court allowed an appeal from a sentence of seven years for the importation of 805 grams of opium by a 40 year old appellant who had no criminal record. Taking note of the fact that the appellant had spent six months in pretrial custody the Court of Appeal reduced the sentence to four years.

[16] I observe that the Abolmolouk case is almost 30 years old. It was decided in the immediate aftermath of R. v. Smith, [1987] 1 S.C.R. 1045, in which the Supreme Court of Canada struck down the minimum sentence of seven years for importation of a narcotic as unconstitutional. It is, nonetheless, a guiding authority. I note that the quantity of opium imported in that case was substantially less than in this case.

[19] In R. v. Rashidi-Alavijie, 2007 ONCA 712, the court upheld a sentence of five and a half years imposed by J. Murray J. (see [2006] O.J. No. 4015) for the importation of 5.9 kilograms of opium. The appellant in that case was 36 years old, had no criminal record and was not a user of opium. That case bears significant similarities to the case at bar.

[20] In R. v. Gurm, [2009] O.J. No. 5007 (S.C.J.), my colleague Justice Wein imposed a sentence of two years less one day to be followed by a period of probation. The weight of the opium imported in that case is not stated but the street value is specified as being between $10,000 and $17,000. There were indications the accused was a user. A para. 6 Justice Wein found that the quantity imported was suggestive of only small scale distribution. There were also immigration considerations in that case which may have influenced the court to impose a sentence of less than two years.

[21] Defence counsel has referred me to two British Columbia cases. In R. v. Aghabeigi, 2004 BCCA 263, [2004] B.C.J. No. 1035 (C.A.) the court upheld a three year sentence imposed at trial for the importation of 9.6 kilograms of opium hidden in the lining of suitcases. The court described the sentence as lenient but found no basis to interfere with the trial judge’s sentence. The accused in that case was a 41 year old woman with no criminal record who suffered from depression and some other health problems. The court did refer to two other cases that supported a sentence in the range of six to seven years for such an offence. This case appears to me to establish the bottom of the range for the importation of multiple kilograms of opium at three years.

[22] In R. v. Salamat Ravandi, [2015] B.C.J. No. 2537 (B.C.S.C.), B.M. Davies J. sentenced a 36 year old accused with no criminal record to four and a half years for the importation of 17.95 kilograms of opium. The Crown in that case suggested a range of five to seven years. Davies J. reviewed a number of cases, including some British Columbia cases I have not referred to, and held that the appropriate range of sentence was three to seven years and “not the much higher range appropriate for sentencing for the importation of heroin or cocaine” (para. 33).

[23] Based on my review of the cases, and relying in particular on the factual information cited at paras. 6 and 7 of Abolmolouk, I agree that the range of sentence for the importation of multiple kilograms of opium for commercial drug trafficking is three to seven years. I would also adopt the British Columbia Court of Appeal’s description of a three year sentence for the importation of over nine kilograms in Aghabeigi as lenient.

[24] In my view, the quantity involved in the importation and whether the accused is addicted or a user, are of critical importance. If the evidence supports a finding of commercial trafficking on a significant scale a midrange penitentiary sentence will usually be required in order to deter and denounce the importation of an addictive substance. It is well known that addictions can lead to many other social costs and often to the commission of other crimes. However, the fact that opium is not as addictive as some of the other hard drugs and has a smaller market, are relevant factors affecting the determination of an appropriate range of sentence.

[25] I would add that were there any evidence that the opium imported in this case was being used to make morphine or heroin the range of sentence would extend considerably higher than seven years. (emphasis added)

[44] In addition to those sentencing authorities, this court was provided with the following more recent sentencing authorities:

a) R. v. Bayrami-Asl 2017 ONSC 2055 where the court imposed a 5 year jail sentence on a first time offender for importing 3.9 kilograms of opium; b) R. v. Hasankhani 2018 ONSC 3669 where the court sentenced the first time offender to five years custody for importation of 5 kilograms of opium; and c) R. v. Sarjoghian 2018 ONSC 3142 where the court imposed a 4 year 6 month sentence on a first time offender for importing 4.6 kilograms of opium. Emery J. noted that sentencing cases over 30 years have established a range of 2 to 7 years for offenders convicted of importing opium in amounts between 1 and 14 kilograms.

