COURT FILE NO.: CRIM J(F) 18-1242 DATE: 20240807

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING Robert Tremblay, for the Crown

- and -

SYLVIE MARSHALL Martin Reesink, for the Accused

HEARD: May 15, 2024

REASONS FOR SENTENCE

Stribopoulos J.:

Introduction

[1] A jury found Ms. Marshall guilty of importing a controlled substance – cocaine – into Canada, contrary to section 6(1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19.

[2] As the judge who presided over Ms. Marshall's trial, I must now sentence her for the offence for which the jury found her guilty.

Circumstances of the Offence

[3] On June 15, 2017, Ms. Marshall, her eight-year-old son, and Chantal Sepentzis arrived in Canada aboard an Air Canada flight from San Jose, Costa Rica, at Toronto's Pearson International Airport. They presented a single customs declaration card to the Border Services Officer in the primary inspection area, who referred them for secondary inspection.

[4] Upon arrival at the secondary inspection area, a second Border Services Officer examined their luggage. Inside Ms. Marshall's son's suitcase, the officer found six cans of what appeared to be vegetable soup and black beans. She also located similar cans and cans of fruit cocktail in Ms. Marshall's and Ms. Sepentzis's suitcases, six in each.

[5] The Border Services Officer punctured a hole in one of the cans from Ms. Marshall's son's suitcase, and a white paste oozed out. When tested, it was "resultant" for cocaine. The officer then arrested Ms. Marshall and Ms. Sepentzis for smuggling. Soon after, RCMP officers attended and arrested both women for importing a controlled substance.

[6] An RCMP officer ultimately processed all 18 cans found in the suitcases of Ms. Marshall, her son, and Ms. Sepentzis. Despite being labelled soup, black beans and fruit cocktail, all the cans contained a similar white paste. The contents of the 12 cans recovered from Ms. Marshall's and her son's luggage had a combined weight of 11,071.50 grams.

[7] The RCMP officer who processed the cans sent samples to Health Canada from only three cans, one from each of the suitcases associated with Ms. Marshall, her son, and Ms. Sepentzis. At trial, the Crown tendered Certificates of Analysis from Health Canada for each of those three samples, and each tested as cocaine. One of the samples was subject to a "quantitative and qualitative" analysis, which revealed a purity level of 94%.

[8] The parties disagree regarding two questions relating to the circumstances of the offence: first, the amount of cocaine Ms. Marshall imported, and second, whether she committed her crime because of threats by her former husband in circumstances that fell short of furnishing her with a defence of duress. I address each of these questions in turn.

How much cocaine did Ms. Marshall import?

[9] On behalf of Ms. Marshall, Mr. Reesink submits that, ultimately, the court should only be satisfied beyond a reasonable doubt that Ms. Marshall imported slightly less than a kilogram of cocaine into Canada and that the court should sentence her on that basis. In support of that position, Mr. Reesink made two principal submissions.

[10] First, Mr. Reesink argues that the court should have a reasonable doubt concerning whether the contents of the ten cans found in the luggage of Ms. Marshall and her son, from which the RCMP did not submit samples to Health Canada, contained any cocaine. Mr. Reesink notes that the RCMP did not test the white paste found in those cans. As a result, he argues that, at most, the court should only be satisfied beyond a reasonable doubt that Ms. Marshall imported cocaine inside the two cans from her and her son's luggage, from which samples subsequently tested as cocaine. Mr. Reesink notes that the contents of those cans weighed slightly less than two kilograms.

[11] Second, Mr. Reesink argues that since the RCMP never separated the liquid from the cocaine in the cans from which they submitted samples to Health Canada, the amount of actual cocaine they contained is unknown. He submits that it is entirely speculative to conclude that the total volume of the white pasty substance was cocaine. After all, he argued, cocaine is a powder, and those cans also included a liquid. Mr. Reesink contends that the court should find that half the volume of the cans consisted of liquid.

[12] Should the court accept these submissions, given the absence of more definitive evidence, Mr. Reesink submits that the Crown has, at most, proven beyond a reasonable doubt that Ms. Marshall imported slightly less than a kilogram of cocaine into Canada. As a result, Mr. Reesink submits that the court should sentence her on that basis.

