Case Name:
R. v. A.B.; R. v. C.D.
Ontario Superior Court of Justice
C. Hill J.
Heard: October 18, November 9 and November 25, 2004.
Judgment: December 20, 2004.
(37 paras.)
There are many ways a good criminal lawyer can safely help you to help yourself. Co-operating with the authorities is sometimes one of them.
Supplementary reasons for sentencing of AB and CD on their convictions for importing cocaine. AB entered Canada from Guyana. Her luggage was found to contain cocaine hidden in motor vehicle parts. When she was arrested, AB stated that she would help identify the person from whom she had undertaken the importation, but the authorities were unable to make an arrest. AB was a single mother in her twenties. She was unemployed. CD arrived in Canada from St. Lucia. Her bag was found to contain a significant amount of cocaine. CD stated that she did not know that it was cocaine that she was importing. CD was also a single mother who had recently lost custody of her children. She was addicted to crack cocaine and was unemployed. CD also assisted authorities in arresting two other individuals who were involved.
HELD: AB was sentenced to two years less one day. CD was sentenced to 12 months’ imprisonment. Both sentences were to be served on a conditional basis. In AB’s case, there were a number of mitigating factors, including her guilty plea, the lack of a criminal record and her status as a single mother. She attempted to assist the authorities. The mitigating factors in CD’s case were her guilty plea, her addiction, and the hardship of her bail conditions which required her to reside in a different province from her children. She was unaware that she was importing cocaine and assisted the authorities.
Counsel:
Fergus O’Donnell, Kelly Anne Gorman, for the Crown
Reid Rusonik, for A.B.
Kelly Anne Gorman, for the Crown
Alison Mackay, for C.D.
JUDGMENT
C. HILL J.:–
Introduction
1 On different occasions, A.B. and C.D. (both pseudonyms) each unlawfully imported cocaine into Canada. Both drug couriers have been sentenced for their crimes in separate proceedings. With an issue in common and of some uniqueness in these prosecutions touching upon the exercise of sentencing discretion, at the invitation of counsel, supplementary reasons were to issue. Those reasons follow…
C.D.’s Case
7 On March 8th, 2004, C.D. arrived at the Pearson International Airport from St. Lucia.
8 During a Canada Customs secondary inspection, an inspector found a collapsible bag belonging to C.D. remained quite heavy even after it was emptied. An x-ray of the luggage revealed a false bottom. Extraction from the false bottom resulted in the seizure of 955.4 g. of cocaine and 344.6 g. of cannabis resin respectively valued at $143,310.00 and $8,620.00.
9 During C.D.’s arrest, her cellphone rang constantly without C.D. answering. Concurrently in time, customs intelligence officers had two suspicious males under surveillance waiting in the terminal, one of whom was using a payphone.
10 C.D. related to the authorities that she was to be met at the airport by men who were to take her and the narcotics to another province where she resided. The males under surveillance were both arrested and charged with conspiracy and importation relating to the seized drugs. Relevant evidence was discovered in searches of these individuals incident to their arrest.
11 About 5 1/2 hours after her arrest, C.D. provided the R.C.M.P. a videotaped statement under oath disclosing her knowledge of the unlawful importation and the involvement of others. According to C.D.’s statement to the police describing those who hired her, “it took them a while to convince me to do it.” C.D. stated she expected to earn about $5,000.00 for swallowing hash. Ultimately, the illicit drug was secreted by others in a piece of luggage given to C.D. in St. Lucia. Cocaine was never discussed with the offender, and, at all times, she believed she was importing hash. In C.D.’s words:
I’m not a bad person, what I did I know was wrong … I’m on welfare … I really did just want to like buy some stuff for my children.
C.D. has undertaken to give evidence for the prosecution in the trial of those arrested at the airport.
