R. v. T.G., 2015 ONCJ 751

Information No. 3111-998-15-5659-02 CITATION: R. v. T.G. , 2015 ONCJ 751 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. T.G. ********** P R O C E E D I N G S BEFORE THE HONOURABLE JUSTICE J. STRIBOPOULOS on December 18, 2015, at BRAMPTON, Ontario APPEARANCES : S. Montefiore A. Mamo Counsel for the Federal Crown Counsel for T.G. **********

ONTARIO COURT OF JUSTICE T A B L E O F C O N T E N T S ********** REASONS FOR SENTENCE PAGE 1 ********** Legend [sic] – indicates preceding word has been reproduced verbatim and is not a transcription error. (ph) – indicates preceding word has been spelled phonetically.

Transcript Ordered: December 21, 2015 Transcript Completed: January 11, 2016 Date Counsel Notified: January 11, 2016 FRIDAY, DECEMBER 18, 2015 Introduction: On May 9, 2015, Ms. T.G., an Antiguan national, entered Canada in the company of her three-year-old daughter. There were 4,322 grams of cocaine secreted within the false bottoms of the two suitcases that Ms. T.G. brought into Canada. On December 14, 2015, Ms. T.G. pled guilty before me to a charge of importing cocaine into Canada, contrary to s. 6(1) of the Controlled Drugs and Substances Act . The parties disagree on the appropriate sentence in this case.

For the Crown, Ms. Montefiore submits that a sentence of seven years imprisonment is warranted. In contrast, defence counsel, Ms. Mamo, submits that there are a number of mitigating factors that justify the imposition of a sentence of five years imprisonment, less credit for Ms. T.G.’s time spent in pre-trial detention. Ms. T.G. is currently eight months pregnant. Due to the late stage of her pregnancy, the parties are agreed that there is a degree of urgency in this matter that requires that I proceed with sentencing as expeditiously as possible. These are my reasons for sentence.

Circumstances of the Offence: On May 9, 2015, Ms. T.G. arrived in Canada aboard an Air Canada flight from Antigua. Ms. T.G. was travelling with her co-accused, Teesha Thomas. Each of the women was also accompanied by a child; in the case of Ms. Thomas, her four-year-old daughter; and in the case of Ms. T.G., her two-year-old daughter. It would appear that the two women attracted the attention of Canadian Border Service Agents. Their respective bags were subject to examination. Inside a suitcase claimed by Ms. T.G. the authorities discovered a second smaller suitcase.

Each of these two suitcases was discovered to have a false bottom, with cocaine hidden inside each. The total amount of cocaine found in Ms. T.G.’s luggage was 4,322 grams of cocaine. A slightly larger amount of cocaine was also found inside Ms. Thomas’ luggage; 4,354 grams. However, the Crown and the defence were agreed that the basis of Ms. T.G.’s plea was that she was the principal in the importation of the cocaine found inside her luggage only. She did not acknowledge being a party to the importation of the drugs found inside Ms. Thomas’ luggage. After her arrest, Ms.

T.G. admitted to knowing about the cocaine found in her luggage. Beyond that, however, she did not provide any assistance to the authorities. For example, she did not identify the person or persons who supplied her with the cocaine in Antigua. Nor did she inform the authorities of the identity of the intended recipient of the cocaine in Canada. Circumstances of the Offender:

Ms. T.G. is 24 years of age. She is from All Saints, a small village in Antigua. Prior to her flight to Canada on May 9, 2015, she had never before left Antigua. Ms. T.G. has two daughters, a seven-year-old and a three-year-old. (It was her three-year-old, then only two, who accompanied her on her trip to Canada.) Ms. T.G. became pregnant with her first child when she was only 17 years old. She dropped out of high school as a result. The father of her oldest child is no longer in her life and he does not provide any child support. However, Ms.

T.G. is engaged to the father of her second child and he is also the father of the child that she is now expecting. The couple do not live together. Her fiancé lives and works in the capital, St. John’s. Unfortunately, although he provides Ms. T.G. and her daughters with emotional support, he apparently provides her with limited financial assistance. Before her arrest, Ms. T.G. was living with her mother, her siblings, and her two daughters. Apparently, Ms. T.G. left her older daughter with her mother when she travelled to Canada.

