COURT FILE NO.: CRIM J (F) 1754/19
DATE: 2024 06 28
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HIS MAJESTY THE KING
R. Tremblay for the Crown
- and -
DEONARINE ROOPLAL
I. Grant, for the Defendant
HEARD: May 22, 2024
REASONS FOR SENTENCE
L. SHAW J.
[1] Mr. Rooplal was convicted by a jury on March 7, 2024, with one count of importing cocaine, contrary to section 6(1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (“CDSA”). He is before me for sentencing.
The Circumstances of the Offence
[2] Mr. Rooplal was arrested at Toronto’s Pearson International Airport on October 21, 2018, upon his return from Costa Rica. He was sent to secondary inspection and 8.365 kg of cocaine was found in 14 cans of beans and soup located in his luggage. It was agreed that the value of that amount of cocaine in Canada in October 2018 ranged from $301,140 to $920,150 depending on how it was sold.
[3] The only issue for the jury was whether Mr. Rooplal knew that there was cocaine in the cans found in his luggage.
[4] Mr. Rooplal, who worked in the construction field in Montreal, testified that he travelled to Costa Rica in October 2018 to make some money doing repair work following a hurricane/storm.
[5] While in Costa Rica, he met a person named Raphael who owned a hotel that needed repair work. Two days before he left Costa Rica, he and Raphael went for a walk in the jungle where they met a man selling local medicine. Mr. Rooplal purchased this medicine, which he referred to as “bush medicine”, as he was told it could treat his diabetes and high blood pressure. This medicine was sold to him in sealed cans of soup and beans that he put in his luggage before he flew back to Toronto.
[6] Mr. Rooplal denied knowing that there was cocaine in these cans. He testified that he did not declare the cans of food as he did not want the medicine taken from him.
[7] The jury rejected Mr. Rooplal’s evidence that he did not know there was cocaine in the cans and found that he knowingly imported cocaine into Canada, beyond a reasonable doubt.
[8] There was no evidence connecting Mr. Rooplal to a criminal or drug distribution organization.
Position of the Parties
[9] The Crown submits that, given the quantity of cocaine found in Mr. Rooplal’s luggage, he should be sentenced to seven years custody, less a Summers credit with a 1.5:1 ratio for pre-sentence custody. The Crown agrees with the defence calculation of applying that credit to 401 days of pre-sentence custody. At the date of sentencing submissions, the actual custody plus the credit was 602 days, or 20 months. Subtract this from the seven-year total for a net sentence of 64 months, or five years and four months.
[10] The Crown argues that a sentence of seven years is in keeping with the range of six to eight years given the quantity of cocaine imported: R. v. Cunningham (1996), 27 O.R. (3d) 786 (C.A.) [Cunningham (1996)]. The Crown also argues that the sentence of seven years takes into account all mitigating and aggravating factors, including a Duncan credit for the harsh conditions Mr. Rooplal has experienced while in custody: R. v. Duncan, 2016 ONCA 754.
[11] The Crown also seeks ancillary orders including a DNA order under s. 487.051, a mandatory firearms prohibition order under s. 109(2)(a)(ii) for ten years and a forfeiture order. The ancillary orders are not contested by the defence.
[12] The defence position is that there are several mitigating factors, such as Mr. Rooplal’s age and health, and that a sentence of six years less 26.7 to 33.4 months for a net sentence of 38.6 to 45.3 months is the fit and proportionate sentence. This takes into account the Summers credit and an additional Duncan credit for the harsh conditions of Mr. Rooplal’s pre-sentence custody. The defence used a 2:1 or 2.5:1 ratio for the 401 days of pre-sentence custody rather than 1.5:1 in calculating this credit.
The Circumstances of the Offender
i. The Pre-Sentence Report
[13] A Pre-Sentence Report (“PSR”) was filed with the Court. According to the author of the PSR, Mr. Rooplal was polite and co-operative, but he provided limited information for the report, saying he could not recall many events from his past.
