Reasons for Sentence

Court File No.: CR-19-00001768-0000
Date: January 15, 2025
Ontario Superior Court of Justice

Between:
His Majesty the King
A. Hrivnak, for the Crown

- and -

Brenda Dufort
M. Falovo, for the Defence

Heard: October 30, 2024

Baltman J.

Overview

[1] Ms. Dufort is 48 years old and has been convicted by me in a judge alone trial of importing approximately two kilos of cocaine, hidden inside the suitcase she brought from Trinidad into Canada. She is now before me for sentencing.

The Facts

Circumstances of the Offence

[2] On March 3, 2019, Ms. Dufort arrived at Pearson Airport in Toronto on a flight from Trinidad. While she was retrieving her suitcase at the baggage terminal, a drug-sniffing dog signaled that the suitcase possibly contained contraband. After Ms. Dufort’s referral to the secondary inspection counter, officers found 2064.1 grams (i.e. approximately 2 kilos) of cocaine concealed inside an Xbox within her suitcase. The value of the cocaine ranges from $99,072 to $227,051, depending on whether it is sold in Canada by the gram or by the kilogram.

[3] At trial Ms. Dufort testified that before this trip she was a regular purchaser of marijuana, from a dealer in Toronto named “Red”. When she told Red that she was travelling to Trinidad on a vacation, he offered to pay her $5,000 to bring some money back to Canada. She agreed, believing she would be transporting currency, not narcotics. While in Trinidad, Red’s associate brought her the Xbox to take back to Canada. She assumed the box only contained money.

[4] In my reasons for judgment (R. v. Dufort, 2024 ONSC 2031), I rejected Ms. Dufort’s explanation, finding it was contradicted by numerous text messages between her and her friend Theresa (who was originally scheduled to travel with her), particularly as several of the messages referred to the transporting of “stuff” and “product”. I concluded that Ms. Dufort knew that her handlers dealt in cocaine, and she accepted, without question or inspection, the package that was delivered to her and placed it in her luggage. I found she was, at a minimum, willfully blind to the contents of the Xbox, but more likely knew what it contained.

Circumstances of the Offender

[5] A pre-sentence report (PSR) was submitted to the court. It is largely favorable and indicates that Ms. Dufort appears remorseful for the offence, characterizing her involvement as a “mistake”.

[6] Ms. Dufort was born and raised in Toronto. She has one sibling, a sister with whom she resides and has a close relationship. Her parents are still alive, and she has a good relationship with them as well.

[7] Since completing high school Ms. Dufort has worked in a variety of jobs, most recently as a delivery/courier driver. She studied immigration law in college and hopes to eventually become an immigration consultant.

[8] Ms. Dufort has been separated from her husband since August 2022. He resides in Cuba, and she had begun the immigration process for him to reside in Canada but due to their separation, that process was terminated. Ms. Dufort does not have any children but remains close with her stepson and communicates with him frequently.

[9] The PSR indicates that Ms. Dufort was cooperative during her interview, and that her friends and family members view this behaviour as out of character and are highly supportive of her going forward.

Positions of Crown and Defence

[10] The Crown seeks a penitentiary sentence of six years. The Defence argues for a term of four years.

Analysis

[11] Our Court of Appeal has stated that as a general rule, absent unusual or extenuating circumstances, first time couriers who smuggle large amounts (i.e. multiple kilos) of cocaine into Canada for personal gain should receive a sentence of six to eight years in the penitentiary. This is in recognition of the devastating effects of the drug on people’s health and its strong association with violent crime, prompting the Court to characterize cocaine importation as “both a violent and serious offence”: R. v. Cunningham, para. 20; R. v. Hamilton, para. 104.

[12] While the objectives of denunciation and deterrence are prominent features of sentencing importing offenders, the court should also consider other principles such as proportionality and rehabilitation. The proportionality principle, in particular, requires the court to impose a punishment that is not only proportionate to the crime but also to the offender.

[13] On that point there are some important mitigating features here that in my view bring Ms. Dufort not just toward, but slightly below the lower end of the usual range of 6-8 years.

[14] First, other than a very dated, minor fraud conviction (which the Crown is not relying upon), Ms. Dufort has no criminal record.

[15] Second, she has strong family support and received a positive PSR that identifies her as having good prospects of rehabilitation.

[16] Third, through both paid employment and volunteer work she has been a positive and contributing member of society.

[17] Fourth, she has some health concerns, in particular a kidney condition which requires ongoing treatment.

[18] Fifth, and finally, she offered some assistance to the authorities in their investigation of this offence. Following her arrest, she identified “Red” in a photo lineup and gave police his telephone number. She did this without disclosing her involvement in the scheme.

[19] Collectively, these factors resemble the case of R. v. Zeisig, 2016 ONCA 845, where the Court of Appeal upheld a sentence of 5 years and 4 months for the importation of 2 kilos of cocaine.

[20] Cases relied upon by the defence, with much lower sentences (R. v. C.N.H., R. v. Sharma, 2018 ONSC 1141) can easily be distinguished, as the offender in those cases pleaded guilty, a compelling mitigating factor that is not present here. The mitigating factors in this case bring Ms. Dufort slightly below the usual range of 6-8 years incarceration, but not dramatically.

[21] I also decline to factor in a Downes credit, as there is no evidence that the bail restrictions in this case had a significant impact on Ms. Dufort. On the contrary, at her request the bail was varied in December of 2021 and in April of 2023 to permit her to travel outside of the country.

Conclusion

[22] After balancing the competing factors present in this case and having regard to the jurisprudence, I conclude that a fit sentence is 5.5 years. In addition, Ms. Dufort will be subject to collateral orders, pursuant to s. 109(2)(a) and 109(2)(b) for 10 years and life respectively, along with an order for a DNA sample.

Baltman J.
Released: January 15, 2025