I am told that following her arrest, her youngest, who accompanied her on the trip, was apprehended and taken into care. I am informed that the daughter, following an investigation by child protection authorities, was eventually returned to Antigua where she is now living with her maternal grandmother. In Antigua, Ms. T.G. worked as a cook. However, the family is reportedly rather poor, as evidenced by the fact that their home does not have the benefit of running water. Ms. T.G. does not have a criminal record.

A number of letters filed on her behalf from family and friends and acquaintances in Antigua, including from both a Justice of the Peace and an Assistant Police Commissioner, attest to the fact that she has a solid work ethic, is a good mother who is dedicated to her children, and is a faithful congregant at her church. These letters are uniformly positive and serve to confirm, in my view, that Ms. T.G. is previously a person of good character. Ms. T.G. has been detained since her arrest.

While incarcerated at the Vanier Centre for Women, she has successfully completed a number of programs aimed at her self-improvement. Ms. T.G. has aspirations of eventually completing school and becoming a nurse. As noted, Ms. T.G. is currently eight months pregnant. Her due date is January 23, 2016. That said, her first two children were delivered early. As a result, it is quite possible that, at this point, Ms. T.G. could give birth at any time. The impending birth of her third child has created a situation of some urgency. The parties inform me that if Ms.

T.G. were to give birth while in the provincial correctional system her baby would be subject to immediate apprehension by child protection authorities. In contrast, if she were to give birth while incarcerated within the federal correctional system she could potentially take advantage of the “Institutional Mother-Child Program” offered by the Correctional Service of Canada, which could, potentially, allow for her newborn to remain with her, at least during the formative early months of the child’s life.

It is because of this that there is some urgency in proceeding with sentencing at this time, without the benefit of a pre-sentence report. The Appropriate Sentence: The fundamental purpose of sentencing is to contribute to “respect for the law and the maintenance of a just, peaceful and safe society” while also “encouraging rehabilitation, and treatment in appropriate circumstances, of offenders and acknowledging the harm done to victims in the community”. See Criminal Code , s. 718, and the Controlled Drugs and Substances Act , s. 10(1).

This is accomplished by imposing “just sanctions” that reflect one or more of the traditional sentencing objectives: denunciation, general and specific deterrence, separation of offenders, rehabilitation, reparation to victims, and promoting a sense of responsibility in offenders and acknowledgement of the harm done to victims and the community. See Criminal Code, subsection 718(

a) through subsection ( f ).

The fundamental principle of sentencing is the sentence imposed must be proportionate to the gravity of the offence and the degree ofresponsibility of the offender. This long established tenet of the sentencing process is now expressly contained in the Criminal Code (sees. 718.1.) and also recognized as a principle of fundamental justice constitutionally guaranteed by

section 7 of the Charter. See R. v.Ipeelee, 2012 SCC 13 at paras. 36-37; R. v. Anderson, 2014 SCC 41 at paras. 21-22. To satisfy this requirement a sentence must fit boththe seriousness of the crime and the offender’s level of moral blameworthiness in its commission. See Ipeelee, supra, at paras. 36-39.

In assessing the gravity of the offence, a number of considerations must be borne in mind, including: any minimum and maximumpunishments mandated by Parliament; the threat the offence poses to the public and its impact on the community, both in the genericsense and in the particular circumstances presented by the case before the court; and the various considerations enumerated in section718.2(

a) of the Criminal Code. See R. v. Hamilton (2004), (ON CA), 186 C.C.C. (3d) 129 at para. 90 (Ont. C.A.) In assessing the seriousness of the offence, special attention must be paid to the factors enumerated in

section 718.2 of the CriminalCode. And, in the case of drug offences, if the preconditions for doing so are met, the factors listed in subsection 10(2) of the ControlledDrugs and Substances Act. Specifically, in this case, I am mindful that the substance involved is cocaine. The Court of Appeal has acknowledged that theimportation of cocaine is, “among the most serious crimes known to Canadian law”. See Hamilton, supra, at para. 104.

