R. v. Hamilton (M.A.), (2004) 189 O.A.C. 90 (CA)

• Judge: O'Connor, A.C.J.O., Doherty and Gillese, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: August 03, 2004
• Jurisdiction: Ontario
• Citations: (2004), 189 O.A.C. 90 (CA);2004 CanLII 5549 (ON CA);2004 CanLII 5549 (NS CA);72 OR (3d) 1;241 DLR (4th) 490;186 CCC (3d) 129;22 CR (6th) 1;[2004] CarswellOnt 3214;[2004] OJ No 3252 (QL);189 OAC 90;62 WCB (2d) 510

R. v. Hamilton (M.A.) (2004), 189 O.A.C. 90 (CA)

MLB headnote and full text

Temp. Cite: [2004] O.A.C. TBEd. AU.003

Her Majesty The Queen (appellant) v. Marsha Alisjie Hamilton and Donna Rosemarie Mason (respondents)

(C39716/C39715)

Indexed As: R. v. Hamilton (M.A.) et al.

Ontario Court of Appeal

O'Connor, A.C.J.O., Doherty and Gillese, JJ.A.

August 3, 2004.

Summary:

The accused pleaded guilty to importing small amounts of cocaine (less than one kilogram). They were single, impoverished black mothers with no prior convictions and no drug use history. The accused sought conditional sentences.

The Ontario Superior Court, in a judgment reported [2003] O.T.C. 130, imposed conditional sentences primarily because the accused, by reason of their race, gender and poverty, were vulnerable targets to those seeking persons to become couriers and were generally subject to systemic racial and gender bias. Society had to share responsibility for the offences. The accused Hamilton received a 20 month conditional sentence. The accused Mason received a conditional sentence of two years less a day. The Crown appealed.

The Ontario Court of Appeal dismissed the appeals. The trial judge erred in imposing conditional sentences for these offences and these offenders. There were no extraordinary mitigating circumstances warranting departure from the sentencing range of "at or near" two years to five years for importing cocaine in amounts of less than one kilogram. Appropriate sentences would have been terms of imprisonment of 20 months and two years less a day. However, since the accused would receive credit for the 17 months of their conditional sentences served, it would not serve the interests of justice to now incarcerate them for several months. The administration of justice would be best served by the accused completing their conditional sentences.

Criminal Law - Topic 5720.4

Punishments (sentence) - Conditional sentence - When available or appropriate - The Ontario Court of Appeal stated that "if a sentence of less than two years is appropriate, there is no presumption that conditional sentences are unavailable for those convicted of importing cocaine. However, the reality is that the crime of importing cocaine is so serious and harmful to the community that conditional sentences will, in the vast majority of cases, not adequately reflect the gravity of the offence or send the requisite denunciatory and deterrent message. ... Conditional sentences for those who import dangerous drugs like cocaine into Canada will usually be a viable sentencing option only where, in addition to the usual mitigating factors, there are one or more extraordinary mitigating factors such as cooperation with the authorities in their attempts to identify and arrest those behind the drug trade." - See paragraph 113.

Criminal Law - Topic 5823.2

Sentencing - Sentencing procedure and rights of accused - Role of judge - The Ontario Court of Appeal discussed the role of a sentencing judge - The court stated, inter alia, that "recognition that a trial judge can go beyond the issues and evidence produced by the parties on sentencing where necessary to ensure the imposition of a fit sentence does not mean that the trial judge's power is without limits or that it will be routinely exercised. ... Generally speaking, it is left to the parties to choose the issues, stake out their positions, and decide what evidence to present in support of those positions. The trial judge's role is to listen, clarify where necessary, and ultimately evaluate the merits of the competing cases presented by the parties. ... Judges must be very careful before introducing issues into the sentencing proceeding. Where an issue may or may not be germane to the determination of the appropriate sentence, the trial judge should not inject that issue into the proceedings without first determining from counsel their positions as to the relevance of that issue." - See paragraphs 67 to 69.

