Courts routinely reduce sentences for convicted criminals who are foreign nationals and may be subject to immigration proceedings. Should this be the case? Or should offences committed by those who are welcomed to Canada treated more harshly? What about the significant costs to society in rehabilitation, treatments, social services, welfare, etc? Should those be taken into account? How should the protection of society at large be considered by the courts? How should the principles of equality under the law be applied? Is it fair that, in all likelihood, a Canadian citizen would have received a three year sentence? This recent Alberta case illustrates the conundrum.
R. v. Yonis
Between
Her Majesty the Queen, and
Ahmed Assowe Yonis
[2011] A.J. No. 102
2011 ABPC 20
Docket: 100682350P1-01-001-003
Registry: Calgary
Alberta Provincial Court
T.C. Semenuk Prov. Ct. J.
January 12, 2011.
(32 paras.)
________________________________________
Reasons for Sentence
T.C. SEMENUK PROV. CT. J.:--
Introduction
1 The Accused was found guilty after trial by this Court on two (2) charges of trafficking in cocaine. The matter is now before the Court for disposition. For the reasons that follow, absent time spent in pre-trial custody, the Accused is sentenced to two (2) years' less one (1) day imprisonment, concurrent on each charge.
Facts
2 The facts are fully canvassed in this Court's written judgment reported at 2010 ABPC 327.
3 Briefly stated, the offences arose out of a Calgary Police Service (CPS) undercover operation named "Operation Iris", aimed at curbing high intensity street level drug trafficking in downtown Calgary.
4 In the evening, on May 14, 2010, the Accused sold small amounts of crack cocaine to two undercover police officers for $20.00 and $40.00, respectively. These hand to hand drug transactions were witnessed by a (CPS) surveillance team. Times and occurrences were aired and recorded by a scribe over a police radio connecting the various members of the team.
5 In the circumstances of this case, the Accused was not arrested for the offences until June 14, 2010, about one month after the event.
6 A Pre-Sentence Report (PSR) was prepared and marked in evidence. The Accused is not a Canadian citizen, and has a significant and related criminal record.
Issue
7 The issue in this case is a fit sentence. How should this Court deal with the relevant provisions of the Immigration and Refugee Protection Act, supra, S.C. 2001, C.27, S.64, as they may impact on the Accused in this case?
Range of Sentence
8 I dealt with the range of sentence for cocaine trafficking offences in R. v. Hamilton, 2008 ABPC 159. At para. 6, this Court stated as follows:
• [6] Recently, this Court dealt with the range of sentence for cocaine trafficking offences in R. v. Dhuna, 2008 ABPC 97. In Dhuna, supra, at paras. 5-6, the Court stated as follows:
[5] During the argument, the Court was referred to a number of authorities by counsel to assist in the final determination of the appropriate global range of sentence for the offences committed by the Accused, in the particular circumstances of this case. The Court was referred to a number of cases decided by the Alberta Court of Appeal including: R. v. Maskell, (1981) 58 CCC (2d) 408; R. v. Simoneau, (1988) 84 A.R. 155; R. v. Getty, (1990) 104 A.R. 180; R. v. Rahime, (2001) A.J. No. 988; R. v. Panousis, 2004 ABCA 211; R. v. Bowen, 2007 ABCA 40; R. v. Lee, 2007 ABCA 288; R. v. Jaber, 2007 ABCA 383; and R. v. Sawatsky, 2007 ABCA 353.
[6] There are many others, but the above-cited cases are sufficient for this Court to conclude that in the Province of Alberta, the starting-point for sentencing in cases such as this, is three years' imprisonment. A lesser sentence that may dip into the CSO range may be justified depending on the circumstances of the offence and the offender and the aggravating and mitigating circumstances in any given case.
9 Where the amount and value of the crack cocaine is small, and where the Accused is addicted to the drug at the time of the offence, it may be that a sentence well below the starting-point of three (3) years' imprisonment is warranted. A sentence ranging between 15 and 20 months' imprisonment may be fit in such cases. See: R. v. Price, 2007 ABCA 242; R. v. McGrath, 2007 ABPC 1; R. v. McCrae, 2003 ABPC 93; and R. v. Pham, 2000 ABPC 24.
• Impact of Immigration and Refugee Protection Act, supra, on Sentence
10 The Accused 's status in Canada as a Permanent Resident may be impacted by the sentence imposed in this case as a result of the relevant provisions of the Immigration and Refugee Protection Act, supra,, S.C. 2001, c. 27, s. 64, which reads as follows:
• 64.(1) No appeal may be made to the Immigration Appeal Division by a foreign national or their sponsor or by a permanent resident if the foreign national or permanent resident has been found to be inadmissible on grounds of [...] serious criminality [...].
