SENTENCING RULING

Bielby J.

Overview

[1] On August 13, 2019, the offender, James Jahkyn Grant, was convicted, by a jury, of importing cocaine into Canada, contrary to s. 6(1) of the Controlled Drugs and Substances Act.

The Facts

[2] On January 17, 2015 the offender travelled alone to Aruba, declaring he was doing so for personal reasons. On January 24, 2015, the offender returned to Canada, landing at Pearson International Airport in Mississauga.

[3] The offender was on the Canadian Border Services target list and was directed to the secondary inspection area where his luggage was searched and 2.5 kilograms of cocaine was found hidden in the luggage.

Circumstances of the Offender

[4] The offender can be said to be a unique individual. He has a unique set of beliefs and values by which he lives. He has a partner and six children and is very committed to his family and to his community.

[5] The offender’s roots are in the Caribbean and, although born in Montreal on May 8, 1983, as a child he spent considerable time living in Tobago and St. Vincent.

[6] The offender was the subject of a pre-sentence report (Exhibit 7). The report set out the following facts:

(a) The offender has one sister, Natalie Grant, however, the offender’s mother and father have children from other relationships.

(b) The offender’s mother describes her son’s life as, unfortunate. He was the product of a rape and the abusive relationship she had with the offender’s father. The offender’s father has not played any significant role in the offender’s life.

(c) The offender’s mother had to raise the offender and his sister on her own and returned to Trinidad and Tobago where they lived with the maternal grandmother. After a few years the offender’s mother returned to Montreal and the children remained behind.

(d) The offender reported that he identifies himself as Carib and as aboriginal and explained his connection to the Iroquois Six Nations of the Grand River.

(e) The offender attended university but dropped out in his final year. He reported that he was employed, since 2012, as a principle and administrator of “Rouge Ontario Cathedral Kynship”, although he could not provide any proof of income.

(f) The offender had no substance abuse or alcohol abuse issues and no mental health issues, although he reported that he had been the victim of neglect and emotional abuse.

[7] A number of character letters were filed as exhibits and a number of character witnesses were called to testify at the sentencing hearing. The offender was described as a dedicated family man who contributed significantly to the community. Most noted that if the offender was sentenced to a period of incarceration, his family and community would suffer greatly. One witness said that it would be devastating to all if the offender was incarcerated.

[8] The offender was described as a mentor, and some younger men looked up to him as someone from whom they sought guidance and support.

[9] One of the witnesses called was Natalie Grant, the offender’s sister, as noted above, who is 10 years older than the offender and who testified that the offender, as a child, moved homes 21 times. His life was not easy. When left with family or friends of family in Tobago, on two occasions the offender suffered from malnutrition, one of which resulted in the offender being hospitalized, and in a coma.

[10] Ms. Grant testified that her brother was always looking out for others and is loving and kind. She wishes that the court could truly get to know the offender and she wishes he could get a break and the court exercise leniency.

[11] Ms. Grant testified that their mother always struggled when trying to raise her and the offender.

[12] The offender was described by his sister as a better father to her kids than their natural father. He was described as a “really good man” and a dedicated spouse and father.

[13] Ms. Grant testified that it would be difficult if the offender is jailed and that it would be much better if he was placed on house arrest.

[14] Nicole Asare is the offender’s partner and said that she met the offender in 2009. She testified as to, how the offender is a good a father.

[15] The witness explained that the offender dropped out of his last year in university to go to work to support the family. She spoke of the summer camps arranged in part by the offender and the family’s connection to the Rouge Valley.

[16] Ms. Asare testified as to how much everyone loves the offender and if he is sentenced to jail, she does not know how she or the family will survive.

[17] Ms. Asare explained that, “everything we do, we do together” and that, apart from the offender, she has no one else she and the children can count on. Incarceration would be devastating to the children. She testified that the time spent by the offender in pre-trial custody was very hard on the family (pre-trial custody exceeded 200 days).

[18] Russell Brown was a witness called by the offender at the sentencing hearing who provided a glowing character reference. However, he also spoke of the poor decisions made by the offender, “out of desperation” and his poor choice of partners. Mr. Brown was of the opinion that the worst outcome of these sentencing proceedings would be a jail sentence and that it would be devastating to the offender’s strong family unit.

