R. v. Wellington

R. v. Wellington Collection Decisions of the Court of Appeal Date 1999-02-26 Docket numbers C28234 Judges Carthy, James Joseph; Goudge, Stephen Thomas; Feldman, Kathryn N. Subject Criminal Decision Content DATE: 19990226 DOCKET: C28234 COURT OF APPEAL FOR ONTARIO CARTHY, GOUDGE AND FELDMAN JJ.A. BETWEEN: ) ) HER MAJESTY THE QUEEN ) Faiyaz Amir Alibhai ) for the appellant (Respondent) ) ) and ) ) SIMONE WELLINGTON ) Adam Boni ) for the respondent (Appellant) ) ) Heard: December 18, 1998 ) FELDMAN J.A.: [1] This is an appeal against conviction and sentence. The appellant was charged with importing into Canada a quantity of hashish contrary to s.5(1) of the Narcotic Control Act. The appellant was returning by air from Jamaica, she was searched at Pearson International Airport by customs officials, and a quantity of hashish was found in the false bottom of a cooking pot containing fish that she was carrying. CONVICTION [2] The appeal against conviction is based on some improper questioning of the appellant by Crown counsel during cross- examination about a Bob Marley T-shirt she was wearing when arrested. [3] This is not a case where the trial judge was required to declare a mistrial. The trial judge intervened immediately to stop the offending line of cross-examination. The appellant did not answer the most prejudicial question. The Crown immediately withdrew that question. The trial judge later strongly directed the jury to disregard the offending questions. Defence counsel did not feel it necessary to seek a mistrial. [4] In the circumstances the trial judge did all he could, and the Crown's error did not render the trial unfair. [5] The conviction appeal must be dismissed. SENTENCE [6] The trial judge made the following disposition with respect to sentence: Following a trial by jury the accused was found guilty of importing into Canada from Jamaica a quantity of hashish shy of 2 kilos. The accused testified she was unaware she was carrying the hashish. It is implicit by the jury's verdict that they did not accept her evidence in that regard. The accused is 26 years of age. She is a single mother. She has two children. It is evident to me from hearing her testimony and observing during the course of the trial the different colleges that she attended that she is a very intelligent woman. No doubt certain areas of her background have made life difficult for her. I wish to stress that our senior courts have made it clear that the importation of drugs into our country is one of the most pernicious offences, and in normal circumstances a very significant period of time in jail is required. It was not too long ago that there was an automatic minimum sentence of seven years for the importation of any drug. In these circumstances the Crown has asked for a reformatory term. I am required - because I believe the Crown is right that this is an appropriate case for a reformatory penalty - to consider whether or not a conditional sentence is appropriate. In my view only in the rarest of circumstances ought an offender who imports narcotics into this country be given a conditional sentence. This is not one of those rarest of cases. In the circumstances I am sentencing the accused to fifteen months in jail. [7] The appellant submits that this is a case where a conditional sentence was appropriate and should have been considered based on all of the factors in s. 742.1 of the Criminal Code. [8] In R. v. Ly and Nguyen (1997), 114 C.C.C. (3d) 279 this court stated that the conditional sentence section “will be looked to only rarely in cases of drug trafficking” (p.286). However, subsequent decisions of this court and of other appellate courts which have considered s.742.1, beginning with R. v. Wismayer (1997), 33 O.R. (3d) 225 (C.A.), have made it clear that there is no prohibition against imposing a conditional sentence for any particular offence including drug offences, unless specifically excluded by Parliament. See also R. v. Proulx (1997), 121 C.C.C. (3d) 68 (Man. C.A.), R v. L.F.W. (1997), 155 Nfld. & P.E.I.R. 115 (Nfld. C.A.), R. v. R. (R.A.) (1997), 125 C.C.C. (3d) 558 (Man. C.A.)1 R. c. Gagnon [1998] A.Q. no. 2775 (Que. C.A.), R. v. Parker (1997), 116 C.C.C. (3d) 236 (N.S.C.A.) and R. v. Ursel (1997), 117 C.C.C. (3d) 289 (B.C.C.A.). [9] In R. v. Wismayer, this court pointed out that s. 742.1 by its terms can apply to any offence where a reformatory sentence is appropriate, and that the goals of both general deterrence and denunciation can be achieved by the imposition of a conditional sentence. Rosenberg J.A. specifically approved the following statement of Mercer J. in R. v. L.F.W. (1996), 146 Nfld. & P.E.I.R. 298: It is correct that appellate jurisprudence had established that for certain offences, including sexual offences involving children and serious drug offences, incarceration was to be the norm. It is a principle of statutory interpretation that Parliament is presumed to legislate with knowledge of the existing state of the law. Parliament did not exclude certain offences from s.742.1, nor did it impose more rigorous standards in respect of certain offences before a conditional sentence could be considered. I therefore reject the contention that for certain offences incarceration must continue to be the norm and conditional sentences can only be granted in exceptional circumstances. [emphasis added by Rosenberg J.A.] [10] This court