[14] Mr. Rooplal does not have a criminal record. He was charged with an offence after this offence before the Court. He is not a repeat offender as described in the PSR.
[15] Mr. Rooplal is 68 years of age. He was born in Trinidad and Tobago and immigrated to Canada when he was 32 years of age. He left school at the age of 12 to support his family. He farmed and did carpentry work. He was married at the age of 14. He has five children ranging in the ages of 41-50. All but one still resides in Trinidad and Tobago. One of his sons died at the age of 22. He does not have contact information for his children.
[16] He and his spouse divorced when he was 42 years of age. He remarried in Canda but later divorced. He then sponsored his ex-wife from Trinidad and Tobago, and they lived together in Montreal until 2017.
[17] Mr. Rooplal experienced mental health problems in 2018 after his ex-wife left him to return to Trinidad and Tobago; she took their savings with her. He told the author of the PSR that he may stop eating and taking his medication while in custody, which may be suggestive of some ongoing mental health struggles.
[18] Since living in Canada, Mr. Rooplal has always worked. He worked in construction and owned a grocery store for 12 years in Montreal. He first applied for social assistance three years ago.
[19] He does not have any substance abuse issues.
[20] Mr. Rooplal has been detained at both Maplehurst Correctional Centre and Central East Correctional Centre (“CCEC”) for some time and says that he is not receiving the medical care he requires as he has several health issues. He told the author of the PSR that despite many requests to meet with a doctor, he has been unable to see one. He has diabetes, high blood pressure, hearing loss, an enlarged thyroid, and a growing cyst on his back which he says was caused by sleeping on the concrete floor while in detention.
[21] He told the author of the PSR that he accepts responsibility for the offence but says he was tricked into bringing cocaine into Canda believing it was “bush medicine” that could help treat his diabetes and high blood pressure.
ii. Pre-Sentence Custody
[22] Mr. Rooplal was detained in custody between October 21, 2018 and November 15, 2018, and then again since January 20, 2023 to now, for a total of 515 days in pre-trial custody as at the time of sentencing submissions on May 22, 2024. The defence and Crown agree that there should be a Summers credit of 1.5:1 used for the pre-sentence custody of 401 days for the offence before this Court, for a total of 602 days or 20 months.
[23] As of the date of this sentencing on June 25, 2024, the number of days of pre-sentence custody is 435 days, for a Summers credit of 653 days.
[24] A lockdown summary from Maplehurst was filed as evidence. During the 186 days that he was detained in Maplehurst, there were 161 days that he was tripled bunked in a cell designed for two individuals. Triple bunked means that due to overcrowding, two inmates slept on a bunk, and one slept on a mattress on the floor.
[25] Mr. Rooplal also spent 71 days in full or partial lock down. A full lockdown means that Mr. Rooplal was confined to his cell for the 6.5 hours that he would normally be out in the dayroom. A partial lockdown means that he was confined to his cell for some part of the 6.5 hours that he would normally be out in the dayroom.
[26] A lockdown summary from CCEC was filed. During the 248 days that he was detained at CECC, there were 57 days that he was triple bunked. There were also 215 days spent in full or partial lock-down. When in lock down, there may be limited access to visitors, phones, and showers. There was no dayroom or access to the yard during lockdown.
iii. Health Information
[27] Select portions of medical records from the detention facilities were filed. Those records indicate that Mr. Rooplal has received treatment for various health issues while in custody. He is also on several medications for diabetes, high blood pressure, and high cholesterol.
[28] In a jail screening assessment form dated January 24, 2023, completed at the time of his admission into custody, Mr. Rooplal reported that three to four years earlier, he was admitted to the psychiatric floor of a hospital in Montreal for two weeks. He reported that he attempted suicide twice in the past, with the most recent attempt occurring three years earlier. He denied any suicidal ideation at the time of his admission into custody. The recommendation was that his mental state be monitored.
