COURT FILE NO.: CRIMJ(F) 1062/18

DATE: 2021 04 20

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Robert E. Tremblay, for the Crown

and -

KATHLEEN RUTH MONTAGUE

David Michael Barrison, for Kathleen Ruth Montague

Heard: January 21, 2020 and April 20, 2021

REASONS FOR SENTENCE (in absentia)

KUMARANAYAKE J. (orally)

OVERVIEW

[1] On May 31, 2019, a jury found Ms. Montague guilty of importing cocaine, contrary to section (1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (“CDSA”).

[2] As explained below, despite receiving sentencing submissions on January 21, 2020, Ms. Montague has not yet been sentenced.

[3] On April 20, 2021, I heard and granted, for oral reasons given, the Crown’s request for a finding that Ms. Montague has absconded and to proceed with sentencing in Ms. Montague’s absence. I also granted Mr. Barrison’s request to be removed as counsel of record for Ms. Montague. The reasons below outline the context for both of these requests.

HISTORY OF PROCEEDINGS SINCE MAY 31, 2019

[4] I am obliged to explain the passage of the time from May 31, 2019 to today’s date.

[5] Following the finding of guilt, a Pre-Sentence Report was ordered. The matter was adjourned to September 3, 2019 for sentencing submissions.

[6] On September 3, 2019, counsel for Ms. Montague requested an adjournment for two reasons. First, counsel for Ms. Montague advised that Ms. Montague had contacted him the previous day, advised that she was ill and would not be able to attend Court. Second, he was instructed to bring a constitutional challenge with respect to the minimum sentence prescribed by the legislation. Counsel for Ms. Montague also advised that Ms. Montague waived 11(b) delay as of September 3, 2019.

[7] With the Crown’s consent, I issued a discretionary bench warrant returnable on September 17, 2019.

[8] On September 17, 2019, Ms. Montague appeared, and the bench warrant was rescinded. The matter was adjourned to November 5, 2019 at 10:00 a.m. for argument of the constitutional challenge and sentencing submissions.

[9] On November 5, 2019, Ms. Montague did not appear at 10:00 a.m. Her counsel made numerous efforts to contact Ms. Montague which was difficult as Ms. Montague did not have her own phone and her counsel had to rely on the assistance of a third party. The Court was advised that Ms. Montague mixed up the dates and thought the matter was scheduled for November 6, 2019. Ms. Montague could not be able to be present until the afternoon. It should be noted that Ms. Montague was dependent on public transportation and had to travel to Brampton from her home in Oshawa. Ms. Montague did not arrive at the Court until after 4:00 p.m.

[10] After having an opportunity to speak with his client, Ms. Montague’s counsel advised the Court that he was instructed to withdraw the constitutional challenge. Therefore, the matter was adjourned to November 18, 2019 for sentencing submissions.

[11] On November 18, 2019, Ms. Montague did not appear. Her counsel made inquiries and was unable to locate Ms. Montague. The Crown requested that a bench warrant be issued, and I granted that request.

[12] On November 21, 2019, the bench warrant was deemed executed. Ms. Montague was arrested on the warrant, brought to Court and released that same day. She was remanded out of custody to January 21, 2020 for sentencing submissions.

[13] On January 21, 2020, both Crown and Defence counsel made their sentencing submissions, and the matter was adjourned to March 5, 2020 for the imposition of sentence.

[14] Ms. Montague did not appear on March 5, 2020. Her counsel advised that, early that morning, Ms. Montague had contacted his office to advise that she was ill and that she could not attend for her court appearance. Her counsel subsequently spoke with her and was advised that she would be attending at her doctor’s in the afternoon and that she had no way to attend court.

[15] Mr. Johnston, who appeared on behalf of the Crown on March 5, 2020, urged the Court to proceed with sentence in Ms. Montague’s absence. However, I was not prepared to do so as I was not satisfied that Ms. Montague had absconded. I issued a bench warrant with discretion returnable on March 27, 2020 at 2:00 p.m. I also ordered that Ms. Montague provide to the Crown and to the Court (through the trial coordinator), by March 6, 2020 at 4:30 p.m., a letter from her doctor. The letter was to address: (i) the reason for Ms. Montague’s attendance at the doctor’s office on March 5, 2020; (ii) how her medical issue prevented her from attending court; and (iii) the prognosis. Further, I ordered that the appearance of March 27, 2020 was peremptory to Ms. Montague and that she was to be advised that if she was not present on the return date, I may proceed in her absence.

