COURT FILE NO.: CR-17-595
DATE: 2019-11-22
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Mr. M. Park & Mr. C. Walsh, for the Crown
- and -
DONOVAN BROWN
Mr. Stacey Taraniuk, for Mr. Brown (on April 29, 2019) & Ms. A. Ruffo (on November 22, 2019)
HEARD: April 29, 2019, November 22, 2019
REASONS FOR SENTENCE
STRIBOPOULOS J.:
Introduction
[1] After a three-week trial, on February 21, 2019, a jury found Mr. Brown guilty of three offences. Two counts of importing cocaine into Canada, contrary to s. 6(1) of the Controlled Drugs and Substance Act, S.C. 1996, c. 19 (“CDSA”). And, one count of conspiracy to import firearms into Canada, contrary to section 103(1)(a) of the Criminal Code, R.S.C., 1985, c. C-46 (“Criminal Code”), thereby committing an offence contrary to section 465(1) of the Criminal Code.
[2] On the date originally scheduled for the imposition of sentence, June 28, 2019, with new counsel, Mr. Brown successfully applied for an adjournment, so that he could bring an application alleging a violation of his right to be tried within a reasonable time, as guaranteed by s. 11(b) of the Charter. That application was argued on September 3, 2019, and dismissed earlier today: see R. v. Brown, 2019 ONSC 6689.
[3] These reasons will proceed in four parts. Part one will provide a summary of Mr. Brown’s offences. In the second part, these reasons will detail Mr. Brown’s circumstances. Part three will summarize the positions of the parties. Finally, the reasons will review the governing legal principles and analyze the appropriate sentence in all of the circumstances of this case.
I. Circumstances of the Offences
[4] The cocaine importing offences involved four different couriers entering Canada on two separate dates. On February 26, 2015, Lucas Norman and Heidi Murray returned to Canada from St. Lucia. Following their arrival at Pearson International Airport, Canadian Border Services Agency (CBSA) officers discovered cocaine hidden within false bottoms in their suitcases and further quantities of cocaine concealed on their bodies. Together, they imported approximately four kilograms of cocaine into Canada.
[5] A little more than a month later, on March 30, 2015, Taylor Ford and Renee Coughlan, also arrived at Pearson International Airport following a trip to St. Lucia. They, too, were discovered by CBSA officers to be carrying cocaine; each had packages containing cocaine taped to their bodies. The combined total of cocaine imported by these two drug couriers was also approximately four kilograms.
[6] Given the evidence at trial, the potential basis for liability left with the jury, and the verdicts, Mr. Brown was found guilty of two counts of importing cocaine for his role in organizing the importation of the eight kilograms of cocaine that the four couriers brought into Canada on those two dates.
[7] Mr. Brown did not orchestrate these importations of cocaine on his own. The evidence established that his principal accomplice was David Blevins, who pled guilty before trial to two counts of importing cocaine for his role in facilitating these same importations.
[8] The offence of conspiracy to unlawfully import firearms into Canada also involved Mr. Brown and Mr. Blevins. The evidence came primarily from intercepted telephone conversations. Given the verdict, the jury concluded that there was an agreement between Mr. Brown and Mr. Blevins to import firearms unlawfully from the United States into Canada.
[9] The conspiracy involved a plan to import between forty and fifty handguns into Canada from the United States. Specifically, during a conversation on July 9, 2015, at the conspiracy's inception, in what was unquestionably a reference to the handguns, Mr. Brown told Mr. Blevins, "fifty of them”. During a further call the next day, Mr. Brown indicates he needs "thirty of them", and Mr. Blevins responds, "you need thirty, I need say ten, so forty".
[10] During their intercepted conversations, the men were also overheard discussing the cost of purchasing a handgun in the United States and the potential resale price in Canada. In Florida, where Mr. Blevins was at the time, he could buy a handgun for between $300 and $450. Once imported into Canada, the men expected a resale price for each handgun of $2,500.
[11] After the conspiracy came into existence, Mr. Blevins set about collecting handguns, which he purchased from private individuals, pawn shops, and gun shops in Florida. In several intercepted telephone calls, Mr. Blevins provides Mr. Brown with periodic updates on his efforts to collect the firearms.
[12] On August 28, 2015, Mr. Blevins was arrested in Melbourne, Florida, by agents from the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). On the day of his arrest, ATF agents observed Mr. Blevins purchase two handguns from a pawn shop, before attending a gun store where he bought two more. After his arrest, police found another handgun in the centre console of Mr. Blevins' rental vehicle. They also found five further handguns in a storage locker that Mr. Blevins was renting in Melbourne.