[13] In contrast, on behalf of the Crown, Mr. Tremblay submits that the court should be satisfied beyond a reasonable doubt that Ms. Marshall imported approximately 11 kilograms of cocaine into Canada and should sentence her accordingly. He responded to each of Mr. Reesink's submissions concerning the quantity of the cocaine imported, in turn.

[14] First, although he acknowledges that the RCMP only tested samples from two of the 12 cans found in the luggage of Ms. Marshall and her son, Mr. Tremblay argues that this alone ignores the totality of the evidence. Based on all the evidence, Mr. Tremblay submits that the court should be satisfied beyond a reasonable doubt that each of the cans in the luggage of Ms. Marshall and her son contained cocaine.

[15] Second, Mr. Tremblay relies on the Court of Appeal's decision in R. v. Hamilton (2004), 72 O.R. (3d) 1 (C.A.), which he submits is decisive against Mr. Reesink's argument that the Crown has failed to prove beyond a reasonable doubt that there was approximately one kilogram of cocaine secreted in each of the cans Ms. Marshall imported.

[16] Ultimately, on the whole of the evidence, I have no reasonable doubt that all 12 cans located in the luggage of Ms. Marshall and her son contained cocaine. I have come to that conclusion for the following reasons.

[17] First, all 12 cans had similar labelling. From their labelling, they appeared to be nothing more than black beans, vegetable soup, and fruit cocktail. However, when opened, none of the cans had contents consistent with their labels.

[18] Second, the contents of each of the cans were entirely consistent. They all contained a similar white paste.

[19] Third, the cans were sealed and labelled in a sophisticated manner. It is impossible to imagine that anyone would undertake such considerable efforts to conceal the actual contents of the cans if what they contained was not illegal and valuable. At the time, once imported into Canada, a kilogram of cocaine would be worth between $37,000 and $100,000, depending on how one sold it.

[20] Fourth, it strikes me as inconceivable that all the cans would appear as though they were vegetable soup, black beans and fruit cocktail, that all of them would contain a similar white paste and that, somehow, the untested cans would contain something other than cocaine.

[21] Finally, the samples taken from a can associated with those found in each of the three suitcases all tested positive for cocaine.

[22] In all these circumstances, the notion that the cans that were not subject to testing contained something other than cocaine is entirely fanciful. Based on the cumulative effect of all the evidence, I am satisfied beyond a reasonable doubt that each of the 12 cans imported by Ms. Marshall contained cocaine.

[23] I turn next to Mr. Reesink's second submission concerning the amount of cocaine in the cans. The question raised is slightly different than that which the Court of Appeal resolved in Hamilton, which concerned the purity of the cocaine rather than its weight. In that context, Justice Doherty noted, at para. 151:

I agree with the trial judge that the purity of the cocaine imported, while usually not known to the courier and therefore irrelevant to personal culpability, can have some effect on the seriousness of the specific offence … . The purer the cocaine, the wider its potential distribution, and therefore the greater the harm it may cause in the community. However, I do not think that the purity of the cocaine imported will be a particularly significant factor in assessing the seriousness of the offence. Certainly, there should be no mathematical-like reduction in the seriousness of the offence based on the exact purity of the cocaine. I see little difference, for the purposes of assessing the seriousness of the crime, between cocaine that is 80 per cent pure and cocaine that is 90 per cent pure.

[24] By analogy, I accept that Ms. Marshall would have had no idea how much of the cans' contents consisted of cocaine as compared to the liquid it was mixed with to create a paste. As a result, the answer makes little difference to Ms. Marshall's level of culpability. Given the weight of the 12 cans, if she knew they contained cocaine, she would have known that she was importing a substantial quantity. That said, the weight of the cocaine imported is relevant to the court's assessment of the gravity of the offence, a key consideration when arriving at a proportionate sentence.

[25] I agree with Mr. Reesink that I cannot find that the entirety of the 12 cans' contents consisted of cocaine. The record demonstrates that whoever packaged the cans mixed the cocaine with a liquid of some kind. Because the police did not separate the cocaine from the liquid, it is impossible to say with certainty how much of what the cans contained was cocaine and how much was liquid.

