R. v. Lewis, 2018 ONCJ 430

CITATION: R. v. Lewis, 2018 ONCJ 430 DATE: June 12, 2018 Information No. 2811-998-17-33306-02 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. NIGEL GREGORY LEWIS R E A S O N S F O R S E N T E N C E BEFORE THE HONOURABLE JUSTICE M.S. FELIX on June 12, 2018 , at OSHAWA , Ontario APPEARANCES : P. Greenway Counsel for the Crown B. Plant Counsel for Nigel Lewis TUESDAY, JUNE 12, 2018 R E A S O N S F O R S E N T E N C E FELIX, J. (Orally): This is the sentencing of Nigel Gregory Lewis.

At the outset, it will be apparent that I am giving judgment on sentence perhaps half an hour to 40 minutes after receiving submissions. To be frank, I have been thinking about this decision for a while and also both the

Federal Prosecutor and Mr. Plant sent me material ahead of time, to assist me with coming to the right sentence in this case. Ordinarily,as counsel are aware, judges will adjourn cases so that very polished reasons can be presented, but I am not going to do that in this casetoday. I am going to do my best to just simply address the core issues. The lawyers have done a lot of the work for me. I reserve theright, if a transcript is ordered, to provide full citations, which I won’t necessarily do in this case today.

Second of all, any editorialchanges that do not affect the content, I reserve the right to make those changes. INTRODUCTION The gentleman before the Court is found guilty of possession of a

Schedule I substance for the purpose of trafficking, contrary to s. 5(2)of the Controlled Drugs and Substances Act and importing into Canada less than one kilogram of the

Schedule I substance cocaine,contrary to s. 6(3)(

a) of the Controlled Drugs and Substances Act, arising out of a police investigation in January 2017. With respect to procedure, the Federal Prosecutor notified the Court that the Federal Prosecution Service did not provide notice withrespect to mandatory minimum sentences, increased penalties, as is required by the Controlled Drugs and Substances Act. In any event,in my view, I alerted counsel to a case called R. v. C.S. 2018 ONSC 1141 [C.S.], where Justice C. Hill considered the constitutionality ofthe mandatory minimum sentence for importing and the bar to conditional sentences presented by s. 742.1(

c) of the Criminal Code ofCanada. The Court ruled that s. 6(3)(a)(

i) of the Controlled Drugs and Substances Act is inconsistent with s. 12 of the Charter and notjustified under s. 1 of the Charter. The Court declared the

section of no force and effect under s. 52 of the Constitution Act. The Courtdid not find the bar to the availability of conditional sentences to violate the Charter. In my respectful view, the declaration of invalidityapplies to this sentencing: (See the reasons in R. v. Scarlett 2013 ONSC 562, at para. 33 - 44 and the Supreme Court of Canada decisionin R. v. Lloyd 2016 SCC 13.) I will address the Kienapple v. The Queen, (SCC), [1975] 1 S.C.R. 729 [Kienapple] issue next. The defendant submitsthat the possession for the purpose should be Kienappled.

Kienapple prohibits convictions for the same delict, matter or cause. At page750 of the Kienapple decision, Justice Laskin said: The relevant inquiry so far as res judicata is concerned is whether the same cause or matter (rather than the same offence) iscomprehended by two or more offences. In R. v. Prince (SCC), [1986] 2 S.C.R. 480 [Prince], Chief Justice Dickson explained at paragraphs 17, 20 and 21 thescope of the Kienapple principle and the factual nexus between the charges. 17.

It is elementary that Kienapple does not prohibit a multiplicity of convictions, each in respect of a different factual incident.Offenders have always been exposed to criminal liability for each occasion on which they have transgressed the law, and Kienapple doesnot purport to alter this perfectly sound principle. 20. In most cases, I believe, the factual nexus requirement will be satisfied by an affirmative answer to the question: Does the same actof the accused ground each of the charges? As Côté demonstrates, however, it will not always be easy to define when one act ends andanother begins.

Not only are there peculiar problems associated with continuing offences, but there exists the possibility of achievingdifferent answers to this question according to the degree of generality at which

an act is defined. Such difficulties will have to beresolved on an individual basis as cases arise, having regard to factors such as the remoteness or proximity of the events in time andplace. The Nexus Between the Offences: Need There be One? 21. The next question which must be addressed is whether the presence of a sufficient factual nexus is the only requirement which mustbe met in order to justify application of the Kienapple principle.

