R. v. Davidov, 2022 ONSC 5839

COURT FILE NO.: CR-376/20 DATE: 2022/10/18

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING

Stephan Marinier and Sam Weinstock, for the Crown

• and -

Dmitri Davidov

Peter Brauti, Maureen Salama, and Alexa Banister-Thompson for the Defendant

Defendant

HEARD: October 18, 2022

REASONS FOR SENTENCE

M. J. Donohue, J.

Overview

1Mr. Davidov stands to be sentenced after he was found guilty on one count of importation of cocaine and one count of conspiracy to import cocaine.

Circumstances of the Offences

2My judgment of July 15, 2022 concluded the following facts.

3Mr. Davidov, working as head dispatcher of a trucking company involving cross-border loads, conspired with others to load a trailer with 50 kilograms of cocaine hidden within bins of plastic resin. When drug authorities in the United States were alerted to the shipment, he conspired with others to arrange for the trailer to be switched with an empty trailer and left for a time undetected. In time he then made arrangements for the trailer containing the drugs to be brought across the border, however it was stopped, searched, and seized by border guards.

4I found him guilty of both counts and adjourned the sentencing for submissions and then to today’s date.

Circumstances of the Offender

5Mr. Davidov is 45 years old, married with two children aged 14 and 10.

6He was born and raised in Minsk Belarus, USSR to a middle class family. He completed secondary school education there with no difficulties. The family emigrated to Israel for three years where he worked part time and attended Hebrew language school.

7His father was Jewish and his mother Catholic. He was raised celebrating both religious traditions. By all accounts his early family life was loving and happy.

8In 1997 Mr. Davidov came to visit his sister in Canada and decided to stay. He met his wife in 1999 when working at a bakery. They were married in 2001. He continued work as a labourer.

9He has been the sole support for the family since 2017 when his wife chose to leave work and focus on raising their two daughters. Mr. Davidov had worked as a truck driver from 2004 to 2012 and then became a dispatcher for trucking companies. After these charges were laid in 2018 he lost his employment but was re-employed as a head dispatcher with another company. His employer describes him as a reliable and amazing employee.

10His 75-year-old father-in-law resides with him. Mr. Davidov provides care such as preparing his meals and managing his medication.

11Mr. Davidov has no criminal record. He has never used illicit drugs. He has no history of alcohol abuse.

12He has provided a number of letters of support to the court. There are letters from his wife, his sister, his niece Katia, his niece Alina, his current employer, a co-worker, four family friends, and a business associate.

13He is described as a loving husband and father as well as a loving brother and uncle to his sister and her two children. His friends consider him kind, hard-working and a devoted family man. His involvement in this crime is described as being out of character for the man he has been known to be. His niece Katia described him as the backbone of the family.

Impact on the Victim and/or Community

14The Court of Appeal for Ontario held in R. v. Hamilton (2004), 2004 5549 (ON CA), 241 D.L.R. (4th) 490 (Ont. C.A.), at para. 104:

The immense direct and indirect social and economic harm done throughout the Canadian community by cocaine is well known: Pushpanathan v. Canada (Minister of Employment & Immigration) (1998), 1998 778 (SCC), 160 D.L.R. (4th) 193 (S.C.C.), at 235-37, per Cory J., in dissent on another issue; R. v. Smith (1987), 1987 64 (SCC), 34 C.C.C. (3d) 97 (S.C.C.), at 123-24. 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.

15The Supreme Court of Canada outlined the various dangers and impacts posed by trafficking in hard drugs in R. v. Parranto, 2021 SCC 46, 463 D.L.R. (4th) 389. Justice Moldaver in his concurrent opinion describes several harms caused by drug trafficking, namely: 1) the adverse health effects and death caused by the abuse of hard drugs, 2) the indirect increase in all manner of crime, either by those in organized crime or by users seeking to fund their addiction, 3) the drug trade’s impact on families and the intergenerational trauma it causes, and 4) the significant cost to society in terms of health care and law enforcement, as well as lost productivity. Considering these impacts, Moldaver J. describes trafficking hard drugs as a “crime with such grievous consequences that it tears at the very fabric of society” and that “[s]ignificant penitentiary sentences are regularly imposed for individuals who traffic in large quantities of such drugs”. See: para. 92.