[29] At the time of his admission, Mr. Rooplal also complained of a history of periods of confusion and disorientation. He reported having no family support. It was noted that he had difficulty understanding questions and there was a language barrier.
[30] In February 2023, Mr. Rooplal complained of back pain radiating to his left arm and chest that had been ongoing for months. A physical assessment showed a possible cyst in his left scapula region.
[31] As a result of the cyst and ongoing pain, he was seen by a vascular surgeon on April 26, 2023. According to the physician’s consultation report, the doctor first became aware of Mr. Rooplal’s condition when he was admitted to the hospital in Milton in February 2023 when complaining of severe back/left shoulder pain. In April 2023, Mr. Rooplal was complaining of ongoing discomfort in his left shoulder. Mr. Rooplal also expressed concern about his right arm as he could not lift his arm over his head. The doctor thought it was a bicep tear.
[32] After examining Mr. Rooplal, the doctor diagnosed a slow flow vascular malformation that could be treated by way of an excision under local anesthetic. This procedure was performed on April 1, 2024.
[33] According to the medical records, Mr. Rooplal had ongoing complaints of pain following the surgery and was prescribed Tylenol. On April 11, 2024, staples used during the medical procedure were removed and there were no concerns with his condition.
[34] In April 2023, Mr. Rooplal asked to see a psychiatrist as he said he had a problem with depression, could not sleep, was having nightmares and felt anxious. He asked to see a psychiatrist again in June 2023. There is no evidence if he saw a psychiatrist or received a diagnosis or treatment.
[35] On May 31, 2023, he was seen at the nursing station at Maplehurst as he had been punched in the mouth. He was complaining of pain and dizziness. He sustained a laceration on his lower lip that was cleaned and treated with Polysporin.
[36] In September 2023, he was diagnosed with a tear to his bicep. No medical intervention was required.
[37] In October 2023, Mr. Rooplal saw another medical expert because of complaints of nasal congestion and thyroid enlargement. According to the medical report, his nasal congestion was the most bothersome issue; the problem started many years earlier and he had surgery on the right side of his nose in the past. After conducting an examination, the doctor concluded that he suffered from mild allergic rhinitis. No polyps were seen in his nose. Nasal spray was recommended. He was also diagnosed with thyroid goitre that was benign. The recommendation was to monitor that issue.
[38] Mr. Rooplal saw a chiropodist in November 2023 as he was complaining of some numbness and tingling in his feet. As he had fungal nails, he received routine nail care. He was also prescribed some cream for daily use on his heels.
Impact on the Community
[39] The importation of cocaine, as with any controlled substance under the CDSA, has a significant impact on the community since it is an addictive substance that can cause significant harm. The direct and indirect social and economic harm that is caused by the importation of dangerous drugs like cocaine and its association with violence is recognized by the courts: R. v. Hamilton (2004), 72 O.R. (3d) 1 (C.A.), at paras. 104-105; R. v. Lloyd, 2016 SCC 13, [2016] 1 S.C.R. 130, at para. 26.
[40] Cocaine is not indigenous to Canada. It can only enter the country through couriers who import the drug. Importation is not a victimless crime. Its victims include not only those who become addicted to the drug but also their friends and family. Other victims are those who are subjected or exposed to the violence that is associated with the use, sale and distribution of the drug.
The Sentencing Principles
[41] Sentencing is a highly individualized process that considers the unique circumstances of each offender, the nature of the offence and the impact on the community. It also involves balancing several principles with the goal to achieve a fit and appropriate sentence that is proportionate to the gravity of the offence and the degree of responsibility of the offender.