The Supreme Court of Canada went on to cite numerous examples where a single act may involve two or more delicts bearing little or noconnection each other, in paragraph 24 of Prince. The Court also explained that the common element test did not apply: See Prince atparas. 25 to 28. Finally, the Court concluded at paragraph 32, and I quote: 32.

I conclude, therefore, that the requirement of sufficient proximity between offences will only be satisfied if there is no additional anddistinguishing element that goes to guilt contained in the offence for which a conviction is sought to be precluded by the Kienappleprinciple. One may import illegal drugs for personal use. One can think of several hypothetical examples, such as a cancer patient buyingmarijuana on-line for personal use. The medical circumstances and the amount purchased may inform the analysis on importation.

The first count in this case involves importing. Importing is the complete offence. There is no subtext, importing for the purpose of trafficking. This Court has found the defendant guilty of possession for the purpose of trafficking as well. In reasons already provided, I relied upon the expert opinion evidence and the quantity of imported cocaine. These convictions, in my view, deal with different criminal liability, for which society is entitled to stigmatize. There is no violation of the Kienapple principle in this case. This does not, however, mean that the principle of totality of sentence is abandoned.

POSITION OF THE FEDERAL PROSECUTOR The prosecutor seeks a sentence of three to four years in the penitentiary, a s. 109 order for 10 years, a weapons prohibition, and the two offences are enumerated secondary offences. Furthermore, the Crown seeks forfeiture of all items seized by the police. POSITION OF THE DEFENDANT The defendant, through submissions, seeks a sentence of six to nine months jail and does not contest the ancillary orders. SENTENCE This is a difficult case. Certainly I identify very much with the gentleman before the Court, his circumstances. Perhaps I understand very well his circumstances.

However, I have, for the reasons that follow, determined that the sentence in this case will be as follows: On the importing, the sentence will be three and a half years. Madam Clerk, I will express the sentence in days, 1,278. For the reasons that follow, I am going to give the gentleman some credit for Downes and Ijam time on restrictive bail, in the amount of 6 months for the 18 months he was on bail, totalling 180 days. Therefore, the sentence to serve on the importing is three years or 1,098 days.

With respect to the possession for the purpose, the second count, I sentence the gentleman to six months in custody concurrent. In other words, Madam Clerk, please note 180 days concurrent to the sentence being served on the importation. While I understand that these two counts are not Kienappled , I have considered the principle of totality of sentence in arriving at the decision to make the sentences run concurrent, rather than consecutive, and I will explain these circumstances further in this judgment.

CIRCUMSTANCES OF THE OFFENCE The factual findings and circumstances of the offences, this was all set out in my findings at trial. In sum, the defendant imported approximately 133 grams of cocaine via a courier from Trinidad and Tobago. BACKGROUND OF THE DEFENDANT The defendant was born in 1986, in Trinidad, and came to Canada in 2004. He has received limited family support. His father is in Brampton, his mother in Trinidad. He is lucky he had an aunt who helped him in Scarborough, gave him a place to stay.

Through the force of his good character, his intelligence, his hard work and his obvious good approach with people, he has found numerous allies and friends. I re-read the letters filed by Mr. Plant and I accept the sentiments set out in those letters. EMPLOYMENT HISTORY The defendant has worked hard with the opportunity he has been given in Canada. He has been a labourer, worked in a logistics company and worked as a designated driver. Currently he is working as a mover and a designated driver part-time. IMMIGRATION STATUS

Counsel has carefully outlined his immigration status in Canada. He is not a Canadian Citizen. The submissions, I wish to emphasize, of counsel and the multitude of letters presented on the sentencing make it clear to me that the defendant is a good person. I do not, respectfully, tend to the view submitted by the prosecutor that the authors of the letters perhaps do not have insight into his background. The letters were of great assistance and frankly caused me to mitigate the sentence in this case that I was originally considering.