The seriousness of the offence is attested to by the fact that, in the circumstances of this case, where the substance involved is cocaineand the amount imported exceeds one kilogram, Parliament has prescribed a minimum sentence of two years imprisonment, and amaximum of life imprisonment. See Controlled Drugs and Substances Act, s.6(3)(a.1). As Justice Doherty observed in Hamilton, 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. Viewed in isolation from the conduct which inevitably follows the importation of cocaine, the act itself isnot a violent one in the strict sense. It cannot, however, be disassociated from its inevitable consequences. Unlike the trial judge(para.224), I characterize cocaine importation as both a violent and serious offence: see R. v.

Pearson (1992), (SCC), 77C.C.C. (3d) 124 at 143-44 (S.C.C.) It is therefore not surprising that when it comes to the importation of significant quantities of cocaine, the case law makes clear that asubstantial period of imprisonment is necessary, even for first offenders of previously good character, like Ms. T.G.. Given the extraordinarily harmful effects of cocaine, the Court of Appeal has identified denunciation and general deterrence as thepreeminent sentencing objectives for those found guilty and sentenced for this offence. As a result, in R. v. Cunningham (1996), (ON CA), 104 C.C.C. (3d) 542 (Ont.

C.A.) the Court instructed that, as a general rule, absent exceptional or extenuatingcircumstances, where a courier has imported a kilogram of cocaine “more or less”, a sentence of three to five years imprisonment isappropriate. See also R. v. Madden (1996), (ON CA), 104 C.C.C. (3d) 548 (Ont. C.A.). In Cunningham the Court made clear that the larger the amount of cocaine, the longer the sentence imposed should be.

The Courtexplained that, “absent exceptional or extenuating circumstances, the range of sentence for first offender couriers who smuggle largeamounts of cocaine into Canada for personal gain should be six to eight years in the penitentiary.” Cunningham, at pg. 546 [emphasisadded]. See also R. v. H.(C.N.) (2002), (ON CA), 170 C.C.C. (3d) 253 at paras. 21-37 (Ont. C.A.).

To be sure, although sentencing remains individualized and is not the result of applying any set formula, the cases establish that theweight of the cocaine imported is an important variable that will assist a sentencing judge in determining what the appropriate range ofsentence is in a given case. Further, in deciding on the appropriate sentence, within the range that has been established by the Court of Appeal, a sentencing judgemust of course have careful regard to any aggravating or mitigating features relating to the offence or the offender.

I turn therefore to the aggravating and mitigating features in this case.

The Crown submits that Ms. T.G. involved her child in the commission of this offence and that this must be treated as an aggravating feature given the direction found in subsection 10(2)(

c) of the Controlled Drugs and Substances Act. That subsection and subparagraph, together, provide: If a person is convicted of a designated substance offence for which the court is not required to impose a minimum punishment , the court imposing sentence on the person shall consider any relevant aggravating factors including that the person used the services of a person under the age of 18 years to commit, or involved such a person in the commission of, a designated substance offence. [emphasis added] In this case, however, Ms. T.G. is subject to a minimum punishment.

Due to ss. 6(3)(a.1) of the Act, I am required to “impose a minimum punishment” of two years imprisonment. Therefore, in my view, the direction found in ss. 10(2)(

c) has no application in this case. Nevertheless, even without any statutory direction, I am of the view that Ms. T.G.’s decision to involve her child in the commission of this offence is indeed an aggravating factor in this case. In my view, in the circumstances, given that Ms. T.G.’s only apparent purpose for coming to Canada was to import cocaine, it is hard to imagine any reason to bring her daughter with her other than a misguided belief that this would serve to lessen her chances of detection. The fact that Ms. T.G. was travelling with Ms.

Thomas, who was also accompanied by her young daughter, in my view, only serves to buttress this conclusion. The children were clearly meant to serve as cover, so that the women could pass more easily into Canada without attracting suspicion as potential drug couriers. All of that said, I think it is most fortunate that Ms. T.G.’s child was only two years old at the time of these events. As a consequence of that, I think it rather improbable that her little girl will have much, if any, recollection of these events. No doubt, the situation would be very different if Ms. T.G.’s child had been older.

If she had been, she would very likely remember and therefore suffer the affects of the ordeal of witnessing her mother’s arrest, remembering her own apprehension by child protection authorities, and enduring the experience of being returned to Antigua without her mother. As a result, although Ms. T.G.’s involvement of her daughter in the commission of this offence is an aggravating factor, in all of the circumstances, I think it would be wrong to place too much weight on this consideration. In terms of mitigating considerations, there are a number. First, there is Ms.