[26] That said, based on the photographs of the cans' contents and applying common sense, I am hard-pressed to accept Mr. Reesink's submission that at least half the volume of the cans was liquid. The white paste appears thick from the photographs of their contents; therefore, the cans' contents consisted mainly of the white substance: cocaine. The only reason to mix the cocaine with a liquid was to create the appearance that their contents could be what was stated on cans' labels if the authorities x-rayed them. Those responsible would gain nothing by smuggling more liquid than needed to camouflage the cans' illicit contents. Given all of this, I am sure that, at the very least, 80 percent of their volume was cocaine.

[27] Accordingly, I am satisfied beyond a reasonable doubt that the cans located in the luggage of Ms. Marshall and her son contained a minimum of 8.5 kilograms of cocaine.

Did Ms. Marshall commit her offence because of threats?

[28] At her sentencing hearing, Ms. Marshall filed an affidavit detailing her circumstances, including the history of her relationship with Steve Brisebois, her former husband and the father of her son. Additionally, she explained how, according to her, she came to import the cans containing the cocaine into Canada.

[29] Ms. Marshall described how she and Mr. Brisebois met in 2008 and soon after began living together. Their son was born in 2009. They eventually divorced in 2018. In her affidavit, Ms. Marshall alleged that during their relationship, Mr. Brisebois subjected her to physical, psychological and financial abuse, and she provided details concerning these various allegations.

[30] Ms. Marshall reported two of these incidents to the police, and they arrested and charged Mr. Brisebois on both occasions. However, he was only convicted of offences relating to one complaint after he pleaded guilty and was acquitted of the other when Ms. Marshall failed to attend court to testify against him. Ms. Marshall maintained that she was too frightened to go to court to testify against Mr. Brisebois because he had threatened to kill her if she did.

[31] By 2017, Ms. Marshall and Mr. Brisebois had separated. However, they still had contact every second weekend during parenting exchanges for their son. (During cross-examination on her affidavit, Ms. Marshall testified that she only facilitated these visits because a child protection agency mandated it over her objections). According to Ms. Marshall, Mr. Brisebois began using these exchanges as an opportunity to continue threatening her.

[32] That year, Ms. Marshall maintains that Mr. Brisebois told her he was no longer allowed to leave Canada and needed her to retrieve "$50,000 worth of things" from Costa Rica. She claimed that that request was accompanied by threats, with Mr. Brisebois telling her that "he wasn't finished" with her, that he would be "in my life, all my life," and that the "woods are big," which she took to mean he could kill her and dispose of her body in the forests of Rawdon, in northern Quebec, where they had once lived. Based on his comments, Ms. Marshall maintained that she understood that if she did not retrieve "these things" from Costa Rica for him, Mr. Brisebois would hurt her and their son.

[33] In her affidavit, Ms. Marshall detailed the events surrounding her trip to Costa Rica with Ms. Sepentzis and her son. She described how they were met at the airport by two men, one named "Houlio," whom she had spoken to before their trip, and a second man named "Hernandez." They drove them to a condominium she had rented.

[34] Ms. Marshall deposed that the two men returned a few days later with three sealed cardboard boxes. They told her they were "gifts" for Mr. Brisebois and that there was one box for her, her son, and Ms. Sepentzis. They were to return to Canada the next day, with the men arranging their drive to the airport.

[35] Ms. Marshall acknowledged that while packing their suitcases in Costa Rica, she opened one of the boxes because it would not fit. When she did so, she noticed one of the cans was marked "Habitant," which jumped out at her and made her suspicious. She Facetimed Mr. Brisebois and told him that his "things looked fishy." However, the Facetime call cut off almost immediately, and he did not answer when she tried calling him back.

[36] According to Ms. Marshall, she considered leaving the items in Costa Rica at that point. However, she explained that because the men had arranged their drive to the airport, she feared they might check their luggage to ensure the items were in their suitcases. Further, she explained that if she arrived in Montreal without the items, she worried Mr. Brisebois would carry through on his earlier threats.

[37] The Crown cross-examined Ms. Marshall on her affidavit. During her testimony, she added further details to her account that were absent from her affidavit.