IMPACT ON THE VICTIM OR COMMUNITY There is no singular victim in this case but the obvious consideration is the involvement of this defendant in harming the community through the perpetuation of the drug trade and the resultant impact on those who are addicted and their families who live in this jurisdiction. APPLICABLE SENTENCING PRINCIPLES Section 10(1) of the Controlled Drugs and Substance Act addresses the fundamental purpose of this sentencing. The fundamental purpose of any sentence for an offence under this

part is to contribute to the respect for the law and the maintenance of a just, peaceful and safe society, while encouraging rehabilitation and treatment in appropriate circumstances of offenders and acknowledging the harm done to victims and to the community. Under s. 10(2) of the Controlled Drugs and Substances Act I am required to acknowledge a relevant aggravating factor, which is this gentleman has been previously convicted of a designated substance offence. In addition to that provided by the CDSA, the Criminal Code of Canada sets out several important objectives and considerations with respect to sentence.

Parliament has set out the fundamental purpose of sentencing in s. 718 of the Criminal Code ;

a) to protect society;

b) contribute along with crime prevention initiatives to respect for the law; and maintenance of a just, peaceful and safe society by imposing just sanctions with certain objectives. In this particular case, the following objectives are important: To denounce the unlawful conduct and the harm done to the community; to deter the offender specifically and other persons from committing these offences; to separate offenders from society when necessary; to rehabilitate offenders; to provide reparations for harm done to the community; and to ensure that the offender acknowledges responsibility for the harm done to the community.

Section 718.1 of the Criminal Code mandates that a sentence be proportionate to the gravity of the offence and the degree of responsibility of the offender. A sentence should be similar to sentences imposed on similar offenders, for similar offences committed in similar circumstances. As pointed out by both counsel and acknowledged by the Court, despite the research done by both counsel and the research done by the Court, there is no similar case. Every case is unique. Every case is driven by its particular fact scenario and the background and antecedents of the offender and the relevant sentencing principles.

In terms of the gravity of the offence, these are obviously very, very serious offences. One of the matters, possession of the purpose of trafficking, has a maximum sentence of life in prison. The degree of responsibility of the offender, in this particular case the facts, for reasons that I will outline further, point towards his responsibility in this matter. I must also consider that where consecutive sentences are imposed, the combined sentence should not be too long and harsh and I should also consider totality. I have addressed that by making the sentences concurrent, rather than consecutive in this case.

In my respectful view, I had jurisdiction to make them consecutive and I declined to do so because of my consideration of all of the circumstances in this case. Other sentencing objectives; I should strive to impose less restrictive sanctions if appropriate and I should consider all other reasonable available sanctions other than prison, that are consistent with the harm done to the community. I have considered those factors and I acknowledge Mr. Plant’s impact on me, frankly, with respect to the sentence that I have imposed today.

I have considered all of the sentencing principles and, as I am required to, I have considered all lesser sanctions. Only a sentence of incarceration can address the sentencing principles at play.

CIRCUMSTANCES OF THE OFFENCE – THE ROLE OF THE DEFENDANT The defendant has not testified at the sentencing to assist me with his role in the enterprise. As such, I must have resort to objectivefactors to attempt to classify his role. I have been a judge in Durham Region for four years. I know that importing charges are a rarephenomenon in this jurisdiction. There is no evidence that the defendant is part of a traditional organized crime group or a largeinternational drug trafficking enterprise. The prosecution has called no evidence on this point.

The phone seized from the defendant wasnot even analyzed and presented in evidence. I Peel Region, an area Mr. Plant and I know with some experience with the offence ofimporting because of the international airport, there are at times efforts taken to provide more fulsome information, by investigatingassociates and other suspects and presenting that information. I don’t have any of that information in this proceeding. There is also noevidence that the defendant himself attended Trinidad and couriered the parcel to himself.

The objective facts reveal that the defendant sought to conceal his purpose by using an unassociated residence for delivery. All that Iknow from these objective facts is that the defendant, by definition, was involved in an international, that is transnational drug networkinvolved in the transshipment of a large quantity of

Schedule I drugs. By definition, he either agreed, or conspired, or assisted personsoutside of the country to secret manufactured powdered cocaine into fruit. I do not know, on the record placed before me, what his exactrole within this organized activity was. In some cases, evidence is called so that the circumstances surrounding the involvement aremade clear.

One can think of any one of the cases we have read in preparation for the sentencing where, for example, a drug courier atthe airport provides evidence about how she was approached or the circumstances around how she got a ticket to go to a Caribbeanisland and that sort of thing. I this case, I don’t have that evidence. In this case, I also respectfully stopped senior counsel from givingevidence in submissions as, if there was going to be an explanation, evidence is required. Submissions are not evidence. I can only evaluate the record before me.