Legal Parameters

16Importation of cocaine is an indictable offence and has a maximum punishment of life imprisonment: Controlled Drugs and Substances Act, S.C. 1996, c. 19, s. 6(1).

17Conspiracy to import cocaine is an indictable offence and has a maximum punishment of life imprisonment: Criminal Code of Canada, R.S.C. 1970 c. C-34, s. 465(1)(c).

Positions of Crown and Defence

18The Crown seeks a penitentiary sentence of 13 to 15 years less enhanced credit for time served of 9 days and a Downes credit of 3 months and 21 days since conviction. They suggest a net sentence of between 12 years and 8 months to 14 years and 8 months as being fit for this offender in these circumstances. They submit the same sentence is appropriate on each count, to be served concurrently.

19The Crown seeks the ancillary DNA order, a 10-year weapons prohibition, and forfeiture of the offence-related property and proceeds of crime seized during the investigations. Further, the Crown asks the court to use its discretion to impose an enhanced victim fine surcharge of between $500 and $1,000. Section 737(3) provides that the court may impose a victim fine surcharge exceeding the $200 fine if the court considers it appropriate in the circumstances and is satisfied that the offender is able to pay the higher amount.

20The Crown also asked the court to order a non-communication order naming five Crown witnesses in this trial and Mr. Sergei Churilov, Mr. Davidov’s former boss, who, on the evidence, was a person who was part of the conspiracy to import.

21Defence proposes a sentence of 10.5 years less the enhanced credit of 9 days plus 5 months and 21 days as a Downes credit. They suggest a net sentence of 10 years as fit to meet the appropriate principles of sentencing in this case for the importing conviction. They submit that the conspiracy to import charge is a less severe charge and deserves a concurrent sentence of 6 to 7 years.

22The defence took no position on the ancillary orders regarding the DNA order, the 10 year weapons prohibition or the forfeiture orders requested by the Crown. The defence submitted that neither the enhanced victim fine surcharge nor the non-communication order were appropriate in this case.

Case Law

23The Crown provided the Supreme Court of Canada’s decision in R. v. Parranto, 2021 SCC 46, 463 D.L.R. (4th) 389. In Parranto, the two accused were sentenced to 10 and 14 years in prison for trafficking fentanyl at the wholesale commercial level.

24The Crown relies on the Ontario Court of Appeal’s decision in R. v. Buffone, 2021 ONCA 825, 159 O.R. (3d) 401, for the proportionality principle. As noted in Buffone, the proportionality principle is central to Canadian sentencing and requires that all sentences must be proportionate to the gravity of the offence and the degree of responsibility of the offender. This principle is codified as the “fundamental principle” of sentencing. See: Criminal Code, R.S.C., 1985, c. C-46, s. 718.1; R. v. Buffone, 2021 ONCA 825, 159 O.R. (3d) 401 at para. 33.

25The Crown cites the Ontario Court of Appeal’s decision in R. v. Cunningham (1996), 1996 1311 (ON CA), 27 O.R. (3d) 786 (C.A.) for the sentencing range for first offenders convicted of importing multiple kilograms of cocaine into Canada for personal gain. In that case, the accused, Ms. Cunningham, pled guilty to the charge of importing approximately five kilograms of cocaine into Canada. The Court of Appeal held that, generally, absent exceptional or extenuating circumstances, the sentencing range for first offender couriers who smuggle large amounts of cocaine into Canada for personal gain should be six to eight years in the penitentiary. See: p. 8.

26The Crown relies on R. v. Hamilton (2004), 2004 5549 (ON CA), 72 O.R. (3d) 1 for the proposition that importation of cocaine is both a violent and serious offence. In his decision, Doherty J.A. discusses the direct and indirect harms caused by the sale and use of cocaine, specifically stating that “[c]ocaine sale and use is closely and strongly associated with violent crime. Cocaine importation begets a multiplicity of violent acts.” See: para. 104. Furthermore, Doherty J.A. suggests that the principles of denunciation and general deterrence should be at the forefront in cocaine importation cases. See: paras. 102-104.

