COURT FILE NO.: CR-20-362 DATE: 2025 04 28 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HIS MAJESTY THE KING Gregory Corriveau, for the Crown
- and - Cassandra Gordon Maija Martin and Stephanie Brown, for Ms. Gordon HEARD: January 22, 2024, February 14, 2024, September 20, 2024, March 17, 2025 REASONS FOR SENTENCE D.E HARRIS J.
[ 1 ] The jury found the defendant Cassandra Gordon guilty of importing cocaine from Aruba into Canada, rejecting her defence of duress. These are sentencing reasons. There is considerable distance between the parties. The Crown asks for seven years incarceration. The defence argues for three years.
PRELIMINARY CONSIDERATIONS
[2] The total cocaine imported on the offence date of November 6, 2019 was almost 3.5 kilograms. Ms. Gordon had two kilograms taped to her body; her twelve-year-old son J.B. had one and a half kilograms taped to him. J.B. did not testify at the trial. I found in a bottom-line ruling after the finding of guilt that Ms. Gordon was responsible for the cocaine carried by her son as well. The basis for this finding was, in view of their respective ages and their relationship as mother and young son, it was Ms. Gordon who was the directing mind behind this importation. She was proved beyond a reasonable doubt to be the principal in her son’s possession.
[3] Using her son to facilitate the importation is a statutory aggravating factor on sentence under the Controlled Drugs and Substances Act , s. 10(2)(c). See R. v. Clarke , 2019 ONSC 5868 ; R. v. Grant 2015 ONCJ 751 . Given his age and the very significant role he was obligated to perform in the commission of the offence, the use of J.B. is a substantial aggravating factor on this sentencing. It is deplorable that Ms. Gordon used her son in this way to facilitate the importation scheme. It significantly increases her moral responsibility.
[4] In setting the stage for the analysis of the sentence that ought to be imposed, the defence asks me to find that there were some elements of duress present, despite the jury finding as a precondition to their guilty verdict that the duress defence was disproved beyond a reasonable doubt.
[5] In the context of the defence rejected by the jury, I agree that it is possible that the jury rejected only one of the elements the Crown must disprove beyond a reasonable doubt. Those elements are: 1. A threat; 2. Reasonable belief that the threat will be carried out; 3. No safe avenue of escape from the threatened harm; and 4. The harm caused by the accused must be equal to or no greater than the harm threatened to her.
[6] The defence asserts that the jury must have found that the defence was not made out on the basis that there was no reasonable doubt on the safe avenue of escape element: i.e. Ms. Gordon could have informed officials at Pearson Airport that she was being forced to import cocaine. In fact, so the defence argues, the jury believed that there was coercion exerted against Ms. Gordon. That is pure speculation, however. There is no way to discern why the jury rejected duress and on what basis. Even if the defence were able to show that one element was stronger or weaker, it could still not be shown with any degree of assurance what the jury found.
[7] However, I am permitted by s. 724(2) (b) of the Criminal Code to make my own findings but they must be proven by the defence: ss. (3)(b). Findings made cannot be at odds with the facts, express or implied, essential to the jury’s verdict: ss. 2(a). In a situation like this where there are several elements that the Crown must disprove and no sufficient indication which one the jury relied upon, the only practical prohibition on finding my own facts is if I were to find that Ms. Gordon was acting under duress. That is precluded by the jury verdict. Otherwise, I could theoretically find present one or more elements of the defence: R. v. Ferguson , 2008 SCC 6 , [2008] 1 S.C.R. 96 at paras. 17-18 ; R. v. Moreira , 2021 ONCA 507 at paras. 45-51 .
[8] The question is then what findings of fact ought I to make based on the trial evidence? Unlike in relation to the question of guilt or innocence, the defence must now on sentencing prove the mitigating factors on a balance of probabilities. In light of this burden on the defence and the lack of any real assistance provided by the verdict, I conclude that I cannot find any elements of duress proven. Ms. Gordon’s evidence recounting the coercion and threats made against her and her son which led her to import the cocaine was vague and less than compelling. There was no substantial support for her story from any other evidence. Furthermore, it was adduced in the Crown’s case that the morning after her arrest, Ms. Gordon received a text message on her phone about a 50k wire transfer. In her evidence, Ms. Gordon said it was from her friend Carval who had previously attempted to persuade her to commit cheque fraud. The Crown challenged this explanation. I agree that in the circumstances, it was open to question.
[9] For these reasons, I cannot find that any of the elements of duress were established by the defence for the purpose of sentencing.
THE OFFENCE AND THE OFFENDER
[10] In determining a fit sentence for Ms. Gordon, I will focus on the seriousness of the offence and her blameworthiness, including the evidence with respect to her circumstances. As pointed out in R. v. Hamilton (2004) , 72 O.R. (3d) 1 (Ont. C.A.) at para. 93 , it is common in importing cocaine cases that the seriousness of the offence and the circumstances and personal responsibility of the offender will pull in opposite directions. This case exemplifies that tension between the offence and the offender.
THE CUNNINGHAM RANGE
[11] Over 25 years ago, the Court of Appeal held that importing a substantial amount of cocaine, as Ms. Gordon did in this case, is a very serious offence warranting a substantial term of incarceration. In R. v. Cunningham , (1996) , 27 O.R. (3d) 786, 104 C.C.C. (3d) 542 (Ont. C.A.) the Court held:
20 … after careful consideration, we are all of the view 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 six to eight years in the penitentiary ...
(Emphasis added)
[12] In Hamilton at para. 104 , the Court elaborated on the seriousness of the offence, referring to the social and economic damage brought about by cocaine. Doherty J.A. wrote:
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: see R. v. Pearson , (1992) 77 N. C.C.C. (3d) 124 at 143-44 (S.C.C.)
[13] Importing cocaine as a courier or mule is a very serious offence. However, it bears noting that a courier role is much lower in gravity and moral responsibility than is that of the head or middle ground player of an importation scheme. Recently in R. v. Dennis , 2024 ONSC 5452 , I sentenced an importer who had hired two couriers to bring cocaine to Canada for him. The sentence imposed, even after substantial credit for time pending trial on a restrictive bail ( R. v. Downes (2006) , 79 O.R. (3d) 321 (C.A.); R. v. Joseph , 2020 ONCA 733 , 153 O.R. (3d) 145, at para. 108 ), was 11 years. There is a major difference between a courier and a man in Mr. Dennis’ position. The range for Ms. Gordon is significantly lower than it was for Mr. Dennis.