[38] Ms. Marshall gave evidence concerning the events preceding her decision to take the trip. She testified that Mr. Brisebois's mother had also communicated with her on his behalf to threaten her and told her she had to go and retrieve “his things.” Additionally, Ms. Marshall elaborated upon the threats by Mr. Brisebois, including his implicit threat to harm their son, with him telling her that he would take "what is worth the most to [her]." In threatening her, she reported that he also said, "By the time they find [her] body, they will not even know it's him."

[39] Ms. Marshall testified that Mr. Brisebois told her he would leave her and their son alone if she did this one last "favour" for him. In that regard, she acknowledged that the arrangement with Mr. Brisebois was "more of an agreement" to get him out of their lives, and she hoped that if she did this one last thing for him, she could finally put him in her "rear-view mirror." Nevertheless, she maintained that hope and his threats were why she ultimately agreed to do it.

[40] Ms. Marshall gave evidence regarding what she believed she would retrieve from Costa Rica for Mr. Brisebois. She testified that he told her the items "were gifts." She never asked Mr. Brisebois why his friend did not ship these items to Canada and maintained that it never crossed her mind to make that suggestion. However, Ms. Marshall also testified, contrary to what she reported in her affidavit and her initial testimony regarding him wanting her to retrieve "things" or "gifts," that Mr. Brisebois had told her he "was supposed to go to work" in Costa Rica "to make $50,000."

[41] During her cross-examination, Ms. Marshall initially conceded that since Mr. Brisebois had to threaten her to coax her into going on the trip, she realized that what she was involved in might be dangerous. However, when asked why she would take her son with her, she indicated that the potential danger only dawned on her once in Costa Rica and not before she left on the trip.

[42] Concerning her discovery of the Habitant soup can, Ms. Marshall reiterated that she thought it was "fishy," given that one could buy such soup at the grocery store in Canada, and that it "looked weird." Because of that, she thought of leaving them behind. Nevertheless, she denied knowing or even suspecting that the cans might contain drugs.

[43] Initially, Ms. Marshall testified that she did not know what, if any, arrangement Ms. Sepentzis had made with Mr. Brisebois. However, she told the author of the Pre-Sentence Report that she understood Mr. Brisebois would compensate Ms. Sepentzis for her involvement. When confronted with that apparent contradiction, she initially acknowledged saying that to the author of the Pre-Sentence Report but later indicated she did not remember if she did.

[44] With that summary of Ms. Marshall's evidence complete, I turn next to assess it. After carefully considering it, although I accept some of it, I have difficulty believing all of it. I will briefly explain why.

[45] I will begin with the evidence I accept. Given Mr. Brisebois's criminal record, which was an exhibit on an application for a material witness warrant at trial, combined with the record of incidents Ms. Marshall reported to police concerning his assaultive and threatening behaviour, I accept that abuse by him marred their relationship. That conclusion finds further support in letters submitted by Ms. Marshall's family and friends, who attest to the abusive nature of their relationship.

[46] Although Ms. Marshall did not complain about all the incidents she described to the authorities and acknowledged lying to a Crown Attorney involved with one of the cases, I hardly think that justifies rejecting her account of their relationship. After all, many victims of domestic violence do not always call the police, and even when they do, they are often reluctant to come to court and testify against their abusers. Sometimes, they may even claim falsely, after the fact, that the incident never occurred in a misguided effort to protect their abuser.

[47] Nevertheless, I cannot credit Ms. Marshall's account that threats by Mr. Brisebois are the reason why she participated in this scheme or that she had no idea that the cans contained illegal drugs. I do not believe her evidence in that regard because her testimony, more generally, is internally and externally inconsistent and does not withstand logical scrutiny.

[48] There is a material inconsistency between her initial account that Mr. Brisebois wanted her to retrieve $50,000 worth of "things" and "gifts" from Costa Rica and her later testimony that he said he "was supposed to go to work there to make $50,000." These are very different accounts, and the latter is hard to reconcile with Ms. Marshall travelling to Costa Rica; after all, what "work" could she do for him there during her short trip to earn $50,000 other than importing drugs for him?

[49] I also find it impossible to believe that if Mr. Brisebois had threatened her to make the trip, because he needed her to retrieve items from Costa Rica for him, it would not have occurred to her that Mr. Brisebois was involving her in something illegal or potentially dangerous. However, Ms. Marshall insisted on that, mainly, it seemed, to explain the incongruity of why she would then bring her young son on such a trip.