Mitigating and Aggravating Circumstances

[45] The mitigating factors are:

a) Ms. Safroni is a first time offender; b) Ms. Safroni was approximately 28 years old at the time of the offence, to a minor extent, youthful; c) There appears to be prospect for rehabilitation; and d) Ms. Safroni has a supportive family.

[46] The aggravating factors are:

a) Opium is a “hard” narcotic; b) For the reasons stated herein, there was a significant amount of opium imported by Ms. Safroni.

Analysis

[47] The difficult issue in this sentencing is the determination of the amount of opium imported by Ms. Safroni. On this record it is not possible to determine an exact amount of opium in the 8 felt materials.

Quantity, Purity and Amount Imported

[48] Any aggravating factor, such as the amount of the controlled substance imported, must be proven by the Crown beyond a reasonable doubt. See s. 724(3) of the Criminal Code.

[49] The evidence from Health Canada and Dr. Lamparter do not establish the exact amount of opium in the felt materials or the residue/solvent, whether on a weight, volume or purity basis. There is no doubt that the 3 kilograms of residue/solvent recovered by Sgt. Gray contains opium. But, how much?

[50] Sargent Gray weighed the residue/solvent in the felt linings as approximately 3 kilograms. I cannot accept Sargent Gray’s evidence, on this specific point, to establish an exact weight of the opium from the felt materials beyond a reasonable doubt because there is uncertainty whether the residue/solvent recovered by Sargent Gray also contained contaminants such as some of the felt (which might have dissolved in water), any felt binding materials (which might have dissolved in water), any contaminants in the water and so on.

[51] The Defence submits that, as a result, this court should proceed to sentence Ms. Safroni on the basis the amount of opium imported was a “minimal”, and hence, the submission for a suspended sentence.

[52] The Crown submits the court should sentence Ms. Safroni on the basis of importing 3 kilograms of opium. The Crown submits that, even if I do not accept Sargent Gray’s evidence on the weight of the opium in the felt materials, it is not necessary to determine the exact amount to determine a fit sentence because the sentencing ranges for importing controlled substances are very broad ranges based on quantities of “more or less” as seen in R. v. Hamilton and Mason, 72 O.R. (3d) 1:

[107] Because the sentencing of drug couriers presents one of the more difficult, and unfortunately more common, situations in which the gravity of the offence and the personal responsibility of the offender suggest different dispositions, this court has set out different ranges of sentences to assist trial judges in fixing appropriate sentences in individual cases. The ranges established by this court in Madden and Cunningham do not have [page 31] direct application to this case. However, the factors justifying the fixing of those ranges have equal application here. I think it would be helpful to set a sentencing range for the importation of amounts of cocaine below "the one kilogram more or less " range identified in Madden.

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

[53] In my view, the only reasonable inference from the trial evidence and the evidence on the Gardiner hearing is that a substantial amount of opium was in the 3 kilograms of residue/solvent (even if this residue/solvent did contain some contaminants or other materials).

[54] I do not find on this record that the amount was “minimal.” I am satisfied that the evidence establishes, beyond a reasonable doubt, that a substantial amount of the 3 kilogram of residue/solvent is the controlled substance, opium.

[55] I come to this conclusion because:

a) Importing opium is not done for the purpose of importing a minimal amount of opium. There is great risk in importing a Schedule 1 substance. There is considerable expense to the principal to the importation such as the purchase cost of the opium, the expense of the airline tickets for the courier (in this case approximately $6,000), the expenses of the week spent in Turkey by the courier from Canada (such as hotel and other expenses) and payment to the courier for undertaking this risky venture. There is no doubt some mechanism to recover the valuable opium from the felt materials to recover these expenses and then make a profit from this risky venture. Further, as stated by Dawson J., the value of opium is not much more than hashish, requiring a greater amount to make this risking venture profitable; b) This was a sophisticated manner of importation which included, the opium impregnation of felt materials, sealing the felt materials into plastic bags, secreting the 8 felt materials into the linings of both suitcases and finding a courier willing to take such the risk bringing approximately 8 additional pounds of materials in the suitcases, increasing the risk of being caught. Such a sophisticated method would not be used to import a minimal amount of opium; and c) The residue/solvent was approximately 3 kilograms. The residue looked and smelled like opium to Sargent Gray, a person experienced with opium in its raw form. There was no real challenge to this part of Sargent Gray’s evidence. The residue/solvent was easily identified as opium making a finding that the residue/solvent only contained a minimal amount as simply not possible.