[14] The range established in Cunningham is to a large degree for the purpose of affecting general deterrence and discouraging couriers from the importation of drugs into Canada. Not long after Cunningham , the Court of Appeal was confronted in R. v. H. (C.N.) (2002) , 170 C.C.C. (3d) 253 (Ont. C.A.) with an argument that general deterrence was of little weight in the context of drug couriers. The trial judge had questioned its efficacy and defence counsel in the Court of Appeal reiterated this theme. Rosenberg J.A. responded for the Court:
35 I agree with the trial judge that general deterrence as the animating objective of any offence must be approached with caution. In R. v. Biancofiore (1997) , 119 C.C.C. (3d) 344 (Ont. C.A.) , at 356, I said the following:
The general deterrent effect of incarceration is somewhat speculative and I adhere to the view I expressed in R. v. Wismayer, supra , at p. 36 that incarceration should be used with great restraint where the justification is general deterrence. There are, however, offences that are more likely to be influenced by a general deterrent effect [emphasis in original].
36 In that case, the court was considering drinking and driving offences and we held that incarceration for such crimes could be justified on the basis of general deterrence. The same applies for importing large quantities of cocaine for personal gain. These are offences that ordinarily require some degree of planning. The trial judge recognized that fact himself when he said at para. 35 of his reasons that “where potential offenders can deliberate on the cost/benefit of committing the offence, general deterrence might well be seen as a principle that is effective in curtailing drug crimes.” The trial judge, however, discounted the value of general deterrence in the case of couriers, in part, because it could never be 100% effective as there would always be people ignorant or desperate enough to take the risk. That may be, but it was not a basis for rejecting the application of the general deterrence objective in courier cases. Just as in the drinking and driving context, prison sentences alone will never solve the problem, but they do have a role in deterring crime. (Emphasis added)
[15] This passage from H. (C.N.) counsels a cautious approach to general deterrence. This position has recently been reinforced by the Supreme Court of Canada in R. v. Bissonnette , [2022] SCJ No. 23, 2022 SCC 23 at para. 47 :
... general deterrence , is intended to discourage members of the public who might be tempted to engage in the criminal activity for which the offender has been convicted (R. v. B.W.P ., 2006 SCC 27 , [2006] 1 S.C.R. 941 , at para. 2 ). When this objective is being pursued, the offender is punished more harshly in order to send a message to the public or, in other words, to serve as an example. General deterrence is an objective that must be weighed by a court, but the effectiveness of which has often been questioned. These legitimate reservations notwithstanding , the fact remains that the certainty of punishment, together with the entire range of criminal sanctions, does produce a certain deterrent effect, albeit one that is difficult to evaluate, on possible offenders (Ruby, at s.1.31; Canadian Sentencing Commission, Sentencing Reform: A Canadian Approach (1987), at pp. 136-38). (Emphasis added)
[16] See also R. v. Hess; R. v. Nguyen , [1990] S.C.J. No. 91, [1990] 2 S.C.R. 906 (S.C.C.) at paras. 24-27 per Wilson J.
[17] As the Supreme Court held, there are “legitimate reservations” with respect to the efficacy of general deterrence. One practical issue with general deterrence as an animating concept behind a severe sentence is the marginal deterrence effectuated by higher sentences. Would a 10-year sentence result in greater general deterrence than would an 8- year sentence, for example? That, as a matter of simple logic, is open to doubt. The trial judge in H. (C.N.) had expressed concern about the extra deterrence from a harsher sentence and the Court of Appeal did not comment to the contrary: see the trial judgment at [2002] O.J. No. 1111 at para. 47 . The limited benefit of extra deterrence is not an uncommon theme in the case law: see R. v. Nicholss , 2022 ONCJ 433 at para. 47 ; R. v. G.J.T . [1985] B.C.J. No. 2114 (B.C.C.A.) at para. 20 .
[18] Nonetheless, despite its limitations as a sentencing principle, the law is clear that general deterrence is a significant factor in sentencing for drug importation offences. That is important to recognize in the imposition of the appropriate sentence upon Ms. Gordon. Furthermore, as with other serious offences, denunciation is paramount in crafting a proportionate sentence.
THE CROWN SUBMISSIONS WITH RESPECT TO THE CUNNINGHAM RANGE
[19] For the Crown, Mr. Corriveau argued that the range set out in Cunningham should more or less dictate the sentence for Ms. Gordon. He pointed to the dicta in the judgment that the range should not be departed from “absent exceptional or extenuating circumstances” and argued that there are no such circumstances here. He also argued that I am bound by additional comments in Cunningham recognizing the often desperate circumstances of couriers. It was his submission that these type of personal circumstances were already accounted for in the Cunningham range. “Baked-in” was the expression he used. With respect, I do not agree with either of these submissions.
EXCEPTIONAL CIRCUMSTANCES ARE NOT NECESSARY TO DEPART FROM THE RANGE
[20] In the more than 25 years since Cunningham , there has been a subtle shift in the statement of ranges by the Supreme Court and a correspondingly greater emphasis on sentence individualization. It has been emphasized many times that ranges are not immutable. They are not carved in stone. They are not straitjackets. They do not dictate what sentence ought to be imposed.
[21] While this was recognized in Cunningham itself, the law has continued to develop further on this theme in the subsequent years. In the leading sentencing case of R. c. Lacasse , 2015 SCC 64 , Wagner J., (as he then was), wrote:
57 … Sentencing ranges are nothing more than summaries of the minimum and maximum sentences imposed in the past, which serve in any given case as guides for the application of all the relevant principles and objectives. However, they should not be considered “averages”, let alone straitjackets, but should instead be seen as historical portraits for the use of sentencing judges, who must still exercise their discretion in each case…
[22] This trend has become a fundamental tenet of sentencing law. In R. v. Friesen , 2020 SCC 9 , it was held:
37 This Court has repeatedly held that sentencing ranges and starting points are guidelines, not hard and fast rules ( R. v. McDonnell , [1997] 1 S.C.R. 948 , at para. 33 ; R. v. Wells , 2000 SCC 10 , [2000] 1 S.C.R. 207 , at para. 45 ; R. v. Nasogaluak , 2010 SCC 6 , [2010] 1 S.C.R. 206 , at para. 44 ; Lacasse , at para. 60 )… Ranges of sentence and starting points cannot be binding in either theory or practice, and appellate courts cannot interpret or apply the standard of review to enforce them , contrary to R. v. Arcand , 2010 ABCA 363 , 40 Alta. L.R. (5th) 199 , at paras. 116-18 and 273 … (Emphasis added)
[23] Particularly important is R. v. Parranto , 2021 SCC 46 , where the Court was emphatic in stressing the discretion to depart from an appellate range:
16 Quantitative appellate guidance generally takes one of two forms: starting points, or sentencing ranges. These tools are best understood as “navigational buoys” that operate to ensure sentences reflect the sentencing principles prescribed in the Criminal Code … As this Court has recognized, however, “there is no such thing as a uniform sentence for a particular crime” ( M. (C.A.) , at para. 92). Neither tool relieves the sentencing judge from conducting an individualized analysis taking into account all relevant factors and sentencing principles.