[19] The offender himself testified at the sentencing hearing. As well, an affidavit of the offender, sworn December 8, 2020, was entered into evidence.

[20] The offender testified that he describes himself as an admiral because he travels with his home on his back. He explained that his body is his vessel and it needs to be respected and protected.

[21] The offender talked about his difficult childhood, which explains why he values his family connection so highly.

[22] The offender’s first memory is that of Tobago where the family moved to from Montreal when the offender was very young. He also spent some time in St. Vincent and the Grenadines where he lived in his uncle’s home.

[23] Thereafter, the offender and his sister were required to live in the home of his father’s girlfriend. The offender explained that at some point the girlfriend stopped cooking for the offender and his sister, leaving them to fend for themselves.

[24] Around the age of six the offender and his sister returned to their mother’s care in Montreal. At the age of nine the offender was returned to Tobago to live with his uncle and aunt. His mother sent money to the uncle for the offender’s care, but the money was spent otherwise, resulting in the offender suffering from malnutrition and low blood sugar, which required hospitalization.

[25] As a result, the offender was sent to live with his grandparents in Tobago.

[26] The offender, when 12 years old, returned to Montreal because his mother’s life had stabilized. However, at the time, his mother was working and going to university, resulting in the offender spending extended periods of time by himself.

[27] When the offender was 14 or 15 years of age he and his mother moved to Florida where he remained for 10 to 11 years, returning to Canada when 24 or 25 years of age.

[28] The offender testified that as a result of all of this he felt like he was the devil’s child, meaning, presumably, that he believed that his difficulties were his own fault. He eventually realized otherwise. He recognized he was the victim of emotional and physical abuse.

[29] The offender testified that if he is incarcerated, he will not be able to support his family. He also noted that he is fearful that when at the courthouse he will be assaulted and incarcerated because of his conscience and belief. He further believes he will be treated differently because of the way he dresses, which can be said to be in a military style.

[30] The offender testified as to a time after his arrest on this matter, he was again arrested over an issue of identity. As a result, he spent considerable time in jail and was convicted for obstructing a police officer.

[31] The offender spoke of the time he spent in segregation in both the Maplehurst Correctional Centre and the correctional facility in Lindsay. The cells when in segregation were small and he would be in the cell for 23.5 hours per day.

[32] He talked about the conditions in the jails and spoke of another inmate committing suicide.

[33] The offender testified how hard it was to get to use the phone and have an opportunity to speak to his children.

[34] When in the general population at the jail, the environment was explained as crazy, noisy and dangerous; a war like environment.

[35] As a result of all this, the offender testified that he has suffered mental trauma.

[36] The offender also testified as to the effect upon him and his family as a result of this matter taking so long to get to trial. It has been over six years since he was arrested at the airport. It is to be noted that the offender did bring a s. 11(b) application, which was dismissed.

[37] The offender is worried about the impact his children will suffer if he is incarcerated. He testified that he would abide by any terms imposed if he was sentenced to house arrest, which he describes as a much better option. He explained that he has a debt to pay to society and his family and could better address it from home.

[38] At the time of his arrest for importing cocaine, the offender had never been convicted of a criminal offence.

Impact on the Victim and/or Community

[39] In a drug importing trial, included in the class of victims are persons who use or are addicted to cocaine. However, society, at large, is the predominate victim. From the Ontario Court of Appeal decision of R. v. Cunningham 1996 CanLII 1311 (ON CA), [1996] O.J. No. 448, I quote,

“Sympathetic though we are to the plight of many couriers, such concerns must give way to the need to protect society from the untold grief and misery occasioned by the illicit use of hard drugs” (pg. 8).

[40] In R. v. Waldron 2018 ONSC 3972, para. 17, Justice Woollcombe wrote,

“There can be no question that the importation of cocaine has a profound and significant impact on a wide community. Cocaine is a “destructive, insidious, and powerfully addictive substance that causes great devastation and misery to those whose lives it touches”; R. v. Nalvarte 2011 ONSC 234(S.C.J.).”

[41] It has been said that the importation of cocaine leads to inevitable violent consequences, justifying the importation of cocaine to be described as a violent and serious offence (R. v. Carrera-Vega 2015 ONSC 4958, para. 50).

