COURT FILE NO.: CRIM J(F) 699/17
DATE: 2021 06 10
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
S. Burdo, for the Crown
- and -
JAMILIA SHENIKA GARDENER
G. Smith, for the Defendant
HEARD: March 31, 2021
REASONS FOR SENTENCE
André J.
[1] A jury convicted Ms. Gardener of importing 1,390 grams of cocaine into Canada on March 3, 2020. The Crown now seeks a sentence in the range of four to five years imprisonment while defence counsel submits that a twelve month conditional sentence is appropriate in this case.
BACKGROUND FACTS
[2] In preparation for the sentencing hearing Ms. Jacquie Pemberton, who holds a Masters Degree in Social Work, prepared an “Enhanced Pre-Sentence Report” at the request of Ms. Smith. Ms. Pemberton states that the “purpose of [the] report is to provide the Court with an in-depth review of Ms. Gardener’s background and experiences with socio-economic disadvantage, trauma and systemic discrimination”.
[3] Ms. Gardener was born in Toronto, of Jamaican parents, on April 3, 1984. Her father was deported to Jamaica when she was quite young and as a result, Ms. Gardener had little or no contact with her father.
[4] Ms. Gardener’s mother married her stepfather when she was quite young. Ms. Gardener felt that she was always treated differently by her stepfather and had a rather difficult relationship with him.
[5] According to Ms. Pemberton’s report, Ms. Gardener had a difficult life growing up. Up to the age of twelve she lived in impoverished Toronto neighbourhoods and was frequently shuffled between her home and that of her maternal grandmother. Because of the frequent change in residence, Ms. Gardener attended a number of primary schools in Toronto and before she entered grade 12, had attended eight schools from junior kindergarten to Grade 12. Her performance in school was affected by the responsibilities of helping to care for a number of younger siblings with the result that she was often late for class and missed a number of class assignments which affected her overall performance at school.
[6] Following her graduation from high school in 2004, Ms. Gardener took a medical assistant course at Medix College in Toronto. In that year, her mother also asked her to leave the family residence without telling her why. Ms. Gardener moved into a bachelor apartment in the Jane Street and Wilson Avenue neighbourhood in Toronto. She worked in a number of low paying jobs such as housekeeping and at the Exhibition Centre where she cleaned washrooms.
[7] In 2007, Ms. Gardener met her partner, Oneil, through mutual friends. The two wed in 2007 and Ms. Gardener gave birth to a son later that year. Oneil was sent back to Jamaica two years later. Anxious to ensure that her son grew up knowing and interacting with his father, Ms. Gardener visited Jamaica approximately twice a year between 2008 and 2016 to visit Oneil.
[8] Having to nurture her son without any financial assistance from Oneil imposed a great deal of stress on Ms. Gardener. The low paying jobs she was able to secure did not afford her any comforts. She lost her apartment between 2009 and 2010. During this period, she lived for brief periods in the homes of friends. She contacted an organization which assisted destitute persons to find housing and through the assistance of a housing worker, was approved for subsidized housing. In 2011, she moved into a subsidized unit in the City of Toronto where she currently resides. In October 2016, Ms. Gardener received news that Oneil was murdered in Jamaica in the presence of her son.
[9] Ms. Gardener has been a very caring mother to her son. She worries about being separated from him after she is sentenced and has arranged for him to reside with her eldest sister while she is incarcerated. Ms. Pemberton spoke to Ms. Gardener’s sister who assured her that she would care for her nephew during Ms. Gardener’s incarceration. This sister also confirmed that Ms. Gardener was badly treated by their mother.
PARTIES’ POSITIONS
The Crown
[10] The Crown submits that based on the following cases the appropriate sentence range of four to five years is appropriate in this case:
R. v. Madden, 1996 10228 (ON CA), 1996 O.J. No. 376.
R. v. Cunningham, 1996 1311 (ON CA), 1996 O.J. No. 448.
R. v. Hamilton, 2004 5549 (ON CA), 2004 O.J. No. 3252, at para. 113.
R. v. Francis, 2019 ONSC 766, where a disadvantaged racialized accused, who had become pregnant at fourteen years of age, received a four year term of imprisonment after being convicted of importing 1,381 grams of cocaine.