A Fit Sentence

[56] Both the Crown and Defence agree that Ms. Safroni should be sentenced as a first time courier.

[57] In drug offences, the most important considerations are general deterrence and denunciation.

[58] As can be seen from the sentencing authorities, the general range for sentencing of couriers with no prior criminal record is dependent on the amount of controlled substance imported. See Hamilton para. 152.

[59] In this case, Ms. Safroni is a courier with no prior criminal record. There are no other significant mitigating factors except for the potential for rehabilitation and being somewhat youthful at the time of the offence.

[60] There is no evidence that heroin or morphine was to be extracted from the opium which would have been an aggravating factor.

[61] That leaves the question as to what is the range of a fit sentence where there is a substantial amount of opium but the amount cannot be exactly quantified.

[62] Counsel have not located any sentencing authority which dealt with this situation before. Nor have I.

Viewing the Residue/Solvent as the “Controlled Substance” regardless of its purity

[63] What is the impact on the sentence even if the residue/solvent is diluted by other non-opium materials?

[64] Purity of the controlled substance is generally not a significant factor in sentencing an offender who has imported a controlled substance. In Hamilton, the Court of Appeal stated the following about the purity of the imported controlled substance:

151 I agree with the trial judge that the purity of the cocaine imported, while usually not known to the courier and therefore irrelevant to personal culpability, can have some effect on the seriousness of the specific offence (para. 174). The purer the cocaine, the wider its potential distribution and therefore the greater the harm it may cause in the community. However, I do not think that the purity of the cocaine imported will be a particularly significant factor in assessing the seriousness of the offence. Certainly, there should be no mathematical-like reduction in the seriousness of the offence based on the exact purity of the cocaine. I see little difference, for the purposes of assessing the seriousness of the crime, between cocaine that is eighty percent pure and cocaine that is ninety percent pure.

152 I also do not agree with the trial judge's tentative view (para. 176) that the range of sentencing referred to in Madden should be read as referring to the importation of nearly pure cocaine. The ranges set in Madden and Cunningham were based on weight. Purity was not a factor. In deciding whether a particular case fits within the Madden range or the Cunningham range, the relevant comparison is between the weights referred to in those cases and the weight of the cocaine imported in a particular case.

153 In so holding, I do not suggest that the purity of the drug is irrelevant. If the weight of the cocaine imported brings it within the Madden range, its purity will have some relevance to the determination of where in the range the sentence should fall. In cases where the purity is low and the weight near the bottom end of the "a kilogram more or less" amount referred to in Madden, the offence may fall outside of the Madden range entirely. (emphasis added)

[65] Justice Hill in R. v McCrea, 2015 ONSC 4711 described the reasons for the relatively low relevance of purity for sentencing purposes. See McCrea paras. 58 -76.

[66] Should the residue/solvent remaining after Sgt. Gray’s process be considered as the weight for the imported “controlled substance” on the basis the amount of opium in the residue/solvent is simply a question of purity?

[67] The extended definition of a “controlled substance” in s. 2(2) (a) of the CDSA defines a controlled substance as any substance which “contains a controlled substance”. The approximately 3 kilograms of residue/solvent contains opium. On this basis, this court could find that the entire weight of the residue/solvent is the “weight” for the determination of a fit sentence. The range for importing approximately 3 kilograms of opium would be in the range of three to seven years.

[68] As stated above in Hamilton, if the purity level is so low, it might have some impact on a fit sentence. Therefore, if this court assumed that the purity level of opium in the approximately 3 kilograms is extremely low, thereby giving the Defence the benefit on this fact, a fit sentence would be in the lower end of the range being 3 years, perhaps even as low as 2 or 2 1/2 years in the right circumstances.

