Her Majesty the Queen v. Angella Marie Lewis, 2019 ONSC 3907

Court File No.: CRIMJ (F) 1930/16 Date: 2019 07 31

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

Her Majesty the Queen Nicholas Cooper, Counsel for Her Majesty the Queen

- and -

Angella Marie Lewis Ekaterina Perchenok, Counsel for Angella Marie Lewis

REASONS FOR SENTENCE

Bloom, J.

I. INTRODUCTION

[1] The Accused, Angella Marie Lewis, was found guilty by a jury in Orangeville on February 28, 2019 of one count of importing cocaine contrary to s. 6 (1) of the Controlled Drugs and Substances Act. These are my reasons for sentence.

II. FACTS

1. Circumstances of the Offence

[2] The Accused landed at Pearson International Airport on Friday May 29, 2015. Four containers of fibre containing cocaine were seized by an officer of the Canada Border Services Agency from her suitcase.

[3] The weight of the cocaine seized was 1.955 kilograms.

2. Circumstances of the Offender

[4] The circumstances of the offender were made known to me through the Presentence Report, the affidavit filed by and testimony of the Accused on the sentencing hearing, and the statement made by the Accused under s. 726 of the Criminal Code.

[5] The Accused was born on September 1, 1972.

[6] As a child she suffered from sexual abuse, as did her sister; these events have had a significant deleterious impact on her life.

[7] After running away from home in grade nine, she moved from place to place, and never finished high school.

[8] She became a mother very early in her life.

[9] She is currently self-employed as a hair stylist. She lives with family members.

[10] She has always tried to provide for her children to the best of her abilities.

[11] She has expressed a desire to move forward and change her life. She has attended Bible college and would like to return there; she aspires to become a pastor. She is supported in a positive manner by her daughter and siblings.

[12] She was released on a recognizance of bail on June 2, 2015 with one surety, her daughter, with whom she was to live, and on strict conditions. Those conditions principally required that she remain in the residence at all times, unless she was in the presence of her surety, dealing with a medical emergency, or travelling to or from work or counselling.

[13] There were no exceptions to permit her to assist her daughter with care of the Accused’s grandchildren, such as taking them to the park or to the bus.

[14] In the several months prior to her arrest she was in the Greater Toronto Area assisting her dying brother.

[15] Further, she has a son who has serious mental illness and has assisted him.

[16] The Accused in her statement to the Court apologized for the offense, and explained some of the difficult circumstances of her life history.

[17] The criminal record of the Accused is as follows:

1991-03-26 TORONTO ONT ATT THEFT UNDER $1000 SUSP SENT & PROBATION 18 MOS

1991-10-04 TORONTO ONT OBSTRUCT PEACE OFFICER 6 DAYS

1991-10-07 BRAMPTON ONT THEFT UNDER $1000 SEC 334(B) CC $300 I-D 60 DAYS

1992-01-15 TORONTO ONT OBSTRUCT PEACE OFFICER SUSP SENT & PROBATION 16 MOS

1992-05-14 TORONTO ONT POSS OF NARCOTIC 1 DAY & PROBATION 12 MOS

1993-01-08 HAMILTON ONT THEFT UNDER $1000 SEC 334 (B) CC 3 MOS

1993-03-22 TORONTO ONT FRAUD UNDER $1000 SUSP SENT & PROBATION 17 MOS

1995-04-25 BRAMPTON ONT (1) POSS OF PROPERTY OBTAINED BY CRIME SEC 354 (1) CC (2) OBSTRUCT PEACE OFFICER SEC 129 (A) CC (1) 90 DAYS & (PRE-SENTENCE CUSTODY) & PROBATION 2 YRS (2) 90 DAYS CONC

1995-05-10 NEWMARKET ONT (1) THEFT UNDER $1000 SEC 334 (B) CC (2) OBSTRUCT PEACE OFFICER SEC 129 CC (1) 30 DAYS (2) 30 DAYS CONC

1995-06-08 NEWMARKET ONT (1) THEFT SEC 334(B) CC (3) PERSONATION WITH INTENT SEC 403 CC (1-2) 30 DAYS ON EACH CHG CONC BUT CONSEC TO SENT SERVING

1995-07-05 BRAMPTON ONT (1) THEFT SEC 334(B) CC (2) PERSONATION WITH INTENT SEC 403 (A) CC (1-2) 30 DAYS ON EACH CHG CONC BUT CONSEC TO UNEXPIRED PORTION OF SENTENCE & (TIME SERVED 8 DAYS) & PROBATION 2 YRS

1999-07-29 ORILLIA ONT POSS OF PROPERTY OBTAINED BY CRIME UNDER $5000 SEC 354 (1) CC 90 DAYS INTERMITTENT PROBATION 12 MOS