[50] Similarly, Ms. Marshall provided inconsistent evidence concerning why Ms. Sepentzis joined her on the trip. The explanation Ms. Marshall offered to the author of the Pre-Sentence Report, which she adopted and then resiled from during her evidence, is hard to reconcile with her account that she was entirely ignorant of the unlawful nature of what she was involved in.

[51] Additionally, Ms. Marshall insisted that even after she saw the "Habitant" soup can, which she thought seemed "fishy" and "weird," leading her to Facetime Mr. Brisebois, it never occurred to her that the cans might contain illegal drugs. Ms. Marshall insisted on this, even though, on her account, Mr. Brisebois had threatened her life and that of their son to compel her to make the trip and despite her knowing of his criminal history, including his longstanding cocaine addiction.

[52] It deserves mention that Ms. Marshall did not strike me as unintelligent or incredibly naive. As a result, her account defies common sense. Ms. Marshall's unwillingness to acknowledge what was obvious, that she, at a very minimum, suspected the cans contained drugs, cuts hard against her credibility more generally.

[53] For all of these reasons, I cannot credit Ms. Marshall's claims that her involvement resulted from threats by Mr. Brisebois and that she did not know she was importing illegal drugs.

[54] Ultimately, I accept that Mr. Brisebois played some role in orchestrating the importation. Given his criminal record, he may have thought Ms. Marshall, who did not have a criminal record, could bring the drugs back without attracting the same level of scrutiny he would. He may have told Ms. Marshall that he would leave her and their son alone if she helped him in the importation, as she testified and said to the Pre-Sentence Report's author. The history of abuse and her being less than happy that Mr. Brisebois had parenting time with their son, potentially combined with some promise of financial compensation, may have given Ms. Marshall a compelling motive to participate.

[55] To be sure, the history of abuse may also have conditioned Ms. Marshall to appease Mr. Brisebois and go along with his proposal, as the author of the Pre-Sentence Report explained:

With the goal of protecting herself, she tends to maintain silence about her difficulties, buy peace and "freeze" her emotions by ingesting intoxicating substances, we believe. These same affective vulnerabilities appear to alter her judgment, which could explain, at least in part, the fact that she tolerated an abusive partner for nearly seven years. Under his influence, the subject appears to have become desensitized to crime and to have accepted to broaden her own value system. Furthermore, over the years, this toxic relationship seems to have exponentialized her weaknesses, to which were added feelings of shame and guilt for staying in this union. Isolating herself from her protection factors, particularly her circle, we believe the offender was caught in the net of her difficulties.

In terms of criminology, this is a late criminal involvement, opportunistic in nature, in the context of a relationship imprinted with domestic violence. Motivated by the gain of getting this man out of her life, without additional affront, Ms. Marshall appears to have lacked judgment, showing deliberate laxness and blindness.

[Translated from original French]

[56] Nevertheless, I am not satisfied that any overt threats by Mr. Brisebois compelled Ms. Marshall's participation. In that regard, I note that in a letter purportedly authored by Mr. Brisebois, which Ms. Marshall unsuccessfully attempted to put into evidence at trial, he acknowledged involving Ms. Marshall and Ms. Sepentzis. Mr. Brisebois claimed that the women were ignorant of the cans' contents and that he told them the beans "had no equal in taste." Importantly, if he wrote that letter, as Ms. Marshall claims, Mr. Brisebois did not in any way suggest that he had threatened Ms. Marshall to coerce her into participating.

Circumstances of the Offender

[57] Ms. Marshall is 56 years old and does not have a criminal record. She was born in Montreal and is the third of four children. Her upbringing had its challenges. When she was only seven, her father abandoned the family and became estranged from her and her siblings. Despite this, her childhood was otherwise positive; her home life was loving and supportive. Ms. Marshall eventually reconnected with her father when she was in her twenties following the death of her sister.

[58] Ms. Marshall completed high school, where she was extroverted and athletic. Although she attempted post-secondary studies, her part-time work at a bar made that difficult, and she gave up school to work full-time.

[59] Ms. Marshall has a positive employment history. She worked for the same employer for 17 years as a server. At 39, Ms. Marshall returned to school to upgrade her education. However, she gave that up after meeting Mr. Brisebois and after the birth of their son. She returned to the workforce at 43 and worked as a server for the same employer until her arrest.