[16] Due to the COVID-19 pandemic, the regular operations of the Superior Court of Justice were suspended effective March 17, 2020 and, therefore, sentencing could not proceed on March 27, 2020. By his Order dated March 15, 2020, Chief Justice Morawetz issued bench warrants with discretion, returnable June 2, 2020, for all persons who had criminal court appearances scheduled for March 2020.

[17] By Chief Justice Morawetz’s subsequent Orders, dated May 5, 2020 and June 17, 2020, these bench warrants with discretion were extended to July 6, 2020 and then to September 15, 2020. On September 15, 2020, Ms. Montague’s matter was adjourned to October 22, 2020 for sentencing.

[18] Ms. Montague was not present on October 22, 2020. Her counsel advised that he could not confirm that she had received letters sent by his office to advise her of the October 22, 2020 appearance. He explained that although letters were sent to her address by regular and registered mail, he recently noticed that the unit number had not been included in the address. However, he also advised that the letters had not been returned to his office.

[19] Further, Mr. Barrison advised that he had received information that Ms. Montague may have been in hospital at some point and that she may also have been evicted. He also advised that he did not have confirmation of either of these possible events. He expressed his concern with proceeding with sentencing during the current pandemic given Ms. Montague’s age and medical issues. He acknowledged that he had not brought an application to make further sentencing submissions as he had no instructions to do so. He requested a three-week adjournment to make further inquiries to connect with Ms. Montague.

[20] The Crown opposed the Defence request. However, in light of the information Mr. Barrison provided, I was not prepared to find that Ms. Montague had absconded. Therefore, the bench warrant with discretion was extended to November 3, 2020, peremptory to Ms. Montague. It was made clear that if Ms. Montague did not appear on November 3, 2020, without evidence of a compelling reason, I would likely proceed in her absence.

[21] On November 3, 2020, Ms. Montague did not appear. Mr. Barrison advised that he had not been successful in locating her and the telephone numbers that he had previously contacted her at where no longer valid. However, he advised that he had confirmed that she had been evicted. I issued a bench warrant for Ms. Montague’s arrest.

[22] Ms. Montague was arrested on November 10, 2020.

[23] On November 12, 2020, Ms. Montague appeared by video appearance before Justice Durno and her matter was adjourned to November 16, 2020 before me.

[24] On November 16, 2020, Ms. Montague participated by telephone from Vanier Institution for Women as she remained in custody. The Crown and the Court were ready to proceed with sentence. However, Mr. Barrison requested an adjournment in order to bring an application to make further sentencing submissions as a result of the COVID-19 pandemic and to seek a conditional sentence. A short adjournment was granted to November 25, 2020 to permit the defence the opportunity to serve and file their materials.

[25] Ms. Montague was granted bail in the Ontario Court of Justice and subsequently released from custody on November 17, 2020.

[26] By November 25, 2020, the Defence had served a Notice of Constitutional Question but the Application had not been properly filed. The Crown requested two weeks to consider its position. Counsel and Ms. Montague participated by teleconference. On consent, the matter was adjourned to December 15, 2020 to be spoken to by teleconference. Ms. Montague was remanded out of custody to that date (December 15, 2020). Mr. Barrison confirmed that Ms. Montague waived 11(b) from that date (November 25, 2020).

[27] The matter was spoken to on December 15, 2020. Ms. Montague was not present. Mr. Barrison advised that she was in hospital and that his office had confirmed this. The defence had filed a Notice of Application and Constitutional Issue as well as its factum. Mr. Barrison also advised that he expected to file an affidavit from Ms. Montague. Mr. Tremblay requested an adjournment as he was awaiting instructions on the constitutional issue.

