COURT FILE NO.: CR-18-962
DATE: 20200925
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
S. Burdo for the Crown
- and -
MONIQUE YOUNG
G. Gray, for the Defence
HEARD: September 8, 2020
REASONS FOR SENTENCE
Baltman J.
Overview
[1] Ms. Young is 29 years old and a first-time offender. On March 11, 2020, she was convicted by a jury of importing two kilos of cocaine. She is now before me for sentencing.
The Facts
(a) Circumstances of the Offence
[2] On July 21, 2016, Ms. Young arrived at Pearson Airport in Toronto on a flight from Trinidad. After she was referred to the secondary inspection area and her luggage was x-rayed, officers found 2007.5 grams of cocaine concealed within the lining of one of her suitcases. The cocaine has a street value of between $72,000 and $220,000, depending on how it is sold.
[3] At trial Ms. Young testified that she had gone to Trinidad with some girlfriends for a vacation. While there she spent time with her boyfriend, "Stephan", who lives in Trinidad, and who purchased a new suitcase for her to take home. She testified she was unaware there was any cocaine in the suitcase, and that she felt betrayed by Stephan. Given the verdict it is apparent the jury rejected this explanation.
Circumstances of the Offender
[4] A pre-sentence report was submitted to the court. It is largely favourable and indicates that Ms. Young was co-operative with the assessor.
[5] Ms. Young has no prior criminal record. She is the eldest of seven siblings. Her parents lived separately during her childhood – her mother in St. Marten and her father in Jamaica. She spent her first seven years with her father and then went to live with her mother in St. Marten. Her mother then relocated to Canada and in 2009, at the age of 18, sponsored Ms. Young to Canada.
[6] Ms. Young is single and has no dependants. Her mother is employed as a personal support worker and Ms. Young currently resides with her. Her father still lives in Jamaica and she communicates regularly with him.
[7] In 2015 Ms. Young obtained a college diploma as a Personal Support Worker (PSW) and was employed in that role from 2016 to 2018, when she was laid off. Since then she has been supported through Ontario Works. This conviction will most likely bar her from ever working as a PSW.
[8] The PSR demonstrates Ms. Young was cooperative during her interview and that her family members report this incident as being "shocking" and "out of character".
Positions of Crown and Defence:
[9] The Crown seeks a penitentiary sentence of seven years. The Defence argues for a term of three and a half years.
Analysis:
[10] Our Court of Appeal has stated that as a general rule, absent unusual or extenuating circumstances, first time couriers who smuggle large amounts of cocaine into Canada for personal gain should receive a sentence of 6 to 8 years in the penitentiary: R. v. Cunningham, 1996 CanLII 1311 (ON CA), [1996] O.J. No. 448 (C.A.), para. 20. This is in recognition of the devastating effects of the drug on people's health and its strong association with violent crime, prompting the Court to characterize cocaine importation as "both a violent and serious offence": R. v. Hamilton 2004 CanLII 5549 (ON CA), [2004] O.J. No. 3252 (C.A.), para. 104.
[11] While the objectives of denunciation and deterrence are generally considered to be the primary principles of sentencing importing offenders, the court should also consider other principles such as proportionality and rehabilitation. The proportionality principle, in particular, requires the court to impose a punishment that is not only proportionate to the crime but also to the offender.
[12] In that regard there are some mitigating features. Ms. Young is a first time offender. She has been completely compliant with her bail terms. She now accepts responsibility for the offence and has expressed remorse for her involvement. Finally, she has strong family support, as attested to by letters filed on the sentencing.
[13] Much of the case law filed by defence counsel contained significant distinguishing features, e.g. a guilty plea (R. v. A.B., 2004 CanLII 48682 (ON SC), [2004] O.J. No. 5220); a significantly lower volume of cocaine (R. v. Madden, 1996 CanLII 10228 (ON CA), [1996] O.J. No. 376, R. v. Francis, 2019 ONSC 766), or very compelling Gladue factors (R. v. Sharma, 2018 ONSC 1141, overturned in part, R. v. Sharma, 2020 ONCA 478).
[14] Defence counsel also urged me to reduce the sentence specifically to reflect the increased risk to prisoners from Covid-19. Our Court of Appeal has stated that while it recognizes the impact of Covid-19 on society, it is not to be used wholesale as a mitigating factor per se; rather, it can be considered a "collateral consequence" that might reduce a sentence where the detained person has particular health issues or is especially vulnerable to contracting Covid-19: R. v. Morgan 2020 ONCA 279, at paras. 8-9; R. v. Lariviere, 2020 ONCA 324, at paras. 16-17. See also R. v. D.B., 2020 ONCA 512, at paras. 11-12; R. v. Stojanovski, 2020 ONCA 285, at paras. 34-36.
[15] In this case there is no evidence that Ms. Young has any particular health issue that makes prison especially dangerous for her. That is in contrast to R. v. Studd, 2020 ONSC 2810, where Justice Davies reduced the sentence to time served because of Mr. Studd's "compromised immune system" from medication he was taking for a pre-existing condition, putting him "at a heightened risk in relation to the virus": para. 41
[16] Defence counsel referred me to R. v. Hearns, 2020 ONSC 2365, where Pomerantz J. observed at para. 16 that because of Covid-19, jails have become harsher environments due to the risk of infection or because of restrictions imposed to prevent infection. However, there was no specific credit calculated for Covid-19; rather, the court accepted the joint position of Crown and defence for a sentence of time served.
[17] In this case, a sentence of time served is not even a possibility and there are no unique factors related to Covid-19. Therefore, I would not reduce the sentence to account for Covid-19. That said, I am of the view that given the numerous mitigating factors in this case, a sentence of five years is a fair and reasonable outcome. Counsel agree that as Ms. Young served two days of actual custody before she was released on bail, she is entitled to a credit of three days. In addition, Ms. Young will be subject to collateral orders, pursuant to s. 109(2)(a) and 109(2)(b) for 10 years and life respectively. A DNA order shall issue under s. 487.051.
[18] A copy of these Reasons is to be sent to the federal facility where Ms. Young will serve her sentence. If Ms. Young is committed to upgrading her job skills while in prison, efforts should be made by the prison authorities to facilitate that.
Baltman J.
Released: September 25, 2020
COURT FILE NO.: CR-18-962
DATE: 20200925
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
MONIQUE YOUNG
Defendant
REASONS FOR SENTENCE
Baltman J.
Released: September 25, 2020