In my view, the defendant before the Court is more of a managerial level in some sort oforganization. He is not a foot runner or a simple mule. He is not a lowly courier for hire, but he is also not the kingpin in charge of thisenterprise. To the best of my ability, based on the record place before me, that is my evaluation of this gentleman’s role. It’s my viewthat when sentencing someone for drug offences, the Court should strive to make sure that that role is explained. CIRCUMSTANCES OF THE OFFENCE – IMPORTING COCAINE Cocaine is a highly addictive narcotic drug.

A cocaine addict struggles daily with that addiction to narcotics and objectively speaking noone, not counsel before the Court or any members of the public, would reasonably contest the fact that cocaine importation is a seriousoffence. The offence is punishable by a maximum term of life imprisonment. Parliament has put into place mandatory minimumsentences. I recognize those don’t apply, but Parliament, the will of the country was in play in bringing those factors in. I rely on a case provided to me, thank you very much, by Mr. Plant, a well-known case of R. v. Hamilton and Mason(ON CA), [2004] O.J.

No. 3252 (C.A.), at paras. 104 - 105, where Justice Doherty said, and I quote: 104. The importation of dangerous drugs like cocaine and others found in

Schedule I of the Controlled and Substances Act, S.C. 1996, c.19 has always been considered among the most serious crimes known to Canadian law. The immense direct and indirect social and economic harm done throughout the Canadian community by cocaine is well known. The use and sale of cocaine kills and harms both directly and indirectly. The direct adverse health effects on those who use the drug areenormous and disastrous. Cocaine sale and use is closely and strongly associated with violent crime. Cocaine importation begets amultiplicity of violent acts. 105. Cocaine is not indigenous to Canada.

Without the cocaine importer, whatever his or her motive or involvement, there would be nococaine problem. Both before and after the amendments to the sentencing provisions in

Part XXIII of the and the introduction of thesentencing provision (s. 10) into the Controlled Drugs and Substances Act, S.C. 1996, c. 19, this court has emphasized the gravity of thecrime and, therefore, the need to stress denunciation and deterrence in sentencing all drug importers, even vulnerable first offenders. I note as well parenthetically that the Supreme Court of Canada in R. v.

Lloyd 2016 SCC 13 [2016] 1 S.C.R. 130 at paragraph26, the Chief Justice of the Supreme Court of Canada noted that: “...Schedule I drugs are highly addictive and inflict great harm onindividuals and society...” There is a very serious drug problem in the Durham Region. As a judge presiding day in and day out in this jurisdiction, I see the impactevery single day. I see the impact of addiction and I see the impact of crime associated with fuelling that addiction. I also see crimeassociated with the sale and distribution of drugs like cocaine.

I must also specifically note that importing is a more serious offence than possession for the purpose of trafficking, which objectively isserious enough: See R. v. Wu. (ON CA), [2002] O.J. No. 4758 (C.A.). In this particular case, circling back again to the circumstances of the offence and the importing, the risk to the defendant in this case wasfairly low. By shipping product by way of courier and involving an innocent address, he is limiting the opportunity to detect hisactivity.

But for international cooperation with the border authorities in the United Kingdom and coordination with Canada Post and theDurham Regional Police, and significant expenditure of resources, this crime would not have been detected. As a trial judge, I amallowed to use common sense and think pragmatically. I know that every single parcel cannot and every single parcel is not inspected bycustoms officials. Who knows how many parcels were sent, how many are missed and whether this practice continues unabated? It mayeven be simply the cost of doing business.

But it is certainly a concern that the method used by the defendant in this case is sophisticatedenough to limit detection. The open question is, having regard to this analysis of the circumstances of the offence, how does a courtconvey a deterrent message to the defendant and those like him who would take such chances? Having assessed the defendant’s role inthe offences before the Court, as well as his antecedence, I will now explain why my sentence is a proportionate sentence. RANGE OF SENTENCE In 1996 the Ontario Court of Appeal set out a range of sentence for importing in R. v.

Cunningham, (ON CA), [1996]104 C.C.C. (3d) 542 (Ont.CA), at paragraphs 1, 20 to 22, the Court said as follows: This appeal calls into question the appropriate range of sentence for a first offender, acting as a courier, who imports multiple kilogramsof cocaine into Canada for personal gain. We take no issue with the sentence in Bayne.

