Sentencing Reasons

Court File No: CR-21-707
Date: 2025-06-06
Ontario Superior Court of Justice

Between:
His Majesty the King
Christopher Kalantzis, for the Crown
- and -
Nicola Owen
Mitchel Chernovsky as Amicus Curiae

Heard: January 13, February 12, March 21, 28, May 14, 2025

Sentencing Reasons
D.E. Harris

Introduction

[1] These are sentencing reasons. Nicola Owen was convicted before Dawson J. and a jury of importing heroin into Canada. Since Justice Dawson has now retired it falls to me to perform this sentencing task: see s. 669.2(1)(c) of the Criminal Code. The Crown asks for a sentence of 13 years incarceration while Mr. Chernovsky, acting as amicus curiae, has recommended a sentence between 9 and 10 years.

Facts and Offence Details

[2] The quantity of heroin was almost 8 kilograms. It was found in three different locations in Ms. Owen’s luggage. The purity of the only batch of the three tested was only 18%. Following s. 724 of the Criminal Code, the Crown cannot prove beyond a reasonable doubt any higher purity amount in any other part of the total imported. In my view, it is consequently necessary as a matter of law to conclude that the rest of the heroin was of no higher purity than the 18% tested. If sold at the kilogram quantity, it would sell for $636,287 to $874,000. At street level, it would sell for 1.4 million.

Sentencing Range and Proportionality

[3] The Court of Appeal has set the range for multi-kilogram amounts of heroin imported by couriers at between 12 and 17 years: R. v. Sidhu, 2009 ONCA 81, para. 12; R. v. Mensah. A range of sentence expresses the gravity of the offence within s. 718.1 of the Code, one of the two essential components of a proportionate sentence. The other essential component in s. 718.1 is the responsibility of the offender.

[4] I apply to this sentencing my recent comments concerning the effect of a stated appellate range in R. v. Gordon, 2025 ONSC 2597, para. 25. A proportionate sentence requires full attention be paid both to the gravity of the offence and the responsibility of the offender: R. v. Proulx, 2000 SCC 5 at para. 83. The two are separate and cannot be blended. The caselaw makes this clear. Also, it has long been held that a range is not an inflexible straitjacket: R. v. Parranto, 2021 SCC 46 at paras. 16, 36.

Personal Circumstances of the Offender

[5] Dealing first with the offender, Ms. Owen is a first offender. Her presentence report was positive. She is 55 years old and was born in Cardiff, Wales. She was adopted as an infant and came to Canada with her parents and her brother Neil when she was six years of age. According to Ms. Owen and her brother, their childhood and upbringing was good. They grew up for the most part on Vancouver Island.

[6] Ms. Owen was in a common law relationship with a man for four years. A daughter, Samantha, was born of this union. Both Ms. Owen and her brother are close to Samantha. Another child was born of a subsequent common law relationship with another man who died shortly after the child was born. Ms. Owen has little if any contact with this child.

[7] Ms. Owen is currently residing on her own in an apartment in the town of Ladysmith on Vancouver Island. In terms of her education she graduated from Chermainus Secondary School in 1988. She was often bullied in elementary and secondary school. She obtained a certificate in hairdressing and later, a certificate as a support worker for long term care.

[8] Ms. Owen worked for the Vancouver Island Health Authority as a cleaner for approximately 10 years. Currently she is a self-employed cleaner and has a contract cleaning and maintaining the apartment building that her brother Neil manages.

[9] She also receives disability compensation. Ms. Owen suffers from vasculitis and lost part of a finger to the condition. She was diagnosed with this condition 14 years ago and reports that her liver is starting to fail from the effects of the medication she is on. The precise degree that the vasculitis impedes Ms. Owen’s life cannot be ascertained from the material before me.

[10] There was good character evidence filed on behalf of Ms. Owen. Her daughter wrote a letter, there was a very positive petition from tenants in the building for which she is the maintenance person and also several glowing letters from three of the tenants.

Mitigating and Aggravating Factors

[11] The leading authorities and in particular Sidhu require that I impose a very substantial penitentiary sentence on Ms. Owen. The two mitigating factors are her previous good character, including her lack of a criminal record, and the vasculitis disease. This disease will undoubtably cause some additional hardship beyond the norm during her period of incarceration.