1999-08-17 HAMILTON ONT POSS OF PROPERTY OBTAINED BY CRIME UNDER $5000 SEC 355 (B) CC 75 DAYS & (5 DAYS PRE-SENTENCE CUSTODY)

2001-04-25 BRAMPTON ONT THEFT UNDER $5000 SEC 334 (B) CC 6 MOS CONDITIONAL SENTENCE ORDER & PROBATION 6 MOS

2004-08-05 RICHMOND HILL ONT THEFT UNDER $5000 SEC 334 (B) CC 6 MOS CONDITIONAL SENTENCE ORDER PROBATION 2 YRS

2007-03-09 NEWMARKET ONT THEFT UNDER $5000 SEC 334 CC $300

III. LEGAL PARAMETERS

[18] For practical purposes, given the facts and submissions of counsel, the relevant legal parameters are set by the case law on incarceration, which I will review subsequently.

IV. POSITIONS OF CROWN AND DEFENSE

1. Position of the Crown

[19] The Crown submits that a custodial sentence of six years and 8 or 9 months in the penitentiary is warranted as well as an order under s. 487.051(3) (b) of the Criminal Code, an order under s. 109(1) (c) and (2) of the Criminal Code, and an order for disposition of seized goods to which both parties consent.

2. Position of the Defense

[20] The Defense seeks a carceral sentence of 5 years based on mitigation for restrictive bail conditions and the Accused’s life history, and credit for pre-sentence custody. The Defense consents to the order for disposition of seized goods, but opposes both of the other ancillary orders sought by the Crown.

V. CASE LAW

1. Sentence Range for Importing Multi-Kilograms of Cocaine

[21] In R. v. Cunningham, [1996] O.J. No. 448 (C.A.) at paras. 16, and 20 to 22 the Court stated:

16 In any event, in view of the decision of this court in R. v. Madden [reported ante, at p. 640], heard and decided on the same day as the instant appeal, it is our considered opinion that as a general rule, absent exceptional or extenuating circumstances, a sentence in the range of three to five years is warranted for first offender couriers found guilty of importing a kilogram, more or less, of cocaine for personal gain.

20 We take no issue with the sentence in Bayne. Indeed, after careful consideration, we are all of the view that as a general role, absent exceptional or extenuating circumstances, the range of sentence for first offender couriers who smuggle large amounts of cocaine into Canada for personal gain should be six to eight years in the penitentiary. In establishing such a range, we readily acknowledge that sentencing is not an exact science and that trial judges must retain the necessary degree of flexibility to do justice in individual cases. 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 to those who engage in drug trafficking on a commercial basis.

21 Sympathetic though we are to the plight of many couriers, such concerns must give way to the need to protect society from the untold grief and misery occasioned by the illicit use of hard drugs. In this regard, we can do no better than to quote from the majority judgment in R. v. Smith, [1987] 1 S.C.R. 1045, 34 C.C.C. (3d) 97. While the case is best known for the successful attack upon the constitutional validity of the minimum seven-year sentence for importing a narcotic pursuant to s. 5(2) of the Narcotic Control Act, R.S.C. 1970, c. N-1, as amended, the remarks made by Lamer J. at the outset of his reasons bear repetition:

Those who import and market hard drugs for lucre are responsible for the gradual but inexorable degeneration of many of their fellow human beings as a result of their becoming drug addicts. The direct cause of the hardship cast upon their victims and their families, these importers must also be made to bear their fair share of the guilt for the innumerable serious crimes of all sorts committed by addicts in order to feed their demand for drugs. Such persons, with few exceptions (as an example, the guilt of addicts who import not only to meet but also to finance their needs is not necessarily the same in degree as that of cold-blooded non-users), should, upon conviction, in my respectful view, be sentenced to and actually serve long periods of penal servitude.

22 There can be no doubt that commercial traffickers rely heavily on couriers to facilitate their deadly trade. That being so, it falls to the courts to warn would-be couriers, in no uncertain terms, that they will pay a heavy price for choosing to import large quantities of hard drugs for quick personal gain.

[22] In R. Zeisig, [2016] O.J. No. 5785 (C.A.) at pars. 12 and 13 the Court re-affirmed those principles:

12 We turn to the sentence appeal. The sentencing judge identified the correct sentencing principles, referred to the mitigating and aggravating factors and determined that 5 years and 3.9 months, less pre-sentence custody credited at 1.5:1, was the appropriate sentence. In particular, she referred to this court's decision in R. v. Cunningham (1996), 27 O.R. (3d) 786, at p. 790:

[A]s a general rule, absent exceptional or extenuating circumstances, a sentence in the range of three to five years is warranted for first time offender couriers found guilty of importing a kilogram, more or less, of cocaine for personal gain. ... [T]he range of sentence for first offender couriers who smuggle large amounts of cocaine into Canada should be six to eight years in the penitentiary.