Viewed as a Substantial amount of the 3.1 Kilograms is Opium

[69] Another way to look at the issue is to determine what the lowest fit sentence would be for importing a “substantial” amount of opium. I acknowledge that “substantial” lacks precision. In my view, this lack of precision must be decided in the favour of Ms. Safroni.

[70] That does not mean the court must sentence on the basis of a “minimal amount” as suggested by the Defence. That would be contrary to the entire evidence in this case. And be inconsistent with the expansive definition of controlled substance in s. 2(2) (a) of the CDSA.

[71] As stated above, if the court were to determine a fit sentence based on the entire weight of the residue/solvent as the “controlled substance”, then the sentencing range would be, based on the approximately 3 kilograms, at least 3 years.

[72] But what if there is a significant amount, say a kilogram or more of these undefined contaminants. As described by Emery J. in Sarjoghian, the sentencing range for the importation of 1 to 14 kilograms of opium is 2 to 7 years. The Ontario Court of Appeal has not opined on an appropriate range for opium. However, the range suggested by Emery J. is consistent with the current sentencing authorities. If correct, this suggests the “floor” range for importing as low as 1 kilogram of opium would be a two year sentence, the minimum sentence under the CDSA for more than a kilogram.

[73] Having found that there was a substantial amount of opium and giving Ms. Safroni the benefit of the lowest reasonable amount of opium (yet still a substantial amount of opium), a fit sentence could not and would not be less than approximately 2 years – the lowest part of the range.

Pre-Sentence Custody

[74] It is agreed that Ms. Safroni was in custody for 4 days pending trial and sentencing. Accordingly, she is entitled to 6 days credit based on 1 ½ credit.

[75] The Defence also seeks pre-sentence credit for onerous bail restrictions, namely, house arrest (except for when she is in the company of her surety) from February 1, 2018 to date. Prior to that date, Ms. Safroni’s bail conditions required her to remain in Ontario. Why the conditions were changed to require this additional term is not known.

[76] The law in this area was canvassed by Durno J. in R. v Daley, 2016 ONSC 3513

The leading authority on this issue is the Court of Appeal judgment in R. v. Downes (2006), 79 O.R. (3d) 321 where for 18 months the offender was required to be in his residence at all times except when in the company of his surety. He was granted five months’ credit. As the Court of Appeal noted, he could not work, go to medical appointments, or attend worship services.

From Rosenberg J.A.’s comments in Downes and subsequent Court of Appeal judgments, and trial judgments, the following summary of the law can be derived:

1. Time spent under stringent bail conditions, especially house arrest, is a relevant mitigating factor and must be taken into account as a relevant mitigating circumstance. Downes, at paras. 33 and 37.
2. While a trial judge is not required to give any credit for restrictive bail terms (R. v. Ijam (2007), 2007 ONCA 597, 87 O.R. (3d) 81 at paras. 32 and 36) where no credit is given, the trial judge should explain why that was so: Downes, at para. 33; R. v. Siconolfi, [2015] O.J. No. 6650 (C.A.) However, the failure to do so, is not automatically an error in principle. R. v. Dragos, 2012 ONCA 538.
3. Stringent bail conditions, especially house arrest, represent an infringement on liberty and are, to that extent, inconsistent with the fundamental principle of the presumption of innocence: Downes, at para. 29.
4. House arrest is a form of punishment, albeit of a different character than actual incarceration, yet he or she receives no credit towards parole eligibility for time spent on house arrest: Downes, at para. 29.
5. The impact of bail conditions cannot be assumed: Downes, at para. 28. However, there will be some restrictions from which inferences can be drawn and the impact is obvious, as was the case in Downes: R. v. Brown, [2015] O.J. No. 5425 (S.C.J.) at para. 70.
6. If an offender asks that pre-trial restrictive bail terms be considered, the offender should provide the judge with information as to the impact of the conditions. The onus is on the offender to establish those facts on a balance of probabilities pursuant to s. 724(3) of the Criminal Code: Downes, at para. 37. The offender must show the restrictions prejudiced or imposed a hardship on him or her: R. v. Ijam (2007), 2007 ONCA 597, 87 O.R. (3d) 81 (C.A.) at para. 27.
7. There is no formula that judges are required to apply: Downes, at para. 37. It is inappropriate to adopt a rigid formula because there can be such a wide variation in bail conditions and even house arrest conditions. In some cases, the terms may impinge very little on the offender’s liberty. Some may be allowed to work as usual, take care of their family obligations, and generally see little impact on their pre-bail way of life. For others, house arrest may be very difficult, with the accused essentially confined to a very small space, cut off from family and friends and unable to work: Downes, at para. 34. As is the case with any potential mitigating circumstances, there will be variations in its potential impact on the sentence, and the circumstances may dictate that little or no credit should be given for pre-sentence house arrest: Downes, at para. 33.
8. Sentencing judges should adopt a flexible approach with the credit and manner in which it is taken into account as a mitigating factor, a matter for the judge: Downes, at para. 36. R. v. Dragos, 2012 ONCA 538.
9. Provided the trial judge addresses the issue, there is no error in declining to grant any credit for restrictive bail terms.

