Court File and Parties

COURT FILE NO.: CR-21-1459-00 DATE: 2024 10 02 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING Rachel Ward, for the Crown

- and -

COURTNEY DENNIS Michael Little, for the defendant

HEARD: June 26, 2024

Reasons for Sentence

D.E HARRIS J.

[1] Courtney Dennis was found guilty of importing cocaine into Canada and resisting arrest in a judge alone trial. These are reasons to explain the sentence I intend to impose.

[2] The defence requests a conditional sentence, or, in the alternative, a total sentence of six years incarceration. The Crown asks for a total sentence of 12 years consisting of 11.5 years for the importing and six months consecutive for the resist arrest. Both parties agree that substantial mitigation is due for the lengthy period of time that Mr. Dennis was on a house arrest bail order awaiting trial and sentencing.

The Facts

[3] The evidence established that Mr. Dennis recruited Sherry Sherratt and Amanda Marsh to bring cash back from St. Maarten. When they arrived back in Canada, rather than cash, four kilograms of high purity cocaine was found in their luggage. Ms. Sherratt testified at this trial. She had earlier pled guilty to importation of cocaine. Considering her assistance in the prosecution of Mr. Dennis, she was sentenced on a joint submission to a conditional sentence of two years less a day.

[4] Ms. Sherratt testified that she was present several times when her boyfriend, David Deman, bought $100 of crack cocaine from Mr. Dennis. When Mr. Dennis asked Mr. Deman whether he knew someone to help him import cash into Canada from St. Maarten, Mr. Deman volunteered Ms. Sherratt. Ms. Sherratt agreed. In turn, following Mr. Dennis’ request, Ms. Sherratt recruited Ms. Marsh, a friend of her daughter’s.

[5] What occurred thereafter is recounted in the reasons for judgment and will not be repeated here in any detail: R. v. Dennis, 2023 ONSC 1626. Ms. Sherratt testified that throughout, she believed that the cargo she was carrying was cash, not drugs. That is what Mr. Dennis told her. It was secreted in her suitcase without her seeing it by persons unknown before she travelled back to Canada. But an appreciation of her evidence in context demonstrates that she had her suspicions about what she was carrying. Her guilty plea to the importing offence was premised on willful blindness.

[6] Mr. Dennis testified that he was hoodwinked into believing he was importing cash by his cousin who was behind the scheme, but he refused to name him out of his professed fear for his own safety. Mr. Dennis’ evidence did not lead to a reasonable doubt and was rejected. The accumulation of circumstances proved beyond a reasonable doubt that he knew full well that it was cocaine, not cash.

[7] Following the fundamental rule of proportionality with respect to the gravity of the offence and the responsibility of the offender in s. 718.1 of the Criminal Code, these reasons will consider the seriousness of the offence and then move on to the moral blameworthiness of Mr. Dennis.

The Offence

[8] There is a large body of caselaw going back almost 30 years repeatedly emphasizing the seriousness of the importing cocaine offence. Much of the case law pertains to couriers for the simple reason that offenders higher up in the chain of supply are rarely apprehended: see R. v. Cunningham, 104 C.C.C. (3d) 542 (Ont. C.A.); R. v. Hamilton and Mason, 186 C.C.C. (3d) 129 at paras. 104-106 (Ont. C.A.). The typical range described for multi-kilo quantities of imported cocaine for a courier based on the seminal case of Cunningham is six to eight years.

[9] The high range of sentence for this offence is explained by two main factors. Drug addiction and drug use is profoundly damaging on both an individual and societal level. The trail of human tragedy and suffering is long: R. v. Smith, [1987] 1 S.C.R. 1045, at p. 1053. Cocaine ruins lives. In this case, we had the evidence of Mr. Deman who was an addict and was supplied the drug by Mr. Dennis. Second, many of the offences against the person in this jurisdiction and elsewhere involve violence committed in the drug trafficking trade. Drug trafficking is very profitable and is particularly attractive to those who grow up in circumstances where they have few other opportunities. Cocaine is not indigenous to Canada and is in short supply while demand is high. Reprisals for failing to pay drug debts or infringing on drug dealing territory, ripping off other drug dealers and other similar manifestations, often result in the horror of gun violence, with murder the all too frequent consequence: Hamilton, para. 104. Deterrence, particularly of those higher up in the drug organizations, is of paramount importance.