[42] There is no doubt that the offender’s family are also victims and as we heard at the sentencing hearing, they believe they will suffer a significant impact if the offender is incarcerated. I accept that.

Legal Parameters

[43] As noted, the offender was convicted of importing a prohibited substance into Canada, in this case, cocaine, contrary to s. 6(1) of the Controlled Drugs and Substances Act. If convicted an offender can be sentenced to a maximum of life imprisonment, which is an indication of the seriousness of the crime.

Positions of Crown and Defence

The Crown

[44] The Crown submits a sentence of six years would be appropriate, subject of course to whatever credits the offender is entitled to.

[45] The Crown relies on the decision in R. v. Cunningham, supra, as authority for submitting that the appropriate range of sentence for first time offenders guilty of importing multiple kilos of cocaine as six to eight years unless there are extenuating and/or exceptional circumstances. The Cunningham range is said to apply regardless of colour.

[46] The Crown concedes that the offender is a hard-working, well-meaning person – a good man. The Crown recognizes that the offender’s childhood was abusive and would give rise to emotional and mental trauma. Despite his difficult childhood, the offender grew into a man, revered.

[47] However, it is submitted there are no extenuating and/or exceptional circumstances that allow for a sentence outside of the Cunningham range.

[48] It is submitted by the Crown that this case is like most of all the other cases where a drug courier is arrested at the airport attempting to smuggle drugs into Canada, whether hidden in luggage or on their person.

[49] The Crown further submits that there is no nexus between the crime committed by the offender and claims of systemic racism and colonialism.

[50] The Crown submits that, contrary to the offender’s claim, the offender has no real connection to the indigenous peoples of Canada.

[51] The Crown submits that the facts of this case indicate that a significant period of incarceration is required well beyond a conditional or suspended sentence sought by defence counsel. He is to be held responsible for the decision he made and his attempt to smuggle cocaine into Canada.

The Defence

[52] Counsel for the offender recognizes the seriousness of the offence but argues that the circumstances of this case are exceptional and that the court is not bound by the Cunningham range of sentence. He submits that the offender and his family are entitled to such considerations.

[53] Counsel for the offender submits that by this sentencing the court has the opportunity to “move the needle” in regard to sentences for the importation of drugs. A conditional sentence or a suspended sentence, including a period of house arrest, it is submitted, would satisfy the principles of sentencing to which we must have regard.

[54] The offender, through counsel, asks the court to consider the historic mistreatment of indigenous persons of Canada and the Carib persons of the Islands, the descendants of African slaves. It is submitted that our indigenous population suffered as a result of the utilization of residential schools by the Canadian government which is comparable with what the people of the Caribbean endured by being educated under a British system, which also required them to leave behind their own culture and values. It is submitted that persons of colour were and are the victims of systemic racism and colonialism.

[55] The defence argues that if the offender is jailed and thereby removed from his family, the gains he and his family have made will crumble.

[56] It is argued that the offender was incarcerated, pre-trial, for over 200 days and no further period of jail is required. The courts can prevent the cycle of broken families and counsel submits that the court has the discretion to formulate a sentence which will not break up, what counsel called, a community.

Case Law

[57] As noted by Woollcombe J. in R. v. Waldron, supra, at para. 26,

The range of appropriate sentence set out by the Court of Appeal in Cunningham has been affirmed multiple times. See: R. v. Hamilton 2004 CanLII 5549 (ON CA), [2004] O.J. No. 3252; R. v. Phillips 2008 ONCA 726, [2008] O. J. No. 4194 (C.A.) at para. 59 and R. v. Jackman 2016 ONCA 121, at paras. 55-56. The Court of Appeal established the range of sentence for persons importing multiple kilos of cocaine as 6 to 8 years (Cunningham, pg. 7).

[58] In Cunningham, it was said that the above referenced range of sentence (6-8 years) was for first time offenders, acting as couriers, absent exceptional or extenuating circumstances, for persons importing multiple kilos of cocaine into Canada for personal gain (pg. 7).

[59] In R. v. Carerra-Vega, supra, Fairburn J., as she then was, at para. 48, referenced the Cunningham decision and stated:

“In Canada, there are few, if any, offences that attract as clear a range of sentence as the importation of cocaine.”