Criminal Law - Topic 5830.8

Sentencing - Considerations on imposing sentence - Drug and narcotic offences - The Ontario Court of Appeal, on a sentence appeal for importing cocaine, discussed the relevance of the purity of the cocaine as a sentencing consideration - The court noted that the purer the cocaine, the wider its potential distribution and the greater harm to society it posed - However, the court noted that the weight of the cocaine was a more relevant sentencing consideration than its purity - See paragraphs 150 to 153.

Criminal Law - Topic 5832.4

Sentencing - Considerations on imposing sentence - Imprisonment of women - [See second Criminal Law - Topic 5891 ].

Criminal Law - Topic 5832.5

Sentencing - Considerations on imposing sentence - Imprisonment of blacks - [See second Criminal Law - Topic 5891 ].

Criminal Law - Topic 5837

Sentencing - Considerations on imposing sentence - Mitigating circumstances - [See Criminal Law - Topic 5849.6 ].

Criminal Law - Topic 5840

Sentencing - Considerations on imposing sentence - Prospective deportation of convict - The Ontario Court of Appeal stated that "the case law referable to the relevance of deportation in fixing an appropriate sentence addresses two very different situations. In the first situation, it is acknowledged that imprisonment is the only appropriate sentence and that deportation from Canada will inevitably follow upon completion of the sentence. In the second situation, it is argued that a certain kind of sentence should be imposed to avoid the risk of deportation from Canada. In the first situation, the certainty of deportation may justify some reduction in the term of imprisonment for purely pragmatic reasons: ... In the second situation, the risk of deportation cannot justify a sentence which is inconsistent with the fundamental purpose and the principles of sentencing identified in the Criminal Code. The sentencing process cannot be used to circumvent the provisions and policies of the Immigration and Refugee Act. As indicated above, however, there is seldom only one correct sentencing response. The risk of deportation can be a factor to be taken into consideration in choosing among the appropriate sentencing responses and tailoring the sentence to best fit the crime and the offender ..." - See paragraphs 154 to 158.

Criminal Law - Topic 5846

Sentencing - Considerations on imposing sentence - Economic or family status of accused - [See second Criminal Law - Topic 5891 ].

Criminal Law - Topic 5849.6

Sentencing - Considerations on imposing sentence - Prohibited or improper considerations - Two black female accused couriers who pleaded guilty to importing cocaine were given conditional sentences primarily because they were, by reason of their race, gender and poverty, vulnerable targets to those seeking persons to become couriers - The Ontario Court of Appeal held that the sentencing judge erred in imposing conditional sentences where the offences called for substantial periods of imprisonment - The court stated that "as difficult as the determination of a fit sentence can be, that process has a narrow focus. It aims at imposing a sentence that reflects the circumstances of the specific offence and the attributes of the specific offender. Sentencing is not based on group characteristics, but on the facts relating to the specific offence and the specific offender as revealed by the evidence adduced in the proceedings. A sentencing proceeding is also not the forum in which to right perceived societal wrongs, allocate responsibility for criminal conduct as between the offender and society, or 'make up' for perceived social injustices by the imposition of sentences that do not reflect the seriousness of the crime." - See paragraph 2.

Criminal Law - Topic 5891

Sentence - Importing or exporting a narcotic or controlled substance - Previous Ontario caselaw suggested a sentence range of three to five years' imprisonment for importing one kilogram of cocaine ("more or less") - The Ontario Court of Appeal stated that where the amount of cocaine imported fell below the one kilogram "more or less", the appropriate sentencing range was "at or near" two years to five years - The "at or near" two years left open the option of a conditional sentence - See paragraphs 105 to 109.

