r v. Toria, 2015 QCCQ 1097

JH 5280 R. c. Stanberry 2015 QCCQ 1097 COURT OF QUEBEC Criminal and Penal Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTRÉAL CITY OF MONTRÉAL N o : 500-73-003503-105 DATE: 24 February 2015 _____________________________________________________________________________ BEFORE THE HONOURABLE PATRICK HEALY, J.C.Q. _____________________________________________________________________________ THE QUEEN Prosecutor v.

Toria Samantha STANBERRY Accused _____________________________________________________________________________ JUDGMENT _____________________________________________________________________________ [ 1 ] On 11 February 2014 Ms. Stanberry pleaded guilty to the importation at Trudeau International Airport of 2.35 kg of cocaine that had a purity of 76 – 80%. [1] The offence was committed on 13 November 2010. Two pre-sentence reports were prepared. The first [2] was inadequate.

Representations on sentence were heard after the second report was received. [3] The prosecution proposes a sentence of six (6) to eight (8) years. The defence proposes a conditional sentence of two (2) years less a day. Offence [ 2 ] The circumstances of the offence are not complicated, although there are several features that remain obscure. Ms. Stanberry was heavily in debt at the time of the offence (and remains so today). She accepted an invitation to travel to Montréal by taxi and then to St-Maarten by air. She would travel there with her first daughter, then aged twenty-two months.

At the end of a sojourn of one week she would be approached by someone and supplied with drugs to transport to Canada. She would receive a payment of $10,000.00 for this enterprise. On her return she was apprehended at Trudeau International Airport and thereafter cooperated with police. [ 3 ] Among the obscure aspects of these facts are the lack of information concerning the person or persons who invited Ms. Stanberry to participate in this venture and who organised it from beginning to end.

There is no evidence that this was an undertaking of organised criminals, although it is plain that there were other persons involved. Offender [ 4 ] Ms. Stanberry was twenty-one (21) years old at the time of the offence. She has one daughter, now seven (7) years old, who was born before the offence. She has another daughter, now almost three (3), who was born since the offence. Ms. Stanberry is a single mother. The father of her first child now has an amicable relationship with Ms. Stanberry, although the relationship had earlier deteriorated. [4] She has no contact with the father of her second child.

This second child has been diagnosed with a significant hearing disorder that involves hearing loss and an inability to speak. She requires regular specialist treatment and it appears that these medical difficulties will continue for the indefinite future, apparently including surgical treatment. [ 5 ] Relations in her family were not stable, although it would appear that her relations with her mother, father and siblings are positive and supportive. As a child she suffered verbal and physical abuse from her step-mother between the ages of six (6) and eight (8).

She was removed and placed in five (5) or six (6) foster homes for approximately thirteen (13) years from the age of eight (8). (She would return to live with her father intermittently during periods in which he was separated from his wife.) Her education is modest and,

when she has been employed in the past two years, she has worked in positions obtained through placement agencies that require little formal training. She is the sole breadwinner for herself and her children. The pre-sentence report, dated 10 September 2014, reports that she has debts of some $36,000.00 and that she ignores them. [5] [ 6 ] There is no evidence of substance abuse of any kind by Ms. Stanberry and there is no criminal record except, apparently, one conviction for breach of a recognizance. [6] The pre-sentence reports affirm that Ms.

Stanberry has a deep sense of remorse for the offence to which she pleaded guilty and that she has learned a lesson that will never be repeated. She acknowledged that her actions reflect poor judgment motivated by profound financial insecurity. These sentiments were repeated by Ms. Stanberry in her testimony at the sentencing hearing. [ 7 ] Both pre-sentence reports suggest that Ms. Stanberry would be a suitable candidate for a “community disposition” or “community supervision.” [7] I take this to mean a conditional sentence and not a suspended sentence with probation.

Gravity [ 8 ] The objective gravity of the offence to which Ms. Stanberry pleaded guilty is self-evident. A settled line of jurisprudence makes plain that any sentence for this offence must underscore the principles of denunciation and deterrence (specific and general). It must also reflect other principles and objectives in sentencing as merited by the evidence.