[12] With respect to the offence, the 18% purity of the heroin is a relevant consideration in this case. Purity can be a factor on sentencing: see e.g. the cocaine cases of R. v. McCrea, 2015 ONSC 4711 at paras. 67-76; R. v. Hamilton at paras. 151-153; and the heroin case of R. v. Zahor, 2016 ONSC 7586 at paras. 47-49. These basic observations can be distilled from the leading authorities:

i. Purity levels generally have no part to play in a courier’s moral blameworthiness as a courier will not be aware of levels of purity in their limited role;
ii. A sentencing judge cannot notionally simply lower the quantity of the drug imported by a finding that the purity level was low and adjusting down the weight of the drug; and
iii. The purity of the drug is nonetheless relevant to the seriousness of the offence.

The Role of Purity and Quantity

[13] The fundamental logic propelling drug sentencing is that the higher the quantity, the greater the damage to the public and the higher ought to be the sentence. There is a direct correlation between the quantity of the drug and the gravity of the crime. As was said in Hamilton at para. 151: “The purer the cocaine, the wider its potential distribution, and therefore the greater the harm it may cause in the community.” That is why in R. v. Cunningham, para. 16, a two tier threshold of sentence was established: one for up to about a kilogram of cocaine and then one for multi-kilograms. The difference in sentence between the two tiers is marked: Cunningham, at para. 16. For heroin, quantity is a major factor as well: Sidhu, at para. 14.

[14] If the purity level of a drug is low, the same logic must apply. That does not mean that a court ought to become a bean counter and parse between 80 percent purity and 90 percent purity, for example: see Hamilton, para. 151. The difference is negligible and no weight can be put on it.

[15] However, in Hamilton, the court said:

153… In cases where the purity is low and the weight near the bottom end of the “a kilogram more or less” amount referred to in Madden, the offence may fall outside of the Madden range entirely.

[16] I do not think it is wrong given the low purity in this case to conclude that it reduces significantly the seriousness of the offence. To that end, if the drug were 80% pure as opposed to the less than 20% which it was, that would be a four fold increase. Applying this to weight, this would divide by 4 the total weight of the drug, bringing it down from 8 kilograms to 2 kilograms.

[17] To be clear, this does not dictate the sentence in this case. But the low purity is a factor that must be considered in arriving at a proportionate sentence. The Crown on sentencing, in advocating in his submissions for a sentence of 13 years—towards the bottom of the Sidhu range—specifically referred to the low purity of the heroin.

[18] Furthermore, it is not without significance that the Sidhu court in establishing the sentencing range said:

14… as a general rule, absent exceptional or extenuating circumstances, first offender couriers who import large amounts of high grade heroin into Canada for personal gain should expect to receive sentences consistent with the twelve to seventeen year range suggested by the Crown. To be clear, when we refer to “large amounts” of high grade heroin, we are not referring solely to multiple kilograms; as authorities from this court and other courts show, lesser amounts will often attract similar, if slightly lower, penalties (see para. 20 below). (Emphasis added)

[19] The heroin imported in this case was indisputably not “high grade” heroin. At some point, differences in degree become differences in kind. The level of purity of this heroin constitutes a difference in kind. It is truly unique in the jurisprudence. There is no case unearthed by counsel in which the purity of the heroin is as low as it is in this case. It is difficult to understand why such a low purity of the drug would be imported. Amongst other things, it tends to show that this was not an organized commercial operation: McCrea, para. 73.

Conclusion and Sentence

[20] In my view, with the mitigating factors of previous good character and the collateral consequences of Ms. Owen’s physical condition, together with the low purity of the drug, the total circumstances call for a sentence below the Sidhu range of 12-17 years. Added to this is the five years which have passed since the offence and Ms. Owen’s impecuniosity. I have also considered that Ms. Owen will be incarcerated far from her home and supports, including her brother and daughter, in British Columbia. Together, in context, these factors amount to compelling circumstances to depart from the range: Gordon, para. 25.

[21] Putting it all together, in my view, the appropriate sentence proportionate to the offence and the offender is 9 years. That will be the sentence. I will endorse the indictment accordingly. The ancillary orders requested will issue per the endorsement on the indictment.

D.E. Harris
Date: June 6, 2025