2017 QCCA 1643, 2017 QCCA 1643

Mohamed c. R. 2017 QCCA 1643 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-006401-176 (500-73-004113-144) MINUTES OF THE HEARING DATE: October 20, 2017 CORAM: THE HONOURABLE ALLAN R. HILTON, J.A. MARTIN VAUCLAIR, J.A. ROBERT M. MAINVILLE, J.A. PETITIONER COUNSEL MUBARAKA MOHAMED Mtre Xavier PRingle (Gélinas, Leclerc, Teolis, avocats) RESPONDENT COUNSEL HER MAJESTY THE QUEEN Mtre ISABELLE DESROSIERS (Public Prosecution Service of Canada) On appeal from a judgment rendered on March 3, 2017 by the Honourable Justice Myriam Lachance of the Court of Quebec, District of Montreal.

DESCRIPTION : Sentence – Amended motion for leave to appeal against the sentence deferred . Clerk: Philippe Dupont Courtroom: Antonio-Lamer HEARING 9:26 Commencement of the hearing. Identification of counsel. Submissions by Mtre Pringle. 9:44 Submissions by Mtre Desrosiers. 9:50 Recess of the hearing. 9:53 Resumption of the hearing. BY THE COURT – Judgment : see page 3. Conclusion of the hearing. (

s) Clerk BY THE COURT JUDGMENT [ 1 ] The appellant seeks leave to appeal from a judgment of March 3, 2017, of the Court of Quebec, District of Montreal ( 2017 QCCQ 1398 ), which sentenced him to 12 years of imprisonment on a count of unlawfully importing 2.6 kilograms of heroin into Canada and 7 years to be served concurrently on a second count of possessing that heroin for the purpose of trafficking. [ 2 ] The trial judge had previously found the appellant guilty of those offences on the ground that he had been willfully blind to the placing of drugs in a double-bottomed suitcase he was transporting with him from Belgium and which had been supplied to him shortly before boarding the plane to Montreal by a man he hardly knew. [ 3 ] The parties agreed that the role played by the appellant was that of a courier.

As the trial judge rightly concluded, couriers play an essential and crucial role in the trafficking of heroin into Canada. [ 4 ] In determining the appropriate sentence, the judge noted that the appellant was 27 years old, married and the father of one young child. She further noted that he had no prior criminal record, but concluded that this mitigating factor was reduced since criminal organizations target individuals with good reputations for the purpose of trafficking heroin into Canada.

She opined that not being part of a criminal organization could be a mitigating factor, but refused to consider this as a mitigating factor in this case in view of the quantity and the value of the heroin the appellant had imported, which suggested a link to a criminal organization. The judge also refused to consider the wilful blindness of the appellant as a mitigating factor taking into account the reasons of the Ontario Court of Appeal in R. v.

Sidhu , 2009 ONCA 81 (“ Sidhu ”). [ 5 ] As aggravating factors, the trial judge took into account the quantity of drugs, namely 2.6 kilograms of heroin with a street value of $1,046,400. She also considered the fact that the appellant had been motivated by greed and financial opportunity. [ 6 ] Considering all the circumstances, the trial judge sentenced the appellant to a total of 12 years’ imprisonment for importing

heroin, less 36 months and 11 days credited as 54 months and 6 days for pretrial detention, for a remaining sentence of 7 years and 3weeks; the appellant was also sentenced to 7 years imprisonment to be served concurrently for possession of heroin for the purpose oftrafficking. [7] The appellant challenges the sentence on the following grounds: A. The trial judge erred in taking into account the greed of the appellant as an aggravating factor which is incompatible with the reasonsset out in her judgment on culpability; B.

The judge erred in rejecting the wilful blindness of the appellant as a mitigating factor in this particular case; C. The judge erred in inferring, contrary to her judgment on culpability, that there was a link between the appellant and a criminalorganization and using that as an aggravating factor; D. The judge erred by imposing a sentence that is demonstrably unfit. [8] It is well established that appellate courts owe a high degree of deference where appeals against sentence are concerned.