This jurisprudence affirms that, in the absence of significant mitigating or extenuating factors, a proportionate sentence of six (6) to eight (8) years is typical for the offence of importation where the amount of cocaine is in the region of two (2) kg . [8] The norm is subject to variation in accordance with evidence of aggravating or mitigating factors and with relevant objectives and principles of sentencing. But the norm is clear even if it is not a mandatory minimum or a “starting-point.” [9] [ 9 ] The subjective gravity of this offence is also clear. Ms.

Stanberry committed an opportunistic crime for financial gain. In doing so she deliberately chose to participate in a venture that poses serious threats to the well-being of the community by the introduction of a toxic scourge into Canada that is the cause of widespread destruction in personal lives, families and communities. [10] Factors [ 10 ] The prosecution has drawn attention to several factors in support of its proposal of a sentence of six (6) to eight (8) years. Among these are the opportunistic desire for financial gain; the amount of cocaine brought into Canada; the willingness of Ms.

Stanberry to involve her infant child in this venture; [11] the fact that Ms. Stanberry only pleaded guilty on the date of trial; and the previous conviction for breach of a recognizance. [ 11 ] A sentence in this case, as in any other that is not governed by a mandatory minimum, must emphasise denunciation and deterrence; but a proportionate sentence must also express other principles and objectives of sentencing that are supported by the evidence in the case.

This is the essence of individualised sentencing that has been repeatedly affirmed by the Supreme Court of Canada and other appellate courts. [12] A sentence that neglects the relevant principles of sentencing, and the relevant evidence in the case, fails to meet the requirements of individualised and proportionate sentencing as well as the fundamental principles and objectives of the exercise. Mitigation [ 12 ] Ms. Stanberry has expressed remorse in clear terms and she has acknowledged her poor judgment in participating in the offence.

The evidence satisfies me that a proportionate sentence in this case must also give expression to the objectives of rehabilitation and the promotion of a sense of responsibility in the offender and acknowledgment of the harm done to the community. [13] I am also mindful that the Criminal Code [14] enjoins a sentencing judge not to deprive an offender of liberty if less restrictive sanctions may be appropriate in the circumstances, and to use all available sanctions other than imprisonment that are reasonable in the circumstances.

For these reasons I am satisfied that the evidence justifies a reduction of the sentence proposed by the prosecution. [ 13 ] I wish to emphasise that this conclusion is justified by mitigating factors, notably Ms. Stanberry’s age and immaturity at the time of the offence as well as her cooperation with police after her arrest. This was an isolated offence in the sense that there is no evidence of previous or subsequent offending of a similar nature or comparable seriousness.

I attach little significance to her guilty plea only at the date of trial. [15] I also give little weight to the conviction for breach of conditions because the evidence nevertheless demonstrates substantial compliance over a long period of time with her obligations to report on a regular and timely basis to the R.C.M.P. at Pearson International Airport in Toronto. I do not dismiss these factors but in the circumstances of the case I am satisfied that they must accommodate the prospects of rehabilitation and an enhanced sense of personal responsibility.

There is no basis in the evidence to suggest a significant risk of reoffending, although this risk cannot be entirely excluded from consideration. I repeat that I am mindful of Parliament’s injunction to use a term of imprisonment with restraint. [ 14 ] Thus far, and for the reasons expressed, I have decided that the evidence in this case justifies some deviation from the typical sentence of six (6) to eight (8) years. This conclusion must be considered in a comparative examination of the jurisprudence, which begins with a broad statement of general application.

In the absence of a mandatory minimum sentence the determination of a fit sentence is governed generally by the principles of proportionality and individualisation and supplemented by principles such parity and totality, in addition to consideration of relevant factors of aggravation and mitigation. To speak of a norm or a range of sentences does not detract from this broad statement of principle. [16] [ 15 ] On this point I pause to comment on Morin , [17] which is a case submitted by the prosecution at the sentencing hearing.