provided further elaboration on the issue of how the important sentencing objectives of general deterrence and denunciation are accommodated within the conditional sentencing regime in the subsequent case of R. v. Biancofiore (1997), 35 O.R. (3d) 782 (C.A.). There the court addressed the fact that the offence of drinking and driving is the type of offence which is more likely to be deterred by the spectre of incarceration, so that general deterrence can justify incarceration for such a crime. In the particular case where there were many aggravating factors including the fact that the offender was in breach of probation, acted illegally in taking the car and recklessly in driving it, as well as maimed another person, the court held that the denunciatory burden should be borne by the offender by a term of incarceration. However, the court emphasized that a conditional sentence can still be available in drinking and driving cases in the appropriate circumstances. The court concluded at pp. 794-95: To reiterate, it is not any single factor that made a conditional sentence unfit in this case. Nor do the severe consequences of the crime standing alone preclude a conditional sentence, for example, see: R. v. Kontosoros, [1997] O.J. No. 3061 (C.A.). There may well be cases where a conditional sentence is a proper disposition for a drinking and driving offence resulting in serious harm. The sentencing decision involves first and foremost a consideration of the mitigating and aggravating factors of the particular case. However, the combination of aggravating features in this case and the particular need for both denunciation and general deterrence for drinking and driving offences lead me to conclude that this was clearly not a case for a conditional sentence. [11] In a brief endorsement after Wismayer, supra, in R. v. Berbeck, [1997] O.J. No. 2434 (C.A.) which dismissed an appeal by the Crown from a conditional sentence imposed at trial in a drug importing case, this court stated: “We are not to be taken, however, as indicating that conditional sentences are ordinarily appropriate for drug importing offences. See R. v. Nguyen”. The court there was reconfirming its concern that although conditional sentences are not prohibited for drug importation, courts must be cautious in imposing conditional sentences for such offences. [12] This court has made it clear that in cases involving the importation of drugs into Canada, sentences must be significant in order to send a message to those who would not otherwise be involved but who may be tempted by the payment promised to act as a drug delivery service, that they will be subject to being sentenced harshly and severely for their role. The reason of course is that because it is the otherwise innocent person who will raise less suspicion at the border and who is more likely to successfully import the drugs, the courier role is crucial to drug dealers who do not wish to take the risk themselves, and who would receive even more substantial sentences upon conviction. [13] This court has not changed its policy of significant sentences for importing drugs into Canada with the advent of conditional sentences. However, where the sentencing judge determines that the appropriate duration of sentence in all the circumstances is less than two years, then the propriety of a conditional sentence to be served in the community instead of in custody must be considered in the usual manner. Therefore, although statistically conditional sentences will be less frequent in certain types of cases including drug trafficking and importing, the approach which a sentencing court is to take when considering imposing a conditional sentence in any particular case is the same for all offences. The court is not to begin with a rule that the circumstances of the case itself must be rare or unusual. Rather, each case must be approached on the basis that it will be considered on its particular facts taking into account the nature of the offence, the circumstances surrounding the commission of the offence, as well as the personal circumstances of the offender. [14] For example, where a sentence under two years is appropriate in the case of importation of drugs into Canada by a courier or “mule”, some of the factors which are relevant in considering the propriety of a conditional sentence relating to the commission of the offence will include the nature and quantity of the drug, the degree of involvement of the courier in the scheme to import, including the planning and the timing of her involvement as disclosed by the evidence, and whether the courier has had any involvement with illegal drugs in the past. The court must also consider all of the relevant facts relating to the personal circumstances of the offender in order to properly consider whether a conditional sentence is appropriate.2 [15] In this case, it was incumbent on the trial judge to consider all of the circumstances in accordance with the requirements of s.742.1 and the jurisprudence, and not to apply a perfunctory rule that the case “is not one of those rarest of case”, without further consideration. [16] Because it was an error in principle for the trial judge to apply that rule without giving full consideration to the availability of a conditional sentence, this court is therefore able to consider what the appropriate sentence should have been. See R. v. Shropshire, [1995] 4 S.C.R. 227 and