• (2) For the purpose of subsection (1), serious criminality must be with respect to a crime that was punished in Canada by a term of imprisonment of at least two years.
11 In short, the Accused may be subject to a Deportation Order, without a right of appeal, if the global sentence is at least two years' imprisonment.
12 How does the Court properly factor in the impact of the relevant provisions of the Immigration and Refugee Protection Act, supra, in determining an otherwise fit sentence in this case?
13 In this regard, the Court has reviewed and considered the following cases: R. v. Leung, 2004 ABCA 55; R. v. Szezerba, 2004 ABCA 301; R. v. Kanthasamy, 2005 BCCA 135; R. v. Martinez-Marte, 2008 BCCA 136; R. v. Heiz, 2008 BCCA 427; R. v. Nistor, 2009 SKQB 464; R. v. B.R.C., 2010 ONCA 561; R. v. Bahadur, 2010 SKCA 103; and most recently, R. v. Belenky, 2010 ABCA 98.
14 My review of these cases leads me to conclude, that I can consider the impact of the relevant provisions of the Immigration and Refugee Protection Act, supra, as a factor in the imposition of sentence. That being said, the impact of the Act (i.e., Deportation Order, without a right of appeal, if the sentence is at least two years' imprisonment) is not, in and of itself, a reason in law for the Court to not impose an otherwise fit sentence. To do so, would result in ignoring other relevant principles of sentencing, including denunciation and deterrence.
15 I note in Belensky, supra, the Alberta Court of Appeal found error on a Crown appeal against sentence where the trial judge imposed a sentence of two years less one day imprisonment in a cocaine trafficking case, simply to avoid the impact of the relevant provisions of the Immigration and Refugee Protection Act, supra. The Crown submitted that a sentence of 2 1/2 - 3 years' imprisonment was otherwise fit. The Court allowed the Crown appeal and raised the sentence to 2 1/2 years' imprisonment.
Circumstances of the Accused
16 The Accused is 46 years of age. He was born in Ethiopia, and entered Canada alone as a refugee on March 26, 1990. At the present time, he has Permanent Resident status. He resided in the Toronto area until 2002, then he moved to Alberta. He started out staying at the Calgary Drop-In Center, and has not maintained a stable residence since then. He has never been married and has no children. He has virtually no support system in place in the community. Prior to his arrest, he was staying at the Salvation Army Center of Hope, where he was engaged in addictions counselling. When released from custody, he will probably return there.
17 When the Accused entered Canada, he was a few courses short of having a high school equivalency, but managed to graduate from George Brown College in the Welding Program. Unfortunately, he suffered a gun shot wound in 2007, which left him blind in his left eye. He cannot be employed any longer as a welder as a result of that injury. After his injury, and because of serious addiction issues relating to alcohol and drugs, the Accused has not been employed on any steady basis. Labour jobs that he managed to acquire from time to time were lost by his continuing to relapse into his alcohol and drug addictions. For the most part, the Accused lives on the street.
18 The PSR describes the Accused as being subject to chronic homelessness for the past eight years. In this condition, he is open to all the negative pressures around him on the street, including drug trafficking. The Accused has a significant criminal record, including four related drug convictions. On June 5, 2006, he was subject to a Deportation Order from Canada with an automatic right of appeal. Despite having been convicted of a multitude of new offences since then, he has not been deported. Recently, he has submitted an application to the Calgary Dream Center, hoping that when he is released, he can receive assessment, counselling and treatment for his addictions.
Sentencing Principles
19 In all sentencing cases, the ultimate disposition for an offender must reflect the fundamental purpose and all the principles of sentencing provided for in Section 718 of the Criminal Code. The sentence must be in accordance with the fundamental principle of proportionality found in Section 718.1 of the Code. As well, the sentence, in accordance with Section 718.2 of the Code, must account for any relevant aggravating and mitigating circumstances and be tailored to fit the individual Accused before the Court. "Individualized" sentencing, as opposed to "tariff" sentencing, has been endorsed by the Supreme Court of Canada, in R. v. McDonnell, (1997) 1 SCR 948 and R. v. Proulx, (2000) 140 CCC (3d) 449.
20 What are the aggravating and mitigating circumstances in this case?
• The aggravating circumstances are these:
• 1. The nature of the drug offences committed by the Accused in this case is serious, because the drug involved in each offence is crack cocaine. As I have said in several other cases, crack cocaine is a very dangerous drug. It is highly addictive and is responsible for much derivative violent and property crime in the community.