In that case the accused pleaded guilty to importing 4.5 kg of cocaine into Canada and received a sentence of six (6) years. The distinction between that case and this is precisely that there were fewer factors militating in Mr. Morin’s favour than can be seen in this case. He suffered from a serious disease and pleaded guilty but, in addition to a record of previous convictions, there were otherwise few mitigating factors or collateral effects that could be counted for him. The distinction between that case and this demonstrates only that each case demands an individualised approach to a proportionate sentence.

Consequences [ 16 ] There is a further point in this case that not only requires consideration but will affect the outcome.

It is an element that, to my knowledge, has not yet been examined at length in recent jurisprudence. [ 17 ] In Pham [18] the Supreme Court affirmed that a sentencing judge may take into account the collateral consequences of a sentencing decision and adjust the terms of a sentence to ensure that, having regard to all of the circumstances of the case, the result complies with the principles of individualisation and proportionality so as to meet the ultimate purpose of such decisions, which is to ensure respect for the law and the maintenance of a just, peaceful and safe society. [19] The Court described “collateral consequences” in general terms: [11] In light of these principles, the collateral consequences of a sentence are any consequences for the impact of the sentence on the particular offender.

They may be taken into account in sentencing as personal circumstances of the offender. However, they are not, strictly speaking, aggravating or mitigating factors, since such factors are by definition related only to the gravity of the offence or to the degree of responsibility of the offender ( s. 718.2 (

a) of the Criminal Code ). Their relevance flows from the application of the principles of individualization and parity. The relevance of collateral consequences may also flow from the sentencing objective of assisting in rehabilitating offenders ( s. 718 (

d) of the Criminal Code ). Thus, when two possible sentences are both appropriate as regards the gravity of the offence and the responsibility of the offenders, the most suitable one may be the one that better contributes to the offender’s rehabilitation. In Pham the collateral consequences concerned the effects of a sentence of more than two years on the immigration status of the offender, and in particular the availability of a right of appeal against a determination of inadmissibility. Most cases since have discussed Pham in this context [20] .

As seen in the passage quoted, the decision does not restrict collateral consequences in this way. [21] The Court adopted a flexible view of relevant collateral consequences and emphasised that any adjustment for collateral consequences is constrained by the principle of proportionality. It is not a licence to deviate from what would otherwise be a just and appropriate sanction in the circumstances of the case. [22] [ 18 ] In this case the collateral consequences are significant. Obviously a term of imprisonment entails that Ms. Stanberry, a single mother, will be separated from her children.

This might be unfortunate but not exceptional. In itself it would not justify a significant adjustment of an otherwise appropriate sentence. But there are two further consequences. [ 19 ] First, the evidence presented makes clear that Ms. Stanberry’s children will be separated from each other for the duration of her term of incarceration. The effects of this fragmentation of the family in the development of young children, even long after the expiry of the term of imprisonment, are not subject to precise measurement: but they are certain to follow. Second, Ms.

Stanberry will be separated from her younger daughter who suffers from serious medical difficulties that will have long-lasting effects. [ 20 ] These two collateral consequences are not mitigating factors because they have no bearing on the gravity of the offence or the degree of the offender’s responsibility. They are collateral in the sense that they are incidental to the terms of an appropriate sentence. In every other sense these collateral consequences will be direct and they will endure with great force not only for the duration of the term of imprisonment but beyond its expiry.

They will entail what can only be described today as incalculable adverse effects both for the offender and her children. They are properly regarded, as the Court said in Pham , as “personal circumstances of the offender.” The collateral consequences in this case will certainly magnify the severity of the sentence and for this reason they must be taken into account. [ 21 ] There is no list of collateral consequences that may be taken into consideration and there is no calculus to determine what they are worth in the determination of a fit sentence. Those are questions left open by Pham .

But two points appear clear. One is that collateral consequences must be distinguished from aggravating or mitigating factors in sentencing. Another is that collateral consequences, when taken into account, do not allow a sentencing judge to impose a disproportionate sentence. The principle of proportionality must prevail in every case. [ 22 ] In Pham the Supreme Court speaks of “collateral consequences.” In the circumstances of that case this means consequences that will be caused by the terms of the sentence.