R. v. Blackburn, 2015 ONSC 6401, where a racialized first offender who was convicted of importing 1.5 kgs of cocaine, received a sentence of three years and three months imprisonment.
R. v. Hodge, ONSC 6916, where a racialized accused who was convicted by a jury of importing 1.3 kgs of cocaine, received a three year term of imprisonment.
R. v. Watson, 2010 ONSC 448, where a racialized single mother who was convicted of importing 948 grams of cocaine was sentenced to three years imprisonment.
Defence Position
[11] Ms. Smith, while acknowledging the sentence range established in Madden and Cunningham, submits that:
Relying on R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 60, that sentence ranges are primarily guidelines rather than hard and fast rules and that a deviation from a sentencing range is not synonymous with an error of law or an error in principle: see also R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at para. 44.
Ms. Gardener has been racially disadvantaged and her life bears the hallmarks of her disadvantaged status. These include her difficult upbringing, unstable childhood, the absence of a father figure in her life, having to attend a number of schools, precarious employment, single motherhood with little or no financial assistance from the father of her child and persistent stress throughout her life. Added to these factors are the following mitigating factors:
a. Ms. Gardener has no criminal record.
b. She has complied with her bail conditions for over four years.
c. Ms. Gardener poses no danger to the public.
d. Ms. Gardener has excellent prospects for rehabilitation.
Ms. Smith relies on the Court of Appeal’s decision in R. v. Kerr, 2001 21142 (ON CA), [2001] O.J. No. 5085 at para. 15 and R. v. Proulx, [2001] 1 S.C.R. 61, at pages 105-107 and 117, that no offences are excluded from the possibility of having conditional sentences imposed.
The following statement from the Supreme Court of Canada in R. v. Sharma, 2020 ONCA 478, [2020] O.J. No. 3183, at para. 171 that:
Even in cases where deterrence and denunciation are the paramount sentencing objectives, a conditional sentence may be appropriate, depending on “the nature of the conditions imposed, the duration of the conditional sentence, and the circumstances of the offender and the community in which the conditional sentence is to be served”: Proulx, at para. 114; see also Wells, at para. 35. These principles apply equally to the offences of drug importation and aggravated assault.
- As to the need to emphasize general deterrence and denunciation in sentencing Ms. Gardener, Ms. Smith relies on R. v. Morris, 2018 ONSC 5186, at para. 56 that:
However, when looked at in a principled manner, broader systemic factors such as racism and the effects of colonialism must surely have some impact upon the application of general deterrence and denunciation. It can impact upon on how we characterize the seriousness of the offence. Recognizing, as the law must, that individuals are held responsible for the acts they commit that breach the criminal law, the reality is that this choice to act may be constrained by an offender’s life circumstances. This can include the limited choices available to the offender due to discrimination or racism. The effects may be subtle but significant. They may be significantly influenced by history. They can become hardwired into our institutional practices. Over the lifetime of the offender, negative influences such as poverty, addiction, mental illness, neglect and abuse in childhood, disrupted family and social networks, and the denial of employment and social advancement can constrain this field of choice.
ANALYSIS
[12] Section 718.1 states that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
[13] Section 742.1 states that if a person is convicted of an offence and the court imposes a sentence of imprisonment of less than two years, the court may, for the purpose of supervising the offender’s behaviour in the community, order that the offender serve the sentence in the community if:
a. the court is satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in section 718 to 718.2(e).
[14] 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 1311 (Ont. C.A., (1996), 27 O.R. (3d) 786 (C.A.)); R. v. C.N.H., 2002 7751 (ONCA), (2002), 62 O.R. (3d) 564 (C.A.)); R. v. Bajada, 2003 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 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, at para. 50; 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.
[15] Determining a proportionate sentence involves an assessment of the aggravating and mitigating factors in this case.
AGGRAVATING FACTORS
[16] These include the following:
a. Cocaine is a pernicious and deadly drug that is not indigenous to Canada;
b. Ms. Gardener imported a significant amount of cocaine;
c. Ms. Gardener’s motivation for becoming involved in the importing scheme was likely greed;
d. The amount of imported drugs had a high monetary value.