[28] The Crown did not seek a bench warrant for Ms. Montague as a designation had previously been filed. With consent from the Defence, the matter was adjourned to February 16, 2021 for argument of the Defence application and for further sentencing submissions to be heard by videoconference. Ms. Montague was remanded by designation to February 16, 2021. Further, timelines were set for the filing of any further defence materials.

[29] At the request of the Crown, the matter was brought forward to January 19, 2021 and proceeded by teleconference. Ms. Montague was present. The Crown advised that it was no longer relying on its section 8 notice (of the CDSA) and therefore it was no longer necessary to proceed with argument of the constitutional issue raised. It was confirmed that further sentencing submissions would be made on February 16, 2021 by videoconference and that Ms. Montague was already remanded to February 16, 2021.

[30] On February 16, 2021, Ms. Montague did not attend at her lawyer’s office as previously arranged. The Crown and the Court were ready to proceed. Mr. Barrison sought a brief adjournment to try to contact Ms. Montague. Given the inclement weather that day (a snowstorm), I granted this request and issued a bench warrant with discretion for Ms. Montague, returnable on February 18, 2021.

[31] Ms. Montague did not appear on February 18, 2021 and Mr. Barrison had no further information as to her whereabouts. The Crown requested a bench warrant for Ms. Montague, which in the circumstances was appropriate, and a bench warrant was issued.

[32] The Crown subsequently brought an Application pursuant to subsections 475(1)(a) and (b)(i) of the Criminal Code to proceed with sentence on the grounds that Ms. Montague has absconded. In support of its Application, the Crown filed an affidavit from Constable Feliciano, the officer in charge. In his affidavit, sworn March 16, 2021, Constable Feliciano outlined his efforts to locate Ms. Montague after the bench warrant was issued on February 18, 2021. Mr. Barrison did not seek to cross-examine Constable Feliciano.

[33] I considered the history of the matter as outlined above and the affidavit of Constable Feliciano filed in support of the Crown’s Application. As noted above, for oral reasons given, I was satisfied that Ms. Montague has absconded.

[34] Therefore, pursuant to s. 475(1)(a) of the Criminal Code, Ms. Montague is deemed to have waived her right to present. As noted above, at his request, Mr. Barrison was then permitted to be removed as counsel of record for Ms. Montague.

[35] This matter has been outstanding for too long and needs to be brought to its conclusion. Therefore, I shall proceed with sentencing Ms. Montague.

THE FACTS

(a) Circumstances of the offence

[36] On July 13, 2017, Ms. Montague flew to Port of Spain, Trinidad and Tobago for a vacation. She returned to Canada on July 20, 2017. While waiting to collect her luggage, she was approached by a Border Services Officer. She identified her luggage. She had two suitcases and confirmed that she had personally packed the suitcases and was aware of their contents. She was referred to the secondary customs inspection.

[37] At the secondary customs inspection, cocaine was found hidden behind a panel in one of her suitcases. There was 1.522 kilograms of cocaine found in one of her suitcases.

(b) Circumstances of the offender

[38] At the time of the offence, Ms. Montague was 65 years old.

[39] The Pre-Sentence Report, dated August 12, 2019, provided some helpful information with respect to Ms. Montague’s background.

[40] She has been married four times. She is the mother of three children, and she has two grandchildren.

[41] She is a U.S. citizen and has lived in Canada since 1985. She is a permanent resident in Canada. In terms of income, she receives ODSP and the child tax credit.

[42] She has faced several tragedies in her life. One of her daughters died in 2012 as a result of a blood clot. Another daughter died in 2017, also as a result of a blood clot. Ms. Montague is the primary caregiver for her youngest granddaughter who, at the time that sentencing submissions were made on January 21, 2020, was 14 years old, but Ms. Montague did not have custody of this granddaughter. The child’s father had custody and had agreed that this child could live with Ms. Montague.

[43] According to the Pre-Sentence Report, Ms. Montague had lived in the same townhouse for 16 years and paid $525 per month in rent. As noted above, I have been advised that she has been evicted from this townhouse, but I do not have the particulars of when or if she has secured new accommodation.

[44] In 2013, Ms. Montague lost almost all of her belongings due to a house fire.