[60] Ms. Marshall has long struggled with anxiety. She has used cannabis for years to deal with it. Additionally, Ms. Marshall has routinely used alcohol and cocaine since her early twenties. In more recent years, after being diagnosed with a generalized anxiety disorder and elements of post-traumatic stress disorder, she has been taking prescribed medications to address her mental health issues with positive results.

[61] Ms. Marshall had a couple of long-term relationships before meeting Mr. Brisebois in 2007. As noted earlier, their relationship was not a happy one, and Mr. Brisebois was physically and psychologically abusive toward her. Mr. Brisebois's dependence on cocaine sapped the family's finances and ultimately led to Ms. Marshall declaring personal bankruptcy. They broke up after he assaulted her in 2014 but resumed their relationship in 2016. A further assault by him that year led Ms. Marshall to end their relationship finally, and the Direction de la Protection de la Jeunesse became involved with the family. According to Ms. Marshall, that agency insisted on Mr. Brisebois having parenting time with their son over Ms. Marshall's objections.

[62] Following her arrest, Ms. Marshall sought help from the Montreal Women's Centre and benefitted from six months of psychosocial follow-up through its assistance. In 2021, Ms. Marshall completed a six-month cooking diploma. After that, she obtained employment as a cook, assistant cook, and food services attendant. She remained in that position until her criminal conviction resulted in her employer firing her without notice on February 2, 2024.

[63] Unfortunately, as Ms. Marshall's son entered adolescence, his situation at school deteriorated due to bullying, and he began exhibiting a host of behavioural issues and is the subject of multiple diagnoses. Since 2022, a child protection service has become involved and offered Ms. Marshall support. She has cooperated in their efforts and made addressing her son's challenges a priority.

[64] In recent years, Ms. Marshall has reconnected with family and friends she drifted away from when she was involved with Mr. Brisebois. Several wrote letters which became exhibits at the sentencing hearing. The authors detail Ms. Marshall's abusive relationship with Mr. Brisebois, the impact that it had on her, and the considerable efforts she has made to turn her life around since her arrest. The authors include her mother, who has Parkinson's disease and lives in the same cooperative complex as Ms. Marshall. Since her arrest, Ms. Marshall has increasingly spent time with her family and friends, who have become her support network. They are committed to caring for her son and her residence should she be incarcerated. Thankfully, Ms. Marshall has not heard from Mr. Brisebois for several years.

[65] To the author of the Pre-Sentence Report, Ms. Marshall expressed remorse for her crime, which, the author noted, "appears to be sincere but essentially directed to the consequences of her act for her family and herself." At the end of the sentencing hearing, when asked if she had anything she wished to say, Ms. Marshall told the court, "I am sorry," while fighting back tears.

Positions of the Parties

[66] On behalf of the Crown, Mr. Tremblay submits that Ms. Marshall should receive a sentence of eight years of imprisonment, at the very top of the six to eight-year sentencing range established by the Court of Appeal for first-offender couriers who import large amounts of cocaine: see R. v. Cunningham (1996), 27 O.R. (3d) 786 (C.A.), at para. 20.

[67] Mr. Tremblay submits that two significant aggravating factors justify a sentence of that duration. First, the substantial quantity of cocaine Ms. Marshall imported; as noted, he urged the court to find that she imported 11 kilograms of cocaine. Second, Ms. Marshall's decision to involve her eight-year-old son in the importation.

[68] On behalf of Ms. Marshall, Mr. Reesink directed his sentencing submissions primarily at the factual findings the court should make concerning the amount of cocaine Ms. Marshall imported and whether she did so because of threats by Ms. Brisebois. If the court accepted those submissions, he argued that a conditional sentence would be appropriate in all the circumstances. In that regard, Mr. Reesink emphasized that Ms. Marshall does not have a criminal record, has been on bail for nearly seven years without incident, and has made substantial progress toward rehabilitation since her arrest.

Law and Analysis

[69] Sentencing is discretionary by nature. There is no set formula that judges can follow to decide the appropriate sentence. Instead, judges must consider the purpose and objectives of sentencing and be mindful of the governing sentencing principles, especially the need to impose a proportionate sentence. Against that backdrop and after accounting for the aggravating and mitigating factors, the judge must fashion a just and appropriate sentence.