[60] R. v. Hamilton 2004 CanLII 5549 (ON CA), [2004] O.J. No. 3252, is a decision of the Ontario Court of Appeal, in which two offenders pleaded guilty to each importing less than half a kilo of cocaine into Canada. The offenders were described as two young single black mothers without criminal records.

[61] C. Hill J., the sentencing judge, concluded that both accused, because of their race, gender and poverty, were particularly vulnerable targets to those who sought out individuals to be cocaine couriers. He went on to rule that the personal responsibility of the two accused was significantly diminished by the effects of systemic racial and gender bias.

[62] Hill J. was of the view that society had to take its share of the responsibility for the crimes by way of a mitigation of their sentences and imposed conditional sentences, which included periods of house arrest.

[63] In the matter before me, counsel for the offender, to some extent, makes the same principle argument as expressed by Hill J.

[64] In Hamilton, the Court of Appeal allowed the Crown’s appeal on sentence and Doherty J.A., at paras. 104 and 105, wrote,

“The importation of dangerous drugs like cocaine and others found in Schedule 1 of the Controlled Drugs and Substances Act, S.C. 1996, C. 19, has always been considered among the most serious crimes known to Canadian law…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, I characterize cocaine importation as both a violent and serious offence.

Cocaine is not indigenous to Canada. Without the cocaine importer, whatever his or her motive or involvement, there would be no cocaine problem.”

[65] In the Appeal Court’s analysis of the relevance of systemic racial and gender bias, the following was said, at paras. 133-135:

“The fact that an offender is a member of a group that has historically been subject to systemic racial and gender bias does not in and of itself justify any mitigation of sentence. Lower sentences predicated on nothing more than membership is a disadvantaged group further neither the principles of sentencing, nor the goals of equality.

A sentencing judge is, however, required to take into account all factors that are germane to the gravity of the offence and the personal culpability of the offender. The inquiry can encompass systemic racial and gender bias…

Reference to factors that may “have played a role in the commission of the offence” encompasses a broad range of potential considerations. Those factors include any explanation for the offender’s commission of the crime. If racial and gender bias suffered by the offender helps explain why the offender committed the crime, then those factors can be said to have “played a role in the commission of the offence.”

[66] From para. 140 I quote,

“The respondents had a choice to make and they made the choice knowing full well the harm that the choice could cause to the community. The economic circumstances of the respondents made their choice more understandable than it would have been in other circumstances, but it remains an informed choice to commit a very serious crime. The blunt fact is that a wide variety of social ills including, in some cases, racial and gender bias – are part of the causal soup that lead some individuals to commit crimes. If those ills are given prominence in assessing personal culpability, an individual’s responsibility for his or her own actions will be lost.”

[67] The Court of Appeal concluded that the trial judge erred in deciding that systemic racial and gender bias justified conditional sentences saying that such an explanation could not distract from the seriousness of the crimes. The principle of proportionality usually requires incarceration of drug importers.

[68] It was determined that the imposition of conditional sentences was inconsistent with the fundamental purpose of sentencing for a number of reasons, including a failure to adequately denounce the conduct of others, a failure to meet the sentencing principles as set out in s. 718 of the Code, and for failing to promote a sense of responsibility by offenders for their conduct (para. 146).

[69] At para. 148, and with respect to the argument that the black community is treated unfairly and unnecessarily harshly by the criminal justice system, it was said:

“This argument assumes that the black community looks at the criminal justice system exclusively from the prospective of the offender. The black community, like the rest of Canada, knows only too well the harm caused by cocaine. The black perspective must include those who are the direct and indirect victims of the harm done by cocaine. Viewed from that perspective, I would not assume that members of the black community would regard the imposition of non-custodial sentences for those who import cocaine into their communities as a positive step towards racial equality in the criminal justice system.”

[70] In R. v. Waldron, supra, the accused was a single mother and 22 years of age at the time of her arrest for the importation of 2.753 kilograms of cocaine upon returning to Canada from Jamaica.

[71] Woollcombe J. noted that the sympathetic and mitigating features of the case before her are frequently present in cases of importing narcotics and includes stories of young single mothers, often first offenders, acting as couriers (para. 45).