• 2. The prevalence of these kinds of offences in Calgary is of concern to the Court. According to the facts in this case, the offences here arose out of a Calgary Police Service (CPS) undercover operation named "Operation Iris" which was specifically aimed at curbing high intensity street level trafficking in downtown Calgary.
• 3. In the particular circumstances of this case, the fact that there were two distinct trafficking transactions, with two different undercover police officers is aggravating.
• 4. The matter is all the more serious for the Accused, because he is not a first offender. He comes before the Court with a significant, and related criminal record dating back to 1992. He has four prior convictions for drug offences, including a conviction for trafficking in 2005, two convictions for simple possession in 2006, and one conviction for simple possession in 2007.
• 5.The Pre-Sentence Report (PSR) is not positive. The Accused has a long history of addictions beginning with alcohol abuse in 1992. His alcohol addiction blossomed into a serious crack cocaine addiction starting in 2005. All efforts at assessment, counselling and treatment have failed.
• The mitigating circumstances are these:
• 1. The amount and value of the crack cocaine involved in the two drug transactions is small ($20.00 and $40.00), respectively. Although the offences involved two undercover police officers, the offences occurred one after the other, on the same date.
• 2. The Accused may properly be characterized as a low level street trafficker. There was no evidence that the Accused was involved in any organized dial-a-dope operation in this case.
• 3. Although the Accused has a significant related record, the bulk of it involves charges of obstruction and breaching Court Orders. As well, there are some substantial gaps in the Accused's record.
• 4. At the time of the commission of the offences, the Accused was seriously addicted to alcohol and crack cocaine.
• 5. The Accused has again indicated a desire to address his addictions through assessment, counselling and treatment.
21 Finally, as a factor in sentencing, I take into account the time the Accused has spent in pre-trial custody. He has been in custody since his arrest on June 14, 2010. As at the date of sentencing, he will have spent approximately seven (7) months in pre-trial custody. As the charges post-date the February 2010 Criminal Code amendment, he is only entitled to a pre-trial custody credit on a 1:1 basis.
Disposition
22 There is no joint submission in this case.
23 Appreciating that the starting-point for sentencing in cocaine trafficking cases like this is three (3) years' imprisonment, Crown Counsel submits that, absent time spent in pre-trial custody, a sentence of two (2) years' less one (1) day imprisonment, concurrent on each charge, is fit.
24 Defence Counsel submits that, absent time spent in pre-trial custody, a sentence somewhere between 15 and 18 months' imprisonment, concurrent on each charge, is fit.
25 In terms of a fit sentence and the impact of the Immigration and Refugee Protection Act, supra,, I note that unlike Belenky, supra, the accused in this case was an addict at the time of the commission of the offences. As well, unlike Belenky, supra, and despite the accused's dismal criminal record, the Crown is not asking the Court to impose a sentence greater than two years' imprisonment in the circumstances of this case.
26 In Hamilton, supra, this Court imposed a sentence, absent nine (9) months spent in pre-trial custody, calculated on a 2:1 basis, of 15 months' imprisonment. The accused sold $40.00 worth of crack cocaine to an undercover police officer through an intermediary in a dial-a-dope operation. The accused had a significant criminal record including three prior drug convictions. He too was addicted to crack cocaine at the time of the commission of the offence. The accused being a Canadian citizen, the Immigration and Refugee Protection Act, supra, was not a concern.
27 Balancing what the Alberta Court of Appeal said in Belenky, supra, and what this Court did in Hamilton, supra, I agree with the submission made by Crown Counsel in this case. A sentence of 2 years less 1 day imprisonment, concurrent on each charge is a fit sentence that takes into account the paramount sentencing principles of denunciation and deterrence, in cocaine trafficking cases, as well as the impact, if any, of the Immigration and Refugee Protection Act, supra, on the accused.
28 On Counts 1 and 3 in the Information before me, and taking into account the seven (7) months' spent in pre-trial custody, the Accused is sentenced to 17 months' less 1 day imprisonment, concurrent on each charge. Although the actual global sentence is 17 months' less 1 day imprisonment, the effective global sentence is two (2) years less 1 day imprisonment.
29 Pursuant to Section 109(3) of the Criminal Code, these being subsequent offences, there will be a Firearms Prohibition Order for life.
30 Pursuant to Section 487.051(1)(b) of the Criminal Code, in the exercise of my discretion, I order that a DNA sample be taken from the Accused, prior to his release from custody.
31 Pursuant to section 490 of the Criminal Code, all offence related items will be forfeited to Her Majesty the Queen.
32 Finally, there will be no Victim Fine Surcharge in this case.
T.C. SEMENUK PROV. CT. J.
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