Indeed, after careful consideration, we are all of the view that as a general rule, absentexceptional or extenuating circumstances, the range of sentence for first offender couriers who smuggle large amounts of cocaine intoCanada for personal gain should be six to eight years in the penitentiary. In establishing such a range, we readily acknowledge thatsentencing is not an exact science and that trial judges must retain the necessary degree of flexibility to do justice in individual cases. Werecognize as well that the suggested range will often require the imposition of a severe penalty for first offenders.

We are not insensitiveto this concern, mindful as we must be that in many instances, couriers tend to be weak and vulnerable, thereby becoming easy prey tothose who engage in drug trafficking on a commercial basis. Sympathetic though we are to the plight of many couriers, such concerns must give way to the need to protect society from the untoldgrief and misery occasioned by the illicit use of hard drugs. In this regard, we can do no better than to quote from the majority judgmentin R. v. Smith, (SCC), [1987] 1 S.C.R. 1045, 34 C.C.C. (3d) 97.

While the case is best known for the successful attackupon the constitutional validity of the minimum seven-year sentence for importing a narcotic pursuant to s. 5(2) of the Narcotic ControlAct, R.S.C. 1970, c. N-1, as amended, the remarks made by Lamer J. at the outset of his reasons bear repetition: Those who import and market hard drugs for lucre are responsible for the gradual but inexorable degeneration of many of their fellowhuman beings as a result of their becoming drug addicts.

The direct cause of the hardship cast upon their victims and their families, theseimporters must also be made to bear their fair share of the guilt for the innumerable serious crimes of all sorts committed by addicts inorder to feed their demand for drugs. Such persons, with few exceptions (as an example, the guilt of addicts who import not only to meetbut also to finance their needs is not necessarily the same in degree as that of cold-blooded non-users), should, upon conviction, in myrespectful view, be sentenced to and actually serve long periods of penal servitude.

There can be no doubt that commercial traffickers rely heavily on couriers to facilitate their deadly trade. That being so, it falls to thecourts to warn would-be couriers, in no uncertain terms, that they will pay a heavy price for choosing to import large quantities of harddrugs for quick personal gain. I note in this case that there is no evidence of the defendant feeding an addiction or importing to address an addiction or to finance anaddiction. The only motivation in this case was commercial.

In C.S., the case from Justice Hill that I referred counsel to, Justice Hill, in his usual manner, concisely articulated and updated theapproach by the Ontario Court of Appeal, at paragraphs 73 to 77. OCA SENTENCE RANGES FOR COCAINE IMPORTATION [73] Over two decades ago, the Ontario Court of Appeal formulated sentencing ranges for first offender couriers who, for personal gain,import cocaine into Canada: R. v. Cunningham (1996), (ON CA), 27 O.R. (3d) 786; and R. v. Madden (1996), 1996

10228 (ON CA), 27 O.R. (3d) 640. While performing an essential role in a drug distribution network, a courier is generally alow-rung actor without intimate connection to the greater organized crime enterprise: R. v. McCrea, 2015 ONSC 4711 at paras.43-46. [74] The starting ranges in these brief sentencing authorities, tied primarily to the weight of the imported cocaine, have withstood thetest of time without revision. As observed by Doherty J.A. in Hamilton and Mason, at para. 106, the Ontario Court of Appeal “hasrepeatedly reiterated the approach in Regina v.

Cunningham”. [75] In the Madden case, the courier importer pled guilty to importing 770 g. of cocaine. The appeal court considered the appropriaterange to be 3 to 5 years’ imprisonment. Cunningham, a courier importer of 5.2 kg. of cocaine, pled guilty. The appeal court reiterated itsposition that the 3-to-5-year range was a starting point for “first offender couriers convicted of importing a kilogram, more or less, ofcocaine for personal gain”.

For an offender in Cunningham’s circumstances, the starting range of sentence was described in these terms:“...the range of sentence for first offender couriers who smuggle large amounts of cocaine into Canada for personal gain should be six[6] to eight [8] years in the penitentiary.” [76] There is perhaps a touch of irony that the legal community, as a constituency priding itself on generally eschewing resort tomathematics in the sentencing function, then, not without at least a degree of arbitrariness, ties sentencing ranges to selected differencesin the gram-weight of particular illicit substances. [77] The minimal weight of the cocaine imported for personal gain by a first offender courier, before it will be considered as subject tothe 6 to 8-year range, may not be entirely clear.