… 36 The key principles are as follows:
- Starting points and ranges are not and cannot be binding in theory or in practice ( Friesen , at para. 36 );
- Ranges and starting points are “guidelines, not hard and fast rules”, and a “departure from or failure to refer to a range of sentence or starting point” cannot be treated as an error in principle ( Friesen , at para. 37 );
- Sentencing judges have discretion to “individualize sentencing both in method and outcome”, and “[d]ifferent methods may even be required to account properly for relevant systemic and background factors” ( Friesen , at para. 38 , citing Ipeelee , at para. 59); and,
These principles settle the matter. Contrary to the Crown’s submission, it is not an open question whether sentencing judges are free to reject the starting-point approach. Sentencing judges retain discretion to individualize their approach to sentencing “[f]or this offence, committed by this offender, harming this victim, in this community” ( R. v. Gladue , [1999] 1 S.C.R. 688 , at para. 80 (emphasis in original) ). There is no longer space to interpret starting points (or ranges) as binding in any sense .
37 Having made clear that starting points and ranges are tools and not straitjackets, we turn to the role that a sentencing range or starting point plays in appellate sentence review.
38 As we have already stated, sentencing is an individualized process, and parity is secondary to proportionality. Therefore, departures from the starting point or sentences above or below the range are to be expected. Even significant departures are not to be treated as a prima facie indication of an error or demonstrable unfitness. Fitness is assessed with reference to the principles and objectives of sentencing in the Code , not with reference to how far the sentence departs from quantitative appellate guidance. (emphasis in original)
[24] A recent Court of Appeal sentence appeal in a drug importation case also out of the Central West Region considered an argument that Parranto had essentially erased the range articulated in Cunningham : see R. v. Henry , 2024 ONCA 797 . Dawe J.A. disagreed with this argument but he did emphasize the prerogative of a trial judge to depart from a range:
[29] In my view, Cunningham and Parranto can be reconciled by recognizing that the term “exceptional circumstances” does not have a single fixed meaning. As Harris J.A. of the British Columbia Court of Appeal observed in R. v. Graham, 2022 BCCA 252 , at para. 12 , in the sentencing context:
[T]he term "exceptional circumstances" is simply a generalized description of the type of circumstances that justify imposing a sentence that is outside a conventional range. Judges should not be artificially constrained in imposing a proportionate sentence by an overly rigid insistence on a demonstration of exceptional circumstances.
[30] Tulloch C.J.O. made a similar point in R. v. Pike , 2024 ONCA 608 , at para. 182 , where he reconciled the holding in Parranto with this court’s use of the term “exceptional circumstances” in R. v. M.M., 2022 ONCA 441 , at para. 16 , by
explaining :
M.M. used “exceptional circumstances” as shorthand for personal circumstances and mitigating factors that are sufficiently compelling to make a conditional sentence proportionate.
He noted further that this interpretation “is consistent with Parranto’s holding that sentencing must focus on proportionality, not pigeonholing cases into ill-defined exceptional circumstance categories”: Pike , at para. 182 .
[31] I agree that it would have been an error for the trial judge to have treated the Cunningham sentencing range as a “straitjacket”, or to have interpreted the language of “exceptional circumstances” as requiring a pigeonholing approach:
R. v. Lacasse , 2015 SCC 64 , [2015] 3 S.C.R. 1089 , at paras. 57 , 69; Pike , at para. 182.
[25] In summary, these cases and Parranto in particular support the conclusion that the range articulated in Cunningham and the “exceptional and extenuating circumstances” standard for departing from it has significantly greater elasticity than might first have been apparent. While the language of “exceptional and extenuating circumstances” might suggest that departures can only occur in rare circumstances, this is not what should be taken from those words now. Deviating from the range is appropriate if founded on “sufficiently compelling” circumstances with the additional general caveat that the range does not impose a straitjacket. It makes sense that the circumstances must be more compelling the more serious the offence. But the recent cases leave no doubt that in order to permit trial judges the necessary discretion to do justice in individual cases, the discretion to depart from the range is not an overly demanding standard.
[26] However, that does not mean that the articulation of a range by an appellate court is not without importance. It indicates the seriousness of the offence. As Doherty J.A. said in Hamilton :
111 Fixing the range of sentences for a particular offence, of course, does not determine the sentence to be imposed on a particular offender. The range is in large measure a reflection of the "objective seriousness" of the crime: R. v. H. (C.N.) , supra , at p. 266. Once the range is identified, the sentencing judge must consider specific aggravating and mitigating factors. The mitigating factors may be so significant as to take the case below the otherwise appropriate range. (emphasis added)
THE MITIGATING CIRCUMSTANCES OF THE OFFENDER ARE NOT ENCOMPASSED IN THE CUNNINGHAM RANGE
[27] I also disagree with Mr. Corriveau that the 6 to 8 year range already takes into account the straitened circumstances of most couriers. The full passage from Cunningham starting from the articulation of the 6 to 8 year range does make specific reference to the sympathetic plight of drug importation couriers:
20 … Indeed, after careful consideration, we are all of the view 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 six to eight years in the penitentiary. In establishing such a range, we readily acknowledge that sentencing is not an exact science and that trial judges must retain the necessary degree of flexibility to do justice in individual cases. We recognize as well that the suggested range will often require the imposition of a severe penalty for first offenders. We are not insensitive to this concern, mindful as we must be that in many instances, couriers tend to be weak and vulnerable, thereby becoming easy prey to those who engage in drug trafficking on a commercial basis.
21 Sympathetic though we are to the plight of many couriers, such concerns must give way to the need to protect society from the untold grief and misery occasioned by the illicit use of hard drugs. (emphasis added)
[28] This is the passage which led Mr. Corriveau to argue on this sentencing hearing that the Cunningham range had “baked-in” the vulnerability and often dire circumstances of the average courier. Little mitigation was appropriate with respect to an offender like Ms. Gordon no matter what her antecedents and personal responsibility. These mitigating factors were already included in the Cunningham range. As a consequence, seldom should the 6-8 year range be departed from. It should not be departed from in this case.