[13] Although Mr. Brown and Mr. Blevins were initially charged together with two counts of importing cocaine, and one count of conspiracy to import firearms, the conspiracy charge against Mr. Blevins was withdrawn by the Crown after he pled guilty to the two counts of importing cocaine.
II. Circumstances of the Offender
[14] Mr. Brown is 48 years old. He was born in Jamaica but immigrated to Canada with his parents and three siblings when he was just three years old. He is a Canadian citizen. After the family’s arrival in Canada, Mr. Brown's parents were both gainfully employed. There is no hint of any family discord or dysfunction during Mr. Brown's formative years. Rather, his parents appear to have provided Mr. Brown with a home life that was nurturing and loving.
[15] Mr. Brown completed grade 12. He worked at a variety of jobs while attending high school. For a couple of years after graduating from high school, he did warehouse work for two different companies. Mr. Brown eventually returned to school, pursuing studies at Sheridan College. He reportedly earned two college diplomas, one in law and security and a second in social work. He told the author of the Pre-Sentence Report that he had aspirations of becoming a police officer but cites experiencing police harassment during the 1990s as his reason for giving up on that goal.
[16] Mr. Brown has a longstanding interest in basketball. He played on Sheridan College's basketball team during the four years he was studying there. After that, he spent a season playing semi-professional basketball. Over the years, Mr. Brown has continued his involvement with basketball. Defence counsel advises that Mr. Brown has mentored young basketball players and was active with an organization known as Grassroots Canada.
[17] In time, Mr. Brown became affiliated with a well-known player agent from the United States. Working for him, during the late 1990s, Mr. Brown reportedly scouted potential basketball players both in Canada and in Africa for recruitment by American colleges and professional basketball teams. During the sentencing hearing, defence counsel advised that over the years Mr. Brown has successfully recruited 11 different basketball players, with six eventually pursuing professional careers in Europe, and five doing the same in the United States. Mr. Brown provided two names to the author of the Pre-Sentence Report to confirm his involvement with the recruitment of basketball players. However, she was unable to contact either of the two individuals that Mr. Brown named.
[18] In 1999, in the United States, Mr. Brown was convicted of either importing MDMA (Ecstasy) or possessing that substance for purposes of trafficking. He spent two years in custody, with the final month of his sentence spent in Canada before being granted parole.
[19] Since leaving prison, Mr. Brown has apparently had various forms of employment. He worked managing different types of businesses, including a car detailing business for a year and then a nightclub for two years. In 2011, Mr. Brown became licensed as a Personal Support Worker and worked in that field for approximately six months. Since 2012, Mr. Brown has reportedly worked in the home renovation business and completed three separate house renovation projects.
[20] In 2004, Mr. Brown married. He has four children, a 13-year-old, an 11-year-old, and 7-year-old twins. Although Mr. Brown remains married to his wife, their relationship has suffered because of some challenges that she has experienced. Although they have continued to reside together, in recent years, for all intents and purposes, the couple is estranged.
[21] Mr. Brown has been active in the upbringing of his children. By all accounts, he is an attentive and dutiful father. The surveillance evidence at trial established that he played an active role in his children's lives, routinely driving them to and from school. Since Mr. Brown's incarceration, due to his wife's difficulties, his elderly parents have taken on a fair amount of the parenting responsibilities for the children. Given the lengthy prison sentences that Mr. Brown faces, his wife's ongoing difficulties, and his parents advancing years, the future care of his children is a source of considerable anxiety for him.
III. Positions of the Parties
[22] The parties do not agree on the appropriate sentence for Mr. Brown for his offences. The Crown submits that in the ordinary course, due to the presence of numerous aggravating, and a lack of mitigating, factors, these offences warrant substantial prison sentences. The Crown submits that before taking into account the totality principle, the two cocaine importing offences deserve 12-year concurrent sentences of imprisonment, whereas the conspiracy to import firearms offence should attract an eight-year consecutive sentence.
[23] Concerning the cocaine importing offences, the Crown says there are several significant aggravating factors. First, there is the nature of the controlled substance; cocaine is a highly addictive and dangerous narcotic. Second, there is the quantity involved; eight kilograms is a substantial amount of cocaine. Third, there is Mr. Brown's leadership role in the scheme. Fourth, there is the fact that Mr. Brown appears to have taken deliberate steps to insulate himself by having Mr. Blevins enlist and interact with the couriers. Finally, the intercepted communications suggest that Mr. Brown was planning on continuing to import cocaine into the future. Given all of this, the Crown submits that these offences deserve 12-year concurrent sentences of imprisonment.
