COURT FILE NO.: CRIMJ(F) 777-17
DATE: 20211005
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
R. Tremblay, for the Crown
- and -
KEISHA COX
Defendant
Tried in Absentia, no one appearing
HEARD: September 24, 2021
REASONS FOR SENTENCE
Justice André
[1] I convicted Ms. Cox in absentia, of the charge of importing a controlled substance on May 23, 2016, after finding that she had absconded. The Crown now seeks a sentence of six years imprisonment as the appropriate sentence for importing 1.8 kilograms of cocaine.
BACKGROUND FACTS
[2] Ms. Cox was originally tried for the offence and convicted in December 2018. The Court of Appeal reversed the decision and ordered a new trial. Prior to the retrial scheduled to commence on September 17, 2021, Ms. Cox brought an application for an order that the court has no jurisdiction over her. Miller J. rejected the application in August 2021.
[3] Ms. Cox appeared before the court on the date of the retrial but again insisted that the court had no jurisdiction to try her before storming out of the courtroom. I subsequently granted a Crown application for a finding that Ms. Cox had absconded. Following a trial, I convicted Ms. Cox of the charge.
ANALYSIS
[4] I am required, pursuant to s. 718.1 of the Criminal Code, to consider the gravity of the offence and the personal circumstances of Ms. Cox to determine the proportionate sentence in this case. This necessarily involves a consideration of the aggravating factors and mitigating factors.
AGGRAVATING FACTORS
[5] These include the following:
a) cocaine is an addictive and pernicious drug that has wreaked untold havoc in the community;
b) the amount of cocaine imported is significant;
c) the offence involved a violation of Canada’s international borders;
d) the value of the imported drug ranged from $74,000 to over $190,000.
MITIGATING FACTORS
[6] These include:
a) Ms. Cox does not have a criminal record;
b) There is no evidence to suggest that Ms. Cox is anything but a drug mule, who is on the lower end of the drug importing hierarchy.
[7] The Crown relies on a number of cases in support of its sentencing position. The most important is the Court of Appeal’s decision in R. v. Cunningham (1996), 1996 CanLII 1311 (ON CA), 104 C.C.C. (3d) 542, 88 O.A.C. 143, 27 O.R. (3d) 786, 1996 CarswellOnt 482, which stated that the appropriate sentence range for the importation of large amounts of cocaine is 6 to 8 years imprisonment. A number of sentencing judges have maintained fidelity to the Cunningham sentence range and have imposed sentences ranging from 5 years imprisonment for the importation of 1.8 to 2 kilograms of cocaine: see for example, R. v. Scott, 2018 CarswellOnt 18444, 2018 ONSC 5836, 150 W.C.B. (2d) 320; R. v. Bernard, 2018 ONCJ 376; R. v. Young, 2020 CarswellOnt 13685, 2020 ONSC 5781, 167 W.C.B. (2d) 239 and R. v. Lewis, 2019 CarswellOnt 12438, 2019 ONSC 3907, 157 W.C.B. (2d) 546.
MS. COX’S PERSONAL CIRCUMSTANCES
[8] A presentence report ordered by the first trial judge has given a portrait of Ms. Cox’s personal antecedents. She was born on November 29, 1987 and was raised by her mother in Toronto. She stated that she had a normal upbringing although her father, who lived in Jamaica, played little or no role in her upbringing. Following her graduation from high school she attended a college in Scarborough and graduated with a diploma. She worked in restaurants, theme parks, a hair salon and did paper delivery before securing a job as a security guard at a number of apartment buildings. She has no drug addiction issues, neither does she have any children.
[9] While I am guided by the sentence range suggested by the Court of Appeal in Cunningham, I am mindful of the observations of the Supreme Court of Canada in R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089 (S.C.C.) and the Ontario Court of Appeal in R. v. Foster, 2018 ONCA 53, that judicially set sentence ranges are not straightjackets and do not relieve a sentencing judge from his or her obligation to determine a proportionate sentence pursuant to s. 718.1 of the Code.
[10] Additionally, I am guided by the oft repeated sentencing principle that sentencing is an individualized process and must reflect not only the gravity of the offence but also the personal circumstances of the offender.
[11] Ms. Cox is a 33-year old racialized Canadian of Jamaican parentage who grew up in Toronto. By her own admission, she had a stable upbringing. She completed high school and attended college. She worked in a number of jobs and worked in the security field for a number of years. She did not, like the female offenders in R. v. Hamilton (2003), 2003 CarswellOnt 539, 8 C.R. ((6th) 215, 2003 CanLII 2862 (ON SC), 172 C.C.C. (3d) 114 (Ont. S.C.J.) have a difficult childhood, low employment prospects, addiction issues or medical challenges, neither has she assumed the responsibilities of motherhood at an early age. In short, there is nothing exceptional about her personal circumstances that justifies a downward deviation of the sentence range proposed in Cunningham.
CONCLUSION
[12] As a result, Ms. Cox is sentenced to 6 years imprisonment.
Ancillary Orders
DNA Order (secondary designated offence).
Section 109(2)(a) and (b) orders for 10 years and life respectively.
Order of forfeiture.
André J.
Released: October 5, 2021
COURT FILE NO.: CRIMJ(F) 777-17
DATE: 20211005
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
– and –
KEISHA COX
REASONS FOR JUDGMENT
André J.
Released: October 5, 2021