Purpose, objectives, and principles of sentencing

[70] Sentencing judges must remember the fundamental purpose of sentencing, which Parliament has identified as protecting society and contributing "to respect for the law and the maintenance of a just, peaceful and safe society": Criminal Code, R.S.C. 1985, c. C-46, s. 718; see also Controlled Drugs and Substances Act, s. 10(1).

[71] Achieving these purposes requires the court to impose "just sanctions" that reflect one or more traditional sentencing objectives: s. 718. These include denunciation, general and specific deterrence, separation of offenders from society, rehabilitation, reparation to victims, promoting a sense of responsibility in offenders, and acknowledging the harm done to victims and the community: see ss. 718(a)-(f).

[72] Ultimately, the court must respect the fundamental principle of sentencing: that any sentence "must be proportionate to the gravity of the offence and the degree of responsibility of the offender": s. 718.1. In other words, the sentence must fit both the seriousness of the crime and the offender's level of moral blameworthiness in its commission: see R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at paras. 36-37; R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at paras. 40-43.

[73] The principle of parity is an essential consideration in arriving at a proportionate sentence. That is because proportionality is a function of the circumstances of the offence and offender, compared to sentences previously imposed on similar offenders for similar offences committed in similar circumstances. As the Supreme Court has explained: "Individualization and parity of sentences must be reconciled for a sentence to be proportionate": R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 53, citing Criminal Code ss. 718.2(a) and (b). Consequently, "parity is an expression of proportionality": R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, at para. 32; see also paras. 30-33 more generally; see also R. v. Bissonnette, 2022 SCC 23, 80 C.R. (7th) 127, at para. 51.

[74] Parliament has mandated the need for restraint in sentencing. It has instructed that an offender "should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances" and that "all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done" to victims or the community "should be considered for all offenders": Criminal Code, ss. 718.2(d) and (f).

[75] A particular manifestation of the restraint principle relates to the sentencing of first offenders like Ms. Marshall. As the Court of Appeal recently reminded, in R. v. Sousa, 2023 ONCA 100, 165 O.R. (3d) 641, at para. 37:

… the principle of restraint should be applied to first offenders. This court explained the principle in R. v. Batisse, 2009 ONCA 114, 93 O.R. (3d) 643, at paras. 32-35. This court has noted that the sentence imposed on a first offender should be as short as possible and be tailored to the individual circumstances of the accused: R. v. Priest (1996), 30 O.R. (3d) 538 (C.A.), at p. 545. Rehabilitation is an aspect of restraint: R. v. Blanas (2006), 207 O.A.C. 226 (C.A.), at para. 5. This principle applies with particular force to youthful offenders: R. v. Dubinsky, [2005] O.J. No. 862 (C.A.), at para. 1.

[76] Mindful of the objectives and principles of sentencing, these reasons turn next to the Court of Appeal's specific guidance concerning the sentencing of offenders who import cocaine.

Sentencing for importing cocaine

[77] The importation of cocaine is among the most serious offences known to Canadian law: see Hamilton, at para. 104. Parliament's decision to prescribe a maximum sentence of life imprisonment for those who commit this offence reflects its gravely serious nature. As Justice Doherty observed in Hamilton, at para. 104:

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 (para. 224), I characterize cocaine importation as both a violent and serious offence …

[78] Given the extraordinarily harmful effects of cocaine, the Court of Appeal has identified denunciation and general deterrence as the preeminent sentencing objectives for importing cocaine. As a result, in Cunningham, the court instructed that "as a general rule, absent exceptional or extenuating circumstances, the range of sentence for first offender couriers who smuggle large amounts of cocaine into Canada for personal gain should be 6 to 8 years in the penitentiary.": at para. 20; see also R. v. H. (C.N.) (2002), 62 O.R. (3d) 564 (C.A.), at paras. 21-37.

Aggravating and Mitigating Circumstances

[79] In determining the appropriate sentence, a sentencing judge must consider any aggravating or mitigating circumstances relating to the offence or the offender: see Criminal Code, s. 718.2(a). A proper inventory of these is essential to evaluating the offence's gravity and the offender's degree of responsibility in its commission. They serve to push the sentence up or down the scale of appropriate sentences within the established sentencing range: see Nasogaluak, at para. 43.

