COURT FILE NO.: CRIMJ(F)494/17
DATE: 2019 10 16
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
R. Tremblay, Counsel for the Respondent
Respondent
- and -
Safiya Vanderlyn Clarke
R. Wellington, Counsel for the Applicant
Applicant
HEARD: June 19th, 2019 and September 11th, 2019
REASONS FOR SENTENCE
LEMAY J
[1] After a four day jury trial, Ms. Clarke (“the offender”) was convicted of one count of importing cocaine into Canada contrary to section 6(1) of the Controlled Drug and Substances Act. This conviction stems from the fact that, on February 11th, 2016 the offender entered Canada through Pearson International Airport with 4.3662 kilograms of cocaine concealed within four separate containers.
[2] I am now required to determine the appropriate sentence for this offence.
Facts
[3] Prior to her arrest, the offender had gone to Jamaica for approximately a week. She departed on either February 3rd, 2016 or February 4th, 2016. She returned from Kingston, Jamaica on an Air Canada flight on February 11th, 2016, and arrived at Lester B. Pearson airport at approximately 6:00 p.m. the same day.
[4] The offender was travelling with her two children who were seven (7) and ten (10) years old at the time. She was selected for secondary screening, and her suitcases and those of her children were searched. The officer conducting the search identified four containers for further examination. At least one of the containers was in a suitcase belonging to one of the children. These containers were a Konsyl brand psyllium fibre container, a Metamucil container and two containers of Maggi seasoning.
[5] When these containers were opened, a white powdery substance was found. It was tested, and determined to be 4.3662 kilograms of cocaine.
[6] The offender was arrested, and her children were turned over to the Children’s Aid Society (“CAS”). She was released on February 16th, 2016. In the hearing before me, the parties agreed that the offender was entitled to nine (9) day’s credit for pre-sentence custody.
[7] On the offender’s evidence, the children remained in the care of the CAS until March 31st of 2016. They have been returned to the offender’s care, and she has a plan of care in place for them if she is incarcerated.
[8] At trial, the offender testified and said that she had been to Jamaica on a number of previous occasions, as she had family that lived there. In particular, her father lived in Jamaica and he was the principal person she visited. The offender testified that she had taken the children to Jamaica on more than one occasion, and had even left them in the care of her father for a period of time.
[9] The offender testified that, in November of 2015 she had gone to Jamaica with some friends, Kimberley and Lennox. The purpose of the trip was to attend the funeral of one of Kimberley’s relatives.
[10] When the offender was in Jamaica in November of 2015, she testified that she met a gentleman named Paul. She testified that Paul was a friend of Kimberley and Lennox’s and that the two of them flirted. After the end of the trip, the offender testified that she and Paul kept in contact. The offender also testified that she left her Louis Vuitton purse behind on this trip to Jamaica.
[11] The offender testified that she then went back to Jamaica with her children at the beginning of February. On her evidence, February was her birthday month although her birthdate is at the end of the month. She was required to obtain urgent passports in order to be able to travel with the children. She testified that she had hoped to be able to leave the children with a relative, but their father could not take care of them and neither could the offender’s aunts.
[12] The offender testified that the cost of the February 2016 trip was $2,000.00 and that it was a round trip. She paid for the flights for this trip for both children. She testified that the cost of the trip for herself in November of 2015 was $900.00.
[13] The offender testified that she met Paul on the first day of the trip, and he took her to Montego Bay, where her father was. She testified that she did not see Paul again until the day that she left. Paul picked her and the children up from her father’s place in Montego Bay on the day that she was to leave, and they checked into a hotel in Montego Bay.
[14] The offender testified that she and Paul went to a shopping centre across the street from where they were spending the day before she left for Toronto. At that shopping centre, the offender testified that she purchased some Mac cosmetics. She testified that Paul purchased the containers of Metamucil, Maggi seasoning and Konsyll brand psyllium fiber. She testified that these containers were pulled off of shelves in the store and that she then packed them in her luggage. Paul then took her to the airport and she returned to Canada where she was arrested.
[15] Given the conviction, it is clear that the jury did not believe the offender’s evidence, and it did not leave them with a reasonable doubt. I will return to some of the problems with the offender’s evidence when I address specific issues that have been raised on this sentencing hearing.
The Offender
[16] The offender testified at trial. As a result, I have some background on her personal and family circumstances that I can consider on sentencing.
