COURT FILE NO.: CR-17-629
DATE: 20190130
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
R. Johnson, for the Crown
- and -
IYOOLA NYEMA FRANCIS
J. Collins, for the Defence
HEARD: January 22, 2019, at Brampton
REASONS FOR SENTENCE
André J.
[1] A jury convicted Ms. Francis on November 19, 2018, of importing 1,381 grams of cocaine into Canada on August 15, 2016. The Crown is seeking a sentence of five years imprisonment, while the defence suggests that a term of imprisonment between three years to three and a half years is appropriate.
BACKGROUND FACTS
[2] Ms. Francis arrived at the Toronto Pearson International Airport on August 15, 2016 from Jamaica. A Border Services Officer (BSO) referred her for a secondary inspection.
[3] A second BSO located bags of spices and another container which contained seasoning. The officer discovered a zip lock baggie within this container which contained a white powdery substance. The substance tested positive for cocaine.
PERSONAL HISTORY
[4] Ms. Francis is 39 years old. She was born in Toronto and raised by her maternal grandmother. Ms. Francis had virtually no contact with her father while growing up. Ms. Francis became pregnant at age 14 and gave birth to a son. A few months later she moved to a shelter with her son and has essentially supported herself ever since. Ms. Francis had another son 14 years ago, who currently resides with her.
[5] Ms. Francis has some Grade 12 credits and completed some college courses in office administration, science and general arts. She advised the probation officer that she had a miscarriage while in college and as a result, did not complete her program.
[6] Ms. Francis has been employed in customer service with a local taxi company for the past ten years. A letter from the Blue White Taxi tendered as an exhibit in this hearing confirms that Ms. Francis has been an employee of the company since August 2008.
[7] Ms. Francis was convicted in May 2003 for Fraud and Impersonation. She received a six month conditional sentence. She was convicted in June 2003 of the offence of Theft Under $5,000 and received a suspended sentence and six months probation.
[8] Ms. Francis maintains that she did not know that there was a controlled substance in her luggage when she arrived in Canada on August 15, 2016.
ANALYSIS
[9] In determining a proportionate sentence pursuant to s. 718.1 of the Criminal Code, I am guided by the following principles from the sentencing jurisprudence:
i. Sentencing is an individualized process and must reflect the gravity of the offence and the personal circumstances of the offender: R. v. Proulx (2000), 2000 SCC 5, 140 C.C.C. (3d) 449.
ii. Cocaine is a very serious and dangerous drug which has wreaked untold havoc in our society: R. v. Daya, [2007] O.J. No. 3865; R. v. Woolcock, [2002] O.J. No. 4927 (C.A.).
iii. The judicially imposed sentence range for the importation of multi-kilograms of cocaine, absent exceptional circumstances, is 6 to 8 years imprisonment: R. v. Cunningham, 1996 CanLII 1311 (Ont. C.A., (1996), 27 O.R. (3d) 786 (C.A.)); R. v. C.N.H., 2002 CanLII 7751 (ONCA), (2002), 62 O.R. (3d) 564 (C.A.)); R. v. Bajada, 2003 CanLII 15687 (ON CA), [2003] O.J. No. 721 (Ont. C.A.), at para. 9. The sentence range for importing 1 kilogram of cocaine “more or less”, is 3 to 5 years imprisonment: R. v. Madden, 1996 CanLII 10212 (ONCA).
iv. The judicially imposed sentence range for importing is not inflexible and can be extended downwards if the circumstances of the case warrant: R. v. Lacasse, 2015 SCC 64; R. v. Foster, 2018 ONCA 53, at paras. 133 and 139;
v. The main sentencing principles in sentencing drug couriers are general deterrence and denunciation: Cunningham, at para. 104.
[10] Determining a proportionate sentence involves an assessment of the aggravating and mitigating factors in this case.
AGGRAVATING FACTORS
[11] These include the following:
Cocaine is a pernicious and dangerous drug;
The offence involves a violation of Canada’s international border;
Ms. Francis has a criminal record;
The offence appears to have been committed for personal gain.
[12] The mitigating factors include the following:
Ms. Francis has been gainfully employed for the past ten years;
Ms. Francis enjoys some support in the community evidenced by a letter of support from Camille Reid, a friend and business owner;
Ms. Francis has had a difficult life although her claims of having been abused during her childhood have not been substantiated by family members;
Ms. Francis is a drug courier, and is therefore at the lowest rung of the drug importation hierarchy.
[13] Ms. Francis, on the evidence before me, had a difficult childhood having assumed the responsibilities of raising a child at an early age. She also had to fend for herself and her young son while still a teenager without any help from the father of her first son. However, Ms. Francis has managed to maintain gainful employment for the last decade and appear to have good prospects for rehabilitation.
[14] While I am mindful, based on Lacasse and Foster, that judicially imposed sentence ranges for certain offences are not cast in stone, it is my view that the sentence suggested by the defence does not adequately reflect the gravity of the offence and the quantum of drugs imported.
[15] In R. v. Madden, the Ontario Court of Appeal concluded that a sentence range of 3 to 5 years imprisonment was appropriate for a first offender who imports one kilogram of cocaine “more or less”. The accused in Madden received a 3 year sentence despite pleading guilty and assisting in a controlled delivery of drugs. She imported 770 grams of cocaine, rather than the approximately 1,400 grams imported by Ms. Francis. Additionally, Ms. Madden was a first offender, unlike Ms. Francis.
[16] Defence counsel relies on the case of R. v. Blackman, [2015] O.J. No. 5684 (S.C.J.) in support of her position that a term of imprisonment of 3 to 3 ½ years is appropriate in this case.
[17] In Blackman, Dawson J. sentenced an offender who had imported 1.568 kilograms of cocaine into Canada, to 39 months imprisonment. In that case however, the accused pled guilty and had no criminal record.
[18] In my view, Ms. Francis’ personal circumstances, while sympathetic, does not warrant a sentence at the bottom of the Madden range, given her criminal antecedents and the quantum of drugs she imported into Canada.
[19] That said, Ms. Francis must receive credit for her difficult background, the fact that she maintained gainful employment for a decade, the support she enjoys in the community and her prospects of rehabilitation.
[20] In my view, the appropriate sentence in this case is a four year term of imprisonment.
COLLATERAL ORDERS
[21] A s. 109 (1)(a) order for 10 years.
[22] Order of forfeiture.
[23] I will refrain from making a DNA order in this case.
André J.
Released: January 30, 2019
COURT FILE NO.: CR-17-629
DATE: 20190130
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
IYOOLA NYEMA FRANCIS
REASONS FOR SENTENCE
André J.
Released: January 30, 2019