R. v. Gagnon, supra. [17] In this case, the appellant was 26 years old at the time of the sentence. She had no criminal record and no involvement with drugs. The drug involved was hashish, which is a serious illegal substance, but not nearly as addictive or otherwise dangerous as cocaine, heroin or some others. The amount was under two kilos which is not insignificant. The appellant was caught at the airport with the drug in a false bottom of a pot containing fish. The appellant denied any knowledge of the drug and said that at the end of a visit to her grandmother in Jamaica, she was approached by a neighbour of her grandmother to deliver the pot of fish to a friend of his in Toronto. This story was clearly rejected by the jury. However, there is no evidence to suggest any involvement other than agreeing to deliver the pot containing the drugs. [18] The appellant is a single mother with two young children, one under one year at the time of the sentencing. The older child who was six years at the time, required special classes in school for behavioural problems. These were to be provided by the Toronto Board of Education. However, if the children had to live with their grandmother during the period of incarceration, they would have to move to Ajax. There is no information as to what educational accommodation could be made for the child there. The presentence report indicated that in the circumstances of a single parent, the young age of both children and the special needs of one, that the children's need for their mother to remain with them at that time was critical. The appellant was employed in training as a receptionist at an automotive shop, and was acting responsibly towards her family. She had previously completed community college and had attended business school. The presentence report was very favourable and recommended community supervision. There appears to be little or no danger to the community. There are no aggravating factors. [19] In my view, these are circumstances where a conditional sentence of 15 months to be served in the community but with strict conditions is appropriate to achieve the principles of sentencing set out in ss. 718 - 718.2 of the Code and in the jurisprudence. I would not interfere with the length of sentence imposed by the trial judge. Fifteen months is a significant term, as it should be for this offence. This length of sentence is imposed to achieve general as well as specific deterrence and denunciation. Taking into account all of the factors of the offence itself, together with the particular circumstances of the offender including the special needs of her young children, in my view, it is an appropriate case for the sentence to be served in the community. I agree with the analysis of Fish J.A. of the Quebec Court of Appeal in R. v. Gagnon, supra, where, in replacing a sentence of 12 months in prison with a conditional sentence of 12 months including a curfew for two months, he stated: [para84] More particularly, I believe that a conditional one-year sentence of imprisonment adequately denounces appellant’s unlawful conduct…if she is thereby deprived of her liberty in a significant manner for a sufficient period of time. It takes into account the objective of general deterrence…. It recognizes that there is no real need to separate appellant from the community…. It will assist in her rehabilitation…. It helps to promote a sense of responsibility in the offender…. It is proportionate to the gravity of the offence and to appellant’s degree of responsibility in committing it…. It takes into account the mitigating circumstances (there are no significant aggravating circumstances)…. And, of manifest significance under s.742.1(b), it does not unduly deprive the appellant of her liberty in circumstances where a less restrictive sanction is appropriate. [20] I would therefore allow the appeal as to sentence, and impose the same term of 15 months but to be served in the community, together with a curfew of 7:00 p.m. to 7:00 a.m. subject to any special variation granted by the supervisor, 100 hours of community service (10 hours per month for the first 10 months) as well as the statutory conditions set out in s. 742.3(1). I would also impose a period of probation of 18 months with reporting as required by the probation officer, and no travel outside the province except with permission of the officer and only for emergency reasons. Released: February 26, 1999 _______________________________ 1 The Supreme Court of Canada has granted leave to appeal in Proulx, L.F.W. and R. (R..A.) and will be hearing those cases together, along with three additional cases in 1999. 2 When the offence is committed after May 14, 1997, and the charge is laid under the Controlled Drug and Substances Act, the court must also have regard to the purpose of sentencing as set out in s.10(1) as well as to the aggravating factors set out in s.10(2) of that Act. Section 10(3) provides: “Where, pursuant to ss.(1) [sic], the court is satisfied of the existence of one or more of the aggravating factors enumerated in that subsection, but decides not to sentence the person to imprisonment, the court shall give reasons for that decision.” This section gives the courts further guidance as to the intention of Parliament with respect to specific circumstances which a court must address when considering whether a non-custodial sentence is or is not appropriate.