TheCourt must be convinced that the sentence is demonstrably unfit and clearly unreasonable or that the judge made an error in law or anerror in principle that had an impact on the sentence: R. v. Shropshire, (SCC), [1995] 4 S.C.R. 227, at para. 46; R. v.L.F.W., 2000 SCC 6, [2000] 1 S.C.R. 132, at para. 25; R. v. L.M., 2008 SCC 31, [2008] 2 S.C.R. 163, at paras. 14-15; R. v. Nasogaluak,2010 SCC 6, [2010] 1 S.C.R. 206, at paras. 43-46; R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 39. [9] This is a case involving the importation of heroin into Canada.

Heroin is one of the most pernicious of the hard drugs, it is oneof the most addictive, the most destructive and the most dangerous of drugs. In Pushpanathan v. Canada, (SCC),[1998] 1 S.C.R. 982, at para. 79, Cory J. described heroin trafficking as a “despicable crime” that “tears at the very fabric of our society”: The United Nations considers heroin to be the most dangerous of illicit drugs. Trafficking in that drug is indeed a despicable crime. Itwill be demonstrated that its consumption leads consumers, almost inexorably, to commit crimes to satisfy their addiction.

The potentialprofits are so high that it frequently leads to criminal activity and money laundering. It can lead to corruption of customs officials, policeand judicial officers. It is a crime with such grievous consequences that it tears at the very fabric of society. [10] As Lamer J. emphasized in R. v.

Smith, (SCC), [1987] 1 S.C.R. 1045, at p. 1053, persons who import harddrugs for lucre into Canada should, upon conviction, be sentenced to and actually serve long periods of imprisonment: 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. […] [11] With these considerations in mind, we now turn to the grounds of appeal raised by the appellant. [12] As a first ground, the appellant submits that the trial judge erred in taking into account, as an aggravating factor, the fact thatthe appellant imported heroin for profit, greed and financial opportunity.

The appellant does not dispute that committing the offence forpersonal gain can amount to an aggravating factor, but rather that the trial judge’s findings in sentencing that greed played a

part in thecommission of the offences contradict her findings on culpability. [13] In her judgment on culpability, the judge was dealing with the issue of whether she could infer direct knowledge of the presenceof heroin in the suitcase from the financial pressure on the appellant at the time of the offences. In her judgment on sentencing, the judgewas rather dealing with the issue of whether the appellant was motivated by some financial benefit for turning a blind eye to the suitcasehe was carrying.

As the Crown underlines, the appellant did receive something of value for turning a blind eye, specifically an allexpenses paid trip to Canada. The judge could therefore conclude in her sentencing judgment that the appellant had remained willfullyblind with financial gain in mind. [14] As his second ground of appeal, the appellant submits that his wilful blindness should have been considered as a mitigatingfactor in sentencing. [15] In Sidhu, the Ontario Court of Appeal distinguished two levels of blameworthiness with respect to sentencing of couriers whoimport drugs into Canada.

This Court acknowledged this distinction in R. v. Barrett, 2013 QCCA 1351, at paras. 32-33. On the one hand,there are the cases of couriers who are willfully blind to the fact they are carrying drugs and who, as a matter of principle and policy,cannot benefit in sentencing from turning a blind eye.

On the other hand, there are the cases of couriers who take reasonable steps todetermine the nature of the substance they are transporting and who are duped by their co-conspirators in transporting a different moreharmful substance; in these circumstances, an accused courier can rely on his degree of knowledge as a mitigating factor. As stated inSidhu, at paras. 17-19: [17] The trial judge considered the respondent's wilful blindness to be a mitigating circumstance. With respect, we disagree.