T.G.’s relative youth; she is only 24 years of age. Second, there is the fact that she has no criminal record and would appear to be a person of previously good character. Third, there is the fact that she has pled guilty to the offence, taken responsibility for her actions and, based on her comments to me the other day, expressed genuine remorse for her wrongdoing. It is obvious that Ms. T.G.’s actions were the result of poverty and financial desperation. Young, without much formal education, with two young children, and a third on the way, and with no financial support from the fathers of her children, Ms.

T.G. clearly succumbed to the lure of fast money. No doubt, those responsible for enlisting her into this insidious enterprise, the people who are truly the most culpable for the plague of drug importation into Canada, preyed upon her, and continually prey upon young women just like her, because those with education and opportunity are far less likely to agree to act as drug couriers. Of course, Ms. T.G.’s poverty and difficult life circumstances are no excuse for her crime.

However, they do assist in explaining why a young woman, who, based on the information before me, is a hard worker, a good mother, and a devoted congregant of her church, would involve herself in something so dangerous and run the risk of a long prison sentence in the process. In arguing that there should be deviation below the range established in Cunningham , Ms. Mamo, on behalf of Ms. T.G., raised two additional considerations. I will address each in turn. First, Ms. Mamo argues that given the crime involved and Ms.

T.G.’s lack of immigration status in Canada, she will certainly be deported at the completion of her sentence. See Immigration and Refugee Protection Act, S.C. 2001, c.27, sections 36(1) and 64. There are a number of conflicting decisions from the Court of Appeal as to whether the certainty of deportation may justify some reduction in

the term of imprisonment to be imposed on an offender for purely pragmatic reasons. See R. v. Critton, [2002] O.J. No. 2594 at paras.77-86 (Sup.Ct.) wherein Justice Hill collects and summarizes the relevant authorities, and ultimately prefers that line of cases that holdthat the certainty of deportation can be taken into account in reducing the sentence imposed. For the Crown, Ms. Montefiore submits that any uncertainty that once existed in the case law has now been resolved by the SupremeCourt of Canada’s decision in R. v. Pham, 2013 SCC 15.

In Pham the Supreme Court held that a sentencing judge may exercise his or her discretion to take collateral immigration consequencesinto account, provided the sentence ultimately imposed is proportionate to the gravity of the offence and the degree of responsibility ofthe offender. Such consequences are, however, just one relevant consideration to be taken into account in determining the appropriatesentence. They cannot be allowed to dominate the sentencing process and thereby lead to a separate sentencing scheme for those whoface the risk of deportation.

In my view, the holding in Pham must be understood in context. The decision involved an individual who clearly wanted to remain inCanada, and the effect of the sentence imposed on that individual’s ability to stay in this country. I believe Ms. T.G.’s situation is ratherdifferent, and that the line of cases summarized in Critton, which allows the sentencing judge to take the certainty of deportation intoaccount in imposing sentence, are arguably left untouched by the holding in Pham.

The distinction between these two very different categories of cases was pointed out by the Court of Appeal in Hamilton, supra, a casequoted with approval rather extensively by the Supreme Court in Pham, wherein Justice Doherty explained the two categories of cases asfollows, at para. 156: The case law referable to the relevance of deportation in fixing an appropriate sentence addresses two very different situations. In thefirst situation, it is acknowledged that imprisonment is the only appropriate sentence and that deportation from Canada will inevitablyfollow upon completion of the sentence.

In the second situation, it is argued that a certain kind of sentence should be imposed to avoidthe risk of deportation from Canada. In the first situation, the certainty of deportation may justify some reduction in the term ofimprisonment for purely pragmatic reasons: R. v. Critton, [2002] O.J. No. 2594, [2002] O.T.C. 451 (S.C.J.) at paras. 77-86. In thesecond situation, the risk of deportation cannot justify a sentence which is inconsistent with the fundamental purpose and principles ofsentencing identified in the Criminal Code.