13 Since the amount of cocaine here was over a kilogram, the appellant fell within the longer range of six to eight years. By fixing the sentence at 5 years and 3.9 months before credit for pre-sentence custody, the sentencing judge took into account the youth of the appellant. We see no error in her conclusion.

2. The Effect of Restrictive Bail Conditions on Sentence

[23] In R. v. Downes, [2006] O.J. No. 555 (C.A.) at para.37 Justice Rosenberg for the Court discussed the effect of restrictive bail conditions on sentence:

37 In summary, credit for pre-trial bail conditions should be approached in the following manner:

• Time spent on stringent pre-sentence bail conditions, especially house arrest, is a relevant mitigating factor.
• As such, the trial judge must consider the time spent on bail under house arrest in determining the length of sentence.
• The failure of the trial judge to explain why time spent on bail under house arrest has not been taken into account is an error in principle.
• The amount of credit to be given for time spent on bail under house arrest is within the discretion of the trial judge and there is no formula that the judge is required to apply.
• The amount of credit will depend upon a number of factors including, the length of time spent on bail under house arrest; the stringency of the conditions; the impact on the offender's liberty; the ability of the offender to carry on normal relationships, employment and activity.
• Where the offender asks the trial judge to take pre-sentence bail conditions into account, the offender should supply the judge with information as to the impact of the conditions. If there is a dispute as to the impact of the conditions, the onus is on the offender to establish those facts on a balance of probabilities in accordance with s. 724(3) of the Criminal Code.

3. The Test for Making an Order under S. 487.051(3) (b) of the Criminal Code

[24] S. 487.051(3) (b) of the Criminal Code provides:

487.051 (3) The court may, on application by the prosecutor and if it is satisfied that it is in the best interests of the administration of justice to do so, make such an order in Form 5.04 in relation to

(b) a person who is convicted, discharged under section 730 or found guilty under the Youth Criminal Justice Act or the Young Offenders Act, of an offence committed at any time, including before June 30, 2000, if that offence is a secondary designated offence when the person is sentenced or discharged.

In deciding whether to make the order, the court shall consider the person’s criminal record, whether they were previously found not criminally responsible on account of mental disorder for a designated offence, the nature of the offence, the circumstances surrounding its commission and the impact such an order would have on the person’s privacy and security of the person and shall give reasons for its decision.

[25] In R. v. P.R.F.; R. v. Hendry; R. v. G.A.M.; R. v. W.D.W., [2001] O.J. No. 5084 (C.A.) at paras. 9 to 11, 17 to 18, and 23 to 25 Justice Rosenberg for the Court set out principles governing the application of a predecessor to s. 487.051(3) (b) of the Criminal Code:

9 Under s. 487.051(1)(b) and s. 487.052, the trial judge is to make a DNA data bank order if "satisfied" that it is in the best interests of the administration of justice. The section does not place the persuasive burden on either the Crown or defence. Once again some assistance can be obtained from the sentencing regime in resolving the question of the burden of proof. In R. v. Proulx (2000), 2000 SCC 5, 140 C.C.C. (3d) 449 (S.C.C.) at para. 121, Lamer C.J.C. rejected a submission from the Crown that the offender bears the legal burden of proof where the offender is seeking a conditional sentence:

In matters of sentencing, while each party is expected to establish elements in support of its position as to the appropriate sentence that should be imposed, the ultimate decision as to what constitutes the best disposition is left to the discretion of the sentencing judge.

10 He pointed out, however, at para. 122, that the offender will ordinarily bear the tactical burden of coming forward with information to support imposition of a conditional sentence:

Having said this, in practice, it will generally be the offender who is best situated to convince the judge that a conditional sentence is indeed appropriate. Therefore, it would be in the offender's best interests to establish those elements militating in favour of a conditional sentence.

11 In my view, similar considerations apply to the making of the DNA data bank order. Strictly speaking, there is no burden on either Crown or defence under s. 487.051(1)(b) or s. 487.052. However, under s. 487.052 the order is made "on application by the prosecutor" and as a practical matter it will be the Crown that asks the judge to exercise his or her discretion under s. 487.051(1)(b). Thus, in my view the Crown bears an evidential burden to produce sufficient information to raise the issue. The trial judge must then be satisfied, after weighing and balancing all the relevant considerations, that the order should be made.

17 In R. v. Briggs, Weiler J.A. dealt with many of the issues that may arise in interpreting s. 487.051(1)(b) and s. 487.052. In particular, she held as follows:

(1) Whether or not there is evidence at the scene of the crime of which the offender was convicted that would likely yield a DNA profile of the perpetrator is not necessarily a relevant consideration.