But it does not follow that collateral consequences in this sense are the only collateral factors that may be considered at sentencing. In Nasogaluak , [23] for example, the Supreme Court concluded that a sentencing judge may grant a discount on a sentence for state misconduct. In that case the state misconduct involved excessive force used by police at the time of the arrest of the accused. This abuse is plainly neither an aggravating nor a mitigating factor in the sense that it has no bearing on the gravity of the offence or the degree of the offender’s responsibility.

The Court’s recognition of a discretion to discount an otherwise proportionate sentence underscores the importance of individualised sentencing. Taken together, Pham and Nasogaluak allow for material collateral factors to be taken into consideration, whether those factors precede or follow the sentence imposed. [ 23 ] As it happens, the collateral factors in Pham and Nasogaluak were invoked to alleviate the severity of the sentence. But it might also be asked whether such factors might be considered in increasing the severity of a sentence.

Following the logic of Nasogaluak , for example, resisting arrest or flight might be examples of such an argument. This area of the law is in its infancy because it is predicated on recognition of collateral factors that are neither aggravating nor mitigating factors in the orthodox sense of those terms.

To the extent that collateral factors might alleviate the severity of a sentence they are probably best viewed as grounds for the court’s exercise of mercy. [ 24 ] As I have said, the jurisprudence in cases involving the importation of cocaine clearly requires a firm sentence, even if that sentence also gives due expression to considerations such as rehabilitation and an enhanced sense of responsibility in the offender.

This conclusion is in no way diminished by taking into account collateral consequences because, as just noted, any adjustment for collateral consequences cannot justify a deviation from the requirement for a proportionate sentence in the circumstances of the case. I am also mindful of jurisprudence to the effect that the effect of a severe sentence on the ordinary course of family life cannot in itself change the nature of a fit sentence. [24] Cases to this effect were decided before Pham and might perhaps be modified as a result.

But the basic point remains that no adjustment for mitigating factors or collateral consequences can justify what would otherwise be a disproportionate

and unfit sentence. [ 25 ] Before Pham was decided this point was put slightly differently by the Québec Court of Appeal: En effet, l’infraction d’importation de cocaïne est grave et elle est passible d’emprisonnement à perpétuité. À moins de circonstances exceptionnelles, les peines imposées sont rarement inférieures à trois ans d’emprisonnement et les principaux facteurs considérés sont ceux de l’exemplarité et de la dissuasion sociale.

Dans les circonstances, le juge a eu raison de conclure que la situation de l'appelant ne constitue pas une des quelques rares exceptions où il y aurait lieu d’ordonner une peine à être purgée dans la collectivité. [25] Having taken all of the relevant factors into account in this case, I arrive at the same conclusion.

A conditional sentence is not justified because the circumstances of the case are not exceptional. [26] Such a sentence would fail to meet the requirements of an exemplary sentence that gives due expression to the objectives of denunciation and deterrence in cases concerning the importation of over one kg of cocaine. [ 26 ] This does not imply that mitigating factors or collateral consequences should not have a material bearing on the sentence imposed in this case, especially to give weight to the objectives of rehabilitation and an enhanced sense of responsibility in the offender.

With respect to the collateral consequences in this case, I take them into account to ensure respect for proportionality and the individualisation of sentences. My justification for doing so is to ensure that the collateral consequences do not disproportionately magnify the severity of the sentence. I have already identified both the mitigating factors and the collateral consequences that are material to this case. On this basis I conclude that the evidence of these two elements justifies a sentence of forty-five (45) months.

This conclusion conforms with the jurisprudence of the Court of Appeal. [27] FOR THESE REASONS the court sentences Ms. Stanberry to imprisonment for a term of forty-five (45) months. Pursuant to

section 109 of the Criminal Code the court orders that Ms. Stanberry be prohibited from possessing any weapons for a period of ten (10) years. The court orders the confiscation and destruction of any drugs seized in this case. The court orders that there will be no victim surcharge in this case. Pursuant to

section 487.04 (b)(ii) of the Criminal Code the Court orders that there will be an order for a sample of DNA. ____________________________________ PATRICK HEALY, J.C.Q. M e Caroline Cloutier For the prosecution M e Alan Guttman For Ms. Stanberry