12 C.D. has a prior minor and unrelated criminal record. The offender attained a grade eleven education. At the time of the offence, she was unemployed, receiving social assistance, addicted to crack cocaine, and had been suffering clinical depression for some time. The offender, separated from her common law partner for about a year, had lost custody of her children both under the age of twelve years. She exercised access to her children. C.D. was in somewhat desperate financial straits and became involved in the importation of narcotics to support herself and her children.
13 C.D. was jailed from the date of her arrest, March 8, to July 30, 2004 when she was granted judicial interim release. She was compelled by the bail order to reside in a residence approved by the Elizabeth Frye Society. Accordingly, for some months, C.D. was required to live in a province other than the province in which her children resided.
The Sentencing Dispositions
14 In the sentencing hearings of each offender, in accordance with the procedure outlined in R. v. John Doe (2000), 142 C.C.C. (3d) 330 (Ont. S.C.J.), the Crown submitted documentation, later sealed by the court, detailing the assistance each had provided the authorities.
15 In her submissions, Ms. Gorman observed that given the nature and weight of the prohibited substance imported by A.B., a six to eight-year penitentiary sentence would, in an ordinary case, be appropriate based on the sentencing guidelines developed by the Ontario Court of Appeal. Crown counsel, based on these guidelines, submitted that the weight of cocaine imported by C.D. would ordinarily attract a three to five-year term of imprisonment.
16 With knowledge that counsel for each offender was recommending imposition of a conditional sentence of imprisonment, Crown counsel chose not to recommend a particular disposition in either case acknowledging that the court had a discretion to depart significantly downward from the applicable guideline sentencing ranges given the “exceptional and mitigating circumstances”. Ms. Gorman placed especial reliance on the timely assistance to the authorities provided by both offenders as a circumstance which deserved extraordinary leniency in these cases while further submitting that it must become better known to retained counsel and duty counsel advising recently arrested drug courier importers that the arrestee who provides immediate cooperation stands to benefit substantially in a subsequent sentencing hearing.
17 For reasons set out below, both offenders were sentenced to terms of imprisonment to be served on a conditional basis. Credited with 4 days of pre-sentence custody, A.B. was sentenced to 2 years less one day of imprisonment with liberty restrictions. C.D. was sentenced to 12 months’ imprisonment with liberty restrictions after credit for 10 months of pre-sentence custody.
Analysis
18 In Ontario, the guideline sentencing established by the appellate court sets boundaries for the common case of a guilty plea by a drug courier with no prior criminal record – 3 to 5 years’ imprisonment for one kilogram more or less (R. v. Madden (1996), 27 O.R. (3d) 640, 104 C.C.C. (3d) 548 (Ont. C.A.)) and 6 to 8 years’ imprisonment for multi-kilogram importations (R. v. Cunningham (1996), 27 O.R. (3d) 786, 104 C.C.C. (3d) 542 (Ont. C.A.)).
19 C.D. imported cocaine in the Madden range. Given the purity range of the cocaine imported by A.B., a lower level than commonly seen in these courts, the weight imported amounts to just over a kilogram and a half of pure cocaine and therefore arguably within the Madden range of “a kilogram more or less” (see R. v. Hamilton; R. v. Mason (2004), 186 C.C.C. (3d) 129 (Ont. C.A.) at para. 153 as to the role of purity-adjusted weight). Certainly, A.B. imported substantially less of the prohibited substance than occurred in the Cunningham case (5.23 kg.) or in R. v. H.(C.N.) (2003), 62 O.R. (3d) 564, 170 C.C.C. (3d) 253 (Ont. C.A.) (4 kg.).
20 Although the Ontario Court of Appeal has acknowledged the starting point guidelines or ranges must be treated flexibly to ensure justice is done in individual cases, the discretion to depart from the judicially enacted guidelines is relatively narrow. “As a general rule”, in the absence of “exceptional or extenuating circumstances”, the sentencing disposition will be unfit unless it falls in the guideline range: R. v. Cunningham, supra, at 546, 547; R. v. H.(C.N.), supra, at 263-4.