Criminal Law - Topic 5891

Sentence - Importing or exporting a narcotic or controlled substance - Two black, impoverished female accused were conscripted as couriers to import cocaine from Jamaica - Both were young single mothers with children - They had no criminal records, no known criminal associations and did not use drugs - Both were remorseful - One committed the offence because of financial hardship - The other gave no reason - The sentencing judge imposed conditional sentences of 20 months and two years less a day, primarily because the accused were, by reason of race, gender and poverty, vulnerable targets to those seeking persons to become couriers - The sentencing judge, on his own initiative, raised the issue of the disproportionate number of single, impoverished black women being sentenced to lengthy periods of imprisonment for importing - There was no evidence as to how they were recruited - The Ontario Court of Appeal held that the sentencing judge erred in imposing conditional sentences where the offences called for substantial periods of imprisonment - There was no evidence that the accused's financial circumstances resulted from systemic racial and gender bias - Appropriate sentences would have been 20 months' imprisonment and imprisonment for two years less a day - However, where the accused had now served 17 months of their conditional sentences, it would not serve the interests of justice to now incarcerate the accused for several months - The administration of justice would be best served by the accused completing their conditional sentences.

Criminal Law - Topic 5891

Sentence - Importing or exporting a narcotic or controlled substance - [See Criminal Law - Topic 5720.4 ].

Criminal Law - Topic 6214

Sentencing - Appeals - Variation of sentence - Considerations - Where sentence of trial court has been fully or partially served - [See second Criminal Law - Topic 5891 ].

Cases Noticed:

R. v. Satkunananthan (S.) et al. (2001), 143 O.A.C. 1; 152 C.C.C.(3d) 321 (C.A.), refd to. [para. 26, footnote 1].

R. v. Madden (K.) (1996), 88 O.A.C. 153; 104 C.C.C.(3d) 548 (C.A.), refd to. [para. 27].

R. v. Cunningham (G.) (1996), 88 O.A.C. 143; 104 C.C.C.(3d) 542 (C.A.), refd to. [para. 27].

R. v. Curragh Inc. et al. (1997), 209 N.R. 252; 159 N.S.R.(2d) 1; 468 A.P.R. 1; 113 C.C.C.(3d) 481 (S.C.C.), refd to. [para. 62].

R. v. Wells (J.W.) (2000), 250 N.R. 364; 250 A.R. 273; 213 W.A.C. 273; 141 C.C.C.(3d) 368 (S.C.C.), refd to. [para. 66].

R. v. Gladue (J.T.), [1999] 1 S.C.R. 688; 238 N.R. 1; 121 B.C.A.C. 161; 198 W.A.C. 161, refd to. [para. 66].

R. v. Peter-Paul (T.) (1998), 196 N.B.R.(2d) 292; 501 A.P.R. 292; 124 C.C.C.(3d) 1 (C.A.), refd to. [para. 72].

R. v. Paul - see R. v. Peter-Paul (T.).

Cronk v. Canadian General Insurance Co. (1995), 85 O.A.C. 54; 25 O.R.(3d) 505 (C.A.), refd to. [para. 72].

R. v. Proulx (J.K.D.) (2000), 249 N.R. 201; 142 Man.R.(2d) 161; 212 W.A.C. 161; 140 C.C.C.(3d) 449 (S.C.C.), refd to. [para. 85].

R. v. McDonnell (T.E.) (1997), 210 N.R. 241; 196 A.R. 321; 141 W.A.C. 321; 114 C.C.C.(3d) 436 (S.C.C.), refd to. [para. 85].

R. v. C.A.M. (1996), 194 N.R. 321; 73 B.C.A.C. 81; 120 W.A.C. 81; 105 C.C.C.(3d) 327 (S.C.C.), refd to. [para. 85].

R. v. McKnight (R.) (1999), 119 O.A.C. 364; 135 C.C.C.(3d) 41 (C.A.), refd to. [para. 86].

R. v. Currie (R.O.R.) (1997), 211 N.R. 321; 100 O.A.C. 161; 115 C.C.C.(3d) 205 (S.C.C.), refd to. [para. 87].

R. v. Borde (Q.) (2003), 168 O.A.C. 317; 172 C.C.C.(3d) 225 (C.A.), refd to. [para. 87].

R. v. Wilmott, [1967] 1 C.C.C. 171 (Ont. C.A.), refd to. [para. 89].

R. v. Priest (J.) (1996), 93 O.A.C. 163; 110 C.C.C.(3d) 289 (C.A.), refd to. [para. 92].

R. v. Spencer (T.-A.) (2004), 188 O.A.C. 363 (C.A.), refd to. [para. 99, footnote 5].

R. v. Lyons, [1987] 2 S.C.R. 309; 80 N.R. 161; 82 N.S.R.(2d) 271; 207 A.P.R. 271, refd to. [para. 102].

R. v. Morrisey (M.L.) (No. 2) (2000), 259 N.R. 95; 187 N.S.R.(2d) 1; 585 A.P.R. 1; 148 C.C.C.(3d) 1 (S.C.C.), refd to. [para. 102].