[24] The Crown also argues that there are several significant aggravating factors associated with the conspiracy to import firearms offence. First, there are the number of handguns that the co-conspirators were planning to bring into Canada (40 to 50). Second, the fact that Mr. Brown appears to have conceived of the idea, took the lead in terms of planning, while also delegating most of the leg work and the risk to Mr. Blevins. Third, there was a calculated profit motive for this crime. Finally, this was not a one-off conspiracy but a scheme to import firearms into Canada on an ongoing basis.
[25] Beyond these specific aggravating factors, the Crown notes that Mr. Brown exhibited a complete indifference to the suffering that the cocaine and the firearms would occasion if successfully imported into Canada. The Crown submits that this reflects rather poorly on his chances for rehabilitation.
[26] In summary, the Crown argues that if Mr. Brown were sentenced for these offences individually, the result would be a total sentence of 20 years of imprisonment. However, taking into account the principle of totality, the Crown submits that a sentence of 16 years of imprisonment is appropriate with the individual sentences adjusted downwards to reflect that quantum.
[27] The Crown also seeks three ancillary orders. First, a DNA order because these are "secondary designated offences" as defined by s. 487.04 of the Criminal Code. Second, weapons prohibition orders under s. 109 of the Criminal Code. Finally, the Crown also seeks a forfeiture order for some offence-related property.
[28] In contrast, defence counsel submits that for all three offences the court should impose a total sentence of between 9 ½ to 10 years of imprisonment, less appropriate credit for time subject to house arrest bail and also in pre-sentence custody. With the latter, defence counsel says there should be some enhanced credit given for the period spent by Mr. Brown in lockdown. In arguing for a sentence of between 9 ½ and 10 years, defence counsel disputes the existence of some of the more aggravating factors claimed by the Crown.
[29] To begin, defence counsel argues that the evidence does not reasonably support a finding that Mr. Brown's role in either enterprise was more significant than that of Mr. Blevins. At best, the two men were partners, with each playing different but equally essential roles in both of the illegal schemes. Defence counsel emphasizes that for his part in the drug importing offences Mr. Blevins received a sentence of eight years imprisonment.
[30] Further, defence counsel argues that the evidence does not support a finding that Mr. Brown was planning to continue with either scheme in the long term. At worst, defence counsel submits, the intercepted communications suggest the men were engaging in wishful thinking. Defence counsel notes that following the March 30, 2015 importation, neither Mr. Brown nor Mr. Blevins were immediately arrested. The police continued to intercept their telephone calls after that date. Despite this, there is no evidence that they orchestrated any further cocaine importations.
[31] Similarly, defence counsel notes that when the police arrested Mr. Blevins in Florida, almost two months after the conspiracy came into existence, they did not find a large cache of handguns. Instead, they only recovered ten handguns; far from the 40 to 50 that Mr. Brown and Mr. Blevins had been overheard discussing. There is also no evidence to suggest that the firearms importation scheme came to fruition and that a single handgun was ever successfully imported into Canada.
[32] Defence counsel also distinguishes the various cases relied on by the Crown to support its position on sentence. According to the defence, each of these cases includes aggravating factors that are not present in this case. Hence, the precedents are of little utility in deciding on the appropriate sentences for Mr. Brown for his offences.
[33] The most relevant case for sentencing purposes, defence counsel submits, is that of Mr. Blevins. For his comparable role in the cocaine importations, he received a sentence of eight years imprisonment. Far less than the twelve years that the Crown submits should be imposed on Mr. Brown for his equivalent role.
[34] Viewed in proper context, with appropriate regard for the principle of parity, defence counsel submits that for his offences, Mr. Brown deserves a global sentence of 9 ½ to 10 years imprisonment. Defence counsel contends that a sentence of that duration takes sufficient account of Mr. Brown's conviction for the conspiracy offence. At the same time, it pays due regard to the principle of totality.
[35] From the total sentence of 9 ½ to 10 years imprisonment, defence counsel argues that the court should give appropriate credit for the time spent by Mr. Brown on house arrest bail and then subject to pre-sentence custody, including some enhanced credit for his time spent in lockdown. Finally, defence counsel does not take issue with the ancillary orders the Crown is seeking.
IV. Law and Analysis
a) Purpose, Objectives, and Principles of Sentencing
[36] The "fundamental purpose of sentencing is to protect society" and to contribute "to respect for the law and the maintenance of a just, peaceful and safe society": Criminal Code, s. 718. For offences under Part I of the Controlled Drugs and Substances Act, Parliament has also identified the “treatment in appropriate circumstances, of offenders” as one of the fundamental purposes of sentencing: CDSA, s. 10(2).