27The Crown suggested the following cases as being comparable.

28In R. v. Singh, (November 6, 2007), Windsor, 07/9014 (O.N.C.J.), Rawlins J. sentenced the accused to 10 years imprisonment for importing cocaine. The accused was 39 years old, had no prior criminal record, and worked as a truck driver. The accused imported 50 kilograms of cocaine with a semi-truck, with the cocaine wrapped in a hockey bag.

29In R. v. Malanca, 2007 ONCA 859, 88 O.R. (3d) 570, the accused was convicted by a jury of conspiracy to import 270 kilograms of cocaine into Canada from Jamaica. The accused was in his late 20s when he was convicted and was a first-time offender. The accused received a life sentence after his conviction, but successfully appealed the conviction to a reduced sentence of 19 years imprisonment. The Court of Appeal reduced the sentence on the basis that there was not sufficient evidence to support the theory that it was the accused who was the “boss” in the importation operation. See: paras. 61-62.

30In R. v. Chahal and Hans, 2010 ONSC 4537, the two accused were convicted of importing 147 kilograms of cocaine into Canada, with a street value of almost $15 million. The two accused were employed as truck drivers and used an 18-wheel tractor trailer unit to smuggle the cocaine across the border. One of the accused received a sentence of 16 years imprisonment on the importing count. The court found that the amount of drugs found in this case was not just an aggravating factor, but a significant one. See: para. 59. The court held that the accused was not a youthful offender. The court did not attach much weight to the fact that the accused had no prior criminal record. The court felt that the accused was one of the types of people often recruited by criminal organizations to import drugs into Canada. See: para. 60. The court also found that the accused was “neither a dupe nor was he ignorant of what was going on,” and that this was an aggravating factor. See: para. 62. The court emphasized general deterrence when sentencing this accused, citing the importance of the trucking industry to the Canadian economy, as well as the abuse of privilege perpetrated by the accused between truckers and the Border Services Agency.

31The Crown relies on R. v. Sangha, (September 24, 2010), Windsor, 08-1522 (S.C.). As in Chahal and Hans, the accused was convicted of importing 22.5 kilograms of cocaine into Canada. The accused tried to use an 18-wheel tractor trailer unit to smuggle the cocaine. Similar to Chahal and Hans, the accused in Sangha came from meagre means and had no prior criminal record. In imposing a just sentence, the court noted that general deterrence should be the guiding sentencing principle, citing the integral nature of the trucking industry to the Canadian economy. The court did not consider the lack of criminal record to be so much a mitigating factor as it might be elsewhere because that is the type of person who is offered the opportunity to act as a courier and who must be deterred. The court identified several aggravating factors, namely that the accused was not a youthful offender, that the accused breached the special privilege afforded to truckers crossing the border. Ultimately, the accused was given an 11-year sentence on the importation conviction.

32In R. v. Downes, 2015 ONCA 674, 2015 CarswellOnt 14982, the appellant was convicted of importing 2.1 kilograms of cocaine and was sentenced to six years imprisonment. The appellant had a more limited role in the criminal enterprise and was not the overseer of the enterprise. The Court of Appeal held that the six-year sentence did not violate the principle of parity for a first-time offender in a cocaine importation case.

33The Crown provided R. v. Aujla, 2015 ONCA 350, 395 D.L.R. (4th) 244, a case which involves the importation of over 37 kilograms (street value of $3.5 million) cocaine using a tractor trailer. The appellants received sentences of 16 years and 14 years, which the Court of Appeal found to be demonstrably unfit for first-time offender couriers. While the sentencing judge was correct that denunciation and deterrence are the most relevant sentencing principles, the sentences were outside of the appropriate range for first-time offenders, as established in R. v. Cunningham (1996), 1996 1311 (ON CA), 27 O.R. (3d) 786 (C.A.). The sentencing judge also erred by sentencing the appellants on the basis that they were high-level importers and that there had been a breach of trust when there was no evidence supporting either fact. Ultimately, the two appellants had their sentences reduced to 12- and 10-years imprisonment.