MITIGATING FACTORS
[17] These include the following:
a. Ms. Gardener has no criminal record;
b. Ms. Gardener has been on a recognizance for five years without violating any of its conditions;
c. Ms. Gardener has faced numerous and significant hardships in her life;
d. Ms. Gardener has a young child whom she has cared for from the time he was born;
e. Ms. Gardener has an excellent chance for rehabilitation.
RANGE OF SENTENCE
[18] I now turn my mind to the appropriate range of sentence. If the range is two years or less, then I must consider whether a conditional sentence is an appropriate one given the gravity of the offence and Ms. Gardener’s personal circumstances.
What is the appropriate sentence range in this case?
[19] Madden involved the importation of 770 grams of cocaine. The Court of Appeal stated that absent exceptional circumstances, the appropriate range is three to five years imprisonment. The Court of Appeal determined that a fit sentence would be a three year term of imprisonment largely because of a) Ms. Madden’s plea of guilty, and b) her participation in an attempted controlled delivery which was unsuccessful.
What exceptional circumstances would justify a downward deviation from the sentence range suggested in Madden?
[20] In R. v. Norman, 2018 ONSC 2872, at paras. 44-45, 62-63, I provided the following list of “exceptional circumstances” that would justify a sentence lower than the judicially established range:
Meaningful cooperation with the authorities, R. v. B.(A.), 27 C.R. (6th) 180 (Ont. S.C.J.).
Compulsion short of duress.
An honest belief that the imported drug was a soft drug.
Where an accused who had imported 2,144 grams of cocaine was the sole caregiver of her 18-year-old daughter who had cerebral palsy: See R. v. Shaw, [2000] O.J. No. 2646.
An offender who had debilitating medical issues for which he or she could not receive the requisite medication and/or treatment while incarcerated, thereby jeopardizing his or her life.
[21] None of these factors is present in the instant case. Ms. Gardener’s “choices” had clearly been constrained by her difficult life, the deportation of her father, harsh treatment by her mother, her limited education and her assumption of the responsibilities of motherhood in her early twenties. However, as Hill J. noted in R. v. Hamilton, 2003 2862 (ON SC), [2003] O.J. No. 532 (ONSC) the archetypal drug importer who appears with depressing regularity in the Brampton courts is a racialized single mother, on social assistance who has had to contend with an unrelenting procession of low paying jobs. These “highly dispensable throwaways”, opined Hill J., have been acutely vulnerable to the enticements of unscrupulous members of the drug importing hierarchy (at para. 191).
[22] The two racialized offenders in Hamilton appeared to have been more socially and economically disadvantaged than Ms. Gardener. Marsha Hamilton was a single mother of three and on social welfare. She had been abused by the father of one of her children. She got pregnant while in grade nine. Donna Mason was also the mother of three children and partly subsisted on welfare. She worked at a Wendy’s restaurant and earned a meagre monthly income of $1,350. Both imported significantly less cocaine than Ms. Gardener. Ms. Mason imported 489 grams of cocaine while Ms. Hamilton imported 349 grams of cocaine. Hill J. granted the two conditional sentences, a decision reversed by the Court of Appeal, on the grounds that the accused’s involvement in importing cocaine was not the result of systemic racial discrimination and that such sentences would not adequately give weight to general deterrence and denunciation. Similarly, in R. v. Spencer, 2004 5550 (ON CA), [2004] O.J. No. 3262 (Ont. C.A.), the Court of Appeal set aside a conditional sentence of two years less a day granted to a Black single mother who had imported 733.4 grams of cocaine, an amount significantly less than that imported by Ms. Gardener. The Court held that such a sentence did not adequately reflect the imperatives of general deterrence and denunciation.
[23] For the above reasons, a sentence of two years imprisonment or less would not be an appropriate sentence in this case. The appropriate sentence range would be, in my view, a sentence of four to six years imprisonment.
[24] Given this range, what would be an appropriate sentence, based on the aggravating and mitigating factors in this case and the decision in Lacasse and Foster that sentence ranges are not straightjackets that should be mechanically applied in every case?