[37] These purposes are to be accomplished through the imposition of "just sanctions", that reflect one or more of the traditional sentencing objectives: denunciation, general and specific deterrence, separation of offenders, rehabilitation, reparation to victims, and promoting a sense of responsibility in offenders and acknowledgment of the harm done to victims and to the community: see Criminal Code, ss. 718(a) through (f); CDSA, s. 10(2).
[38] The fundamental principle of sentencing is that the sentence imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender: see Criminal Code, s. 718.1. Proportionality requires that the sentence imposed fit both the seriousness of the crime and the offender's level of moral blameworthiness in its commission: see R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at paras. 36-39.
b) Sentencing for Importing Cocaine
[39] The Court of Appeal has acknowledged that the importation of cocaine is, "among the most serious crimes known to Canadian law": R. v. Hamilton (2004), 2004 5549 (ON CA), 186 C.C.C. (3d) 129 (Ont.C.A.), at para. 104. The seriousness of the offence is reflected in Parliament’s decision, where the substance involved is cocaine and the amount imported exceeds one kilogram, to prescribe a minimum sentence of two-years imprisonment and a maximum sentence of life imprisonment: see CDSA, s. 6(3)(a.1). (That said, it deserves mention that the mandatory minimum sentence has been found inconsistent with s. 12 of the Charter and declared of no force and effect: see R. v. C.S, 2018 ONSC 1141.) As Justice Doherty observed in Hamilton, 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. Unlike the trial judge (para. 224), I characterize cocaine importation as both a violent and serious offence: see R. v. Pearson (1992), 1992 52 (SCC), 77 C.C.C. (3d) 124 at 143-44 (S.C.C.).
[40] Given the extraordinarily harmful effects of cocaine, the Court of Appeal has identified denunciation and general deterrence as the preeminent sentencing objectives for importing cocaine. As a result, in R. v. Cunningham (1990), 1996 1311 (ON CA), 27 O.R. (3d) 786 (C.A.), the court instructed that, as a general rule, absent exceptional or extenuating circumstances, where a courier has imported a kilogram of cocaine "more or less", a sentence of three to five years imprisonment is appropriate: see also R. v. Madden (1996), 1996 10212 (ON CA), 104 C.C.C. (3d) 548 (Ont. C.A.).
[41] In Cunningham, the Court of Appeal made clear that the larger the amount of cocaine, the longer the sentence imposed should be. It explained that "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": Cunningham, at p. 790; see also R. v. H. (C.N.) (2002), 2002 7751 (ON CA), 170 C.C.C. (3d) 253 (Ont.C.A.), at paras. 21-37.
[42] Of course, this excerpt from Cunningham speaks to the circumstances of first offender couriers who import cocaine. Those offenders who occupy higher positions within the drug importation hierarchy are far more culpable, and the sentences they receive must reflect this. As Lamer J., as he then was, observed, in R. v. Smith, 1987 64 (SCC), [1987] 1 S.C.R. 1045, at p. 1053:
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.
[43] By way of example, in a case involving a conspiracy to import 12 kilograms of cocaine into Canada, the Court of Appeal upheld sentences of 11 years imprisonment for two co-conspirators and a 13-year sentence for a third. The court accepted that a longer sentence was justified for the one co-conspirator by the trial judge's conclusion that he "'was the leader of the pack' and 'the driving force' of the enterprise": R. v. Ambrose, 1994 1378 (ON CA), [1994] O.J. No. 1457 (C.A.), at para. 21.
c) Sentencing for Importing Firearms
[44] Firearms in the hands of criminals pose a grave threat to public safety. In recent years, one need only read the newspaper or watch the news to realize that this is a problem of epidemic proportions in the Greater Toronto Area. When wielded by criminals, handguns are implements of destruction that cause death and life-altering physical injuries. For victims and their families, the physical and psychological toll of gun violence is immeasurable.
[45] There are strict legal controls on the importation and sale of handguns in Canada. The illicit trade in firearms depends on two sources, theft from lawful gun owners and unlawful importation. The seriousness of the offence of unlawfully importing firearms cannot be understated. This crime is an essential link in the supply chain that puts guns in the hands of criminals and is directly tied to the tragic consequences that far too often result. The punishments prescribed by Parliament reflect the gravity of this offence.
