R. v. Scheuer

2017 BCSC 2552 R. v. Scheuer

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Scheuer, 2017 BCSC 2552 Date: 20171221 Docket: 27269 Registry: Vancouver Regina v. Iveta Scheuer Before: The Honourable Madam Justice Warren Reasons for Sentencing Counsel for the Crown: Margaret Loda Heather Magnin Counsel for the Accused: Esther L. Kornfeld Place and Dates of Trial: Vancouver, B.C. October 16-19, 23-27 and 30, 2017 Place and Date of Sentencing: Vancouver, B.C. December 21, 2017 [1] THE COURT: Iveta Scheuer was convicted by a jury of importing approximately 2.6 kg of opium into Canada on November 27, 2016, contrary to s. 6(1) of the Controlled Drugs and Substances Act, S.C. 1996, c.

19. The jury also convicted Ms. Scheuer of the possession of that opium for the purpose of trafficking contrary to s. 5(2) of the same Act. [2] Ms. Scheuer is 50 years old. She was born in Slovakia but she resided in Germany for several years prior to the events that underlie these convictions. She has a grade nine education. She has an adult son and two grandchildren who live in Slovakia. She was divorced from her first husband. She then married a German man and moved with him to Germany. That marriage also ended in divorce. She remained in Germany where she worked as a cleaner in a hospital. She has had a knee replacement and she suffers from considerable knee pain. [3] On November 27, 2016, Ms. Scheuer flew into the Vancouver International Airport from Istanbul Turkey, via London. Her ticket showed that she intended to stay here for four days. Other documentation indicated that she was booked into a hotel close to the airport for those four days. Upon arriving at the Vancouver airport Ms. Scheuer went through primary and secondary inspection by border services officers. During that inspection, approximately 2.6 kg of opium was found concealed in the walls of her two suitcases. Even before the opium was discovered, Ms. Scheuer had been dishonest with the border service officers when they asked her questions about her trip. For example, she initially said she had won the

tickets and then later she said a friend named Hassan had purchased the tickets for her. Neither of those statements was true. It was admitted at trial that the opium was worth between $40,000 and $70,000. [4] Ms. Scheuer testified at the trial that a man she knew only as "Mike" paid for her trip to Vancouver, gave her the suitcases, and asked her to deliver them to an unnamed individual at a hotel here. She testified that Mike told her she would be contacted by someone once she got to the hotel and this person would come to the hotel to collect the suitcases. She had an empty bag packed in the suitcases that was to be used to transport her belongings back home, after leaving the two suitcases here. She testified that she did not know the opium was in the suitcases. [5] Ms. Scheuer testified that she met Mike for the first time in a coffee shop in Istanbul during an earlier trip there, when she was on vacation. She testified that he spoke German, was Arabic, and appeared to be in his late 30s. He took her sightseeing. She gave him her phone number but he did not give her his phone number. [6] Ms. Scheuer testified that she and Mike developed a friendship but she never learned his full name. She said she asked him how old he was, but he always said something different. She said he was also evasive when she asked about the nature of his business. [7] Sometime after Ms. Scheuer

returned to Germany following her vacation in Istanbul, Mike contacted her and invited her to visit him in Frankfurt. She did so. Sometime after that he invited her to Istanbul and during that trip, on his suggestion, they then made a trip to Tokyo. Sometime later, when she was back in Germany after the first trip to Tokyo, Mike contacted her again and invited her to go to Ankara in Turkey. Again, during that trip, on his suggestion, they made another trip to Tokyo. She testified that Mike paid most of the costs associated with these trips, that he gave her pocket money and bought her things, but that he had never before asked her to take anything with her. [8] Ms. Scheuer testified that it was sometime after the second trip to Japan, when she was back in Germany, that Mike contacted her again and suggested that she make a trip to Vancouver. She testified that he arranged for money to be given to her in Germany for her to purchase tickets to travel first to Istanbul and then to Vancouver. She flew to Istanbul on November 23, 2017, where she stayed there in a hotel for a couple of days. Her flight to Vancouver was on November 27, 2016. She testified that before she left the hotel in Istanbul to go to the airport, Mike gave her the two suitcases in which the drugs were found. As already mentioned, he told her to take the suitcases to Vancouver and explained that when she got to