[72] However, it was determined that there were no exceptional circumstances that would warrant a sentence outside of the Cunningham range (para. 46).

[73] A sentence 6.5 years in jail was imposed (para. 47).

[74] In R. v. Jackman 2016 ONCA 121, the accused was convicted by a jury of attempting to import into Canada via Pearson International Airport, four kilos of cocaine found hidden in the lining of her luggage. Dawson J., the trial judge, sentenced Ms. Jackman to five years and two months in jail, less two months pre-trial credit.

[75] Ms. Jackman appealed certain Charter rulings as well as the sentence.

[76] At the sentencing hearing, Ms. Jackman argued that her challenging personal circumstances warranted a deviation from the 6-8 year Cunningham range. Dawson J. detailed her sympathetic circumstances and background and considered them mitigating circumstances. Regardless, Dawson J. concluded that though weak and vulnerable Ms. Jackman had to be sentenced within the Cunningham range (para. 56).

[77] The Ontario Court of Appeal ruled that Dawson J. made no error in principle nor was the sentence manifestly unjust.

[78] R. v. Sharma 2020 ONCA 478, [2020] O.J. No. 3183, is a very recent decision of the Ontario Court of Appeal and is relied upon by counsel for the offender, to support the argument that a conditional sentence would be a fit and proper sentence for Mr. Grant. It is to be noted that the decision has been appealed to the Supreme Court of Canada. Regardless, unless and until the Supreme Court says otherwise, I must have regard for this authority.

[79] Ms. Sharma was a young indigenous woman who imported two kilos of cocaine into Canada. She was sentenced to 17 months’ in jail.

[80] On appeal, the offender submitted that ss. 742.1(e) and 742.1(e)(ii) violated Charter sections 15 and 7 because their effect is to discriminate against Aboriginal offenders on the basis of race and because they are arbitrary and overbroad in relation to their purpose. The Court of Appeal agreed and ruled that the sections are not saved by s. 1 of the Charter. The Court set aside the custodial sentence and found the appropriate sentence was a conditional one of 24 months less a day.

[81] The Court was of the opinion that the offender was a prime candidate for a conditional sentence, taking into account the following mitigating factors:

The offender, Ms. Sharma, was a first offender.
The offender was aged 20 when the offence was committed.
The offender confessed to the RCMP on the date of her arrest.
The offender pleaded guilty.
The offender, as a single mother of a two year old child, was motivated to commit the offence as a result of her desperate need for monies. She was unemployed and facing imminent eviction from her home and offered $20,000 by her boyfriend to act as a drug courier.
The offender was raped by two men when she was 13 years old and by 16 was out of school and working in the sex trade.
Growing up she suffered from depression and anxiety and attempted suicide.
The offender had been on judicial interim release for over 2 ½ years and relocated.
Incarceration of the offender will separate her from her daughter -while family can care for the child, the offender’s incarceration perpetuates a generational pattern of separation of family.
The offender is a low risk to reoffend and had made rehabilitative efforts since arrest.

[82] The Court recognized that aboriginal person are the victims of widespread racism which has been translated into systemic discrimination in the criminal justice system (para. 35).

[83] Counsel for Mr. Grant submits that his client, a black man, is also a victim of racism and, as noted in Sharma, submits:

“The legacies of colonialism and overt racism have resulted in “intergenerational trauma for families and communities” (para. 91).

[84] The analysis by the Court of Appeal was, for the most part, specific to Aboriginal offenders and the Court spoke of the need to balance the seriousness of the offence with the Gladue factors (para. 19) and I quote:

“… Conditional sentences allow a sentencing judge to impose a sentence to fit the circumstances of the offender and further the goals of denunciation and deterrence but permit the offender to serve the sentence in the community on conditions including forms of house arrest” (para. 30).

[85] Reference was made to s. 718.2(e) of the Code, which requires a court to take into consideration, on sentencing:

“all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.”

[86] In regard to the need for a causal link between the commission of the offence and systemic racism, it was said:

“Requiring a causal link is an error because it is well recognized that Aboriginal people have suffered from systemic discrimination in Canada, the effects of which are interconnected and complex” (para. 47).