21 Accordingly, “common mitigating factors”, or “usual mitigating factors”, as those expressions were employed in R. v. Hamilton; R. v. Mason, supra, at para. 111, permit the sentencing court to offset aggravating factors in a particular case or perhaps to place the offender toward the bottom of the applicable range – but not below the floor of the guideline. Where, however, an exceptional or extenuating circumstance exists, otherwise described in the Hamilton/Mason decision at para. 111, 113 as an “extraordinary mitigating” factor or a “so significant” mitigating feature of the case, a sentence may be justified below the applicable range of sentence established for the importation of cocaine (R. v. Hamilton; R. v. Mason, supra, at para. 111). Two such factors include the offender’s cooperation with the authorities and belief that marijuana, not cocaine, was imported: R. v. Hamilton; R. v. Mason, supra, at para. 111; R. v. H.(C.N.), supra, at 268, 271-3. Similarly, in R. v. Steel, [1998] A.J. No. 81 (C.A.) at para. 10, cooperation with the police was described as a “major mitigating” factor.
22 In R. v. John Doe, supra, at 341-2, I expressed the view that: “As a general rule, the full and frank disclosure by the accused/informer must objectively prove to be of assistance in order to warrant attention on sentencing”. This approach is generally in accord with what I understand to be the jurisprudence in the United States and England and the minority judgment in R. v. Cartwright (1989), 17 N.S.W.L.R. 243 (C.A.). However, in R. v. H.(C.N.), supra, at 269-270, the court adopted the view of the majority in the Cartwright case that credit can be extended in sentencing although the cooperation provided is of no practical use in the sense that it cannot be acted upon – what is relevant then is the potential of the assistance to help the authorities as comprehended by the offender. That said, in the H.(C.N.) decision at 270, Rosenberg J.A. did not suggest all assistance or information provided the police need be treated alike in considering the mitigating discount deserved:
(1) no discount is appropriate if the offender tailors disclosure to share only information he or she knows to be already in possession of the authorities
(2) the discount will rarely be substantial unless the offender discloses everything he knows
(3) a discount is warranted if the offender has “genuinely cooperated” and “the information which he gives must be such as could significantly assist the authorities”.
The last point quite properly invokes some objective assessment as to whether the information “could significantly” help the police. In other words, the sole measure of cooperation cannot simply be that the courier honestly believed that whatever he or she provided, however stale or otherwise lacking in any conceivable use to the authorities, would be beneficial.
23 With narcotics importation, it is submitted by the Crown that “there is a desire to apprehend “over-seers” and to ensure that the higher-ups in the drug world are identified”. Ms. Gorman’s written argument further submitted:
It is respectfully submitted that in determining what consideration is appropriate in regards to a reduction of sentence, it is imperative that the timeliness of the assistance be given significant weight.
…
The nature of importation schemes is often such that couriers are expected to arrive at particular times, and to make contact with overseers at set times and locations. Timely assistance allows the police a chance to apprehend the over-seers. While there are not guarantees of success, information provided contemporaneous to arrest affords the best likelihood of investigative success.
…
Thus, while attempts at controlled deliveries may prove unsuccessful, information provided contemporaneous to the couriers arrest will at least have the potential to assist investigators.
…
Little weight should be given to information provided years later, particularly in circumstances where the information is vague and incapable of corroboration.
…
Further, the timing of the provision of information must be factored into any determination of whether an accused has accepted responsibility for his or her role in the commission of the offence. Information provided years after the arrest is often manifestly unhelpful and suspect. (emphasis of original)
24 While cooperation with the authorities months or years after the offence may, in a specific case, “be such as could significantly assist the authorities”, that is very much the exception in drug importation cases. In the experience of this court, illicit narcotic enterprises attempt to preserve impenetrability with ever-changing locations, phone numbers and transient contact persons. Not infrequently, in a judicial pre-trial in this court, a year and a half or two years after the airport arrest of the drug courier, counsel relates to the presiding judicial officer that his or her client wishes to provide information to the investigating officer as part of a potential plea bargain. More often than not, when attempts are made to follow-up on such details as the offender is still able to recall, the passage of time in such instances defeats any real opportunity “as could significantly assist the authorities”. That is generally the nature of the drug trade — old information amounts to no information and does little more than detour valuable and limited police resources from more pressing assignments.