[17] A pre-sentence report was ordered in this case in February of 2019, shortly after the guilty verdict was returned by the jury. However, the offender originally refused to participate in the pre-sentence process. As a result, when this matter was before the Court in May of 2019, I did not have a pre-sentence report of any value.
[18] However, the offender did re-attend for a pre-sentence report after the appearance in May of 2019, and I now have the advantage of this report as well as several letters of support that were filed at the sentencing hearing.
[19] The offender is 32 years old, and was born in Toronto. Her parents were married, and they separated when the offender was approximately six years old. The offender’s mother travelled back and forth between Jamaica and Canada when she was younger. The offender’s parents are good friends, and have been since they separated. The offender is one of seven siblings, who range in age from 15 to 37. She shares both parents with one of her siblings.
[20] In terms of her educational background, the offender originally did not complete high school, but was able to complete it at an Adult School in 2008. She has enrolled in College programs a couple of times, but has not completed the programs. She left college in 2011, as she had retained part-time employment as a ward clerk at Mt. Sinai Hospital. She held this employment until 2017, when a restructuring led her to decide that the hours of work she was being offered interfered with her ability to care for and spend time with her children.
[21] At the time of trial, the offender was a full-time employee of McDonalds, working at a restaurant location in Toronto. In 2018, the offender secured a Certificate in Hairdressing through a private source. I understand that the offender started to work at a hair salon around the beginning of May of 2019.
[22] The offender, as noted above, has two children that she lives with. They are currently aged 13 and 10. The children both participate in extracurricular activities. One plays on a rep level team, which costs the offender $450.00 per year. The child’s father pays the other half. The other child also has some expenses related to extracurricular activities.
[23] The offender met the children’s father when she was in high school. The offender and the children’s father were never married, and lived together for two years. The offender left this relationship because it was abusive. The offender is still in regular contact with the children’s father, and he provides help with the kids both financially, and taking care of them on weekends.
[24] The offender has no previous record, and there is no indication that the offender has any addiction issues.
[25] The letters of support that were filed on behalf of the offender were provided by her mother, the father of the father of her children and a friend. All of the letters emphasize that the offender is hard working, a good caregiver to her children and a source of support and comfort for those around her. I have taken those letters into account in fashioning the appropriate sentence in this case.
The Positions of the Parties
[26] In this case, the Crown is asking that the offender should be sentenced to a period of incarceration of eight (8) years, which is at the top end of the range. Crown counsel advances this position on the basis that the offender was found guilty after a trial, and that the offender used her children in the commission of this offence, which is a significant aggravating factor in the Crown’s view.
[27] Defence counsel, on the other hand, seeks a suspended sentence of three years or in the alternative, a period of incarceration of two years less a day, and a period of probation. Counsel argues that the offender did not engage in this trafficking for personal gain. He also argues that I need to consider the circumstances of the accused, and that she had a difficult early adulthood. In this regard, he also makes reference to the decisions in R. v. Jackson (2018 ONSC 2527) and R. v. Morris (2018 ONSC 5186). Finally, counsel argued that this is an exceptional case and the sentence should fall outside of the normal sentencing ranges.
Mitigating Factors
[28] The mitigating factors in this case are as follows:
a) The offender is a mature first-time offender.
b) The offender had a difficult relationship with an abusive partner in her early adulthood.
[29] One of the other potential mitigating factors that was argued is remorse. However, in this case, the Crown says that the offender has not demonstrated remorse. Defence counsel disagrees, and says that I should read a passage of the pre-sentence report as supporting this assertion. The passage in question states:
With regard to the current offence the subject denied any knowledge of “carrying drugs” and stated “it is unfortunate that people use people for their own gain”. She added that; she “is a good person”, voiced concerns that she would have a criminal record and stated a desire to remain with her children.
[30] At the sentencing hearing, the offender stated that bad things happen to good people. She also stated that she had to take responsibility for what happened in her life, even if it was out of her control. Finally, she stated that she has led a good life with her children, and that her children need her.
[31] In my view, neither the excerpt from the pre-sentence report nor the statement of the accused on sentencing amount to an expression of remorse. The offender in her statements is not taking responsibility for this crime. She is, understandably, concerned about the effect that this will have on her children, but that does not amount to remorse. I am not prepared to consider remorse as a mitigating factor in this case. It is also not an aggravating factor either.