the hotel someone would call her and arrange to pick up the suitcases. [9] Ms. Scheuer testified that she asked Mike why she was to deliver the suitcases to someone in Vancouver and he said, "You don't need to know--it's not a bad thing". She initially testified that he did not tell her what was in the suitcases and she did not look inside them herself. She acknowledged that after the drugs had been found she told an RCMP officer, Cpl. Paldy, that Mike told her there were passports in the suitcase. However, in cross-examination at trial, she said she lied when she told Cpl. Paldy that Mike told her there were passports in the suitcases. At trial she testified that she and Mike did not discuss her taking passports. However, she later said that when Mike was packing her suitcases maybe he said there are documents inside. She also said she did not remember any conversation with Mike about what was in the suitcases. However, she claimed that she did not think there was anything like drugs in the suitcases. [10] Ms. Scheuer testified that Mike told her he would pay her €3000 when she got back from Vancouver. She said he had never done that before. When asked whether she wondered why he would do that she said "no". When asked whether she asked him why he would pay her €3000 she said "no". She agreed that she was happy to get the €3000. [11] As noted, the opium was discovered in Ms.

Scheuer's suitcases when she arrived at the airport on November 27, 2016. She has been in custody during the roughly 13 months since then. [12] In convicting Ms. Scheuer of the offence of importing a controlled substance, the jury had to find that the Crown had proved, beyond a reasonable doubt, that Ms. Scheuer imported the opium into Canada, that she knew she was doing so, and that the importing was intentional. In convicting Ms. Scheuer of the offence of possession for the purpose of trafficking, the jury had to find that the Crown had proved, beyond a reasonable doubt, that Ms. Scheuer was in possession of opium, that she knew she was in possession, and that she had possession for the purpose of trafficking. It was not contested that on the day in question, Ms. Scheuer brought the opium into Canada, through Vancouver International Airport in Richmond, and that she intended to deliver it to someone else here. Accordingly, the live issue for the jury, in respect of both counts, was whether the Crown had proved, beyond a reasonable doubt, that Ms. Scheuer had the knowledge required in law to be guilty of these charges. Her knowledge could be proved in two different ways: the Crown had to establish, beyond a reasonable doubt, that she had actual knowledge or that she was wilfully blind. [13] The jury was satisfied that the knowledge element had been established. I am required

to accept as proven all facts, express or implied, that are essential to the jury's verdict of guilty: s. 724(2)(a) of the Criminal Code, R.S.C. 1985, c. C-46. I do not know whether the jury considered the knowledge element to be satisfied through actual knowledge or whether they relied on wilful blindness. While I accept that I am entitled, in these circumstances, to make my own findings, in my view, for purposes of sentencing on these offences, there is no material difference between wilful blindness and actual knowledge. Wilful blindness can only be found where it can almost be said that the accused actually knew. It requires a finding that the accused suspected and realized the probability of what she was doing but refrained from obtaining the final confirmation because she wanted to be able to deny knowledge. In the circumstances, the culpability associated with each form of knowledge is essentially the same. For these reasons it is not necessary for me to make a finding as to whether Ms. Scheuer had actual knowledge. [14] According to the authorities in this province, the usual range of sentence for the offences in question is between three and seven years of imprisonment: R. v. Aghabeigi, 2004 BCCA 263 and R. v. Pirouz, 2009 BCCA 51. This was recently recognized by Mr. Justice Davies in R. v. Salamat Ravandi, 2015 BCSC 2167. Of course, sentencing is an inherently

individualized process and the unique circumstances of a case may justify a departure from the usual range. [15] That was the situation in Pirouz where the Court of Appeal upheld a conditional sentence of two years less a day to be followed by two years' probation for an offender who was an addict and a convention refugee from Iran, who suffered PTSD and depression, and where a medical report indicated that if he was imprisoned it was all but certain that his emotional state would unravel. Similarly, in R. v. Eshghabadi, 2009 BCSC 1875, a sentence of two years less a day was imposed on each of two offenders in circumstances where the offenders had lived under stringent bail conditions for a full six years prior to conviction. The court found that those circumstances had already furthered the goals of rehabilitation, deterrence and denunciation. The court also emphasized that, at that time, there was a significant distinction between the immigration consequences for the offenders that would arise from a sentence of two years less a day versus a sentence of two years or more. As observed by the Court of Appeal in R. v. Henareh, 2017 BCCA 24, as a result of subsequent legislative changes that distinction now attaches to a sentence of less than six months versus six months or more. [16] The Crown submits that having regard to all of the circumstances of this case, a sentence of