The sentencing process cannot be used to circumvent the provisions and policies of theImmigration and Refugee Act. As indicated above, however, there is seldom only one correct sentencing response. The risk ofdeportation can be a factor to be taken into consideration in choosing among the appropriate sentencing responses in tailoring thesentence to best fit the crime and the offender: R. v. Melo (1975), (ON CA), 26 C.C.C. (2d) 510, 30 C.R.N.S. 328(C.A.) at p. 516 C.C.C. In my view, the holding in Pham only reaches the second category of cases described by Justice Doherty.

And, although there have beenconflicting pronouncements over the years from our Court of Appeal on the potential reductive effect on sentence of an offender’s certaindeportation, the decision in Hamilton appears, from my research, to be the most recent pronouncement from the Court of Appeal on thistopic. Given this, I ultimately feel compelled to accept that Ms. T.G.’s certain deportation is a factor that weighs in favour of some reduction ofthe sentence that would otherwise be imposed in her case for the reasons cited by Justice Hill at paragraph 86 in Critton.

The more difficult question, in my view, is whether this factor can serve to justify deviation below the bottom end of the range ofsentence for this offence set down in Cunningham. In other words, does the certainty of deportation qualify as the sort of “exceptional orextenuating circumstance” envisioned by the Court in Cunningham as a precondition for downward deviation from the range ofsentences established by that case? I believe the answer to that question can be found in the Court of Appeal’s decision in R. v. Sullivan (1972), (ON CA),9 C.C.C. (2d) 70 (Ont. C.A.).

In that case, the appellant was sentenced to 10 years imprisonment for armed robbery. In its decision, theCourt noted that, We are all of the opinion that a sentence of 10 years is a proper sentence in the normal case of armed robbery and wish to reaffirm thepolicy of the Court that a heavy sentence is required in cases of armed robbery to act as a deterrent to others.

Nevertheless, the Court then went on to note that the appellant’s youth — he was only 22 years old — and the certainty of hisdeportation from Canada at the completion of his sentence, as the reasons for reducing his sentence from 10 years to 8 yearsimprisonment. In my view, in the first category of cases described by Justice Doherty in Hamilton, Sullivan suggests that the certainty of deportation is afactor that can serve to at least slightly reduce a sentence below the range that would ordinarily be required. See also R. v. Johnston andTremayne, (ON CA), [1970] 4 C.C.C. 64 at pg. 68 (Ont. C.A.); R. v.

Bratsensis, [1974] 31 C.R.N.S. 71 at pg. 72-73(N.S.C.A.). As such, I think it can indeed qualify as the sort of extenuating circumstance that will allow for at least a slight deviationbeneath the range that would ordinarily be called for by Cunningham. Subject, of course, to the overarching need to ensure that thesentence that is ultimately imposed remains proportionate to the gravity of the offence and the offender’s degree of responsibility in itscommission. I turn next to the second consideration emphasized by Ms. Mamo in arguing in favour of a sentence below the range set down inCunningham.

In essence, she submits that Ms. T.G.’s personal circumstances, including her pregnancy, the fact that her baby is likely tobe taken from her at some point after its birth, and her separation from her three children for a prolonged period of time, and the hardshipthat this will undoubtedly occasion for them, and for her, are all factors that counsel in favour of some reduction in her sentence. It deserves mention that, based on the record before me, the fate of the child Ms. T.G. is currently carrying is far from certain.

It wouldappear that the “Institutional Mother-Child Program” offered by the Correctional Service of Canada is currently in a state of transitionand it is therefore far from clear how long Ms. T.G. will be allowed to keep her child while in custody. Further, once the child isapprehended, it remains unknown whether the child will be placed in care in Ontario or be returned to her mother in Antigua, as was thecase with her daughter. Much will depend on the outcome of the child protection proceedings that will inevitably take place at somepoint in the future.

In the end, however, I think these are variables that simply do not permit deviation from the appropriate range of sentence in a case likethis one. This was essentially the conclusion arrived at by the Court of Appeal in R. v. Spencer (2004), (ON CA), 186C.C.C. (3d) 181 (Ont. C.A.). At paras. 46-47 of that decision, Justice Doherty said the following: It is a grim reality that the young children of parents who choose to commit serious crimes necessitating imprisonment suffer for thecrimes committed by their parents.