Aggravating Factors
[32] On this type of offence, the following are clearly aggravating factors:
a) The nature of the substance that was imported.
b) The fact that this was not a spur-of-the moment crime.
c) The amount of the substance that was imported. 4.3 kilograms of cocaine is a very significant amount.
[33] Any aggravating factors must be proven beyond a reasonable doubt. Crown counsel argues that the presence of the children on the trip was an aggravating factor. Specifically, counsel argues that the offender took her young children on this trip with the intention of making it less likely that she would be stopped on her return.
[34] Section 10(2)(c) of the Controlled Drugs and Substances Act states:
(2) If a person is convicted of a designated substance offence for which the court is not required to impose a minimum punishment the court imposing sentence on the person shall consider any relevant aggravating factors including that the person
(c) used the services of a person under the age of eighteen years to commit, or involved such a person in the commission of, the offence.
[35] In addition, counsel directs my attention to R. v. Grant (2015 ONCJ 751). In that case, Stribopoulos J. (as he then was), was considering a case where Ms. Grant was convicted of importing approximately 4.3 kilograms of cocaine. At the time she was detained at the border, Ms. Grant’s child was three years old.
[36] In Grant, there was a mandatory minimum in place, so the provisions of 10(2)(c) did not apply. However, Stribopoulos J. went on to observe:
In this case, however, Ms. Grant is subject to a minimum punishment. Due to ss. 6(3)(a.1) of the Act, I am required to “impose a minimum punishment” of two years imprisonment. Therefore, in my view, the direction found in ss. 10(2)(c) has no application in this case.
Nevertheless, even without any statutory direction, I am of the view that Ms. Grant’s decision to involve her child in the commission of this offence is indeed an aggravating factor in this case. In my view, in the circumstances, given that Ms. Grant’s only apparent purpose for coming to Canada was to import cocaine, is it hard to imagine any reason to bring her daughter with her other than a misguided belief that this would serve to lessen her chances of detection. The fact that Ms. Grant was travelling with Ms. Thomas, who was also accompanied by her young daughter, in my view, only serves to buttress this conclusion. The children were clearly meant to serve as cover, so that the women could pass more easily into Canada without attracting suspicion as potential drug couriers.
All of that said, I think it is most fortunate that Ms. Grant’s child was only two years old at the time of these events. As a consequence of that, I think it rather improbable that her little girl will have much, if any, recollection of these events. No doubt, the situation would be very different if Ms. Grant’s child had been older. If she had been, she would very likely remember and therefore suffer the affects of the ordeal of witnessing her mother’s arrest, remembering her own apprehension by child protection authorities, and enduring the experience of being returned to Antigua without her mother. As a result, although Ms. Grant’s involvement of her daughter in the commission of this offence is an aggravating factor, in all of the circumstances, I think it would be wrong to place too much weight on this consideration.
[37] Regardless of whether there was a mandatory minimum in place or not, in my view the reasoning in Grant applies in this case as well.
[38] In this case, counsel for the defence argues that there is not enough evidence to establish beyond a reasonable doubt that the offender used her children in the commission of this offence. I disagree for the following reasons:
a) It is natural to conclude that a parent with two children would be less likely to be smuggling drugs.
b) Some of the drugs were put into the suitcase of one of the children.
c) The children were taken on the trip at the last minute.
[39] I acknowledge that the evidence that the children were taken at the last minute could be open to the interpretation that the offender was telling the truth that the trip had been planned for her birthday, and that she simply took the children because she had no arrangements to care for them. I reject this evidence because I reject the offender’s evidence about how she came into possession of the packages containing the cocaine which I will discuss shortly, and because there was no good explanation as to why the offender could not find care for the children while she took this trip when their father is involved with them and the offender has aunts who could have helped care for them.
[40] For these reasons, I find that a fourth aggravating factor, that the accused involved her children in the commission of the offence, is established beyond a reasonable doubt.
Sentencing Principles and Purposes
[41] The statutory principles and purposes of sentencing are set out in section 718 of the Criminal Code and section 10 of the Controlled Drugs and Substances Act. The Court of Appeal has identified denunciation and deterrence as the primary sentencing criteria for crimes of this nature because of the extraordinarily harmful effects of cocaine.