34The Crown cites R. v. Duncan, 2016 ONSC 1319, 2016 CarswellOnt 2872, for the sentencing ranges for leaders or principals in large scale cocaine importation schemes, as well as the sentencing ranges for couriers. In Duncan, three accused, all of which were non-youthful offenders with no prior criminal records, were convicted of conspiracy to import cocaine into Canada, as well as importing 30 kilograms of cocaine into Canada. With respect to couriers, the court held that the jurisprudence suggests a range of 9 to 12 years imprisonment. See: para. 35. The court held that the jurisprudence suggests a sentencing range of 12 to 19 years for the leaders or principals in large scale cocaine importation schemes, with the variation accounting for quantities involved. Further, the court held that the top end of sentences (19 years) should be reserved for cases involving “hundreds of kilos”, the middle range (14 to 17 years) should be reserved for amounts in the high teens (14-19 kilos), and that the bottom end (12 to 13 years) should be reserved for cases involving lesser amounts. See: para. 37. Ultimately, the accused in Duncan were given a 12-year sentence.

35The Crown cites R. v. Janjanin, 2016 ONCA 820, 2016 CarswellOnt 17140, a case where the appellant was convicted of importing 175 kilograms of cocaine into Canada. The appellant was 23 years old, a first-time offender, and had a positive pre-sentence report. In addition, the appellant was the owner and operator of the transport truck he was driving when he was arrested. The 14-year sentence was upheld, as “the amount of cocaine involved placed this at the higher level of seriousness for importation cases and warranted a very significant sentence.” See: para. 4.

36The Crown relies on R. v. Gopie, 2017 ONCA 728, 140 O.R. (3d) 171, a case where the appellant was found guilty of conspiracy to import 7.85 kilograms of cocaine into Canada. The Court of Appeal upheld the sentencing judge’s decision, stating that it was open to the sentencing judge to find that the appellant was “more than tangentially involved” based on the evidence. See: para. 185. As well, if the appellant wished to establish that he was “duped” about the nature of the drug (i.e., that it was marijuana and not cocaine), then the onus to establish this mitigating circumstance falls on the appellant. The Court of Appeal also held that, given the appellant’s role in the conspiracy and the nature and quantity of the drug being imported, a sentence of nine years imprisonment is not demonstrably unfit.

37The Crown cites R. v. Dawkins, 2019 ONSC 2070, 2019 CarswellOnt 5228, a case where the accused was convicted of conspiracy to import 17.3432 kilograms of cocaine into Canada, as well as importation of cocaine. The court held that while denunciation and deterrence are the primary considerations when sentencing drug importers, rehabilitation remains a goal. See: para. 39; Controlled Drugs and Substances Act, S.C. 1996, c. 19, s. 10(1). The accused in Dawkins had excellent rehabilitation prospects and was appropriately given a sentence of 9 years and 6 months imprisonment, which is on the lower end of the appropriate range (9 to 12 years imprisonment) for sentencing as established in Duncan.

38The Crown cites R. v. Dhatt, 2020 ONSC 1211, a case where the accused, who was high on cocaine at the time of the offence, was convicted of importing 30.199 kilograms of cocaine (street value of $4.8 million) into Canada. The accused was a truck driver employed with a long-haul trucking company and abused this position in trying to import the cocaine. The accused was a 37-year-old landed immigrant with no criminal record. The sentencing judge considered s. 10(1) of the CDSA, which provides the fundamental purpose of sentencing for offences committed under the CDSA which are noted below. The sentencing judge also considered the mitigating fact that the accused cooperated with CBSA. The sentencing judge sentenced the accused to 10 years imprisonment, which is at the lower end of the range for similar offences.