It is an equally grim reality that the children of parents who choose to bring cocaine into Canada arenot the only children who are casualties of that criminal conduct. Children, both through their use of cocaine and through the use ofcocaine by their parents, are heavily represented amongst the victims of the cocaine importer’s crime. Any concern about the bestinterests of children must have regard to all children affected by this criminal conduct. The fact that Ms.

Spencer has three children and plays a very positive and a central role in their lives cannot diminish the seriousness ofher crime or detract from the need to impose a sentence that adequately denounces her conduct and hopefully deters others fromcommitting the same crime. Nor does it reduce her personal culpability. It must, however, be acknowledged that in the long-term, thesafety and security of the community is best served by preserving the family unit to the furthest extent possible.

In my view, in thesecircumstances, those concerns demonstrate the wisdom of the restraint principle in determining the length of a prison term and the needto tailor the term to preserve the family as much as possible. Unfortunately, given the gravity of the crime committed by Ms. Spencer the needs of her children cannot justify a sentence below theaccepted range, much less a conditional sentence. [emphasis added] In my view, Justice Doherty’s comments serve to foreclose a reduction in Ms. T.G.’s sentence below the accepted range because of theimpact of the sentence imposed upon her children.

Conclusion I turn finally to my conclusion as to the appropriate sentence in this case. In arriving at the appropriate sentence, I am very much mindful of the principle that “a sentence should be similar to sentences imposedon similar offenders for similar offences committed in similar circumstances.” See Criminal Code, ss. 718.2(b).

In that regard, I note that in Cunningham the accused was also a young woman, with no criminal record, who came from poverty. Shewas caught importing 5.231 kilograms of cocaine inside a false compartment in her suitcase. The Court of Appeal imposed a sentence offive years imprisonment in addition to eight months spent in pre-trial custody. (Factoring in an enhanced credit for pre-trial custody, at arate of 2:1, which was the rate of credit given at that time, this was effectively a sentence of 6 years and 4 months imprisonment.) Given that Ms.

T.G. imported almost a kilogram less than the offender in Cunningham, while also remembering both the aggravating andmitigating features in this case, I would have concluded that the appropriate sentence for Ms. T.G. would be at the very bottom end ofthe range established by Cunningham; in other words, six years imprisonment. However, unlike the offender in Cunningham, Ms. T.G. faces certain deportation at the completion of her sentence. As a result, for thereasons I have already outlined, I think this justifies a slight deviation below the range established in Cunningham.

In the end, I have concluded that the appropriate sentence in this case is 5½ years imprisonment or 66 months. In my view, that sentenceremains proportionate to the gravity of this offence and Ms. T.G.’s degree of responsibility in its commission. Although this represents aslight deviation from the bottom end of the range, I am satisfied that this sentence is more than adequate to the task of denouncing Ms.T.G.’s conduct in bringing a dangerous narcotic into Canada and sufficiently severe to deter other offenders who might be similarlysituated from engaging in such conduct in the future. I note that Ms.

T.G. has been in custody since her arrest on May 9, 2015. By my calculation, that is a total of 223 days in pre-trialdetention. I recognize that that period is not subject to remission or parole, and is spent in the comparatively harsher circumstances(relative to a reformatory or penitentiary) of a pre-trial detention facility. As such, I believe it is deserving of enhanced credit at the rateprescribed by section 719(3.1) of the Criminal Code. By my calculation, that works out to approximately 11 months credit for time spentin pre-trial custody. Ms. T.G., could you please stand?

I would have sentenced you to 66 months imprisonment but in light of the credit to which you areentitled for your time spent in pre-trial detention, I sentence you today to a further 55 months imprisonment, and I wish you well. T.G.T.G.: Thank you, sir. MS. MAMO: Thank you. THE COURT: Thank you. MS. MONTEFIORE: Thank you very much. THE COURT: Thank you. MS. MONTEFIORE: Also a DNA and forfeiture — sorry, DNA and a s. 109 order is being sought as well. THE COURT: It’s a primary designated or a secondary designated? MS. MONTEFIORE: Secondary designated. THE COURT: Secondary designated.

What’s your position on the DNA? MS. MAMO: I’m not going to object to the DNA, Your Honour. Considering she’s not going to be staying in Canada I don’t think it’llhave a great impact on her so I’m in Your Honour’s hands. THE COURT: The Crown seeks a DNA order in this case. I note that the offence of importing a controlled substance is a secondarydesignated offence under s. 487.04 of the Criminal Code. As such, the relevant subparagraph of the Code is subsection 487.051(3)(b). Ihave read this provision in light of the guidance supplied by the Court of Appeal’s decision in R. v.