[42] There are a plethora of sentencing cases on the importation of multiple kilograms of cocaine into Canada. The leading decision is R. v. Cunningham (1996) 1996 CanLII 1311 (ON CA), 27 O.R. (3d) 786 (C.A.), where the court observed that, as a general rule and absent exceptional or extenuating circumstances, the range of sentence for a first offender courier smuggling large amounts of cocaine into Canada for personal gain should be six to eight years in the penitentiary.
[43] Counsel for the offender suggests that the case before me involves an exceptional circumstance within the meaning of Cunningham, supra. Counsel also suggests that there is an issue as to whether the offender actually imported cocaine into Canada for personal gain. In this case, he suggests that the offender imported cocaine into Canada as a result of the relationship that she was developing with Paul, the person who gave her the packages.
[44] As a result of counsel’s submissions, there are three additional issues that I must address:
a) Was this offence committed for personal gain?
b) Should the decisions in Jackson, supra and Morris, supra be applied to this case?
c) Is this case an exceptional circumstance?
[45] I will deal with each of these issues in turn.
a) Was This Offence Committed for Material Gain
[46] Counsel for the offender argues that there is no evidence that this offence was committed for material gain and, as a result, I should not apply the range in Cunningham, supra. Instead, Counsel argues that the offender committed this offence because of her friendship with and/or relationship with Paul and that there was no material gain.
[47] I disagree, and I am satisfied beyond a reasonable doubt that counsel’s assertion that there was no material gain in this case cannot be supported for four reasons.
[48] First, I am of the view that the offender never took the trip to Jamaica in November of 2015. I reach that conclusion for the following reasons:
a) The offender’s passport does not have a stamp from the November 2015 visit. It is, therefore, unlikely that the offender went on this trip.
b) The offender, when asked about the cost of the ticket for the November, 2015 trip, said that it was approximately $900.00. This evidence has to be viewed in the picture of the offender’s financial position. She was making $30,000.00 per year (gross). She had two children who were in expensive extracurriculars and paid approximately $800.00 in rent a month. It is, therefore, unlikely that the offender was able to afford two trips to Jamaica in the space of less than five months.
[49] This brings me to the second reason why I reject the argument that this transaction was not for financial gain. The offender’s financial situation was such that it would have been extremely difficult to afford this trip even if she went on her own, and that bringing the children on the trip, and spending $2,000.00 on the trip, which is 7 percent of her gross annual income, would have been completely unaffordable. Given the offender’s financial circumstances, the only logical inference is that the trip was funded for the purposes of importing the cocaine.
[50] Third, the description of the relationship with Paul is fraught with inconsistencies. On this point, I start from the fact that the jury clearly did not believe the offender when she testified that she did not know about the cocaine being in her bag.
[51] With that starting point in mind, there are a number of other problems with the story about Paul:
a) The offender could not recall details about Paul.
b) The offender’s evidence about the day that she obtained the containers from Paul was inconsistent. At one point, she suggested that they stayed in the hotel in Kingston, Jamaica overnight and at another point she suggested that they stayed only for the day.
c) The offender’s testimony that she was with Paul when he purchased the containers and paid for them is simply not believable. To accept this evidence would require me to accept something that the jury did not accept- which is that the offender did not know (and was not willfully blind) about there being cocaine in the containers.
[52] Based on these first three points, I am satisfied beyond a reasonable doubt that the accused engaged in this transaction for financial gain. The only inference that can be drawn from the evidence is that the offender knew that there was cocaine in these containers and had been (or would be) compensated in some way for bringing it into Canada.
[53] In addition, however, there is the meaning to be given to the words “for personal gain” in Cunningham, supra. In my view, those words do not simply mean “financial gain”. If the Court of Appeal had wanted to say financial gain, they could have done so. As a result, even if there was no financial gain for the offender here, she was still engaged in this transaction to further her relationship with Paul, which would have been a personal gain for her.
b) Do R. v. Jackson and R. v Morris Apply to This Case?
[54] When counsel for the offender originally raised this issue at the June appearance, I directed his attention to my decision in R. v. Brissett and Francis (2018 ONSC 4957). In that decision, I set out lengthy reasons (at paragraphs 54 to 72) as to why, on the facts of that case, I was not prepared to apply Jackson.