As a matterof principle and policy, we ought not to be sending a message to would-be couriers that if they wear blinders, they will receive a lowersentence than if they actually learn the nature and quantity of the substance they are importing. In assessing degrees of moralblameworthiness, we see no meaningful distinction between the two. [18] In so concluding, we are not to be taken as departing from the principle enunciated by this court in R. v. H. (C.N.) (2002), (ON CA), 62 O.R. (3d) 564, [2002] O.J.

No. 4918, 170 C.C.C. (3d) 253 (C.A.) — that where an offender takes reasonablesteps to determine the nature of the drug and is duped by his co-conspirators, this will serve as a mitigating factor.

[19] That, however, is not this case. The respondent was willfully blind to the nature and quantity of the substance he was importing.Having kept himself in the dark, he cannot rely on his lack of knowledge as a mitigating factor. [16] The second category implies that the courier has actual knowledge that he is importing a controlled substance and has takenmeasures to ensure what type of substance is being transported, such as knowingly importing marijuana and taking measures to ensurethat only that drug is involved, and then unknowingly being duped by having the marijuana substituted for cocaine: R. v.

H. (C.N.)(2002), (ON CA), 62 O.R. (3d) 564, 170 C.C.C. (3d) 253 (Ont. C.A.). On the contrary, if a courier is willfully blind tothe fact that he is transporting a controlled substance, and accepts to act as courier despite the fact that he does not know the exact natureof the controlled substance, then it must be concluded that the courier has accepted the risk that he is transporting a dangerous controlledsubstance. [17] In this case, the trial judge did not conclude that the appellant believed he was importing marijuana or some other controlledsubstance less dangerous than heroin.

She rather concluded that the appellant had suspicions about the content of the suitcase which washanded to him, but deliberately chose not to ask questions because it suited him not to know the truth and to turn a blind eye to what hewas carrying. In these circumstances, the trial judge was justified in not considering the appellant’s willful blindness as a mitigatingfactor. [18] The third ground of appeal is the trial judge’s alleged error in finding there was a link between the appellant and a criminalorganization and using that link as an aggravating factor in sentencing.

However, this is not what the trial judge decided. She was ratherof the erroneous view that the absence of a link between the appellant and a criminal organization could be considered as a mitigatingfactor, but refused to apply such a mitigating factor since she found it hard to believe that no such link existed in this case.

As a result, thelink which the trial judge acknowledged between the accused and a criminal organization was deemed by her a neutral factor insentencing. [19] We point out that the trial judge did commit an error by stating that the absence of a link with a criminal organization can be amitigating factor. Indeed, the absence of a link with a criminal organization does not amount to a mitigating factor, since a judge cannotmitigate a sentence simply because the evidence does not reveal one of the aggravating circumstances identified by Parliament: R. v.Barrett, above, at paras. 23-25.

At best, the absence of an aggravating circumstance is a neutral factor in sentencing. However, as notedabove, this error had no impact on the sentence. [20] Finally, the appellant submits that the trial judge erred by imposing a sentence that is demonstrably unfit. [21] A sentence is demonstrably unfit if it constitutes an unreasonable departure from the principle of proportionality set out insection 718.1 of the Criminal Code, or, in other words, if it is “clearly unreasonable” or “clearly excessive or inadequate” or representinga “substantial and marked departure”: R. v. Lacasse, above, at para. 52.

Proportionality is determined both on an individual basis, that is,in relation to the accused and to the offence committed, and by comparison with sentences imposed for similar offences committed insimilar circumstances: Ibid., at para. 53. [22] The record shows that the trial judge was well aware of the principle of individualization and that she took into account anumber of factors in determining the appropriate sentence.

The appellant presented as a mitigating factor the fact he had no priorconviction, and the judge took this factor into account by sentencing him to what she had determined to be the low end of the sentencingrange. [23] Though sentences for importing heroin vary considerably from case to case, a 12-year sentence for importing 2.6 kilograms ofheroin into Canada is not unreasonable by comparison with sentences imposed for similar offences committed in similar circumstances: - R. v. Kwok, (ON CA), 31 C.C.C. (3d) 196 (Ont.