[45] She has completed high school and three years of university. Prior to receiving ODSP, she worked in the U.S. in the field of youth counselling and job placement. She worked as a personal and employment counselor for youth for 18 years before she immigrated to Canada. In Canada, she worked for an afterschool program for four years.

[46] Ms. Montague started to receive ODSP from when she was in her 50’s due to her health issues. She receives an old age pension.

[47] With respect to her health, Ms. Montague is diabetic, has spinal stenosis, arthritis, and fibromyalgia. She experiences excruciating pain. She takes medication for her diabetes, depression, high blood pressure, and heart, and she is on blood thinners. She has mobility issues and is dependent on a scooter.

[48] It was noted in the Pre-Sentence Report that Ms. Montague has not engaged in grief counselling for the loss of two of her children and that Ms. Montague did not see the need for grief counselling. Ms. Montague described herself as being financially stable, although one of her supports who was interviewed for the Pre-Sentence Report said she was struggling financially. Another support, her son-in- law, described her financial situation as terrible as she was receiving ODSP.

[49] There was no indication that Ms. Montague has any issues with substance abuse or gambling.

LEGAL PARAMETERS

[50] Cocaine is a Schedule I substance. The penalty for importing a Schedule I substance of more than one kilogram is prescribed by subsection 6(2)(a.1) of the CDSA. An offender is liable to imprisonment for life.

POSITIONS OF CROWN AND DEFENCE

[51] I shall outline the positions of the Crown and Defence as presented on January 21, 2020 when sentencing submissions were made. Despite Mr. Barrison’s intention to file an affidavit to support a request for a conditional sentence, he could not do so as he did not receive co-operation from Ms. Montague.

[52] I also note that Ms. Montague did not produce the medical documentation ordered on March 5, 2020.

The Crown

[53] On January 21, 2020, the Crown requested a custodial sentence of 5 ½ years but submitted that, due to Ms. Montague’s personal circumstances, the sentence should be reduced by one year. Therefore, the Crown requested a custodial sentence of 4½ years. The Crown also requested the following ancillary orders: a firearms and weapons prohibition for 10 years, a DNA order, and a forfeiture order.

The Defence

[54] On January 21, 2020, the Defence requested a custodial sentence of 3 to 3½ years but submitted that, due to Ms. Montague’s personal circumstances, the sentence should be reduced by one year. Therefore, the Defence requested a custodial sentence of 24 to 30 months (or 2 to 2 ½ years). The Defence did not oppose any of the ancillary orders sought by the Crown.

PRINCIPLES OF SENTENCINGS

[55] In determining the appropriate sentence, I have considered the purpose and objectives of sentencing as set out in section 718 of the Criminal Code. Consistent with the decision of the Court of Appeal for Ontario in R. v. Hamilton, 2004 CanLII 5549 (ON CA), [2004] O.J. No. 3252 (C.A.), the sentence for this type of offence must stress the objectives of denunciation and deterrence: see para. 105. However, I am also mindful of the principle of rehabilitation. I must craft a sentence which balances these objectives.

REASONS

[56] I have carefully considered the Pre-Sentence Report and the submissions of counsel to determine the sentence which I have assessed to be appropriate.

[57] I am guided by the decision of R. v. Madden, 1996 CanLII 10228 (ON CA), [1996] O.J. No. 376 (C.A.). The Court of Appeal for Ontario held that for a first-time offender who imports one kilogram of cocaine “more or less”, the appropriate sentence is 3 to 5 years.

[58] Further, as explained in R. v. Wellington, 1999 CanLII 3054 (ON CA), 1999 CarswellOnt 561, 132 C.C.C. (3d) 470 (Ont. C.A.), these types of sentences are necessary to deter the type of conduct engaged in by Ms. Montague. As the Court of Appeal for Ontario held, at para.12:

This court has made it clear that in cases involving the importation of drugs into Canada, sentences must be significant in order to send a message to those who would not otherwise be involved but who may be tempted by the payment promised to act as a drug delivery service, that they will be subject to being sentenced harshly and severely for their role.

[59] In my view, the appropriate range for this offence is 3 to 5 years incarceration.

Mitigating Factors

[60] Ms. Montague was 65 years old at the time of the offence.