[46] An offender who imports a prohibited firearm, a restricted firearm, a non-restricted firearm, a prohibited device, or any prohibited ammunition, is guilty of an indictable offence and liable to a mandatory minimum sentence of three years of imprisonment for a first offence, five years imprisonment for a second or subsequent offence, and a maximum sentence of ten years of imprisonment: see Criminal Code, s. 103(2). An offender who conspires to import firearms into Canada, in contravention of s. 103(1)(a), is liable to the very same punishment: see Criminal Code, s. 465(1)(c).
[47] Given the profound harm firearms cause, Canadian courts have recognized that when it comes to sentencing offenders involved in the illegal gun trade, the objectives of deterrence and denunciation must take precedence: see R. v. Villella, 2006 39324 (ON SC), [2006] O.J. No. 4690, (S.C.), at para. 44; R. v. Howell, [2007] O.J. No. 4585 (S.C.), at para. 20; R. v. Ivanic, 2011 BCCA 158, at para. 21. The sentences imposed by courts on such offenders reflects this.
[48] In a recent case, involving an accused charged with a variety of firearms offences resulting from his unlawful transfer of a handgun, Fregeau J. conducted a rather thorough review of the sentencing precedents in this area. After doing so, he concluded that in "true" firearms trafficking cases (those far removed from situations that are akin to licensing infractions) the sentencing range is between two and eight years of imprisonment: see R. v. Wetelainen, 2019 ONSC 869, at paras. 53, 106.
[49] Ultimately, the sentencing of an offender within this wide range is a function of the aggravating and mitigating factors. In terms of aggravating factors, beyond a prior criminal record, especially a related record, these can include the offender's specific role in a particular scheme, their motivation, and the number of firearms involved. A selection of some of the cases illustrates all of this.
[50] In R. v. Hussain, 2015 ONSC 7115, varied on other grounds, 2018 ONCA 147, a youthful offender, with a criminal record that did not include previous entries for violence or firearms, pled guilty to a variety of firearms offences associated with his possession and transfer of a shotgun to another man. The court imposed a sentence of three years of imprisonment for the firearm trafficking offence.
[51] In R. v. Waldron, 2015 ONCA 586, the Court of Appeal upheld a five-year sentence of imprisonment for an offender who offered to sell six firearms and who was motivated by profit. The court concluded that the sentence was appropriate, despite the offender's efforts at rehabilitation.
[52] In R. v. Tuck, 2007 ONCA 495, the Court of Appeal imposed a sentence of what was effectively six-years imprisonment for an offender who pled guilty to drug and firearms trafficking offences. The offender had sold four firearms, some ammunition, and had attempted to sell four further firearms.
[53] In R. v. Whyte, 2011 ONSC 181, a youthful gun trafficker, with a prior criminal record, was sentenced to 6 ½ years imprisonment for a variety of offences relating to his possession of four firearms, two of which were semi-automatic handguns.
[54] In R. v. McLeod, 2014 ONCA 647, the Court of Appeal upheld a seven-year sentence for an offender who served as a courier smuggling 25 handguns into Canada from the United States. It is noteworthy that, in its reasons, the court referenced the "mastermind" of the scheme receiving a sentence of eight years imprisonment: see McLeod, at para. 16.
d) Aggravating and Mitigating Factors
[55] In determining the appropriate sentence, the court must consider any relevant aggravating or mitigating circumstances relating to the offence or the offender: Criminal Code, s 718.2(a). Taking a proper inventory of the aggravating and mitigating factors is essential to evaluating the gravity of the offence and the degree of responsibility of the offender in its commission. By doing so, a sentencing judge ensures that the sentence imposed is proportionate: see R. v. Priest (1996), 1996 1381 (ON CA), 110 C.C.C. (3d) 289 (Ont.C.A.), at pp. 297-298.
[56] In my view, there are several aggravating factors associated with both the cocaine importing offences and the conspiracy to import firearms offence. I will begin with the aggravating factors associated with the cocaine importing offences.
[57] First, Mr. Brown has a prior criminal record in the United States. I recognize that this record is now very dated. That said, the record is unquestionably related and is appropriately deserving of some consideration as an aggravating factor on sentencing. Second, the importations involved cocaine, an extremely dangerous and addictive narcotic. Third, the quantity of cocaine involved in these importations (eight kilograms) is a substantial amount. The final aggravating factor is Mr. Brown’s leadership role in the scheme.