(2) The phrase "best interests of the administration of justice" does not import as a prerequisite to making the order that there be reasonable and probable grounds to believe a further offence will be committed.

(3) The state interest in obtaining a DNA profile from an offender is not simply law enforcement by making it possible to detect further crimes committed by this offender. Rather, the provisions have much broader purposes including the following:

1. Deter potential repeat offenders;
2. Promote the safety of the community;
3. Detect when a serial offender is at work;
4. Assist in the solving of "cold" crimes;
5. Streamline investigations; and
6. Most importantly, assist the innocent by early exclusion for investigative suspicion or in exonerating those who have been wrongfully convicted.

(4) Provisions in the Criminal Code and the DNA Identification Act restricting the use that can be made of the DNA profile and protecting against improper use of the information offer significant protection of the offender's privacy.

(5) The procedures for seizures of bodily substances authorized by the provisions are of short duration and involve no, or minimal, discomfort. There is a minimal intrusion with no unacceptable affront to human dignity.

(6) A person convicted of a crime has a lesser expectation of privacy.

(7) The trial judge is entitled to look at the offender's entire record, not just the crimes that may be designated offenses.

18 I would summarize the effect of these holdings as follows. In balancing the offender's right to privacy and security of the person against the state interests in obtaining the offender's DNA profile, the court must consider the following. The legislation offers significant protections against misuse of the DNA profile information, thus minimizing an improper intrusion into the offender's privacy. Having been convicted of a designated offence, the offender already has a reduced expectation of privacy. In the ordinary case of an adult offender the procedures for taking the sample have no, or at worst, a minimal impact on the security of the person. Thus, in the case of an ordinary adult offender there are important state interests served by the DNA data bank and few reasons based on privacy and security of the person for refusing to make the order.

23 … The trivial circumstances of the particular offence may be a factor favouring not making the order.

24 The court is also directed to consider the offender's record. If the offender has no prior record and the circumstances of the secondary designated offence are relatively minor, the court may be justified in not making the order. However, particularly if the offender has a record that includes offenses described as primary designated offenses, I would think it exceptional that the order not be made. In general, the more serious the record the less likely the court could exercise its discretion against making the order.

25 On balance, I would expect that in the vast majority of cases it would be in the best interests of the administration of justice to make the order under s. 487.051(1)(b) and s. 487.052, as the case may be. This follows simply from the nature of the privacy and security of the person interests involved, the important purposes served by the legislation and, in general, the usefulness of DNA evidence in exonerating the innocent and solving crimes in a myriad of situations.

VI. ANALYSIS

[26] I have considered the facts and principles set out above.

[27] The starting point in my analysis is the six to eight year range for importing cocaine in the amount brought in by the Accused, 1.955 kilograms.

[28] An aggravating circumstance is the criminal record of the Accused. It is lengthy, but has no entry since 2007. The Accused accounts for this gap by explaining that she was baptised 13 years ago.

[29] Mitigating circumstances, in my view, are the very difficult family history and family circumstances of the Accused reviewed above, as well as her remorse which was expressed to the Court.

[30] Despite the Crown’s argument to the contrary, I view the Accused’s bail conditions as restrictive; she was subject to those conditions for over 4 years. That is another mitigating circumstance.

[31] The Accused was in pre-trial custody for 5 days, for which the Crown concedes that she should be given credit of 8 days of time served in prison based on a ratio of 1.5 to 1.

[32] In my view, the aggravating circumstance of the Accused’s criminal record is more than counterbalanced by the mitigating circumstances of her family history and family circumstances, the restrictive bail conditions under which she lived for over four years, and her remorse; there was also, as noted, a substantial gap after the last entry on the record, before the commission of the offense for which the Accused is being sentenced.

[33] The weight of the mitigating circumstances take the appropriate sentence slightly below the six to eight year range otherwise applicable, as was the case in Zeisig, supra.

[34] I, therefore, would otherwise sentence the Accused to 5 years and 3 months incarceration from which I deduct 8 days for credit for pre-trial custody. She is, therefore, sentenced to a term of incarceration in the penitentiary of 5 years, 2 months, and 22 days.

[35] In addition, I order the forfeiture of the materials as consented to by both parties for which I will sign a formal order. Further, I make an order in relation to the Accused under s. 109 (1) (c) and (2) of the Criminal Code.

[36] Finally, despite the submissions of the Accused, I exercise my discretion to make an order under s. 487.051 (3) (b) of the Criminal Code in relation to the Accused. I make that order, having considered the factors set out in the provision, and the principles set out above from the Hendry, supra case. In particular, I have had regard to the serious nature of the offense of which the Accused has been found guilty and her criminal record.

Bloom, J. Released: July 31, 2019