[10] A judge is required to take into account local circumstances: R. c. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089 at para. 102. While this is particularly true with respect to the prevalence of a specific crime, it extends beyond this as well. In this regard, the judges of Central West Region, because our jurisdiction includes the busiest airport in the country, Toronto’s Pearson Airport, are uniquely positioned to observe and appreciate the circumstances and trends of the drug importation trade. We see more drug importation cases than any other jurisdiction in the country. The vast majority of these cases involve couriers who are caught bringing the drugs into the country at secondary inspection at Pearson Airport.

[11] Drawing on my judicial experience in presiding over cocaine importation cases as well as the pertinent case law, in each and every case the drug couriers are vulnerable people, profoundly down on their luck. They are indigent and feel trapped by their circumstances. That does not excuse their actions, obviously, but has to be taken into account in mitigation. Expert evidence adduced on other prosecutions suggests that on average, couriers are paid $5000. In this case, there was evidence that the payment was to be significantly higher, $10,000. In any case, it is reasonably clear that, given the potential consequences of lengthy incarceration they are risking, couriers agree to import the drug out of desperation: Cunningham, paras. 20-21.

[12] This generalization is borne out in this case. We had the rare privilege of having a window into the importer/courier relationship having seen and heard both Ms. Sherratt and Mr. Dennis. Ms. Sherratt was 52 years old at the time of the importation. She had a grade 9 education. She had been dating Mr. Deman for about a year. He was a drug addict and had bought crack from Mr. Dennis over 100 times. One of Ms. Sherratt’s two daughters had died some years ago. She had several grandchildren. At the time of the offence, Ms. Sherratt was doing some roofing work, home cleaning and odd jobs. Her financial situation was not good. She had $4500 in credit card debt and $1000 in cash debts. These were debts she very much wanted to pay off.

[13] When first asked to go to St. Maarten to bring back money, she was hesitant. She thought about it for a month. Mr. Deman persuaded her to go, that it would be okay. Mr. Dennis said he could not go himself as he had a criminal record. Shortly before the flight, Ms. Sherratt got cold feet. She was worried that it was drugs she would be asked to bring back. By this point, Mr. Dennis had paid for everything including hotel and the flights. At the third meeting with Mr. Dennis, Ms. Sherratt alleged that he threatened her. He said that if she did not go, she and Ms. Marsh could be killed. Mr. Dennis was aggressive.

[14] A few days before the plane was to leave, in a telephone call, Ms. Sherratt told Mr. Dennis she was not going. Mr. Dennis screamed at her and said that the cartel would get after her. Mr. Dennis said that she did not know who she was messing with. Mr. Deman also put pressure on her to go. Ms. Sherratt testified that what ultimately led her to undertake the trip was fear for her life and for her family.

[15] In his evidence, Mr. Dennis denied putting undue pressure on Ms. Sherratt and denied threatening either Ms. Sherratt or Ms. Marsh. In the parties’ submissions on guilt or innocence and also with respect to sentence, both Crown and defence argued the issue of the threats. I found it unnecessary to resolve the conflict in the reasons for judgment.

[16] It is of some importance on sentencing, however, and I will decide the issue now. For the purpose of factual findings on sentencing, it must be said that Ms. Sherratt’s evidence with respect to the timing of the threats was not completely consistent. There were other blemishes too. However, on all the evidence, I find beyond a reasonable doubt that she was, as she testified, threatened by Mr. Dennis. There was little or no motive to fabricate this evidence at trial. Before her testimony in this trial, she pled guilty and received a conditional sentence. Her criminal matter was completed. While this was merely the absence of a negative with respect to her credibility, there are also powerful positive reinforcements for her evidence. Most important, her evidence in many of its material particulars was independently confirmed, including by Mr. Dennis’ evidence. There was no confirmation with respect to the threats evidence specifically, but there need not be in order to bolster general credibility: R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104, at paras. 39-40: R. v. Demedeiros, 2018 ABCA 241, 364 C.C.C. (3d) 271, at paras. 8 to 10, aff'd 2019 SCC 11, [2019] 1 S.C.R. 568; R. v. L.G., 2018 ONCA 804 at para. 37.