[58] Based on the evidence at trial, I am satisfied beyond a reasonable doubt that Mr. Brown was the principal person responsible for orchestrating these importations. The evidence establishes that it was Mr. Brown who had connections to, and was in contact with, the suppliers of the cocaine in St. Lucia. He was the person who facilitated the payment of the suppliers. He arranged, in the case of one of the importations, to have overseers on the plane with the couriers to keep watch on them and report back to him. And, finally, it was Mr. Brown who was encouraging Mr. Blevins to recruit more couriers.
[59] To be sure, Mr. Blevins played an instrumental role in this criminal enterprise. He recruited the couriers and was in direct contact with them. He was not Mr. Brown’s subordinate but his partner. Nevertheless, on the whole of the evidence, it is apparent that as between the two, Mr. Blevins was the junior partner. It was Mr. Brown who appeared to be more informed about the business of importing cocaine. Invariably, he was the person to whom Mr. Blevins turned for guidance and direction.
[60] There are also several significant aggravating factors relating to the conspiracy to import firearms offence. First, based on the intercepted communications, I am satisfied beyond a reasonable doubt that it was Mr. Brown who conceived the idea and who enlisted Mr. Blevins into the scheme. In that regard, the telephone calls reveal that Mr. Brown was continually pushing the plan forward, offering to finance the purchase of the firearms, and actively encouraging Mr. Blevins to purchase handguns for importation into Canada.
[61] Second, the number of firearms that Mr. Brown and Mr. Blevins were planning on importing is a significant aggravating factor. Forty to fifty handguns are an astounding number of firearms. The potential devastation that so many handguns might occasion once in the hands of criminals in Canada is difficult to fathom.
[62] Third, there is the calculated financial motive that drove this crime. As noted, in Florida Mr. Blevins could purchase a handgun for as little as $300 to $450. During the intercepted telephone calls, Mr. Brown is overheard somewhat gleefully anticipating the profits once the firearms are in Canada, with each reselling for as much as $2,500. At one point, when Mr. Blevins seems to push back at Mr. Brown's suggestion that they import a substantial number of handguns every month and questions whether they would even have enough buyers, Mr. Brown cavalierly suggests "worst case scenario what I'll say is we dump em like fifty of them at two grand".
[63] Finally, what is arguably most disturbing and aggravating about Mr. Brown's criminal behaviour is his apparent indifference towards the potential harm that both the cocaine and the firearms would cause in the community. The potential cost for others, be they the drug couriers arrested at the airport, the users of the cocaine, or those who might ultimately become victims of the handguns he was planning on importing, never merits any mention or apparent concern.
[64] In terms of mitigating factors, I am hard-pressed to identify any. To be sure, it would seem that Mr. Brown is a loving father to his children. However, this in no way mitigates his complete indifference towards the countless members of the community who would undoubtedly be profoundly impacted by his criminal activities.
e) The Principle of Parity
[65] Section 718.2(b) of the Criminal Code instructs that: "a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances". This provision codifies the long-established sentencing principle of parity.
[66] As the Supreme Court of Canada has observed, for a sentence to be proportionate, the circumstances of the offence and the offender must be reconciled with the principle of parity: see R. v. Lacasse, 2005 SCC 64, [2015] S.C.R. 1089, at para. 53. In sentencing Mr. Brown for the offences of importing cocaine, the court must consider the sentences received by similarly situated offenders.
[67] The most obvious comparators are those offenders involved in the very same importation scheme. For her role, Renee Coughlan received a sentence of five years and nine months of imprisonment. Taylor Ford received the same sentence. Lucas Norman, whose sentencing was informed by the Supreme Court of Canada’s decision in R. v. Gladue, 1999 679 (SCC), [1999] 1 S.C.R. 688, received a sentence of three years imprisonment. Of course, as couriers, each was at the very bottom of the importation hierarchy.
[68] In contrast, for his organizational role, Mr. Blevins received an eight-year sentence of imprisonment after pleading guilty to two counts of importing cocaine. He was the person who enlisted and oversaw the couriers. Unlike Mr. Brown, however, Mr. Blevins pled guilty and demonstrated remorse for his crimes. He was also a drug user, which the sentencing judge recognized as possibly playing a contributing role in his decision to involve himself in these crimes. Further, as already noted, I am satisfied beyond a reasonable doubt that Mr. Brown was the leader in the importing scheme, whereas Mr. Blevins was, at best, a rung below in terms of the organizational hierarchy.