[42] The principles of sentencing are set out in sections ss. 718, 718.1 and 718.2 of the Criminal Code of Canada, R.S.C., 1985, c. C-46 (the “Code”). The objectives of sentencing are deterrence, denunciation, separation of offenders from society, rehabilitation, reparation to victims and promotion of a sense of responsibility for the harm to victims. In R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, the Court found that proportionality is a guiding principle in sentencing. The sentence must reflect the gravity of the offence and the degree of responsibility of the offender. Also of importance is the principle of parity, meaning that a sentence should be like sentences imposed on similar offenders for similar offences committed in similar circumstances.
[43] The principle of restraint is also an important consideration. This principle means that the sentencing judge should seek to impose the least intrusive sentence that will achieve the overall purpose of being an appropriate and just sanction, particularly for a first offender: R. v. Sousa, 2023 ONCA 100, 165 O.R. (3d) 641, at para. 37.
[44] Section 10 of the CDSA provides the following regarding sentencing:
Purpose of sentencing
10 (1) 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.
[45] Section 6 of the CDSA provides that the maximum penalty for importing a Schedule I substance is life. The main sentencing principle to consider in the imposition of a sentence for importing are general deterrence and denunciation. The maximum penalty is an indication of the seriousness of the offence.
[46] Given the individualized nature of sentencing, the Court must also consider aggravating and mitigating factors relating to the offence and the offender.
Caselaw
[47] While sentencing is an individualized process, one of the factors to consider when sentencing in importing matters is the quantity and nature of the drugs imported. For example, in Cunningham (1996), the Court found that the range of sentencing for a first-time offender acting as a courier importing multiple grams of cocaine is six to eight years.
[48] The Crown relies on several decisions which it says supports its position that the fit and appropriate sentence is seven years.
[49] In R. v. L.C., 2022 ONCA 863, 421 C.C.C. (3d) 227, the offender was found guilty of importing 3.2 kg of cocaine. She was sentenced to six years and three months, less pre-sentence custody. The offender appealed on the basis that the trial judge did not consider the collateral consequences of the sentence since she had three children, and they did not consider the systemic discrimination and racism she experienced.
[50] The Court of Appeal upheld the sentence and found that the trial judge selected a sentence at the low end of the Cunningham (1996) range based on the aggravating and mitigating factors, including the offender’s role as a parent and the effect of anti-Black racism.
[51] In R. v. Clarke, 2019 ONSC 5868, the offender was convicted of importing 4.3662 kg of cocaine and was sentenced to seven years. Aggravating factors included the nature of the substance imported, the fact that this was not a spur-of-the moment crime and the significant amount of cocaine imported. The court also found that the offender had her child with her at the time of the offence which was an aggravating factor.
[52] In R. v. Cox, 2021 ONSC 6636, the offender was sentenced in absentia to six years having been convicted of importing 1.8 kg of cocaine.
[53] In R. v. Scott, 2018 ONSC 5836, the offender was sentenced to seven years for importing 3.846 kg of cocaine.
[54] In R. v. Premji, 2021 ONCA 721, the offender was 77 years of age at the time of sentencing. He was sentenced to 13.5 years for importing heroine. The trial judge did not consider the offender’s advanced age to be a mitigating factor.
[55] The Court of Appeal found that a sentencing judge should refrain from imposing a fixed-term sentence which so “greatly exceeds an offender’s expected remaining life span” as that would deplete the functional value of the traditional goals of sentencing (at para. 3). The Court found that the offender’s advanced age should have been a mitigating factor to consider.
[56] The Court of Appeal also heard evidence that the offender’s health had deteriorated significantly since he was sentenced, and the Crown conceded that there should be some downward adjustment in the sentence. The sentence was reduced to nine years given the offender’s advanced age and several significant medical problems. The Court described this as a “highly unusual case”.
[57] In R. v. Sarraf, 2017 ONSC 7668, the offender, who was 81 years of age, was convicted of aggravated sexual assault and assault. After reviewing the jurisprudence, the trial judge found that while advanced age may be considered a mitigating factor, it was not dispositive in the absence of evidence of some significant health concerns. The medical evidence before the Court was that the offender was being treated for hypertension, high cholesterol, and diabetes. The sentencing judge noted there was nothing to indicate that those health issues posed a risk beyond that suffered by many persons and there were medical facilities available at custodial institutions that could provide treatment.