39The defence relies on R. v. Dawkins, 2019 ONSC 2070, 2019 CarswellOnt 5228, a case where the accused was charged with importing 17.3432 kilograms of cocaine and conspiracy to import cocaine into Canada. The court highlighted Mr. Dawkins’ “pro-social” characteristics and noted that s. 10(1) of the CDSA specifically recognizes rehabilitation as a principle of sentencing for these types of offences. See: paras. 31, 39. The court noted that a convicted importer is presumed to be a principal, but that this presumption can be rebutted on a balance of probabilities. In Mr. Dawkins’ case, the court found that he was not the one in control of the operation, but rather that he was “reporting to unknown persons, who were providing instructions and controlling the operations”. See: paras. 44, 46. Ultimately, the court sentenced Mr. Dawkins to nine years and six months imprisonment, which is on the lower end of the appropriate sentencing range for this offence. The court cited Mr. Dawkins’ personal circumstances as a father to a young infant daughter, as well as Mr. Dawkins’ excellent rehabilitative prospects as mitigating factors.

40The defence urges this Court to consider R. v. Innis, 2017 ONSC 2779, 2017 CarswellOnt 6969, a case where the accused pleaded guilty to importing 19 kilograms of cocaine into Canada. The accused was a 49-year-old man with no prior criminal record. Additionally, the court found that the accused had a close family and a strong support system, as well as numerous letters of support. The court imposed a sentence of 10 years’ imprisonment before applying pre-sentence custody, which is again on the lower end of the range of appropriate sentences for this type of offence.

41The defence also directed the court to R. v. Duncan et al, 2016 ONSC 1319, 2016 CarswellOnt 2872, a case where three accused were sentenced to 12 years’ imprisonment for conspiracy to import and importing 30 kilograms of cocaine into Canada. The court, in imposing its sentence, recognized several aggravating and mitigating factors. With respect to the aggravating factors, the court noted that: 1) cocaine is an addictive substance which causes immense harm and is not indigenous to Canada, 2) the quantity of cocaine is indicative of high-level organized drug trade, and 3) the conspiracy occurred over a long period of time. On the other hand, the court recognized the following mitigating factors: 1) all three accused were first offenders, 2) all three accused lived otherwise exemplary lives and had supportive pro-social families, 3) there was an 8.5-year delay in bringing the case to trial, and 4) the accused’s conduct while on bail infers reformation and the offences can be seen as “out of character” [emphasis added]. The court also noted the accused’s role in the conspiracy, labeling them as somewhere in-between “mere couriers” and principals. See: para. 38. The court also reduced the sentence by one year to account for the significant delays in bringing the case to trial. See: para. 51.

42The defence relies on R. v. Pastukhov, 2019 ONCJ 876, 2019 CarswellOnt 20212, a case where the accused pleaded guilty to conspiracy to import almost 40 kilograms of cocaine (street value of $20 million) into Australia. The court established a range of 9 to 14 years imprisonment as the appropriate range for a middleman in a large-scale cocaine importation operation. See: para 29. The accused received a sentence of nine years imprisonment, which is at the lowest end of that range. The court considered several aggravating and mitigating circumstances. The court found that the nature and quantity of the drug was aggravating, as well as the accused’s motive for committing the crime, namely greed. In addition, the court found that the accused’s “callousness” when exploiting couriers was an aggravating factor. Conversely, the court found the accused’s guilty plea and status as a youthful offender with no prior criminal record as mitigating. The court also noted the accused’s stability in the community, as well as the strong support from the accused’s friends and family. The court found that the accused had strong prospects for rehabilitation, and that the nine-year sentence “will still leave light at the end of the tunnel” for the accused when he is released. See: para. 36, 42.

Mitigating and Aggravating Factors

43There are aggravating factors in this case.

44The amount of cocaine being $4.5 million was a significant amount indicating a significant commercial enterprise.

45Mr. Davidov’s actions in the conspiracy of directing the unknowing driver, Mr. Kutaladze, to bring the trailer of drugs across the border put that driver into criminal jeopardy.

46Mr. Davidov is a man of mature age who would know better the moral wrong in which he was engaging.

47His actions were not impulsive but had to have taken planning and deliberation over a lengthy period of time.

48There are mitigating factors.

49Although some courts consider it less mitigating, I still find the fact that Mr. Davidov has no criminal record to be a mitigating factor on sentence.

50Mr. Davidov had led a life as a good family man and a contributing member of society as a new Canadian for some 20 years before engaging in these criminal acts.