[29] While this may be a viable interpretation of the language of these paragraphs when read in isolation, I cannot agree with this argument. In importing cases, it is true that couriers are often in a sadly vulnerable situation. The judges of Central West Region are the nationwide experts in courier cases by reason of the busiest airport in the country, Toronto Pearson Airport, being in our jurisdiction: Lacasse , para. 95 . That does not mean, however, that the circumstances of couriers are rendered irrelevant particularly in a case like Ms. Gordon’s. In law and in logic, the range for an offence expresses the gravity or seriousness of the crime while the circumstances of the offender remain separate and distinct. It is important that the two not be intermixed or confused. This is reflected in the fundamental sentencing principle of proportionality in s. 718.1 of the Criminal Code that a sentence must be responsive both to the “gravity of the offence” and the “degree of responsibility of the offender.” Both must be given full attention: R. v. Proulx , 2000 SCC 5 at para. 83 .
[30] In R. v. Morris , 2021 ONCA 680 , 74 C.R. (7th) 390, the Court of Appeal explained:
77 It is important to preserve the distinction between factors relevant to the seriousness or gravity of the crime on the one hand, and factors relevant to the offender’s degree of responsibility on the other. Unless the distinction is maintained, the proportionality principle may be misapplied. A sentence, like the sentence imposed here, which wrongly discounts the seriousness of the offence to reflect factors which are actually relevant to the offender’s degree of responsibility, will almost inevitably produce a sentence that does not adequately reflect the seriousness of the offence and, therefore, fails to achieve the requisite proportionality.
[31] The cases, like Parranto, on sentencing ranges canvassed above reinforce the crucial distinction between the offence and the offender. Merging sentencing factors with respect to the offence and the offender is a rudimentary error and doctrinally insupportable. The Court of Appeal in Cunningham could not have been attempting to put restrictions on trial judges with respect to individual mitigating circumstances and the responsibility of offenders. The Court of Appeal in Cunningham was simply acknowledging the normal reality of the courier importation cases. It has long been recognized that individualization is the domain of trial judges and must not be subsumed in or eroded by the seriousness of the offence at issue.
[32] It would be a palpable unfairness if an offender was subjected to the relatively high range of sentence for importing (characterized by the Cunningham Court as a “severe” sentence), if that range was inflexible and at the same time, the offender was largely deprived of individual mitigating factors. In my view, that is not the law. Careful attention must be paid to the personal circumstances of the offender.
THE CIRCUMSTANCES OF MS. GORDON
[33] This case is a good example of the crucial importance of an enhanced pre-sentence report (EPSR) for a racialized, marginalized offender like Ms. Gordon. Mr. Corriveau for the Crown had no objections to the content of the report. As stated by the Court of Appeal in Morris , the leading case on sentencing Black offenders, reports such as this can be of “great assistance” to a sentencing judge: Morris , para. 147 . In this instance, the report was of vital importance to the imposition of a fair and appropriate sentence.
[34] In summary, as the author of the report, Michelle Richards, writes, “Ms. Gordon [has suffered from] … various forms of hardship including loss, sexual abuse, single parenting, poor mental health and poverty.” Fully considered, Ms. Gordon has withstood more than her share of disappointments and social injustices.
[35] Ms. Gordon is 34 years old and was born in Toronto. She has no previous criminal record. She is a Black woman of Antiguan and Jamaican heritage. She is the youngest of four children and a parent of two sons, ages 12 and 16. Ms. Gordon grew up from birth to age 12 in the Scarborough neighbourhood of Galloway, one of the most impoverished in Toronto. Her father was physically abusive towards her mother. When Ms. Gordon was born, her father was 65 years old and her mother was 20 years younger. Her mother struggled to support the family on her salary while her father, who was retired, was the primary caregiver. Ms. Gordon had a good relationship with her father but a strained relationship with her mother. Ms. Gordon advised that her parents separated when she was 12 years old and her brothers went to live with her father while she and her sister remained with their mother. Her parents reunited about a year later.
[36] Ms. Gordon was devastated when her father died in 2006 at the age of 81. This marked the beginning of her chronic depression. The death came one day before Ms. Gordon’s 16th birthday and she took it very hard and became withdrawn. A friend of Ms. Gordon's father who has known her since she was three years old observed that she became very much less disciplined following her father's death.
[37] Ms. Gordon grew up in poverty. Her father sent money to support his older children in Jamaica instead of helping her mother. Ms. Gordon did not receive Christmas gifts and she had limited clothing. She had no disposable income. Her sister Simone White said that the family was “less than working class” as they were dependent upon her mother's limited income as a personal support worker. Ms. Gordon related that they lived in a subsidized townhouse with plenty of social issues including guns and drugs. There was a heavy police presence which sometimes involved police chasing people and kicking down doors. Ms. Gordon did not have any interactions with police until her adulthood and had always been taught to never call them for help because they could not be trusted. Her parents kept the children indoors for safety reasons.
[38] Ms. Gordon reported that she was once sitting outside in her car, which was parked in front of her mother’s apartment building on Greenbrae Circuit in Scarborough, when a police officer pulled up and asked her what she was doing. When she responded that she was just sitting in her car, the officer remarked, “you never know” before driving off. Ms. Gordon said that she is fearful of police because they profile Black people‒ “they’re ready to jump to conclusions”‒while white people are treated fairly.
[39] Ms. Gordon struggled throughout her time in school despite attempts to place her in appropriate classes. As she testified before the jury and told Ms. Richards, Ms. Gordon was a victim of sexual abuse when she was about eight or nine years old. She did not tell any adults as she did not trust that she would be protected. Ms. Gordon said that she was angry and coped with the abuse by becoming withdrawn from other people. The sexual abuse she suffered was an impediment to her schoolwork. She also reported that when she was about 14 or 15 years old, a male friend held a gun to her head and pulled his penis out of his pants. Ms. Gordon disclosed that she was scared and did not know if the gun was real or fake, but the boy let her go. She was unharmed. Ms. Gordon reflected that these experiences contributed to the development of her fear of male authority.
[40] It is important not to simply record and glide over the fact of sexual abuse of a young child but to reflect upon it for a moment. While it was not a focus of this sentencing hearing, the profound and lasting effect of sexual abuse on a young child is staggering. The Supreme Court explored the damage to children caused by sexual abuse in Friesen , at paras. 42-46 ; 50-75. While the consequences of this abuse would be a principal focus on a sentencing of the perpetrator of the abuse, it is also vital to incorporate it into the consideration of Ms. Gordon’s moral responsibility for the importing offence before the court. If we are serious about addressing the lifelong consequences of sexual abuse on an eight- or nine-year-old child, the impact on an offender’s moral culpability for an offence like this one cannot be ignored. It is of major importance, particularly together with the other vicissitudes of life Ms. Gordon has been subject to.