25 In R. v. John Doe, supra, at 336, 339, the court held that significant mitigation of sentence in real cooperation cases would “encourage other arrested couriers to cooperate in a timely way”. At page 335 of the John Doe decision, the court approved the statement in R. v. Debbag and Isset (1991), 12 Cr. App. R.(S.) 733 (C.A.) at 736 that “The value for the courts and the public in reflecting assistance given by serious offenders, particularly drug smugglers, is in enabling the authorities speedily to arrest other offenders and, where drugs are involved, to prevent their further distribution”. To similar effect is the observation in R. v. Ervin (2003), 176 C.C.C. (3d) 52 (Alta. C.A.) at 60 that the offender “cooperated fully with the authorities on a timely basis”.
26 In the A.B. and C.D. sentencings, with particular emphasis on the timeliness of the assistance the prosecution recognized the many benefits of informer assistance discussed in the John Doe case and advocated another useful framework for evaluating whether the offenders’ actions “could significantly assist the authorities”. Recognizing the caveat of the H.(C.N.) decision as to over-reliance on the police actually being able to act on the information received, the Crown nevertheless points to the analytical utility of the “departure policy” of the U.S. Federal Sentencing Guidelines. Title U.S.C. section 3553(e) provides:
Limited authority to impose a sentence below a statutory minimum. – Upon motion of the Government, the court shall have the authority to impose a sentence below a level established by statute as minimum sentence so as to reflect a defendant’s substantial assistance in the investigation or prosecution of another person who has committed an offense. Such sentence shall be imposed in accordance with the guidelines and policy statements issued by the Sentencing Commission pursuant to section 994 of title 28, United States Code. (emphasis added)
…
Title 28 U.S.C. section 994(n), in turn, states:
The Commission shall assure that the guidelines reflect the general appropriateness of imposing a lower sentence than would otherwise be imposed, including a sentence that is lower than that established by statute as a minimum sentence, to take into account a defendant’s substantial assistance in the investigation or prosecution of another person who has committed an offense. (emphasis added)
27 Policy section 5K1.1 promulgated by the Sentencing Commission for application by the courts reads:
PART K – DEPARTURES
1. SUBSTANTIAL ASSISTANCE TO AUTHORITIES
Section 5K1.1. Substantial Assistance to Authorities (Policy Statement)
Upon motion of the government stating that the defendant has provided substantial assistance in the investigation or prosecution of another person who has committed an offense, the court may depart from the guidelines.
(a) The appropriate reduction shall be determined by the court for reasons stated that may include, but are not limited to, consideration of the following:
(1) the court’s evaluation of the significance and usefulness of the defendant’s assistance, taking into consideration the government’s evaluation of the assistance rendered;
(2) the truthfulness, completeness, and reliability of any information or testimony provided by the defendant;
(3) the nature and extent of the defendant’s assistance;
(4) any injury suffered, or any danger or risk of injury to the defendant or his family resulting from his assistance;
(5) the timeliness of the defendant’s assistance.
(emphasis added)
28 The Commentary/Application Notes to the United States Sentencing Commission, Guidelines Manual section 5K1.1 state:
1. Under circumstances set forth in 18 U.S.C. section 3553(e) and 28 U.S.C. section 994(n), as amended, substantial assistance in the investigation or prosecution of another person who has committed an offense may justify a sentence below a statutorily required minimum sentence.
2. The sentencing reduction for assistance to authorities shall be considered independently of any reduction for acceptance of responsibility. Substantial assistance is directed to the investigation and prosecution of criminal activities by persons other than the defendant, while acceptance of responsibility is directed to the defendant’s affirmative recognition of responsibility for his own conduct.