[25] Sentencing is an individualized process. It must be scrupulously calibrated to reflect the gravity of the offence and the personal circumstances of the offender. It must also, in my view, address any systemic and racially discriminatory factors that may have played a role in the commission of the offence. Very rarely will there be direct evidence of this nexus. Invariably, such a nexus may emerge from the personal circumstances of the offender.
[26] In Hamilton, Hill J. looked at the circumstances of the accused and concluded that systemic racial factors had played a role in the commission of the offence. Doherty J.A. demurred and instead concluded that the accused’s affinities with Jamaica (at para. 132) and their assumption of the responsibilities of motherhood at an early age may well account for their involvement in the importing scheme.
[27] Having presided in Brampton as a judge for approximately 19 years, I can conclude that a disproportionate number of drug mules who return from Caribbean source countries such as Jamaica, St. Lucia, Barbados, Aruba and Guyana have little or no affinities with these source countries. Rather, what a disproportionate number have in common is that they are invariably black, single mothers and poor. Hill J. made this observation in 2003. Caswell J. made a similar comment in the 1996 case of R. v. Marsman, [1996] O.J. No. 2964 (Ont. Ct. Gen. Div.), at para. 8. It is no different 18 years later. Ms. Gardener’s life, as so many racialized drug couriers before her, manifest the iconography of poverty.
[28] Second, while it is true that the assumption of responsibilities of motherhood at an early age may have exacerbated Ms. Gardener’s financial situation, this cannot be divorced from her dire economic situation. Neither can it be divorced from the stultifying effects of growing up without a father, with an abusive mother and having to attend eight different schools before grade 12. Within this context, the assumption of the responsibilities of motherhood is not the result of individual pathology or a poverty of values. Rather, it logically flows from the hardship experienced due to the systemic forces that partially aborted Ms. Gardener’s chances of making something of herself.
[29] And so in my view, a consideration of these factors justify a sentence below the range of four to six years imprisonment. I am mindful of Doherty J.A.’s observation in Hamilton that sentencing cannot right social wrongs. However, the enactment of s. 718.2(e) of the Criminal Code and subsequent decisions, such as R. v. Gladue, Proulx, Wells and others had, as their justification, an attempt to reduce the high levels of incarceration of indigenous offenders. However, as noted in R. v. R. L., [2004] O.J. No. 384 (Ont. Supt. Ct.), at para. 55, “these remedial intended laws and judicial pronouncements all taken together have apparently had no impact on a reduction in custodial sentences for Aboriginal sentences”. To the extent that racialized offenders also experience disproportionately high levels of incarceration, then sentencing has a limited role in seeking to ensure that this seemingly entrenched pattern of over-incarceration does not continue unabated.
[30] I hasten to add however, that I am mindful that sentencing cannot, on its own, reverse such over-incarceration if the societal problems, such as poverty, limited employment and systemic racism continue to adversely affect members of racialized communities. I adopt the following observation of Barnes J. in R. v. J.G., 2021 ONSC 1095, at para. 44:
[F]ailing to consider systemic racism’s impacts on factors such as employment, education and health, while appearing to be a neutral application of sentencing principles, may actually conceal a strong bias against racialized individuals in the sentencing process: Ipeelee, at para. 67; R. v. Jackson, at paras. 105-115.
[31] Finally, I am aware of the impact of the Covid-19 pandemic and the heightened risk of infection in custodial institutions. I am also aware however, that the threat of infection has dissipated significantly largely as a result of what appears to be, at least in Ontario, an aggressive vaccination campaign. I should not however, that the threat of infection cannot reduce an otherwise fit sentence to such an extent that the sentence imposed is not a proportionate sentence under s. 718.1 of the Code.
CONCLUSION
[32] In my view, the appropriate sentence after considering the aggravating and mitigating factors, is three years imprisonment.
ANCILIARY ORDERS
[33] Section 109(a) order for 10 years and a s. 109(b) order for life.
[34] An order of forfeiture.
André J.
Released: June 10, 2021
COURT FILE NO.: CRIM J(F) 699/17
DATE: 2021 06 10
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
JAMILIA SHENIKA GARDENER
REASONS FOR SENTENCE
André J.
Released: June 10, 2021