[69] Finally, I note that the eight-year sentence received by Mr. Blevins was the result of a joint submission, which attracts deference from a sentencing judge unless the proposed sentence would bring the administration of justice into disrepute or would otherwise be contrary to the public interest: see R. v. Anthony-Cook, 2016 SCC 43, [2016] 2 S.C.R. 204.
f) The Appropriate Sentences
[70] In arriving at what I consider to be the appropriate sentences for these offences I have taken into account the following. First, the principles and objectives of sentencing, including the preeminent importance of the objectives of denunciation and deterrence in imposing sentences for these offences. Second, the significant aggravating factors present for both the cocaine importing and conspiracy offences, along with the absence of any mitigating factors. Third, the sentencing range for these offences and the sentences imposed on similar offenders for similar offences committed in similar circumstances.
[71] Given all of this, I have concluded that for the two counts of importing cocaine, the appropriate sentence for each count is 12 years of imprisonment, and for the charge of conspiracy to import firearms, the appropriate sentence is eight years imprisonment. Given that the cocaine importing offences formed part of a single criminal scheme, the sentences for these offences should run concurrently. The conspiracy to import firearms is an entirely distinct offence, which justifies a separate consecutive sentence. However, the result of imposing this combination of sentences would mean a total sentence of 20 years imprisonment.
g) The totality principle
[72] The court is required to consider whether the combined sentences for these offences would result in a total sentence that is unduly long or harsh: see Criminal Code, s. 718.2(c). The totality principle requires a judge who imposes consecutive sentences for multiple offences to ensure that the cumulative sentence does not exceed the overall culpability of the offender. The aggregate sentence must be just and appropriate: R. v. M (C.A.), 1996 230 (SCC), [1996] 1 S.C.R. 500, at pp. 531-532.
[73] I am satisfied that imposing a 20-year sentence on Mr. Brown for his crimes would result in a sentence that exceeds his overall culpability. Ultimately, I am of the view that a sentence of 16 years of imprisonment is proportionate to the gravity of these crimes and Mr. Brown's degree of responsibility in their commission.
h) Pre-Trial Custody and House Arrest Bail
[74] Mr. Brown's initial arrest took place on September 2, 2015. He spent seven days in custody before his release on bail. Then, on October 6, 2015, Mr. Brown was again arrested. He spent another 15 days in custody before once more being granted bail. Throughout his time on bail, Mr. Brown had to reside with one of his two sureties. During his first year on bail, he was subject to house arrest. He was only permitted to be outside his surety’s residence when in the company of one of his two sureties or for medical emergencies.
[75] On May 30, 2016, Mr. Brown was arrested and charged with possessing cocaine and breaching his bail. He remained in custody for 17 days before the Crown stayed those charges. Although Mr. Brown did not seek bail, I accept that this was likely due to the reverse onus he faced because of the charges for which I am now sentencing him. As a result, he is entitled to receive credit for these 17 days of custody towards his sentence: see R. v. Barnett, 2017 ONCA 897, at paras. 26-42; R. v. Hussain, 2018 ONCA 147, at paras. 15-16.
[76] On September 6, 2016, Mr. Brown's bail was relaxed, requiring him to abide by a curfew between 6:00 p.m. and 6:00 a.m. On May 26, 2017, the curfew was relaxed even further, requiring him to remain inside his surety’s residence between 11:00 p.m. and 6:00 a.m. However, on June 29, 2017, Mr. Brown was arrested on further charges that are currently still outstanding. On April 16, 2018, he finally sought bail on the new charges, but the court ordered his detention and also ordered the revocation of his bail on the charges for which I am sentencing him.
[77] There can be little doubt that the charges for which I am now sentencing Mr. Brown would have played a role in his decision to postpone seeking bail on his new charges, as well as his ultimate detention on those charges. As a result, Mr. Brown is entitled to have his time in custody from June 29, 2017 until today credited towards his sentence: see Barnett, at paras. 26-42; Hussain, at paras. 15-16.
[78] Initially, I prepared these reasons contemplating that Mr. Brown would receive credit for all of this time towards the sentences I am imposing. However, just today, counsel advised me that since I heard sentencing submissions on April 29, 2019, Mr. Brown has resolved the charges that were outstanding at the time of the sentencing hearing and is awaiting sentencing on those charges. As a result, he now only seeks credit towards the sentences the court is imposing today for his time in pre-trial detention up to the date of the sentencing hearing. Mr. Brown wants to credit his time spent in custody since the sentencing hearing (April 30, 2019, forward) towards any sentence he receives on his other charges.