[41] Ms. Richards states, “The trauma of the sexual abuse that she experienced negatively impacted her emotional well-being and caused a decline in her academic progress.” In grades seven and eight, Ms. Gordon was placed into remedial classes as she had difficulty understanding the assignments. At Cedarbrae Collegiate Institute, she was placed in the essential stream of learning. She was dismissed from the school at the end of grade 9 for poor attendance. She often skipped classes and stayed home to watch television with her father who was elderly at the time and did not enforce her school attendance. She was transferred to Scarborough Centre for Adult Studies (SCAS) for grades 10 and 11 and discontinued education once she became pregnant at age 17. Ms. Gordon applied and completed a PSW program at Centennial College in 2019. She had difficulty during this program due to her mental health. She has not yet graduated. Since that time, Ms. Gordon has been unable to work consistently because of her mental health issues.
[42] Ms Gordon had her first child at the age of 17. The father of the child was emotionally and physically abusive throughout their relationship which lasted for five years. Ms. Gordon reported that their relationship ended after the birth of their second son in 2012, but the emotional and verbal abuse continued whenever they had contact and she was subjected to threats whenever she reacted. She fought for sole custody of her children from approximately 2014 to 2016 and during that time, she decided to seek a restraining order because she could no longer endure the verbal abuse. Ms. Gordon recalls she was directed to the courthouse at Warden and Eglinton Avenue in Scarborough to obtain a restraining order. She reported that she attended multiple times and felt that she was not taken seriously because her request was never fulfilled. So she gave up. She successfully obtained full custody of her children and receives child support from their father.
[43] Her 16-year-old son has ADHD and is speech and developmentally delayed. Her 12-year-old son has mild autism and a learning disability. The father of her sons used to see them every other weekend but he stopped as he did not know how to deal with a child with autism. Ms. Gordon told Ms. Richards that being a single parent to two children with special needs has been hard. She has very little support.
[44] Ms. Gordon’s cycle has continued with her own experience of raising her own children while living in poverty. As Ms. Richards stated:
Black and racialized communities are disproportionately impacted by poverty (Turner, Boyce, & Butler, 2020, p. 24). Single parents are also vulnerable to poverty, and 2016 data indicates that single-parent families experienced poverty at twice the rate of the Canadian average (Zon & Aldridge, 2018, p. 1). This research is consistent with Ms. Gordon’s lived experiences, and a suggested remedy is employment, ‘employment is crucial for most families to avoid poverty’, as social assistance benefits are not sufficient enough to raise a family above the poverty line (Zon & Aldridge, 2018, p. 3). Given that Ms. Gordon’s mental health challenges have disrupted her efforts to maintain employment, it seems unlikely that she will be able to elevate her family out of their impoverished status.
[45] Medical records from 2014 indicate that Ms. Gordon was receiving counseling support from her doctor. She was directed to seek out support groups for parents of children with ADHD. It was noted that she spent a lot of time alone.
[46] Ms. Gordon’s sister, Ms. White, said that her sister had not been prepared for the responsibility of parenting when she had her first child at such a youthful age. She received support from her family. She confirmed that Ms. Gordon did not have a good relationship with the father of her sons.
[47] That her two sons will not have her nurture and support during any term of incarceration is heartbreaking. Apparently her mother will take care of them. This can and should be recognized in the sentence to be imposed. In R. v. Habib , 2024 ONCA 830 , the Chief Justice wrote:
44 …sentencing judges must “preserve the family as much as possible” within these limits. As that case [ R. v. Spencer (2004) , 72 O.R. (3d) 47 (C.A.) ] explained, if incarceration is necessary, sentencing judges must give serious and sufficient consideration to family separation consequences in “determining the length of [the] prison term.” See at para. 47.
45 Thus, depending on the facts, family separation consequences may justify a sentence adjustment - even a significant one - or a departure from the range. See L.C. , at para. 21; Collins , at paras. 39-43; and R. v. Forsythe [1976] O.J. No. 1026 (C.A.) , at paras. 5-6 . This is true even for grave offences that require deterrence and denunciation, as in Spencer , where the court considered that the defendant had “much to offer her children” in setting the sentence.
46 Courts follow this approach to protect both the defendant’s family members and society. While defendants and not the courts are to be blamed for the adverse consequences that those family members may suffer ( R. c. Gauthier (1994), 64 Q.A.C. 306 (C.A.) , at para. 30 ), those family members are still innocent. They do not deserve to suffer for the defendant’s crimes. And as explained in Spencer , the restraint principle, which Parliament has directed courts to apply, requires courts to prevent and mitigate these adverse consequences as much as possible. See at para. 47; see also Criminal Code , ss. 718.2(d) - (e) ; Proulx , at paras. 16-17 . This benefits society because families are its foundational fabric. See R. v. Clayton (1982) , 69 C.C.C. (2d) 81 (Ont. C.A.) , at p. 83 . Our society depends on families to raise and nurture children, transmit knowledge, skills, and values from generation to generation, and provide love, care, emotional, economic, and social support to their members.
47 Courts also take this approach to account for Parliament’s direction to foster rehabilitation and consider mitigating factors and collateral consequences. See Criminal Code , ss. 718(d) , 718.2(a) - (b) ; R. v. Pham , 2013 SCC 15 , [2013] 1 S.C.R. 739 , at paras. 11-12 . Caring and providing for family members is a mitigating factor that shows good character and can increase rehabilitative prospects. See R. v. Ali , 2022 ONCA 736 , 164 O.R. (3d) 81 , at paras. 41-42 . Further, the pain of being unable to care and provide for family members while incarcerated is a collateral consequence that increases the severity of incarceration and can jeopardize rehabilitation. See L.C. , at paras. 23-24; R. v. Szola (1977) , 33 C.C.C. (2d) 572 (Ont. C.A.) , at pp. 574-575 . Courts must thus assess “ all the relevant circumstances,” including the mitigating role of caring and providing for family members and family separation collateral consequences, to determine a proportionate sentence. See R. v. Suter , 2018 SCC 34 , [2018] 2 S.C.R. 496 , at para. 46 (emphasis in original) ; see also R. v. Bascoe , 2023 ONCJ 206 , at para. 36 . They cannot determine a proportionate sentence without considering family separation consequences. {footnotes omitted]
[48] In terms of her mental health, Ms. Gordon was diagnosed with post traumatic stress disorder (PTSD) when she was about 20 years old, approximately 14 years ago. She stated that the abuse she endured at the hands of her former partner was a factor in the diagnosis. She has also been diagnosed with general anxiety and depression. She has had suicidal thoughts. She was diagnosed with borderline personality disorder in 2020. In 2021, she was engaged in the six month Dialectical Behavioral Therapy program at Ontario Shores. The program included individual and group therapy and she found the support helpful. Ms. Gordon intends to return to group therapy.