three years jail with credit for time served calculated at a ratio of 1.5 to 1 is necessary to appropriately conform with the usual range. [17] The defence submits that given Ms. Scheuer's particular personal circumstances, a sentence of time already served is appropriate. [18] The provisions of the Criminal Code govern sentencing in this country. Section 718 of the Code provides: The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (b) to deter the offender and other persons from committing offences; (c) to separate offenders from society, where necessary; (d) to assist in rehabilitating offenders; (e) to provide reparations for harm done to victims or to the community; and (f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. [19] Section 718.1 expresses the fundamental principle as follows: A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [20] Section 718.2 sets out other important sentencing principles, including: a sentence

should be increased or reduced to account for aggravating and mitigating circumstances; and, a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. [21] From the authorities provided to me by the Crown and the provisions of the Criminal Code referred to, it is apparent that the primary considerations in this case are: · sentencing is an individualized process and the sentence imposed must be proportionate both to the gravity of the offence and the degree of responsibility of the offender; · having said that, a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; · for these offences, deterrence and denunciation are of primary importance, although rehabilitation and the offender's personal circumstances are, as always, given significance; · the importation of opium is generally treated as less serious than the importation of other Schedule I drugs, including heroin and cocaine; and · as noted, the usual range in British Columbia for these offences is between three and seven years but I have the discretion to depart from that range in appropriate circumstances. [22] The Crown points to the following factors as aggravating factors: 1. Opium is a Schedule I drug; that is, it is a serious drug even if it is less harmful than heroin and cocaine.

2. Although the amount of opium imported by Ms. Scheuer, at 2.6 kg, is less than the quantity in issue in some of the cases I was referred to, 2.6 kg is still a significant quantity.

3. The opium was concealed in the suitcases in a particularly sophisticated manner clearly intended to avoid detection.

4. The only motive that can reasonably be inferred is financial gain, as Ms. Scheuer admitted that she was to receive €3000.

5. Ms. Scheuer has only a fleeting connection to Canada. She intended to deliver a deleterious substance to this community and then not stay here to witness its negative effects. [23] The Crown submits that the only mitigating factor is that Ms. Scheuer does appear to suffer from some health issues, particularly knee pain, such that she may find prison to be more difficult than at least some other offenders. The Crown submits that Ms. Scheuer has not indicated genuine remorse and that her lack of criminal record is not really a mitigating factor because people who import drugs must be able to freely cross borders such that the absence of a criminal record is virtually a requirement for committing the offence. [24] The Crown says that there are no special circumstances that would justify a departure from the usual range of three to seven years but that the amount of opium involved in this case, at about 2.6 kg, together with Ms. Scheuer's health issues warrant a sentence at the low end of the range. The Crown says the most similar case is a decision of the provincial Court in R. v. Bahari, 2016 BCPC 447. In that case, the offender smuggled 3 kg of opium through the airport and was sentenced to three years of imprisonment. The Crown says there were more compelling mitigating factors in that case, including a guilty plea, an expression of remorse, and strong support in the community. [25] Ms. Kornfeld, on behalf of Ms. Scheuer, emphasized the factors she submits are mitigating circumstances: 1. The value of the opium is relatively low and its nature makes it less dangerous than other Schedule I drugs.

2. Ms. Scheuer was a vulnerable person, of low economic status, who was preyed upon by Mike.

3. Ms. Scheuer's personal circumstances including her poor health, her age, her inability to speak fluent English, and her lack of any personal connections in this community are such that the effect of jail on her will be substantially greater than would be the case on the offenders in the cases where the usual range was applied. [26] Ms. Kornfeld submitted that Ms. Scheuer is not in need of rehabilitation and that she has already been punished as a result of being separated from her family for more than a year, and as a result of having acquired a criminal record that will make it virtually impossible for her to travel freely again. Ms. Kornfeld submitted that denunciation and deterrence should not weigh heavily in my analysis because the custodial sentences that have been imposed have not stopped drug importation. She said that three years "is not a magic number" and that there is no public interest in continuing to detain Ms. Scheuer here, in Canada, with the cost of her incarceration being borne by the taxpayers of this country. [27] I do not accept that denunciation and deterrence should be disregarded or minimized in my assessment. I certainly agree that three years is not a "magic" number and, as already noted, sentencing is a very individualized process. However, three years is a number that the courts of this province have said is at the low end of the range required,