[79] Given this, by my calculation, between his arrest on September 2, 2015, and the sentencing hearing on April 29, 2019, Mr. Brown spent a total period of 708 days in pre-sentence custody. There is nothing in the circumstances disentitling him to the ordinary rate of 1.5 days of credit for each day spent in pre-sentence detention: see Criminal Code, ss. 719(3), 719(3.1); R. v. Summers, 2014 SCC 26, [2014] S.C.R. 575, at para 71. It follows that Mr. Brown should receive 35 ½ months of credit for his time spent in pre-sentence custody up until April 29, 2019.
[80] Evidence filed on the sentencing hearing establishes that there were a great many days during which Mr. Brown was subject to "full lockdown" in his cell while in pre-sentence custody. According to the records filed, 260 days at the Maplehurst Detention Centre, and 15 days at the Toronto South Detention Centre. The cell is a relatively small space, measuring just 15 feet by 7.5 feet, with a 9-foot ceiling. These lockdowns were the result of staff shortages and redeployments, searches, contraband issues, unscheduled maintenance and repairs.
[81] The Court of Appeal has recognized that particularly harsh pre-trial custodial conditions can provide mitigation apart from and beyond the 1.5 credit referred to in s. 719(3.1). However, to grant such credit not only must there be evidence of the harsh conditions but also evidence of their impact on the offender: see R. v. Duncan, 2016 ONCA 754, at para. 6; R. v. Henry, 2016 ONCA 873, at para. 9; R. v. Ledinek, 2018 ONCA 1017, at para. 12.
[82] Common sense suggests that being locked in a small cell for prolonged periods would be an extremely unpleasant experience. However, there was no evidence adduced at the sentencing hearing that, during these lockdowns, Mr. Brown was sharing his cell with another inmate or, much worse, with more than one inmate. There is also a complete absence of evidence regarding the effect of these lockdowns on Mr. Brown. The case law suggests that such evidence is a precondition for granting enhanced credit for time spent in lockdown. Given this, the court is not in a position to give Mr. Brown any enhanced credit for the days he was subject to lockdown in his cell.
[83] The ten months Mr. Brown spent on house arrest bail attracts a different analysis. Because of this, Mr. Brown could not work or meaningfully participate in his children's daily activities. Although there is no set formula for the credit to be given, time spent under house arrest bail is deserving of consideration as a mitigating factor: see R. v. Downes (2006), 2006 3957 (ON CA), 79 O.R. (3d) 321 (C.A.), at para. 37. Accordingly, I am taking this time into account in fashioning the appropriate sentence in this case.
[84] Given the time spent by Mr. Brown in pre-sentence custody up to April 29, 2019 (708 days), and also on house arrest bail (10 months), I am satisfied that he is entitled to receive credit for 3 years and 2 months towards the sentences the court is imposing today.
Conclusion
[85] As a result, the court imposes sentences of 10 years of imprisonment for each of counts one and two, the cocaine importing offences, to be served concurrently. For count three, conspiracy to import firearms, the court imposes a sentence of 6-years of imprisonment to be served consecutively. The total sentence for these three offences is therefore 16 years of imprisonment.
[86] Taking into account the time spent in pre-sentence custody and on house arrest bail, Mr. Brown is entitled to three years and two months of credit towards his sentences. That period will be deducted from the sentence for count three, the conspiracy offence, so the sentence for that offence going forward will be two years and ten months of imprisonment, to be served consecutively. Therefore, the total global sentence from this point forward for these three offences is 12 years and 10 months of imprisonment.
[87] In addition, the following ancillary orders shall also issue. First, an order directing the taking of a sample of Mr. Brown's blood for the inclusion of his DNA profile in the National DNA Databank.
[88] Further, an order shall issue prohibiting Mr. Brown from possessing: i) for a period of ten years, any firearm, other than a prohibited firearm or restricted firearm, and any crossbow, restricted weapon, ammunition and explosive substance; and ii) for life, any prohibited firearm, a restricted firearm, prohibited weapon, prohibited device and prohibited ammunition.
[89] Finally, a forfeiture order shall issue for any offence-related property; I invite the Crown to submit a draft order for my review.
Signed: Justice James Stribopoulos
Released: November 22, 2019
COURT FILE NO.: CR-17-595
DATE: 2019-11-22
ONTARIO SUPERIOR COURT OF JUSTICE
RE: HER MAJESTY THE QUEEN
– and –
DONOVAN BROWN
BEFORE: STRIBOPOULOS J.
COUNSEL: Mr. M. Park & Mr. C. Walsh, for the Crown
Mr. S. Taraniuk, for Mr. Brown (on April 29, 2019) & Ms. A. Ruffo (on November 22, 2019)
REASONS FOR SENTENCE
STRIBOPOULOS J.
DATE: November 22, 2019