[77] This Defence submission did not identify whether or the extent of any impact this has had on Ms. Safroni. There was no evidence on this point in the sentencing hearing. This is particularly important because of the term which allows Ms. Safroni to be outside of the home when she is in the company of a “surety”, coincidently includes herself as a “surety”.

[78] I decline to give any enhanced credit for pre-sentence bail restrictions in this case.

Conclusion

[79] I am satisfied that a fit sentence for the importation of opium in this case is a 2 year custodial sentence less pre-sentence custody.

Ancillary Orders

[80] Without objection, the following ancillary orders will issue:

a) A s. 109 order for life; and b) A forfeiture order for offence related property.

[81] As for the DNA sought by the Crown, I have considered R. v. K.B., and in particular the following statement:

[4] Section 487.051(1) (b) of the Criminal Code provides that where, as here, secondary designated offences have been committed, the court may make an order authorizing the taking of DNA samples if it "is satisfied that it is in the best interests of the administration of justice to do so".

[6] This court has recently considered the issue of making discretionary DNA orders in the context of adult offenders: [page393] R. v. Hendry, above; R. v. Briggs (2001), 55 O.R. (3d) 417, 157 C.C.C. (3d) 38 (C.A.). The question raised by this appeal is how, if at all, the analysis in those cases ought to be adjusted in cases involving young offenders.

[8] The application of these factors, however, will necessarily be different between young and adult offenders. In Hendry, this court held (at para. 25) that "in the vast majority of cases it would be in the best interests of the administration of justice to make the order". No such assumption can be made in the case of a young offender. All legislation dealing with young offenders and, in particular, the Young Offenders Act, R.S.C. 1985, c. Y-1 recognize that young offenders are to be treated differently by the courts because of differences in vulnerability, maturity, experience and other factors related to their youth. The Declaration of Principle heading that precedes ss. 3(1) and 3(2) of the YOA and the principles addressed in those sections support the proposition that young persons, in principle, are to be treated differently from adults who are prosecuted under the Criminal Code. We cannot assume, for example, as with an adult offender, that there will be minimal impact on a young person's privacy and security of the person. (emphasis added)

[82] The Defence points to Ms. Safroni’s privacy rights and that a DNA order would not be of assistance in the investigation of such offences in the future. I disagree. For the reasons described by the Court of Appeal in K.B., Ms. Safroni’s privacy rights are minimally impacted as she is an adult. There is no evidence to the contrary. The utility of the DNA data bank for the investigation of such offences is obvious – contraband imported can and often is analysed for fingerprints and sometimes DNA. This becomes a valuable tool for law enforcement.

[83] I am satisfied it is in the interests of the administration of justice that such an order issue in this case. A DNA order shall issue under s. 487.051(3) (b) of the Criminal Code.

Conclusion

[84] The following sentence is imposed:

a) After pre-custody credit (of 6 days), a custodial sentence of 1 year and 359 days; b) A s. 109 order for life; c) A DNA order; and d) A forfeiture order of all property used for the importation of the controlled substance and the forfeiture of the controlled substance.

L. Ricchetti J. Released: May 21, 2019