[55] In this case, counsel for the offender conceded that there was nothing in the offender’s pre-sentence report, or in the records before the Court, that supported an assertion that she had been personally affected by systemic racial or gender biases. As a result, I apply the same reasoning as set out in Brissett and Francis, and I decline to apply either Jackson or Morris.
[56] I should not leave this issue without two further comments. The first relates to the evidence that I had before me on the sentencing submissions. Although I noted counsel’s concession in the previous paragraph, counsel also suggested (in his oral submissions) that he would be prepared to adjourn the sentencing hearing in order to obtain additional evidence.
[57] I did not accept counsel’s invitation to adjourn the proceedings. I reached that conclusion for two reasons. First, and most importantly, the pre-sentence report did not provide me with any sense that information showing that the offender was personally affected by the issues raised in Jackson might exist
[58] The offender currently lives in subsidized housing, but her parents maintained a good relationship after they separated, she has considerable supports in the raising of her children (including from their father), and she has had a number of educational opportunities that she has pursued and that could be used to build a career. She has also been employed regularly.
[59] Second, the submissions on September 11th, 2019 were the fourth time that this matter had been before the Court for sentencing submissions. All parties have an obligation to proceed in a prompt manner, particularly in criminal matters. If counsel or the offender had wanted to rely on such a report, there was an obligation to produce it in a timely way. In that regard, it is also worth noting that, when the original pre-sentence report (where the offender did not cooperate) was produced, I strongly encouraged her cooperation with a subsequent report in order to obtain this very information if it existed.
[60] The second issue that should be addressed relates to the submissions on R. v. Jackson, supra. In oral argument, I asked counsel about the potential for the reasoning in Jackson to be extended to other groups that have also experienced colonialism and racism.
[61] Counsel argued, inter alia, that the black and aboriginal communities had been the subject of more research, which is why the focus was on those two groups rather than on other groups. I also acknowledged in that discussion that each group (and each person) is going to have their own individual lived experience.
[62] This discussion, however, brings me back even more strongly to the observations that I made in Brissett and Francis (at paragraph 65). Sentencing “is based on the individual circumstances of the individual offender.”
[63] For these reasons, I decline to apply the reasoning in Jackson and Morris.
c) Exceptional Circumstances
[64] Counsel for the offender argues that this case involves exceptional circumstances. In support of this position, he refers me to the reasons in R. v. Shallow (2019 ONSC 403), R. v. Voong (2015 BCCA 285) and R. v. Sharma (2018 ONSC 1141).
[65] I have reviewed all of these cases in detail, and they are all distinguishable on their facts. In both Shallow and Voong, the Courts were concerned with the possession for the purposes of trafficking of small amounts of drugs. In this case, I am faced with more than 4 kilograms of cocaine.
[66] In addition, there are no exceptional circumstances in this case. In that regard, I note:
a) The financial circumstances of the offender are, unfortunately, a common feature of these cases.
b) On the record before me, there is nothing exceptional about the offender’s personal circumstances.
c) The circumstances in which the offender was caught and charged are also a common feature of these cases.
d) There was a jury trial, and a finding of guilt.
e) There has been no clear expression of remorse or responsibility.
f) There was no assistance provided to the police by the offender.
[67] Based on the foregoing, I am of the view that there are no exceptional circumstances in this case.
The Fit and Proper Sentence for the Offender
[68] I am of the view that the range in Cunningham, supra, applies. Therefore, the fit and proper sentence in this case is between 6 and 8 years. There are mitigating circumstances with this offence, as well as aggravating circumstances. In particular, however, the use of the children in the commission of the offence is a significant aggravating factor.
[69] When I take those circumstances into account, I am of the view that a sentence of seven (7) years incarceration, less nine (9) days time served, is the fit and proper sentence.
[70] In addition, the following Orders will be made:
a) There will be a weapons and firearms Order under section 109 of the Criminal Code. To the extent that Order is discretionary, it shall be for a period of ten (10) years.
b) An order respecting DNA under section 487.051 of the Criminal Code and a forfeiture Order.
c) The victim surcharge fine was waived by the Crown, so there will be no order in that regard.
LEMAY J
Released: October 16, 2019
COURT FILE NO.: CRIMJ(F)494/17
DATE: 2019 10 16
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
- and -
Safiya Clarke
REASONS FOR SENTENCE
LEMAY J
Released: October 16, 2019