[49] Ms. Gordon was referred for a psychiatric consultation on December 7, 2020 due to her complaints about depression anxiety and PTSD. She was admitted to Scarborough Rouge Centenary Hospital from June 6th to June 10th, 2020, with complaints of stress. Ms. Gordon was diagnosed with major depressive disorder, generalized anxiety disorder panic disorder with agoraphobia PTSD and dissociative disorder. She has a history of engaging in self harm in the form of occasional head banging and sometimes hears voices. On February 3rd, 2021, she was admitted to the hospital due to depressed mood, lack of energy and appetite, an inability to concentrate and thoughts of self harm.
[50] She attempted to take her life on two occasions as she felt stagnant and unable to cope. Ms. White reported that her sister’s mental health is worse since her arrest and she often broke down in tears about the fact that her son was handcuffed. Ms. White said that Ms. Gordon’s sons once called her because their mother had been in her room all day and was experiencing “moments of darkness.” Ms. White indicated that her sister has been doing slightly better recently.
[51] I have had the opportunity to observe Ms. Gordon during the trial before the jury, in her testimony in her own defence and during the sentencing proceedings. In her testimony, she was prone to short bursts of agitation and emotion. She was constantly visibly ill at ease. I would place her level of vulnerability very high on the scale. She often seemed unsettled and it became quite pronounced at times.
[52] Mental heath difficulties are mitigating: R. v. Batisse (2009), 2009 ONCA 114 , 93 O.R. (3d) 643 (C.A.) at para. 38 . They reduce the emphasis on general deterrence and shift the focus to rehabilitation. Ms. Richards wrote:
Ms. Gordon expressed appreciation for the opportunity to share her life with someone with a shared cultural understanding, as she felt heard and validated. Ms. Gordon has endured physical and emotional abuse at the hands of her former partner the father of her sons. It has been difficult for her to be a single parent to children with special needs. Ms. Gordon has had therapy and would like to continue when her life permits. She expressed a desire to have a purposeful life and has made attempts to follow through in her pursuit of post-secondary education.
[53] There were several positive character letters written on behalf of Ms. Gordon. Dale Gordon, no relation, has known Ms. Gordon for about eight years and described her as a loving and courteous individual who's been good to him. He has been in poor health for many years and Ms. Gordon accompanies him to the hospital three days a week for his dialysis appointments. Dale has said that Ms. Gordon is a loving mother to her children and makes sacrifices to ensure that their needs are met. There was also a very positive letter from Ms. Gordon’s brother and also from the manager of Fred Victor where Ms. Gordon has been going for community support services.
[54] In summary, from her early formative years, Ms. Gordon has been subjected to the whole gauntlet of life’s vicissitudes right up to the present day. Crushing poverty, indifferent parenting, profoundly damaging sexual abuse as a child, spousal abuse and mental health troubles. This goes far beyond the simple “plight of the courier” recognized in Cunningham . Ms. Gordon’s antecedents have a major impact on her moral blameworthiness and her responsibility for committing the offence.
MS. GORDON AND ANTI-BLACK RACISM
[55] It is important to record that the EPSR does not attempt to specifically connect Ms. Gordon’s disadvantages to her criminal behaviour. Ms. Richards wrote, “An EPSR typically provides the court with a comprehensive review of an individual’s social history and context for their involvement in the offence(s). Ms. Gordon has maintained her defence position, so the nature of her involvement in the index offence will not be discussed.” The importance and impact of Ms. Gordon’s racial identity as a Black woman was also not extensively summarized in the EPSR. For this reason, I requested that Ms. Richards provide more information on Ms. Gordon’s racial history and identity. She did so in an updated EPSR.
[56] Ms. Richards’ position is that she could not ask Ms. Gordon about how her social history could cast light on her involvement in the offence because she denied her guilt at trial. Ms. Gordon testified to duress and denied voluntarily committing the importation. Ms. Richards’ position accords with the jurisprudence with respect to the proper scope of a pre-sentence report. It is improper for a pre-sentence report author to delve into guilt or innocence when the offender has pled not guilty but has now been found guilty: R. v. Urbanovich (1985) , 19 C.C.C. (3d) 43 (Man. C.A.) at paras. 105-116 . Furthermore, Ms. Gordon could not realistically admit her guilt at this sentencing stage and it would be wrong to expect her to. An admission of guilt, because she explained on the witness stand that she was under duress, could open her up to a charge of perjury. In addition, an admission of guilt at this stage would likely defeat an appeal against conviction, an appeal which she is constitutionally entitled to file and prosecute: R. v. Farinacci (1993) , 25 C.R. (4th) 350 (Ont. C.A.) at paras. 22-31 ; R. v. Pan , 2001 SCC 42 at para. 40 ; R. v. C.P. , 2021 SCC 19 , [2021] 1 S.C.R. 679 at para. 65 per Abella J.
[57] It should be mentioned that Iacobucci J. in R. v. Shropshire , [1995] 4 S.C.R. 227 at paras. 40-41 , held that in some circumstances, if an accused pleads guilty but refrains from an explanation for the offence, a negative inference can be drawn. However, with respect to the current situation, he held: “I leave for future consideration the question of drawing a negative inference from the silence of the accused when he or she has pleaded not guilty and wishes to appeal the conviction.” In my view, a negative inference is prohibited by law in these circumstances. Such an inference would be unfair because it is propelled by the untenable expectation that Ms. Gordon ought to sacrifice her constitutional right to reviewability of the guilty verdict against her.
[58] Even without an admission of guilt, I can look at Ms. Gordon’s background and draw circumstantial inferences with respect to what may have led to the commission of the offence. While she is restricted in what she can admit, a judge on sentencing is not similarly constrained. The jury found her guilty. In law, she is guilty. It is perfectly permissible, even if she is unable to comment, to examine the full record to determine possible connections between Ms. Gordon’s history and the offence.
[59] In my view, there are several aspects of anti-Black racism which bear on the sentence to be imposed on Ms. Gordon: 1. She was a courier. It is highly likely that the people above her in the importation scheme were men. Particularly in light of her history of being the victim of sexual assaults and assaults by men, including as a child, as a Black woman she was particularly vulnerable to recruitment as a drug courier; 2. It was out of her experience as a Black woman that her fear of police officers was formed; 3. On any realistic view, anti-Black racism has permeated her life. The connections between racism and her offending conduct are clear.