3. Substantial weight should be given to the government’s evaluation of the extent of the defendant’s assistance, particularly where the extent and value of the assistance are difficult to ascertain.
Background: A defendant’s assistance to authorities in the investigation of criminal activities has been recognized in practice and by statute as a mitigating sentencing factor. The nature, extent, and significance of assistance can involve a broad spectrum of conduct that must be evaluated by the court on an individual basis. Latitude is, therefore, afforded the sentencing judge to reduce a sentence based upon variable relevant factors, including those listed above. The sentencing judge must, however, state the reasons for reducing a sentence under this section. 18 U.S.C. section 3553(c). The court may elect to provide its reasons to the defendant in camera and in writing under seal for the safety of the defendant or to avoid disclosure of an ongoing investigation.
29 The American system permits the District Court to depart below the Guidelines range when the government states that the offender has provided substantial assistance and requests or authorizes the court to depart below the Guidelines range (Melendez v. United States, 518 U.S. 120 (1996) at 130-1; T.W. Hutchison et al.; Federal Sentencing Law and Practice: 2004 Edition (Thomson Publishing) at pages 1768-9; L.B. Campbell and H.J. Bemporad, An Introduction to Federal Guideline Sentencing (Eight Ed.), March, 2004, Administrative Office of the U.S. Courts at 3). However, in Canada, the government’s acknowledgement of cooperation is not a jurisdictional prerequisite but rather something in the nature of a practical necessity.
30 In United States v. Washington, 293 F. Supp. 2d 930, 931 (E.D. Wis. 2003), the court observed:
In fiscal year 2001, courts granted downward departures based on the defendant’s substantial assistance to the government in 17.1% of all federal criminal cases. United States Sentencing Commission, 2001 Sourcebook of Federal Sentencing Statistics 53 (2001). In drug trafficking cases, the rate was even higher – 26.3% — compared to just 10.5% in all other cases. [FN1] Id. at 56.
FN1. Drug trafficking cases accounted for 22,882 of the 54,785 cases reported by the Commission In the FY 2001 statistics. Id. at 56. Courts granted 6023 substantial assistance departures in those 22,882 cases, but only 3346 substantial assistance departures in the 31,903 non-drug trafficking cases reported. Id.; see also id. at 80 (stating that substantial assistance departure rate is 25.7% in all drug cases). According to a report recently released by the General Accounting Office, courts departed on the basis of substantial assistance in 28% of all drug trafficking cases in fiscal years 1999-2001. United States General Accounting Office, Federal Drug Offenses: Departures from Sentencing Guidelines and Mandatory Minimum Sentences, Fiscal Years 1999-2001 12 (Oct. 2003).
31 In light of the experience of the significant contributions of arrestee informers in the United States in drug cases, and undoubtedly in order to provide here an avenue of escape in part from the severe sentences faced by couriers, frequently single African Canadian mothers with no assets and a history of inequality as the context for their involvement in criminality, the Department of Justice quite sensibly recommends in these cases judicial recognition of timely assistance as a substantial mitigating factor in sentencing. Where appropriate, trial judges should be in a position in sentencing to complement local drug interdiction measures. In this regard, in R. v. McDonnell, [1997] 1 S.C.R. 948, 114 C.C.C. (3d) 436 at 447, Sopinka J. observed:
A sentencing judge … possesses the unique qualifications of experience and judgment from having served on the front lines of our criminal justice system. Perhaps most importantly, the sentencing judge will normally preside near or within the community which has suffered the consequences of the offender’s crime. As such, the sentencing judge will have a strong sense of the particular blend of sentencing goals that will be “just and appropriate” for the protection of that community.