Pushpanathan v. Canada (Minister of Citizenship and Immigration) (1998), 226 N.R. 201; 160 D.L.R.(4th) 193 (S.C.C.), refd to. [para. 104].

R. v. Smith (E.D.) (1987), 75 N.R. 321; 34 C.C.C.(3d) 97 (S.C.C.), refd to. [para. 104].

R. v. Pearson (E.) (1992), 144 N.R. 243; 52 Q.A.C. 1; 77 C.C.C.(3d) 124 (S.C.C.), refd to. [para. 104].

R. v. C.N.H. (2002), 167 O.A.C. 292; 170 C.C.C.(3d) 253 (C.A.), refd to. [para. 106].

R. v. Wilson (J.) (2003), 167 O.A.C. 351 (C.A.), refd to. [para. 106].

R. v. Bunn (T.A.) (2000), 249 N.R. 296; 142 Man.R.(2d) 256; 212 W.A.C. 256; 140 C.C.C.(3d) 505 (S.C.C.), refd to. [para. 109].

R. v. Ly (V.T.) and Nguyen (T.P.) (1997), 97 O.A.C. 393; 114 C.C.C.(3d) 279 (C.A.), refd to. [para. 113].

R. v. Berbeck, [1997] O.J. No. 2434 (C.A.), refd to. [para. 113].

R. v. Holder (A.) (1998), 84 O.T.C. 161 (Gen. Div.), refd to. [para. 113].

R. v. R.D.S. (1997), 218 N.R. 1; 161 N.S.R.(2d) 241; 477 A.P.R. 241; 118 C.C.C.(3d) 353 (S.C.C.), refd to. [para. 119].

R. v. Critton (P.D.), [2002] O.T.C. 451 (Sup. Ct.), refd to. [para. 156].

R. v. Melo (1975), 26 C.C.C.(2d) 510 (Ont. C.A.), refd to. [para. 156].

R. v. Lacroix (D.) (2003), 172 O.A.C. 147 (C.A.), refd to. [para. 158].

R. v. Rezaie (M.) (1996), 96 O.A.C. 268; 112 C.C.C.(3d) 97 (C.A.), refd to. [para. 164].

Authors and Works Noticed:

Ashworth, Andrew, Sentencing and Criminal Justice (2nd Ed. 1995), p. 70 [para. 89].

Binnie, Ian, Judicial Notice: How Much is Too Much?, in Special Lectures of the Law Society of Upper Canada 2003: The Law of Evidence (2004), 543, pp. 564, 565 [para. 72].

Canada, Report of the Canadian Sentencing Commission, Sentencing Reform: A Canadian Approach (1987), p. 205 [para. 104].

Manson, Allan, The Law of Sentencing (2001), p. 95 [para. 96, footnote 4].

Counsel:

Jim Leising, Julie Jai and Nick Devlin, for the appellant;

P. Andras Schreck, for the respondent, Hamilton;

Leslie Maunder, for the respondent, Mason;

Andrew M. Pinto and Beverly Jacobs, for the Native Women's Association of Canada;

Brian Eyolfson and Kent Roach, for the Aboriginal Legal Services of Toronto;

Donald McLeod and Faizal Mirza, for the African Canadian Legal Clinic.

These appeals were heard on February 9-10, 2004, before O'Connor, A.C.J.O., Doherty and Gillese, JJ.A., of the Ontario Court of Appeal.

The judgment of the Court of Appeal was delivered by Doherty, J.A., and released on August 3, 2004.