C.A.): the amount of heroin imported was 3.49 kilograms (7.7pounds) and the courier is reported to have received a sentence of 13 years imprisonment on a plea of guilty. - R. v. Nelson-Kent, [1988] B.C.J. No. 1174 (QL) (B.C.

C.A.): the accused, who was not an addict, was acting as a courier for others andbrought into Canada heroin which the Crown said had a street value of about $1 million; the accused was unknown to the police and theheroin was discovered as a result of a routine customs search; he was sentenced to 12 years imprisonment for importing heroin intoCanada and for possessing heroin for the purpose of trafficking. - R. v. Chetrit, [1990] J.Q. No. 2227 (QL), J.E. 91-166 (Que.

C.A.): a 54 year-old foreign citizen with no criminal record was foundguilty by a jury of importation and possession of 2.6 kilograms of heroin for the purpose of trafficking; the Court reduced the initialsentence of 20 years to 17 years imprisonment; the Court considered that the accused had offered a real collaboration with the policethus contributing to the arrest of his co-conspirators in Europe. - R. v. Carrero, [2010] O.J. No. 6285 (Ont.

S.C.J.): the judge imposed a sentence of 11 years imprisonment on a courier convicted aftertrial of importing 1.561 kilogram of heroin; the accused was 23 years old; he was a first offender who was found by the trial judge tohave been a courier. - R. v. Boateng, [2013] O.J. No. 3179 (Ont. S.C.J.): the judge acceded to a joint submission of 12 years imprisonment for a firstoffender convicted of importing 2.380 kilograms of heroin into Canada. - R. v.

Blanchard Capochichi, 2014 QCCQ 3953: a 54 year-old accused pleaded guilty to a charge of importing 3.082 kilograms ofheroin (for a street value of $1.2 million); he was a courier; the offence was profit-motivated; he had prior convictions related to drugoffences; he was sentenced to a term of 17.5 years imprisonment. - R. v.

Kusi, 2015 ONCA 638: a sentence of 10.5 years imprisonment was imposed for the importation of 1.37 kilogram of heroin; theaccused imported the heroin to Canada from Ghana and was found by the trial judge to have been part of a sophisticated operation; theaccused pleaded guilty, had no prior criminal record and had prospects for rehabilitation.

- R. v. Zahor , 2016 ONSC 7586 (Ont. S.C.J.): a 44 year-old accused was found guilty by a jury of importing 11.95 kilograms of heroin; the accused had been a relatively productive member of Canadian society; he was a hard-working person, a good father to his 4 children, caring and friendly; he had a relatively minor unrelated criminal record; he was acting as a drug courier at the bottom of the importing hierarchy; he was sentenced to a term of 14.5 years imprisonment . - R. v.

Murororunkwere , 2016 ONSC 1039 : a sentence of 12 years imprisonment was imposed for the single importing offence for a first offender found guilty by a jury of one count of importing 2.502 kilograms of heroin and another count of conspiracy to import heroin; she was a first offender, actively involved in her community, had significant health issues (including HIV, hepatitis B and recurring genital herpes) and had come to Canada as a refugee after she had been mistreated and family members had been killed. [ 24 ] Though other cases show more lenient or more severe sentences, the above review of selected sentencing decisions leads to the conclusion that the sentence for importing 2.6 kilograms of heroin into Canada imposed on the appellant in this case is not demonstrably unfit.

FOR THESE REASONS, THE COURT: [ 25 ] GRANTS leave to appeal the sentencing judgment of March 3, 2017, of the Court of Quebec, District of Montreal; [ 26 ] DISMISSES the appeal. ALLAN R. HILTON, J.A. MARTIN VAUCLAIR, J.A. ROBERT M. MAINVILLE, J.A.