32 Substantial weight should be given to the government’s evaluation of the usefulness of the offender’s assistance, and the government’s recommendation as to the extent of departure should be the starting point for the court’s analysis though not determinative of the appropriate leniency: United States v. Winters, 117 F. 3d 346, 349 (7th Cir. 1997). With experienced local prosecutors like Mr. O’Donnell and Ms. Gorman, a presiding sentencing judge will receive assistance as to the offender’s cooperation within the context of the drug interdiction strategy at the Toronto Airport. Here, as in the United States, a “proper exercise of the district court’s discretion … involves an individualized qualitative examination of the incidents of the defendant’s cooperation”: United States v. King, 53 F. 3d 589, 591 (3rd Cir. 1995). In the United States, something in the order of a two-level adjustment to the applicable Guideline sentence for each section 5K1.1 factor is often seen as reasonable although not required: United States v. Winters, supra, at 349-50. In the John Doe case, at 346-7, the court observed that “Cooperation of a high order requires a meaningful discount” which may, depending on the circumstances and the trial judge’s exercise of discretion, run as high as half or two thirds of what would ordinarily be imposed.
33 Timeliness of an offender’s cooperation then is a significant factor in the assessment as to whether the information provided could significantly assist the authorities: United States v. Willis, 327 F. Supp. 2d 954, 957 (E.D. Wis. 2004); United States v. Washington, supra, at 935 (“Relevant here is whether the defendant immediately decided to cooperate upon arrest”); United States v. Banks, 252 F. 3d 801, 803 (6th Cir. 2001) (“… at the time of his arrest, Banks was forthcoming with the arresting officers”); United States v. Casiano, 923 F. Supp. 684, 688 E.D. Penn. 1996) (“… the defendant had agreed to cooperate shortly after his arrest …”).
34 A lack of timeliness in providing the relevant cooperation to the authorities reduces, perhaps to the vanishing point, the potential significance of the shared information – objectively speaking, “stale information” is of virtually no significance: R. v. John Doe, supra, at 340-1. See also United States v. Torres, 251 F. 3d 138, 144 (3rd Cir. 2001) (“Torres’s hesitance to provide candid and complete cooperation at the outset resulted in useless delay and lost opportunities that are now impossible to calculate”); United States v. Doe, 233 F. 3d 642, 644-5 (1st Cir. 2000) (by the time of Doe’s assistance, “little time for the government to investigate” with a rapidly approaching statute of limitations period).
35 In A.B.’s case, there were a number of common mitigating factors beyond the courier’s guilty plea including the lack of a prior criminal record, the offender’s status as a single mother with two young children, and her motive of involvement to help sustain her and her children’s existence. While the offender did not serve a house arrest bail term, the offender served a lengthy period of judicial interim release with a significant curfew restraint of liberty, a condition which seems entirely unrelated to the charged person’s background. The existence of pre-sentencing house arrest, depending on its exact contours, may be a factor mitigating the harshness of the sentence otherwise to be imposed: R. v. Zellman, [2004] O.J. No. 4159 (C.A.) at para. 2; R. v. C.(T.) (2004), 190 O.A.C. 380 (C.A.) at para. 53-4.
36 Without solicitation by the authorities, A.B. immediately on arrest offered to assist in a controlled delivery. Through no fault of her own, the delivery and anticipated arrests did not occur. The extraordinary circumstance of the timely assistance to the police, together with the more common mitigating factors justified a disposition in the range of a minimum penitentiary sentence. In the circumstances of the modest pre-sentence custody, A.B. was afforded the considerable leniency of the maximum reformatory sentence to be served conditionally.
37 The common mitigating factors in C.D.’s case beyond her guilty plea include her depression and addiction, motivation for involvement in drug smuggling as a desire to support herself and her young children, and the hardship of the bail order causing her to reside in a different province from her children. As extraordinary mitigating factors stand her belief she was importing marijuana and the assistance provided the authorities. The cooperation with the police was timely and complete and continues with the offender’s willingness to testify against her accomplices. Despite C.D. not being a first offender, the combination of mitigating factors together with the pre-sentence custody clearly justified the imposition of a conditional sentence.
C. HILL J.
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