Cunningham spoke in terms of “large amounts of cocaine”. In R. v. Phillips, 2000 ONCA726, at para. 59, an instance of importation of 2.5 kg. of cocaine, the court described the range in these terms: “a courier in theimportation of several kilograms of cocaine is six to eight years: see R. v. Cunningham”. And other authorities which I won’t repeat. In R. v. Bajada (2003), (ON CA), 173 C.C.C. (3d) 255 (Ont.

C.A.), at paras. 9-10, the court again noted that theCunningham range, applying to the importation of “large amounts of cocaine”, differed from the facts of the case in part because therewas not an amount of drugs “of the multi kilogram magnitude in Cunningham”. [78] Judicial commentary as to the upper reach of the Madden range of courier importation of cocaine, importation of “a kilogram, moreor less”, may be derived from N.H. (C.), at para. 23 (Madden stands for importation of “around a kilogram of cocaine”) with thesequantities held to fall within the Madden range.

THE INTERPLAY BETWEEN SENTENCE RANGES AND PROPORTIONATE SENTENCES The challenge identified by Justice Hill in the C.S. case is, Justice Hill analyzed how courts have struggled with the appropriate sentencerange and seemingly have focussed on mathematics and simple measurements of the amounts in place. In my respectful view, aproportionate sentence requires the analysis of more than just the amount in play. The amount in play is not an unimportant factor but itis not the driving factor in sentencing, in my respectful view.

The choice of a sentencing range or of a category within a range is withinthe discretion of the sentencing judge: See the Supreme Court of Canada in R. v. Lacasse, 2015 SCC 51 2015 SCC, at para. 51[Lacasse]. I have the choice of deciding whether a range is applicable, whether I should give effect to it and whether it is appropriate. Ialso note the caution of the Supreme Court of Canada in Lacasse that sentence ranges are merely guidelines. Thus I conclude, while Iam mindful of the sentencing range outlined and maintained by the Ontario Court of Appeal, there are three cautions in

summary that Ibear in mind: One, as explained in Lacasse, sentence ranges are merely guidelines; two, as explained in Lacasse at paragraph 58, therewill always be situations that call for a sentence outside of a particular range because even though parity in sentencing is desirable, everycrime is unique, committed by a unique offender and the determination of a just and appropriate sentence is a highly individualizedexercise, that goes beyond a purely mathematical calculation (Lacasse paragraph 58); finally, circling back again to Justice Hill in thecase of C.S. at paragraphs 82 to 83, and I quote: [82] Be that as it may, the established ranges feature the weight of the imported substance as the chief factor for placement of anoffender within a judicially-identified range of sentence.

This is so although couriers often do not know the weight of the prohibitedsubstance imported or, as recognized in R. v. Wong, [2001] HCA 64, at para. 68, the purity of the drug or necessarily the identity of theimported substance “except that it is a quantity of narcotic”. [83] Undue focus upon the weight of the substance imported by a courier can threaten to swallow a holistic approach to sentencing –individualized sentencing cannot become an exercise of sentencing by the pound.

For all of these reasons, I think the approach purely driven by weight risks a disproportionate sentence and I interpret the guidance of theOntario Court of Appeal in Cunningham and Madden as to mean that other principles of sentencing are also to be considered. I am notruling that the amount is irrelevant. It is just one factor to consider. MITIGATING FACTORS The defendant is an adult offender, in his thirties. I have examined the judicial interim release order and I am satisfied that it was arestrictive bail, with a curfew and restriction on his access to a phone.

I do not find that the bail was oppressive, given the circumstancesof the offence and the defendant’s prior record, but I am convinced by the submissions of Mr. Plant to give effect to the principles set outin R. v. Downes, (ON CA), [2006] O.J. No. 555. (Ont.CA) [Downes] and R. v. Ijam, 2007 ONCA 597 [Ijam]. There isno mathematical formula. This is why, for approximately 18 months on judicial interim release, I credited the defendant with six monthsof custody, to be subtracted from his actual jail sentence.

AGGRAVATING FACTORS The primary focus of this sentencing again must be denunciation and deterrence, based on the circumstances of the offence that I

outlined in my judgment at trial. While the background of the gentleman, and the letters filed, and the views held by loved ones and friends are important to me as a human being, it is not the primary factor in this sentencing. Section 10(2)(

b) of the CDSA and the relevant cases make it clear that importing and trafficking in large amounts of cocaine requires a serious denunciatory sentence, designed to send a message to drug traffickers, the defendant before the Court and anyone of like mind. The defendant before this Court has a prior conviction for trafficking, for which he has already received a custodial sentence. I think it is of particular importance that common sense and pragmatism play a role in criminal law and in this sentencing.