“The background factors are not an excuse for committing the crime but are instead the context for assessing and imposing an appropriate sentence” (para. 49).

[87] The Court of Appeal in its lengthy decision, did not make reference to the “Cunningham range” for the crime of importing cocaine. The Court did make reference to the Hamilton decision and Doherty J.’s consideration of proportionality in sentencing and the need to account for the degree of responsibility of an accused and the gravity of the offence (para.165).

[88] It was recognized by the court in Sharma that even in cases where the paramount sentencing objectives are denunciation and deterrence, as often said in drug importation cases, a conditional sentence may be appropriate depending on, “the nature of the conditions imposed, the duration of the conditional sentence, and circumstances of the offender and the community in which the conditional sentence is to be served” (para. 171).

[89] The Court of Appeal in Sharma concluded that:

“Taking into account Ms. Sharma’s personal circumstances as a single mother, her guilty plea, her lack of criminal record, together with the Gladue factors which address her personal history, including her grandmother’s attendance at a residential school, her survival of sexual violence, her experience in foster care, her lack of education and poverty, as well as her determination to re-educate herself and work to make a good home for her daughter and to maintain her cultural identity, a conditional sentence served in the community would have been an appropriate sentence to achieve the sentencing objectives of s. 781.2(e)”(para. 184).

[90] Keeping in mind that the case centered on the plight of indigenous offenders, the following are the principles I take from the Sharma decision:

A conditional sentence is an available sentencing option depending on the circumstances of the case.
A court can take judicial notice of systemic racism and that there need not be a direct causal connection between systemic racism and the commission of the offence.
An offender’s personal responsibility can be diminished by the effect of systemic racism which may help to explain the offender’s role.
An offender’s degree of responsibility includes consideration of his or her role in the offence and/or background which can either increase or decrease an offender’s personal responsibility in the commission of the offence.

[91] Along with Indigenous persons, I accept, without question, and take judicial notice of the fact that persons of colour have been and continue to be, victims of systemic racism.

[92] However, I also note that the facts in the Sharma decision are much different than the facts before me. Ms. Sharma, an indigenous young single mother, who was 20 years of age, confessed to her crime to the police and pleaded guilty. She testified that she was motivated to commit the crime because of her desperate financial circumstances, which included the likelihood of being evicted from her home. It can be said that indigenous young mothers with financial pressures, like young black women, are vulnerable targets to those who seek out drug couriers.

[93] Mr. Grant was 32 when he committed the crime. He testified he had no financial issues. He lived in a home with his partner and their children and was active in the community. He was educated, only needing one more year of school to graduate from university. There is no evidence of any specific motive to import cocaine.

Mitigating and Aggravating Factors

[94] The following can be said to be mitigating factors:

(a) the offender had an exceptionally difficult and at times abusive childhood;

(b) the offender is a black man and as such is part of a visible minority who were and continue to be, victims of systemic racism;

(d) the offender, at the time this offence was committed, did not have a criminal record.

[95] When counsel appeared before me on the sentencing hearing, their submissions included what credits should be given to the offender arising out of his pre-trial incarceration, including how he was treated by persons in authority, the conditions experienced by the offender when in jail, including time in segregation, the Covid-19 pandemic and being the subject of partial and full periods of lockdowns. Generally, such credits are said to be “Duncan” credits.

[96] Subsequent to the sentencing hearing, the Ontario Court of Appeal released its decision in R. v. Marshall 2021 ONCA 344. The Court determined that Duncan credits should not be deducted from the base sentence but rather are mitigating factors to be considered in determining the base sentence.

[97] From para. 50 of the Marshall case I quote:

“A Duncan credit is given on account of particularly difficult and punitive presentence custody conditions. It must be born in mind the 1.5:1 “Summers” credit already takes into account the difficult and restrictive circumstances offenders often encounter during pretrial custody: Summers, at paras. 28-29. The “Duncan” credit addresses exceptionally punitive conditions which go well beyond the normal restrictions associated with pre-trial custody. The very restrictive conditions in the jails and the health risks brought on by COVID-19 are a good example of the kind of circumstance that may give rise to a “Duncan” credit: R. v. Morgan 2020 ONCA 279.”