51He demonstrated good conduct while on bail.

Right of Allocution

52Mr. Davidov was advised of his right of allocution pursuant to s. 726 of the Criminal Code and he advised that he did not wish to speak.

Time Served

53Counsel agree that Mr. Davidov was in custody for six days following arrest. It is conceded that he should be granted credit on a 1.5:1 basis, in accordance with R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575, which comes to nine days. I am satisfied that Mr. Davidov is to have that credit.

Downes Credit

54The Crown recognizes the stringent bail conditions imposed since Mr. Davidov’s conviction on July 15, 2022 and proposed a Downes credit of 3 months and 21 days.

55Defence proposes six months in total since Mr. Davidov’s arrest on July 30, 2019 citing significant bail restrictions since 2019 pursuant to a Downes credit.

56The decision of Durno J. in R. v. Daley, 2016 ONSC 3513, [2016] O.J. No. 2780, summarized the law in this area, at para. 26, as follows:

From Rosenberg J.A.’s comments in Downes and subsequent Court of Appeal judgments, and trial judgments, the following summary of the law can be derived:

1. Time spent under stringent bail conditions, especially house arrest, is a relevant mitigating factor and must be taken into account as a relevant mitigating circumstance. Downes, at paras. 33 and 37.

2. While a trial judge is not required to give any credit for restrictive bail terms (R. v. Ijam (2007), 2007 ONCA 597, 87 O.R. (3d) 81 at paras. 32 and 36) where no credit is given, the trial judge should explain why that was so: Downes, at para. 33; R. v. Siconolfi, [2015] O.J. No. 6650 (C.A.) However, the failure to do so, is not automatically an error in principle. R. v. Dragos, 2012 ONCA 538.

3. Stringent bail conditions, especially house arrest, represent an infringement on liberty and are, to that extent, inconsistent with the fundamental principle of the presumption of innocence: Downes, at para. 29.

4. House arrest is a form of punishment, albeit of a different character than actual incarceration, yet he or she receives no credit towards parole eligibility for time spent on house arrest: Downes, at para. 29.

5. The impact of bail conditions cannot be assumed: Downes, at para. 28. However, there will be some restrictions from which inferences can be drawn and the impact is obvious, as was the case in Downes: R. v. Brown, [2015] O.J. No. 5425 (S.C.J.) at para. 70.

6. If an offender asks that pre-trial restrictive bail terms be considered, the offender should provide the judge with information as to the impact of the conditions. The onus is on the offender to establish those facts on a balance of probabilities pursuant to s. 724(3) of the Criminal Code: Downes, at para. 37. The offender must show the restrictions prejudiced or imposed a hardship on him or her: R. v. Ijam (2007), 2007 ONCA 597, 87 O.R. (3d) 81 (C.A.) at para. 27.

7. There is no formula that judges are required to apply: Downes, at para. 37. It is inappropriate to adopt a rigid formula because there can be such a wide variation in bail conditions and even house arrest conditions. In some cases, the terms may impinge very little on the offender’s liberty. Some may be allowed to work as usual, take care of their family obligations, and generally see little impact on their pre-bail way of life. For others, house arrest may be very difficult, with the accused essentially confined to a very small space, cut off from family and friends and unable to work: Downes, at para. 34. As is the case with any potential mitigating circumstances, there will be variations in its potential impact on the sentence, and the circumstances may dictate that little or no credit should be given for pre-sentence house arrest: Downes, at para. 33.

8. Sentencing judges should adopt a flexible approach with the credit and manner in which it is taken into account as a mitigating factor, a matter for the judge: Downes, at para. 36. R. v. Dragos, 2012 ONCA 538.

9. Provided the trial judge addresses the issue, there is no error in declining to grant any credit for restrictive bail terms.

57The onus is on Mr. Davidov to establish restrictive bail conditions as a mitigating circumstance. The court was provided no evidence with regard to the impact the conditions had on his life up to the time of conviction. Rather, the Crown presented evidence to the contrary. There were variations to his conditions to allow him to travel to his daughter’s sports competitions and even to vacation out of country.