in most cases, to meet the objectives of denunciation and deterrence. My reading of the authorities indicates that denunciation and deterrence are of primary importance when sentencing offenders for serious drug offences, particularly in cases involving importation. [28] In my view, the nature of the drug is not an aggravating or mitigating factor but rather a factor that is reflected in the range. [29] I do not consider it open to me, on the record, to find that Ms. Scheuer was particularly vulnerable. I accept that as a cleaner in a hospital she most likely did not have a significant income but she did not testify to having been in any dire financial circumstances and, according to her own testimony, she was comfortable enough financially to have financed her own trip to Istanbul, on the occasion when she first met Mike. [30] Similarly, there was no suggestion in the record that she was coerced or forced by Mike to do what she did. I accept that Ms. Scheuer's role was a relatively unsophisticated one. There was no indication that she was the mastermind or involved in significant planning. But the reality is that her role was a necessary one. Without someone prepared to carry the suitcases, the drugs would not find their way into this community. The importance of her role is evident from the fact that she was to be paid €3000. Profit was clearly her motive and, in my view,

this is an aggravating factor. [31] Again, although Ms. Scheuer will suffer as a consequence of continued incarceration, she was willing to engage in criminal activity that is recognized as having serious negative effects on this community, purely for profit. I accept that her knee pain, her inability to speak fluent English, and her lack of any personal connections in this community make serving time in prison particularly difficult for her. However, her circumstances are not nearly as compelling as those that were present in Pirouz and in Eshghabadi, where sentences below the range were found to be appropriate. Ms. Scheuer's particular circumstances do not justify a departure from what appears to me to be a well-established range for these serious offences. Rather, the fact that the effect of prison on her might be somewhat more pronounced than is typically the case, and the fact that the quantity of opium involved is less than that involved in some of the other cases, justify a sentence at the low end of the range; that is, three years on each count to be served concurrently. [32] Ms. Scheuer please stand. [33] For the reasons I have expressed, I sentence you to three years' imprisonment on each of the two counts, to be served concurrently. That means a total of three years. However, you will be credited for the time you have already served at a ratio of 1.5 to 1. This means

that for every day you have served you will receive a credit of a day and a half. You have already served 389 days. Accordingly, you will get a credit of 584 days. You have 511 days still to serve. [34] I am also making the two ancillary orders requested by the Crown. There is a mandatory 10-year weapons prohibition under s. 109(2) of the Criminal Code for these offences. In addition, these offences are secondary designated defences under s. 487.04 of the Criminal Code and I am satisfied that it is in the best interests of the administration of justice for a DNA sample to be taken pursuant to s. 487.051. Accordingly, you will be obliged to provide a sample of a bodily substance reasonably required for the purpose of forensic DNA analysis. The results of that analysis will be placed into a database. [35] Counsel, is there anything else? [36] Ms. Scheuer, you may have a seat. [37] THE CLERK: Secondary -- primary or secondary for the -- [38] THE COURT: Secondary. [39] THE CLERK: Secondary, and -- [40] THE INTERPRETER: She is asking where this is -- whether this is going to be taken in prison? [41] MS. KORNFELD: Why? [42] THE INTERPRETER: The DNA. [43] MS. KORNFELD: Yes. [44] MS. LODA: Oh, victim surcharge. [45] THE COURT: Is a victim surcharge still mandatory? [46] MS. LODA: It is -- the mandatory nature has been -- it is mandatory, but I believe it has been deemed unconstitutional; is that right, Ms. Kornfeld? [47] MS. KORNFELD: Yes, I do not think it is going to be imposed. [48] MS. LODA: I do not think the mandatory has been -- I think the mandatory nature of it has been deemed unconstitutional and I do not think that Ms. Kornfeld [sic, Scheuer] will be in a position to pay it. [49] THE COURT: All right. No victim surcharge. "WARREN J."