[58] As a result of “odd behaviour in court”, the offender was examined under the Mental Health Act. A report from a psychiatrist was filed with the Court that found the offender suffered from several mental health conditions including paranoid personality disorder and narcissistic personality disorder. Despite his advanced age and significant mental health conditions, the offender was nonetheless sentenced to a period of imprisonment.
[59] While the defence did not rely on any jurisprudence, a report from the Canadian Human Rights Commission entitled “Aging and Dying in Prison” was filed. That report highlights the challenges faced by the population of aging individuals in federal custody. A summary of the findings include increased health care costs as the number of aging individuals in custody with chronic diseases increases, that federal penitentiaries were never intended or physically designed to accommodate an aging inmate population and the physical infrastructure of institutions does not adequately meet the needs of older individuals in federal custody. Several recommendations were also made on how to deal with the aging population in custody.
Analysis
[60] Both the Crown and defence agree that the appropriate range of sentence for this offence is six to eight years. The dispute in sentencing is mainly focused on how to calculate the Duncan credit and the impact of Mr. Rooplal’s age and the various health issues he faces in determining the fit and appropriate sentence.
[61] The Crown does not dispute that there should be some consideration given to the conditions of Mr. Rooplal’s pre-sentence detention. Mr. Rooplal has spent considerable time triple-bunked in cells designed for only two persons. There has also been extended time in both total and partial lock-down conditions. Given his age and health issues, I am satisfied that these harsh conditions have been more difficult for Mr. Rooplal than for a younger and healthier individual. He was also injured while in custody when he was punched in the face. In my view, these conditions warrant an enhanced credit.
[62] In Duncan, an enhanced credit was given because result of harsh pre-sentence conditions. A Duncan credit is distinct from a Summers credit. The Duncan credit is not a deduction from the appropriate sentence but is one of the factors to consider in determining the fit and appropriate sentence: R. v. Cunningham, 2023 ONCA 36, 166 O.R. (3d) 147 [Cunningham (2023)], at para. 59. In Cunningham (2023), the Court concluded that punitive pre-trial incarceration conditions can be a mitigating factor to be considered, along with the other mitigating and aggravating factors, in arriving at the appropriate sentence. From that sentence, the Summers credit is then deducted.
[63] In R. v. Marshall, 2021 ONCA 344, Doherty J.A. said the following at paras. 50-53 in discussing the Duncan credit:
A “Duncan“ credit is given on account of particularly difficult and punitive presentence custody conditions. It must be borne 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 pretrial custody.
It is also important to appreciate and maintain the clear distinction between the “Summers“ credit and the “Duncan“ credit. The “Summers“ credit is a deduction from what the trial judge determines to be the appropriate sentence for the offence. The “Summers“ credit is calculated to identify and deduct from the appropriate sentence the amount of the sentence the accused has effectively served by virtue of the pretrial incarceration. The “Summers“ credit is statutorily capped at 1.5:1. It is wrong to think of the “Summers“ credit as a mitigating factor. It would be equally wrong to deny or limit the “Summers “ credit because of some aggravating factor, such as the seriousness of the offence: R. v. Colt, 2015 BCCA 190.
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 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 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 in that way, the “Duncan“ credit can take on an unwarranted significance in fixing the ultimate sentence imposed: R. v. J.B. (2004), 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.
[64] Based on Marshall, in my view, the defence proposal of using a 2:1 or 2.5:1 credit to take into account pre-sentence custody and the harsh condition of that detention is not the proper approach. Rather, the conditions of Mr. Rooplal’s detention will be considered a mitigating factor to arrive at the appropriate sentence from which he will then receive a Summers credit. The defence position would result in a sentence that is not proportionate to the gravity of the offence and the moral blameworthiness of Mr. Rooplal.