[98] From paras. 52 and 53 I quote:

“The “Duncan credit is not a deduction from the otherwise appropriate sentence, but is one of the factors to be taken into account in determining the appropriate sentence. Particularly punitive pretrial incarceration conditions can be a mitigating factor to be taken into account with the other mitigating and aggravating factors in arriving at the appropriate sentence from which the “Summers” credit will be deducted. Because the “Duncan” Credit is one of the mitigating factors to be taken into account, it cannot justify the imposition of a sentence which is inappropriate, having regard to all of the relevant mitigating or aggravating factors.

Often at times, a specific number of days or months are given as “Duncan” credit. While this quantification is not necessarily inappropriate, it may skew the calculation of the ultimate sentence. By quantifying the “Duncan” credit, only one of the presumably several relevant factors, there is a risk the “Duncan” credit will be improperly treated as a deduction from the appropriate sentence in the same way as the “Summers” credit. If treated that way, the “Duncan” credit can take on an unwarranted significance in fixing the ultimate sentence imposed: R. v. J.B. (2004) 2004 CanLII 39056 (ON CA), 187 O.A.C. 307 (C.A.). Arguably, that is what happened in this case, where on the trial judge’s calculations, the “Duncan” credit devoured three-quarters of what the trial judge had deemed to be the appropriate sentence but for pretrial custody.”

[99] Prior to the date of sentencing, counsel for both the Crown and the offender were given an opportunity to make further submissions on the impact, if any, of the Marshall decision. Regardless, applying the approach set out in Marshall, did not result in any change to the sentence I determined was appropriate and just.

[100] Counsel for the offender sought credit for the treatment experienced by the offender when confronted with persons in authority. I was not prepared to allow any credit on this ground, nor do I consider it to be a mitigating factor. I rely on the decisions of my colleagues in R. v. Grant 2018 ONSC 7260 and in R. v. Grant 2019 ONSC 3616.

[101] The offender has a unique view of life which impacts on the way he conducts and presents himself. He is true to his beliefs and emphasizes the need for individual freedoms. There is much to admire in his approach to life. His beliefs however, put him at odds with persons in authority, including CBSA personnel who have the absolute right to search the luggage and the person of an individual entering Canada from abroad or the right of correctional officers to conduct a search.

[102] I also note that, as said in the Marshall decision, at para. 50,

“The “Summers” credit Summers credit already takes into account the difficult and restrictive circumstances offenders often encounter during pre-trial custody.”

[103] The offender was the subject of 30 days of full or partial lockdown while in pre-trial custody. Defence counsel in his original submissions sought a credit of three days for every day his client was in lockdown regardless of whether the lockdown was partial or full. The Crown submitted that no credit ought to be provided for partial lockdowns.

[104] On this issue I agreed with the defence that such a credit was appropriate and will now consider it a mitigating factor to be applied to the base sentence. Pre-Marshall I would have allowed a credit of 90 days.

[105] The offender was in segregation for a total of 63 days, including a single block of 52 days and his counsel sought a credit of five days for every day in segregation. The Crown submitted that a credit of one-half of a day for each day in segregation was appropriate based upon a recognition that while segregation is harsh, some behaviours justify time in segregation.

[106] I recognize being placed in segregation is a harsh form of discipline and accept the submissions of counsel for the defence that the United Nations suggest anything over 15 consecutive days can be considered torture.

[107] In my opinion while the credit suggested by the Crown was too low, the credit asked for by the offender was excessive. On the facts of this case I would have allowed a credit of 95 days (1.5:1). The time in segregation will be considered a mitigating factor.

[108] I would not have granted a credit for the time it took to get this matter to trial and for the terms of bail. I agree with the Crown that the terms of his pre-trial release allowed the offender to carry on a relatively normal life, although he was unable to travel out of the country to attend a funeral. I note however, no application was made to vary the terms of bail. I also note that the offender’s s. 11(b) application was dismissed. Such factors will not be considered to be mitigating.

[109] With respect to aggravating circumstances, I will take into account the type and amount of the drug imported.

Principles of Sentencing and Analysis

[110] Section 10(1) of the Controlled Drugs and Substances Act, states:

“Without restricting the generality of the Criminal Code, the fundamental purpose of any sentence for an offence under this Part is to contribute to the respect for the law and the maintenance of a just, peaceful and safe society while encouraging rehabilitation, and treatment in appropriate circumstances, of offenders and acknowledging the harm done to victims and to the community.”