Pragmatically, there is no way for Canada and the criminal law to deter the world from exporting drugs to Canada. There is no way for the criminal law and Canada to deter every person within Canada from importing drugs. The focus on this case nevertheless must be on the person who participated in an organized endeavour to bring the drugs into Canada. As I have noted, pragmatically, sending parcels through the mail reduces exposure for the traffickers. So does using innocent addresses for delivery.

I also have noted that using innocent addresses places the occupants of that address at risk from drug-related violence, such as home invasions, any other criminal acts associated with the drug trade. It is critically important to send a message to the defendant personally. He was not deterred by his previous custodial sentence. It is critically important to send a message to anyone who would be of the same mind to take such risks, that if caught they are going to receive a significant sentence of incarceration.

OTHER FACTORS Many cases importation involve circumstances where an underprivileged, vulnerable person is sourced to be a courier, also known as a mule. At times, such vulnerable individuals are offered paid trips abroad and to a degree their gullibility is exploited. As I have indicated earlier in this judgment, there is no evidence that this is what occurred in this case.

Other factors I have considered in reading the cases in this area of law, at times assistance is provided to the police ancillary to the position that someone has been duped, or someone is a courier, a vulnerable courier, those sorts of individuals provide assistance to the police and this has been recognized by the courts. I have no evidence of this in this case. Another factor that I have considered, as cautioned by Mr. Plant, the defendant ran a trial, which is his right. The trial was litigated in a focussed and professional manner.

I have not penalized the gentleman for running a trial but, as in many cases in this area, he does not receive the benefit of the remorse associated with a guilty plea. That is the only consequence from running a trial. COLLATERAL CONSEQUENCES I have considered the broad principles set out by the Supreme Court of Canada in case of R. v. Pham 2013 SCC 15 . I am familiar with the case. I am familiar with the issue. It is an issue that arises often in sentencing. But I am also cognizant that immigration issues may not overwhelm my analysis, such that I impose a sentence that is disproportionate or unfit.

The sentencing process cannot be used to circumvent Parliament’s will in enacting other legislation, including the IRPA filed in this case. In this particular case, it is suggested that there will be an immigration consequence, but I recognize that immigration consequences are not embedded in the principles of sentence to be considered in this case. Bluntly put, if this was a case where the proportionate sentence would be in the range of six months, I would of course lower the sentence to give effect to the principles outlined in Pham and to give the gentleman some benefit from that recognition.

But that is to be done in cases where the proportionate and just sentence is very close. I cannot, no matter how sympathetic I am for the gentleman before the Court and his circumstances, as a judge sworn to uphold the law, I cannot honestly say that six month or thereabouts is the appropriate sentence in this case. I have a duty to set out clearly my rationale for the sentence that I have imposed. For these reasons, that is the sentence in this case. MR. GREENWAY: Thank you, Your Honour. With respect to the collateral orders, Your Honour. THE COURT: Yes. Sorry, sir, have a seat for one more moment.

The s. 490 order is granted. The DNA application is granted on both counts. I completely forgot about the ancillary orders. I have considered the impact on the gentleman’s privacy and his circumstances. I have also considered appellate jurisprudence that tells me it’s not a punishment. The enumerated secondary ground offences, both of them, I will give effect to the application. I have ordered forfeiture and there is a s. 109 order for 10 years, having regard to the circumstances in this case. MR. GREENWAY: Thank you, Your Honour. Just one comment with respect to the forfeiture.

My friend indicated to me that there was also an iPhone that was recovered by the police. I have prepared a draft order of disposition. The Crown is content that the iPhone be returned to Mr. Lewis and it is embodied in this draft order, which I believe is agreeable with Mr. Plant. MR. PLANT: Yes, it is, Your Honour. THE COURT: I am content with that, as well. MR. PLANT: Thank you.

MR. GREENWAY: Thank you. THE COURT: Madam Clerk, I have to address the victim fine surcharge. The victim fine surcharge, Mr. Plant, it’s the law. I have to impose $200 on each count. One day jail in default, Madam Clerk, concurrent, and I will give the gentleman five years to pay those surcharges. **********