[17] In addition, Mr. Deman testified that Ms. Sherratt had cold feet just before leaving. This was admissible as state of mind evidence, and was not a prohibited hearsay use. There were no circumstances of suspicion surrounding the evidence: R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144 (S.C.C.) per Iacobucci J. at paras. 168, 178-179. While Mr. Deman’s evidence was not of threats itself, the confirmed cold feet evidence has obvious pertinence to the issue. It was a precursor to the threats supposedly made to compel her to make the trip.

[18] Looking at Mr. Dennis’ evidence on the question and keeping in mind the W. (D.) admonition, in the context of the complete trial record, I reject his evidence and it does not leave me in reasonable doubt. I refer to the same reasons that led me to discount his evidence as explored in the trial judgment.

[19] The last area that should be considered with respect to the offence is the level Mr. Dennis occupied in the importation scheme. First, he obviously was not a courier at the bottom of the hierarchy. He hired the two women to be couriers. Although he was present with them in St. Maarten for the first part of their stay, that was for the purpose of ensuring that there were no problems before their flight back home to Canada and to protect his commodity. Weighing the evidence, it is apparent that Mr. Dennis was at the top of the importation organization.

[20] As relied upon in the reasons for judgment, based on his extensive criminal history of trafficking in drugs and his many transactions selling drugs to Mr. Deman, Mr. Dennis has been proven to be a retail drug dealer. He admitted it. In light of all the evidence, the obvious inference is that it was his intention to bring the four kilograms of cocaine back to Canada to supply his own retail business. The retail value of the drugs, depending on the quantities in which it was sold, was $143,000 to $403,000. Vertical integration by purchasing the drugs wholesale and then selling them retail would greatly increase his profit margin. There was a distinct advantage in this economy of scale. It is unreasonable to conclude that he was bringing the cocaine back for anyone else to sell when he himself is a cocaine dealer and could sell it himself, reaping higher profits.

[21] Couriers are mere pawns in the importation network. They “becom[e] easy prey to those who engage in drug trafficking on a commercial basis”: Cunningham, para. 21. The heart of the problem is not the couriers but the people profiting handsomely from the importation offences, the lead conspirators. Their moral culpability is much higher that that of a courier. Denunciation and deterrence needs to be aimed more against them then the couriers who carry out their bidding. Deterrence will inevitably be more effective against those who stand to profit the most from importation schemes.

[22] The general range for “mere couriers” in the quantity of four kilos is 6 to 8 years: R. v. Duncan, 2016 ONSC 1319 at paras. 32-33; Cunningham; Hamilton. Code J. in Duncan was of the view that the sentence for principals in large scale conspiracy cases was 12-19 years: see para. 37. These offenders were all first offenders while Mr. Dennis is not. Mr. Dennis is a principal but, on the other hand, this is not a large-scale conspiracy. In the end, the gravity of the offence situates Mr. Dennis’ well above the mere courier cases but somewhat below the highest level for a principal in a large conspiracy.

The Offender

[23] An enhanced pre-sentence report was filed at this sentencing hearing as were numerous good character letters written by family and friends. Together they paint an extremely favourable and sympathetic picture of Mr. Dennis. Mr. Dennis is 48 years old and was born in Toronto. His parents were strict. Mr. Dennis has a very close relationship with his mother. He has three siblings. He has been in a long-term relationship with Marquesha Campbell and they have one son together, Raequan Campbell Dennis, now 16 years old according to the pre-sentence report. Father and son share a great love for soccer. Mr. Dennis was a professional player in the Canadian league and then in Europe and his son appears to be following in his footsteps. Mr. Dennis has coached soccer for many years and letters filed attest to his skill and the respect he garners from others.

[24] Mr. Dennis grew up in North York and Malvern in Scarborough. He went to Iowa’s Graceland University but, as a Black man, experienced deplorable racism and left after one year. His soccer coach was a member of the Klu Klux Klan. When Mr. Dennis returned to Canada he attempted to find a position on a European team but was unsuccessful. According to his account, that was when he turned to drug dealing to make “fast money.”