[111] I have had regard to the principles of sentencing as set out in s. 718 of the Code. As said in R. v. Carrera-Vega, at para. 46, in relation to drug offences, the primary sentencing objectives are rooted in denunciation and deterrence.

[112] Sections 718.1 and 718.2(b) of the Code stipulates that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. The sentence must be similar to sentences imposed on similar offenders who committed similar circumstances. I note that the courts have routinely imposed a sentence within the Cunningham range on similar offenders, regardless of colour.

[113] Regardless, defence counsel asks this court to, “move the needle” and impose a sentence outside of the Cunningham range, even to the extent of imposing a conditional sentence. Alternatively, a sentence equal to the grossed-up time the offender has spent in jail.

[114] When considering an appropriate sentence, I have considered all the factors that are germane to the gravity of the offence and the personal culpability of the offender. I have, as noted above, taken into account the existence of systemic racism, although no specific nexus has been established and, as already stated, have taken into account the offender’s difficult childhood. Such considerations can be said to reduce the offender’s personal responsibility for the commission of the offence. While I believe these considerations justify a sentence somewhat outside of the Cunningham range, they are not sufficient, on the facts of this case, to permit the imposition of any sentence which would allow the offender to avoid a period of incarceration. Proportionality, and the seriousness of the offence, requires a further period of incarceration.

[115] Mr. Grant’s personal circumstances do not amount to those of a vulnerable, young, single black mother, who faces eviction. There is no evidence of undue influence. There is no evidence to suggest that the offender was, in any way, a vulnerable target for persons wishing to have cocaine imported into Canada or that he was in desperate financial difficulties.

[116] I can only conclude that the offender made an informed choice to commit a crime by importing cocaine into Canada, a crime which is considered to be a serious and violent offence that does great harm to its victims and the community. Without the importation of cocaine there would be no cocaine problem.

[117] As noted above, included within the class of victims is the offender’s family. In her testimony the offender’s partner opined that she did not know how she and the children will survive if the offender is incarcerated. I have a great deal of sympathy for her and the children but cannot help but wonder if the offender considered the same question when deciding to import cocaine.

[118] As noted by one of the character witnesses, the circumstances of this crime represent a poor decision on the part of the offender. Good people often make poor decisions and the importation of cocaine is one of the worst and most serious of decisions one can make.

[119] For all of the above reasons, I believe a sentence of four years and six months incarceration is a fit and proper sentence, subject to the application of the “Summers” credit. As noted above, such a sentence is outside of the lower end of the Cunningham range, partly in response the difficulties faced by the offender as a child and the existence of systemic racism and takes into account the mitigating factors, including what are referred to as “Duncan” credits. Yet, it is sufficient enough to meet the sentencing principles of denunciation and deterrence which are the foundation of the Cunningham range. Such a sentence remains proportional to the seriousness of the crime.

[120] Such a sentence, in which Duncan credits were quantified and considered mitigating, cannot be said to be inappropriate. The factors cannot be said to “skew” the calculation of the ultimate sentence.

[121] With respect to the “Summers” credit, the Crown and the defence are in agreement that, further to s. 719(3.1) of the Code, the offender is to be given a credit of 353 days (rounded up) for his pre-trial custody. I concur.

Ruling/Final Decision

[122] Accordingly, the offender James Jahkyn Grant is sentenced to jail for three years and six months.

Ancillary Orders

[123] There is a mandatory weapons prohibition for ten years further to s. 109(2)(a) of the Code and a lifetime order, further to s. 109(2)(b). A DNA order is to issue under s. 487.051 of the Code.

Bielby J.

Released: June 17, 2021

R. v. Grant, 2021 ONSC 4384

Case Summary

SENTENCING RULING

Bielby J.

Overview

The Facts

Circumstances of the Offender

Impact on the Victim and/or Community

Legal Parameters

Positions of Crown and Defence

The Crown

The Defence

Case Law

Mitigating and Aggravating Factors

Principles of Sentencing and Analysis

Ruling/Final Decision

Ancillary Orders

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 7

Legal Tests 3

Legislation 3