[80] There are three significant aggravating factors in this case. First, it is an aggravating factor that the substance imported was cocaine, an extremely dangerous and highly addictive narcotic. Second, the quantity involved, 8.5 kilograms, was substantial. Finally, Ms. Marshall chose to involve her eight-year-old son in the drug importation.

[81] Given that Ms. Marshall’s decision to bring her son on the trip remains unexplained, the only conclusion I can draw is that she thought his presence would make her travel to Costa Rica less suspicious. By bringing him along and choosing to secret some of the cans in his suitcase, she involved him in the offence, which is a statutorily prescribed aggravating factor: see Controlled Drugs and Substance Act, s. 10(2)(c); see also R v Clarke, 2019 ONSC 5868, at paras. 35-37. When the police arrested Ms. Marshall, a child protection agency took custody of her son until they could arrange his return to Montreal. Undoubtedly, at eight, that would have been extraordinarily traumatic for him.

[82] At the same time, this case has some significant mitigating factors.

[83] First, Ms. Marshall does not have a prior criminal record; she is a first offender.

[84] Second, Ms. Marshall has demonstrated in the past and more recently that she can live pro-socially. She has had gainful employment throughout her adult life. Since her arrest, she has returned to school, completed further training, and returned to the workforce, only losing her job because of her conviction earlier this year. Ms. Marshall has reconnected with family and friends and has their love and support. Finally, she has remained on bail for over seven years without incident. All that strongly suggests that the experience of her arrest and prosecution has effectively served to rehabilitate her.

[85] Third, although I am not satisfied that Ms. Marshall participated in the importation because of threats by Mr. Brisebois, I accept that the abuse she endured during their relationship conditioned her to go along with the scheme, as the Pre-Sentence Report suggests. In my view, although the history of abuse does not excuse Ms. Marshall's offence, it does help to explain the poor choices she made and why someone who mostly lived a law-abiding life until her late forties would decide to commit such a serious offence.

[86] Finally, I accept that Ms. Marshall is remorseful for her actions. However, like the author of the Pre-Sentence Report, I, too, question whether she genuinely regrets her wrongdoing or, more so, the impact that her arrest and prosecution have had and that her likely incarceration will have on her life and that of her son.

Appropriate sentence

[87] I have carefully considered the circumstances of Ms. Marshall's offence, the purpose, objectives, and principles of sentencing, the sentencing range for importing cocaine, and the aggravating and mitigating factors in this case. Ultimately, the challenge in sentencing Ms. Marshall is striking the appropriate balance between the significant aggravating and mitigating factors.

[88] Without the mitigating factors in Ms. Marshall's favour, the aggravating factors would have undoubtedly warranted a sentence at the upper end of the range, as urged by the Crown. However, properly accounting for the mitigating factors leads me to conclude that the appropriate sentence, in all the circumstances, is seven years of imprisonment.

[89] Although that is a very long sentence for a first-offender, especially one who is unlikely to ever be before the courts again, it is necessary to denounce this gravely serious crime and send an unambiguous message to others who might consider importing cocaine into Canada that they will pay a hefty price should they chose to do so.

Conclusion

[90] For her offence of importing cocaine into Canada, the court sentences Ms. Marshall to seven years of imprisonment. Additionally, the court makes the following ancillary orders.

[91] First, a DNA order shall issue authorizing the taking of a sample of Ms. Marshall's blood so that her DNA profile may be included in the National DNA Databank.

[92] Second, a weapons prohibition order shall issue prohibiting Ms. Marshall from possessing: i) for ten years, any firearm other than a prohibited firearm or restricted firearm, and any crossbow, restricted weapon, ammunition, and explosive substances; and ii) for life, any prohibited firearm, a restricted firearm, prohibited weapon, prohibited device, and prohibited ammunition.

[93] Finally, an order shall issue for the forfeiture of any offence-related property and the return of any other property to Ms. Marshall.

[94] Given that her offence pre-dates the current iteration of section 737 of the Criminal Code, no victim surcharge applies.

Signed: “J. Stribopoulos”

Released: August 7, 2024