[61] Ms. Montague’s health and mobility issues are also mitigating factors. I accept the joint position that Ms. Montague’s personal circumstances will make a custodial sentence more difficult for her and therefore will have a greater impact on her. I accept the joint submission that she should be given a reduction of one year for her sentence.

[62] In the cases which I was referred to by counsel, there were instances where the person charged pleaded guilty and this was a mitigating factor. Ms. Montague did not plead guilty. However, the absence of a guilty plea and the absence of remorse is not an aggravating factor.

[63] I accept that Ms. Montague was genuinely concerned for the welfare of her teenage grandchild for whom she has been the primary caregiver.

[64] Her personal tragedies are also a mitigating factor. I sincerely hope that Ms. Montague will avail herself of individual counselling that should be offered to her to help her work through the loss of two children.

Aggravating Factors

[65] The nature of the offence is an aggravating factor. As noted by the Court of Appeal for Ontario in Hamilton, at para. 104, cocaine is a dangerous drug and importing cocaine is considered one of the most serious crimes. The importation of cocaine has direct and indirect health effects on those who use drugs. Its sale and its use are closely associated with violent crime.

[66] The quantity and value of the drug is also an aggravating factor. Ms. Montague imported 1.522 kilograms of cocaine. It was an agreed fact that the value of 1.522 kilograms of cocaine in the Greater Toronto Area in 2017 was between $60,900 (CAD) and $76,125 (CAD) if sold at the kilogram level, and $121,800 (CAD) and $182,700 (CAD) if sold at the gram level.

[67] The amount of cocaine which Ms. Montague imported is more than one kilogram so a sentence at the lowest end of the Madden range is, in my view, not appropriate.

[68] Ms. Montague has a criminal record. In 2006, she was convicted of failing to attend court and failing to comply with probation. While this is an aggravating factor, I do note that her record is dated, and I take that into consideration in my decision.

Collateral Consequences

[69] Ms. Montague is a permanent resident. I am mindful that the sentence I impose may have immigration consequences. Her counsel submitted that there definitely will be immigration consequences.

[70] The Court may consider collateral consequences, including immigration consequences, in determining an appropriate sentence. However, the Court must still impose a sentence that is proportionate to the gravity of the offence, as explained by the Supreme Court of Canada in R. v. Pham, 2013 SCC 15, at paras. 14 and 15:

The general rule continues to be that a sentence must be fit having regard to the particular crime and the particular offender. In other words, a sentencing judge may exercise his or her discretion to take collateral immigration consequences into account, provided that the sentence that is ultimately imposed is proportionate to the gravity of the offence and the degree of responsibility of the offender.

The flexibility of our sentencing process should not be misused by imposing inappropriate and artificial sentences in order to avoid collateral consequences which may flow from a statutory scheme or from other legislation, thus circumventing Parliament's will.

[71] In this case, given all of the circumstances and the nature of the offence, I find that a sentence that avoids immigration consequences would not be proportionate to the gravity of the offence and the responsibility of the offender.

Pre-Sentence Custody

[72] There is no dispute that Ms. Montage has spent, in total 16 days in custody. Therefore, she is entitled to credit for pre-sentence custody which shall be a credit of 1.5 days for each day in custody. She shall receive a credit of 24 days.

FINAL DECISION

[73] Taking into consideration the purpose and objectives of sentencing, the mitigating and aggravating factors as outlined above, the sentence which is appropriate and proportionate to the gravity of the offence and the degree of responsibility of this offender is a sentence of a period of incarceration of 3½ years. Ms. Montague’s sentence shall be reduced by 12 months and 24 days due to her personal circumstances and credit for pre-sentence custody.

[74] Therefore, as of today’s date, Ms. Montague’s sentence is 2 years and 156 days incarceration.

Ancillary Orders

[75] I also make the following ancillary orders, none of which were opposed by the Defence at the time submissions were made:

a) A firearms and weapons prohibition for 10 years pursuant to section 109(1)(a) of the Criminal Code;

b) A DNA order as this is a secondary designated offence; and

c) An Order of forfeiture.

Kumaranayake J.

Released: April 20, 2021