[25] Mr. Dennis is currently employed by a construction company owned by a friend. He also carries on a catering company with his wife. Mr. Dennis was a soccer head coach and his team won two Ontario cups. The owner of the club had positive things to say about him and said that he was good at managing youth.

[26] The pre-sentence report closes with this important observation:

There are also concerns about the outcomes for Black people within the federal carceral system, as systemic racism has been identified as an issue (Office of the Auditor General of Canada, 2022, 4.3). One reason is the over-representation of Black people in the federal system while the majority of correctional officers are white (Office of the Auditor General of Canada, 2022, para. 4.17). The rehabilitative outcomes for Black people are also poor (Office of the Auditor General of Canada, 2022, para. 4.17), and Correctional Services of Canada (CSC) has failed to ensure that culturally responsive curriculum is available for racialized offenders (Office of the Auditor General of Canada, 2022, para. 4.41).

[27] I have followed these comments and the decision in R. v. Morris, 2021 ONCA 680 in crafting an appropriate sentence for Mr. Dennis. The long history of anti-Black racism is always important in sentencing. In this instance, particularly the racism Mr. Dennis encountered in the United States may well have had a direct negative effect on his life trajectory. If he had remained playing soccer there his career might have blossomed. Instead, the intolerable racism he encountered there led him to make an understandable decision to return to Canada.

[28] At the same time, the anti-Black racism must be placed in the context of a man who has now been immersed in the drug trafficking culture for over 15 years. In my view, it is likely that anti-Black racism played some part in Mr. Dennis getting into the drug trafficking world. But now that he has been involved for such a long time, the mitigation due to him is significantly diminished.

[29] In summary, the pre-sentence report portrays in every respect but one, a typical loving normal family. But there is one aspect that cannot be glossed over and that is anything but normal, That is, Mr. Dennis long involvement in criminal activity, drug trafficking in particular. Starting in 2003, Mr. Dennis has three convictions for trafficking or possession for the purpose of trafficking. The sentences have not been insubstantial:

1. Possession for the purpose of trafficking—October, 2003: three months and 15 days together with 70 days pre-trial custody:
2. Trafficking—November, 2010: a 23-month conditional sentence. This sentence was breached and terminated in January of 2012.
3. Possession for the Purpose—June, 2018, together with a proceeds of crime conviction: credit for the equivalent of 26 months of pre-trial custody.
4. Also on his record from 2012 is a conviction for possession of a firearm, a common and terrifying accoutrement of the drug trade. A gun protects the commodity and its seller. Mr. Dennis was sentenced to three years incarceration plus five months consecutive for breaching his weapons prohibition.

[30] In addition, Mr. Dennis has several convictions for simple possession: 2006 (x2) and 2008 (x2). He has six convictions for fail to comply with recognizance. Mr. Dennis admitted in the pre-sentence report that his drug offences were rooted in greed. His criminal history documents that Mr. Dennis has had more than fair warning with respect to future criminal activity. He has been to the penitentiary. In the pre-sentence report, he expressed regret about missing the time with his son, then three years old, when he was in the penitentiary. That was more than a decade ago. But despite his regrets, he has carried on his criminal activities escalating to importation of cocaine.

[31] Furthermore, the three prior convictions for drug dealing demonstrate that Mr. Dennis’ moral blameworthiness for this offence is high. His conduct cannot be attributed to youthful foolishness or naiveite. This was a deliberate, carefully planned scheme with a powerful profit motive. Denunciation and deterrence are the governing principles of any sentence to be imposed. As explained, denunciation and deterrence of a principal in a drug importation offence is particularly important and effective.

[32] Mr. Dennis has shown great persistence in continuing with his drug trafficking activities in the face of apprehension and punishment. It has undoubtably been a major contributor to his lifestyle. However, my sense now is that with this conviction, he has come to the end of his career. His prospects for rehabilitation, with all the support he enjoys from family and friends, are very good despite the past history.