58Mr. Davidov has been free to attend his employment and earn income while on his release.

59I am not persuaded that there be entitlement to a Downes credit for the release time prior to conviction.

60Actual time with the significant bail restrictions which the court imposed since July 15, 2022 as of today’s sentencing date comes to 95 days. I agree with counsel that the conditions were significant enough to grant a credit of those 95 days.

Principles of Sentencing

61Sections 718 to 718.2 of the Criminal Code set out the purpose and principles of sentencing. They are as follows:

The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

A court that imposes a sentence shall also take into consideration the following principles:

(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,

(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

62Section 10(1) of the Controlled Drugs and Substances Act provides as follows:

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.

Reasons

63The most important sentencing principles in a case such as this are denunciation and deterrence. The sentence must also be proportionate to the gravity of the offence and the degree of responsibility of the offender.

64Mr. Davidov’s circumstances do not place him in any exceptional category that would warrant a sentence outside the applicable range. Mr. Davidov is not an addict. He is a man in middle age and the substance involved was cocaine. The amount being 50 kilograms is a significant amount.

65The Crown suggests the range is 13 to 15 years. The defence submits that the range is 9 to 12 years.

66The evidence before me was that Mr. Davidov was a participant in the scheme to import but not that he was a leader or the principal of the scheme. He nonetheless used his position as a trucking dispatcher to send out false border papers and put in jeopardy the innocent driver who was following his orders.

67I consider a penitentiary sentence of 12 years to be most appropriate on the importing conviction, in light of the authorities, and taking into account Mr. Davidov’s personal circumstances. This is the sentence required for the purposes of denunciation in a case such as this involving 50 kilograms of cocaine.

68A concurrent penitentiary sentence of nine years is most appropriate for his involvement on the conviction of conspiracy to import.

69His sentence is reduced by nine days, for time served. His sentence is reduced for 95 days for a Downes credit. The total reduction is 104 days. This leaves a net sentence to be served of 11 years and 261 days.

Ancillary Orders

70A weapons prohibition order under s. 109(1)(c) of the Criminal Code shall issue for 10 years.

71A DNA order under s. 487.051 of the Criminal Code shall issue.

72Forfeiture orders of the offence-related property pursuant to s. 16 of the Controlled Drugs and Substances Act and the proceeds of crime seized during the investigations pursuant to s. 462.37(1) of the Criminal Code shall issue as signed by me.

73The Crown’s request for an enhanced victim fine surcharge pursuant to s. 737.(3) of the Criminal Code is denied in light of the lengthy penitentiary sentence which the court has imposed. Such enhanced surcharges are not appropriate when the offender will be unable to earn income for such a significant period of the foreseeable future.

74The Crown’s request for a non-communication order pursuant to s. 743.21(1) is a discretionary order. In this case it serves a protective function to the five Crown witnesses namely Omari Kutaladze, Penny Wright, Thomas Pasquale, Roderick Diepen and Gagik Soghomoyan. I am satisfied that it is appropriate in this case and so order. In light of Mr. Churilov’s involvement in the conspiracy to import I am also satisfied that the non-communication order be made with him as well.

Final Decision

75Mr. Davidov is sentenced to 12 years in custody for importing 50 kilograms of cocaine and nine years in custody for conspiring to import 50 kilograms of cocaine, to be served concurrently. He is to receive a credit for pre-sentence custody of nine days and a Downes credit of 95 days. The net sentence to be served is 11 years and 261 days.

76A DNA order under s. 487.051 of the Criminal Code shall issue.

77A weapons prohibition order under s. 109(1)(c) of the Criminal Code shall issue for life.

78A forfeiture order of the offence-related property and the proceeds of crime seized during the investigations shall issue as signed.

79A non-communication order under s. 743.21(1) of the Criminal Code shall issue prohibiting Mr. Davidov from communicating, directly or indirectly, with Sergei Churilov, Omari Kutaladze, Penny Wright, Thomas Pasquale, Roderick Diepen and Gagik Soghomoyan during the custodial period of the sentence.

M. J. Donohue, J.