[60] On the first aspect, the EPSR records the dynamics of drug trafficking both from the standpoint of it being a male documented activity and for Ms. Gordon as a Black woman. Ms. Richards writes:
From a global perspective, drug trafficking is a male-dominated activity and there is a lack of research into the issue of gender (World Drug Report, 20 arrested for involvement in the drug trade, and they are vulnerable due to economic instability, lack of education, or being victims of abuse (World Drug Report, 2018, p. 26).
A 2002 study by Julia Sudbury that was referenced in Policing Black Lives, State Violence from Slavery to the Present indicated that Black women who import drugs do so because of “economic need, threats and coercion, and deception” (Maynard, 2017, p. 146). Sudbury further asserted that women in general are excluded from the financial prosperity that is found within the drug trade, and Black women in particular are considered disposable and “set up” to serve as decoys to distract customs agents……serving as “a cheap and replaceable army of labourers” (Maynard, 2017, p. 147).
[61] With respect to the second area, Ms. Gordon testified to her fear of police and CBSA officers. This was pertinent to the issue of the element of duress which focuses on whether there was a safe avenue to escape the threat. Mr. Corriveau did not challenge the factual validity of Ms. Gordon’s testimony with respect to her feelings of Black racism against her. As I instructed the jury in the charge:
Ms. Gordon testified about her distrust of law enforcement and her feeling that they would not believe her if she were to reach out to them. You are duty bound to put yourselves in her shoes in evaluating her testimony in this regard. Her relationship with and perception of law enforcement comes from a particular place, with her specific experience and history. This is a necessary background in evaluating her psychology and what she was feeling and thinking.
[62] Ms. Richards expanded on this theme:
Ms. Gordon’s fear was rooted in her experience of being sexually abused as a young girl and physically and emotionally abused as a young woman. She finds men in positions of authority intimidating, based on her experience and perspective about police. Recent reports have affirmed that systemic racism exists within policing (OHRC, 2023; TPS, 2022, p. 2). However, people of African-descent, much like Ms. Gordon, have been concerned and fearful of police for decades because the state-sanctioned violence against Black people by police have largely gone unpunished (Maynard, 2017, p. 103). There is a dearth of research into the state-sanctioned police violence against Black women, which is concerning because it implies that they are immune from the threat of harm, which is not true (Maynard, 2017, p. 116, 125).
The fear of police extends to border agents, whom many consider to be an extension of police because of the power and authority that they have to stop, search and detain travellers. Ms. Gordon holds the same sentiment, and felt that she could not safely disclose her situation to any of the airport authorities. She expressed, “all the systems treat us like garbage, like we are the bottom of the barrel. I have that in my head”. Her perspective was affirmed by the hostility that she experienced from the white border service agent upon her arrival at Pearson airport, which she compared to that of the racialized officers who were kind to her, and one of whom suggested that his white colleague “relax” in relation to his interaction with Ms. Gordon.
Ms. Gordon’s perspective is also informed by the existence of racial profiling, defined as ‘any action undertaken for 'reasons of safety, security or public protection that relies on stereotypes about race, colour, ethnicity, ancestry, religion, or place of origin rather than on reasonable suspicion, to single out an individual for greater scrutiny or different treatment. For example, Black travellers in Canada are searched at a rate of five times more than white travellers,which particularly impacts Canadian-born Black women who are returning from vacation (Maynard, 2017, p. 145).
[63] There is confirmation for Ms. Gordon’s perspective in the jurisprudence. The Supreme Court has said in R. v. Le , 2019 SCC 34 at para. 97 :
… we have arrived at a place where the research now shows disproportionate policing of racialized and low-income communities … [there is] a common and shared experience of racialized young men [and women]: being frequently targeted, stopped, and subjected to pointed and familiar questions. The documented history of the relations between police and racialized communities would have had an impact on the perceptions of a reasonable person in the shoes of the accused.
THE ANTI-BLACK RACISM MS. GORDON HAS ENDURED IS CONNECTED TO HER OFFENCE
[64] Third, there is a clear connection between the racism she has faced and Ms. Gordon’s offence. The presence of anti-Black racism in Canada has been acknowledged as part of our law since R. v. Parks (1993) , 15 O.R. (3d) 324 (C.A.), at p. 342, leave to appeal refused, [1993] S.C.C.A. No. 481. Also see Morris , paras. 1, 42 . In Morris , the Court emphasized the importance of acknowledging anti-Black racism and removing it from the sentencing process:
86 …we accept wholeheartedly that sentencing judges must acknowledge societal complicity in systemic racism and be alert to the possibility that the sentencing process itself may foster that complicity. A frank acknowledgement of the existence of, and harm caused by, systemic anti-Black racism, combined with a careful consideration of the kind of evidence adduced in this case, will go some distance toward disassociating the sentencing process from society’s complicity in anti-Black racism.
[65] For the Crown, Mr. Corriveau disputed that there was any connection between the crime and the anti-Black racism that Ms. Gordon has suffered. I do not agree. The Court in Morris considered this question in some depth and said:
96 … the concept of causation , as it is used in the substantive criminal law, plays no role when considering the impact of an offender’s background or circumstances on sentencing . As one counsel put it, a young offender does not have to show a causal connection between age and the offence before age will be treated as a mitigating factor.
97 There must, however, be some connection between the overt and systemic racism identified in the community and the circumstances or events that are said to explain or mitigate the criminal conduct in issue. Racism may have impacted on the offender in a way that bears on the offender’s moral culpability for the crime, or it may be relevant in some other way to a determination of the appropriate sentence. Absent some connection, mitigation of sentence based simply on the existence of overt or institutional racism in the community becomes a discount based on the offender’s colour. Everyone agrees there can be no such discount: see e.g., F.H.L. , at paras. 45-49; R. v. Elvira , 2018 ONSC 7008 , at paras. 21–25 ; R. v. Ferguson , 2018 BCSC 1523 , 420 C.R.R. (2d) 22 , at paras. 126–29 ; and R. v. Biya , 2018 ONSC 6887 , at para. 36 , rev’d on other grounds, 2021 ONCA 171 .
98 Borde and Hamilton both described the connection between anti-Black racism and factors relevant to the determination of a fit sentence in broad terms. Similar language appears in Gladue and Ipeelee in respect of the relevance of “background and systemic factors”. The evidence may be relevant to sentencing in more than one way. (Emphasis added)
[66] Also see paras. 13, 90-91.