Conclusion

[33] The defence position of a conditional sentence mistakes the gravity of the offence and the responsibility of Mr. Dennis. It is well below the range and would be clearly unfit. The six-year sentence suggested in the alternative is also below the range. It equates this case with that of a first offender courier. But Mr. Dennis is neither a first offender nor is he a courier. He is a repeat offender of substantial drug trafficking offences. And he was the principal in an offence committed to fuel his own retail business.

[34] The circumstances exhibit none of the mitigation or sympathy appropriate in the case of a courier. Mr. Dennis in fact occupies a position on the other side of that calculus. He exploited his particularly vulnerable couriers, Ms. Sherratt and Ms. Marsh. It is no small aggravating factor that he threatened them if they did not follow through and carry the drugs back to Canada for him. Mr. Dennis is not entitled to any significant mitigation or leniency. While he might be an ordinary family man in one part of his life; in the other he is a serious drug dealer and long-time recidivist. He has been living a life of crime for over 15 years now. His criminal record is not minor or trivial. It is very serious.

[35] During the lengthy wait for the enhanced presentence report after the finding of guilt was entered, Mr. Dennis brought an application to go to Spain to help his son get settled into his new life as a professional soccer player. It was denied in no uncertain terms. But nonetheless he renewed the matter on sentencing in an affidavit detailing the effects of tight home arrest bail on him. He says that it was “extremely difficult for me to not be there for my son.” Soccer is something that he and his son are “passionate about and …have truly bonded over.” He has never seen his son play professional soccer. As I said when dismissing the bail variation application, Mr. Dennis is equating his situation with a typical father\son relationship. But it is not. Sadly, Mr. Dennis’ criminality sets his father\son relationship apart from an ordinary, healthy family. There appears to be a lack of appreciation that he has been convicted for the fourth time of a very serious drug offence.

[36] There is one important factor in mitigation. Mr. Dennis has been on a restrictive bail for four years now. Initially, he was required to live outside his home with a residential surety on a strict house arrest which in essence did not allow Mr. Dennis to be out of the residence. It was not until over a year later that he was permitted to resume living with his partner Ms. Campbell and was permitted to be out of his residence with one of his three sureties. It was not until May of 2023 that he was permitted to work outside the home. During the currency of his bail, Mr. Dennis attested that he was not able to be present during his brother’s last moments before dying in hospital. There were other specific life experiences he missed as well.

[37] Substantial mitigation is appropriate for such a lengthy and significant deprivation of liberty: R. v. Downes, 79 O.R. (3d) 321 (C.A.); R. v. Joseph, 2020 ONCA 733, 153 O.R. (3d) 145, at para. 108. Shreck J. has summarized the law in the area as mandating a reduction of sentence from between one-fifth and one-third of the time spent on a restrictive bail: R. v. Sandhu, 2023 ONSC 6497 at para. 22. In this case, I do not find it necessary to specify the precise reduction that should be applied. But the mitigation is substantial as appropriately recognized by both counsel.

[38] With reference to the resist arrest conviction, Mr. Dennis fled in his car from a botched take-down orchestrated by the RCMP. It was found at trial that Mr. Dennis knew that the many people who were approaching him as he got into his vehicle in the parking lot of his residence were the police. At the time he backed out and drove off at significant speed, there were about six officers within the immediate vicinity. Officer Sabourin had opened the passenger door of Mr. Dennis’ car either just before or at the point when the car was in motion. In the circumstances, Mr. Dennis knowingly put the safety of the police officers at serious risk. Also, in aggravation, he has a conviction for obstruct police on his criminal record.

[39] The Crown asks for six months consecutive to the importing count. I agree.

[40] With respect to the importing conviction, for the reasons I have given, in my view a ten and a half year sentence is appropriate. The house arrest mitigation has been applied to both counts. A significantly longer sentence would have been warranted without the lengthy stint on house arrest. The total sentence then will be 11 years: 10 and a half months for the importation, six months consecutive for the resist arrest. In imposing this total sentence, I have considered totality and the lengthy time this case has taken to be completed.

[41] Ancillary orders will issue: DNA databank and prohibition for ten years (s. 109(2)(a)) and firearms prohibition for life (s. 109(2)(b)).

D.E HARRIS J. Released: October 3, 2024