Hendry (2001), (ON CA), 161 C.C.C. (3d) 275 (Ont. C.A.). I am to make the order if I am satisfied that it is in the best interests of the administration ofjustice to do so. In that regard, I am to consider the offender’s criminal record, the nature of the offence and the circumstancessurrounding its commission and the impact on his or her privacy and security of the person. Ms. T.G. does not have a criminal record.

However, she has been found guilty of a serious offence, which the Court of Appeal hasdescribed as violent in its nature given the ramifications that flow from the importation of cocaine and its effects on Canadian society. Further, turning to the impact on the offender’s privacy and security of the person, I am mindful of the Court of Appeal’s observation inHenry that,

“Given an adult offender’s diminished expectation of privacy following conviction, the minimal intrusion to the security of the person in the ordinary case and the important interests served by the DNA databank will usually be in the best interests of the administration of justice for the judge to make the order.” Based on all of the considerations I am satisfied that it would be in the best interests of the administration of justice to make the requested order and as a result I will direct that a sample of Ms. T.G.’s blood be taken for inclusion of her DNA profile in the National DNA databank.

Forfeiture orders being requested? MS. MONTEFIORE: Sorry, not forfeiture. At least not at this time I don’t have any such information, but a s. 109. THE COURT: And what’s the prescribed duration? MS. MONTEFIORE: Ten years. THE COURT: I think that follows automatically, does it not? MS. MAMO: Yes. Yes, it does. THE COURT: All right. In addition, Ms.

T.G., pursuant to s. 109 of the Criminal Code of Canada I’ll make an order prohibiting you from possessing any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition, and explosive substance during the period commencing today for 10 years. Do you understand that order, ma’am? T.G.T.G.: Yes. THE COURT: Will you abide by it? T.G.T.G.: Yes, sir. THE COURT: I’m required to caution you that failure to abide by that order is a separate serious criminal offence for which people go to jail, do you understand? T.G.T.G.: Yes, sir. THE COURT: All right.

Finally, there’s the matter of the victim fine surcharge, which applies even in her circumstances as the case law has held. MS. MAMO: Yes. THE COURT: And I think for a straight indictable offence it’s — I always have to check, $200? Two hundred dollars. MS. MONTEFIORE: I think it is. MS. MAMO: I’d ask that — a brief indulgence. I’d ask for a year to pay upon her release, Your Honour. THE COURT: I’m not sure if I have the jurisdiction to postpone until her release. What I can do is come up with a number long enough in the future, at a point where she will have been released. What’s your position, Ms. Montefiore?

MS. MONTEFIORE: As Ms. T.G. is not a citizen of Canada and is expected to be deported, I think for the fine recovery purposes the imposition of the victim fine surcharge should be within the time that she’s in custody here. THE COURT: All right. Did you want to say anything in reply on that? MS. MAMO: No, Your Honour. I believe that that’s fine with Ms. T.G.. If she could have two years to pay that. THE COURT: All right. I’ll order that the victim fine surcharge of $200 be paid and that Ms. T.G. have two years to pay that amount. I think that completes the matter, correct? MS. MAMO: Yes, it does, Your Honour.

Thank you. THE COURT: Thank you, counsel. MS. MONTEFIORE: Thank you very much, Your Honour. If I may be... THE COURT: Thank you. MS. MONTEFIORE: ...excused.

THE COURT: Of course, thank you. MS. MONTEFIORE: Thank you. ...WHEREUPON THIS MATTER WAS CONCLUDED FORM 2 C ertificate of Transcript (Subsection 5(2)) Evidence Act I, Kim Fess , certify that this document is a true and accurate transcript of the recording of R. v. T.G. in the Ontario Court of Justice held at, 7755 Hurontario Street, Brampton, Ontario , taken from Recording No. 3111 207 20151218 082735 30 STRIBOJ, which has been certified in Form 1.

______________ _______________________________________ (Date) ( Signature of Authorized Person) Kim Fess ACT ID: 4454479014 1 -855-443-2748 kim@vptranscription.com