[67] The passage from R. v. Ipeelee , 2012 SCC 13 (S.C.C.) referred to in Morris states:
81 ... some cases erroneously suggest that an offender must establish a causal link between background factors and the commission of the current offence before being entitled to have those matters considered by the sentencing judge.
83 As the Ontario Court of Appeal goes on to note in Collins , it would be extremely difficult for an Aboriginal offender to ever establish a direct causal link between his circumstances and his offending. The interconnections are simply too complex. The Aboriginal Justice Inquiry of Manitoba describes the issue, at p. 86:
Cultural oppression, social inequality, the loss of self-government and systemic discrimination, which are the legacy of the Canadian government’s treatment of Aboriginal people, are intertwined and interdependent factors, and in very few cases is it possible to draw a simple and direct correlation between any one of them and the events which lead an individual Aboriginal person to commit a crime or to become incarcerated.
Furthermore , the operation of s. 718.2(e) does not logically require such a connection. Systemic and background factors do not operate as an excuse or justification for the criminal conduct. Rather, they provide the necessary context to enable a judge to determine an appropriate sentence .
(Emphasis Added )
[68] The idea that a disadvantage in an offender’s background can ever be traced directly to their offending at least for an offence like that under consideration here is misconceived. Rather, the sum total of influences upon an individual, including poverty and racial bias, contribute to “form the person who committed the crime”: see R. v. Gabriel , 2017 NSSC 90 (N.S. S.C.) at paras. 52-54 .
[69] Drug crimes like this one are motivated by and find their impetus in economics. These are crimes committed for financial gain. That is the shared objective of the directing mind of the scheme all the way down to the courier. However, while the profit motive for the head of the scheme is a major aggravating factor, the motive for the lowly courier is mitigating. Ms. Gordon is heavily burdened by growing up in poverty, being sexually abused at a young age, poor nurturing from her parents, an abusive relationship with a man, and mental illness, all in the context of anti-Black racism. It would be artificial to say that anti-Black racism is not an integral part of the context.
[70] As was said by the Court of Appeal in Morris :
179 The moral blameworthiness of Mr. Morris’s conduct is mitigated by his mental and physical health issues, as well as his educational and economic disadvantages. All of those factors are influenced by the systemic anti-Black racism Mr. Morris has experienced. The factors can only properly be understood, for the purposes of determining the appropriate sentence, by having regard to that context.
[71] Similarly, anti-Black racism pervades all the other disadvantages and detriments Ms. Gordon has experienced. It is an indelible part of her personal context. For these reasons, I believe that there are substantial reasons in mitigation of Ms. Gordon’s moral responsibility for this offence. Furthermore, her disadvantages had a contextual role to play in the commission of the offence.
CONCLUSION
[72] While it is unnecessary to find that the mitigating factors in this case are exceptional in order to depart from the Cunningham range, nonetheless they are most certainly exceptional. This is a case in which the imposition of the seven-year sentence within the six- to eight-year range as advocated for by the Crown would produce an unfit and disproportionate sentence.
[73] Some helpful guidance is provided by H. (C.N.) . In that case, the trial judge imposed a one-year jail sentence on a youthful offender after a guilty plea for importing almost four kilograms of cocaine. The respondent had co-operated with the police investigation but nothing provided was of great consequence. Other important mitigating factors were the respondent’s wilfully blind view that he was importing a small quantity of marijuana, his youth and his previously good character. These factors took the case out of the Cunningham range. The court would have imposed a three-year sentence but for the harshness of the effect of reincarceration on the respondent. In the result, the Crown appeal was dismissed.
[74] It is trite to say that no two cases are alike. None of the mitigating factors in H.(C.N.) are present in this case. None of the mitigating factors present here were found in H.(C.N.) except Ms. Gordon’s status as a first offender with previously good character. But the quantity of drugs was the same. The premier importance of H.(C.N.) is how mitigation can lower a sentence and the usual range by a substantial amount. Reference should also be made to R. v. Kelly , 2022 ONSC 5500 at paras. 34-36 .
[75] Finally, it should be noted that it has now been close to six years since Ms. Gordon has been charged with this offence. A lengthy passage of time between charge and sentence is a mitigating factor: R. v. Hartling , 2020 ONCA 243 at paras. 115-122 .
[76] In my view, there are several discrete elements to this sentencing. First, the offence is very serious as acknowledged in the case law. Second, using her son to facilitate her criminal acts is a major aggravating factor. Third, Ms. Gordon’s personal circumstances and the collateral consequences upon her dictate very substantial mitigation as a key component of the sentence to be imposed.
[77] In terms of principles, deterrence and denunciation are of high prominence by virtue of the seriousness of the offence. However, the countervailing principle pointing to a reduced term of incarceration is rehabilitation. Wagner J. (as he then was) said in Lacasse :
4 One of the main objectives of Canadian criminal law is the rehabilitation of offenders. Rehabilitation is one of the fundamental moral values that distinguish Canadian society from the societies of many other nations in the world, and it helps the courts impose sentences that are just and appropriate.
[78] In Morris , the Court said apropos of rehabilitation in the context of anti-Black racism:
79 The social context evidence can… provide a basis upon which a trial judge concludes that the fundamental purpose of sentencing, as outlined in s. 718, is better served by a sentence which, while recognizing the seriousness of the offence, gives less weight to the specific deterrence of the offender and greater weight to the rehabilitation of the offender through a sentence that addresses the societal disadvantages caused to the offender by factors such as systemic racism.
102…, social context evidence can provide valuable insight, both with respect to the need to deter the offender from future conduct, and the rehabilitative prospects of the offender. Evidence about an offender’s background and circumstances allows the sentencing judge to more accurately assess how sometimes competing objectives of sentencing, such as rehabilitation and denunciation, can best be blended to produce a sentence that accords with the proportionality principle and serves the fundamental purpose of sentencing articulated in s. 718.
[79] While denunciation and deterrence must predominate, rehabilitation is a principle of key importance for Ms. Gordon. Any sentence imposed, by reason of Ms. Gordon’s circumstances, status as a first offender, and being the mother of two boys, must pay careful attention to rehabilitation.
[80] In conclusion, it is for these reasons that I would impose a sentence of three and a half years on Ms. Gordon. I would recommend that the authorities consider temporary absence or some form of early release in order that she can tend to her two sons as soon as possible.
D.E HARRIS J. Released: April 30, 2025
COURT FILE NO.: CR-20-362 DATE: 2025 04 28 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HIS MAJESTY THE KING -and- CASSANDRA GORDON REASONS FOR SENTENCE D.E HARRIS J.
DATE: April 30, 2025