Mitigating and Aggravating Factors
[65] The quantity, value and nature of the drugs imported are aggravating factors in this case. Mr. Rooplal imported over 8 kg of cocaine, which is an addictive and destructive drug that causes serious negative social and economic consequences and violence in the community. The large quantity of cocaine Mr. Rooplal imported and its value are also aggravating factors as it suggests this was a commercial trafficking operation and not just for personal use. A degree of planning and deliberation was also required which is an aggravating factor. Furthermore, this was a crime motivated by profit as there was no evidence that Mr. Rooplal had a drug addiction that he was trying to support. Rather, his motive was greed, which is an aggravating factor.
[66] While Mr. Rooplal has not expressed remorse for his actions, that is not an aggravating factor to consider in sentencing.
[67] There are also mitigating factors. Mr. Rooplal is 68 years of age with several health issues. Despite telling the author of the PSR that he has not seen a doctor while in custody, the records reveal that he has seen several specialists for various medical issues. He has been diagnosed and treated by the appropriate experts.
[68] While I agree with the defence that Mr. Rooplal will require ongoing medical care while detained, this is not a basis, on its own, to reduce his sentence. His medical conditions are similar to what many aging persons face, including high blood pressure, cholesterol and diabetes. There is no evidence that he will not receive appropriate care while in custody. In fact, the records support the opposite conclusion; he has been receiving medical care while detained in pre-sentence custody.
[69] While I have considered Mr. Rooplal’s age and health when determining what I consider to be an appropriate sentence, this is not a situation like Premji as the sentence will not greatly exceed Mr. Rooplal’s remaining life span.
[70] Mr. Rooplal has limited education. Nonetheless, since moving to Canada, he was worked and been a productive member of society. He did not have a criminal record at the time of committing this offence. There is no evidence that he was anything other than a courier for the cocaine he imported. These are mitigating factors.
[71] I also consider that the number of days he was triple bunked and in total or partial lockdown to be mitigating factors, particularly given his age and health conditions.
What is a Fit Sentence in all the Circumstances?
[72] In determining the appropriate sentence, I have considered the jurisprudence for similar offences. I have also considered the importance of the principles of deterrence and denunciation in sentencing for this serious offence given the threat to society that is posed by the importation of cocaine. While there is always some tension in the principles of sentencing, they must be balanced, and consideration must be given to the unique circumstances of each offender to arrive at a fit and proportionate sentence.
[73] The approach taken by the defence in applying the Duncan credit would result in a sentence that is inappropriate having regard to all the mitigating and aggravating factors. I also do not agree that a sentence of six years, which is at the lowest end of the Cunningham range, is the appropriate sentence given the quantity of drugs Mr. Rooplal imported.
[74] When I consider all mitigating and aggravating factors, including Mr. Rooplal’s age, health, and the conditions of his pre-sentence custody, a sentence of seven years is the appropriate sentence. From that, a Summers credit of 653 days, or 21.5 months, shall be applied resulting in a net sentence of 62.5 months, or 5.2 years. While this is a significant sentence for Mr. Rooplal, it reflects the need to denounce his conduct and serve as a general deterrent to others.
[75] Mr. Rooplal is to provide a sample of his DNA pursuant to s. 487.051 of the Code. There will also be a weapons and firearm prohibition order pursuant to s. 109(2)(a)(ii) of the Code for 10 years and a forfeiture order pursuant to s. 462.37 of the Code.
L. Shaw J.
Released: June 28, 2024
COURT FILE NO.: CRIM J (F) 1754/19
DATE: 2024 06 28
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HIS MAJESTY THE KING
- and –
DEONARINE ROOPLAL
REASONS FOR SENTENCE
L. SHAW, J.
Released: June 28, 2024