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Sentencing discounts for defendants who assist Crown

|Written By Shannon Kari - For Law Times

Aseries of rulings by Superior Court judges in Brampton in recent months suggests thatcocaine couriers may still receive sharply reduced sentences from guidelinesset out by the Ontario Court of Appeal — if they provide "meaningfulco-operation" with the authorities.

Justice Casey Hill recently imposed a conditional sentence on a drug courier whose 'exceptional circumstances' warranted a lesser punishment.
Justice Casey Hill recently imposed a conditional sentence on a drug courier whose 'exceptional circumstances' warranted a lesser punishment.
Justice Casey Hill imposed a 22-month conditional sentence on a defendant identified only as John Doe #33, who attempted to smuggle 721 grams of cocaine, hidden in pellets he had swallowed, on a flight from Jamaica. Hill found there were "exceptional or extenuating circumstances," which warranted a sentence lower than the three- to five-year prison term range for a "kilogram more or less," as set out by the Court of Appeal in R. v. Madden.

Hill also imposed conditional sentences in R v. A.B. and R v. C.D. in a decision released last December. The defendants, both single mothers with no criminal records who immediately co-operated with authorities, had attempted to smuggle 2.2 kilograms and 955 grams of cocaine from Guyana and St. Lucia respectively.

In May, Justice Bruce Durno sentenced a defendant who attempted to co-operate with police after he was caught with three kilograms of cocaine to three years in prison in R v. D.O.

Durno reduced the sentence from the normal range of six to eight years, because of a significant offer of co-operation by the defendant, even though it was some time after his arrest and was not acted on by police.

 The police testimony that information must be recent to be acted on, is "problematic," said Durno.

 "While it is no doubt preferable that the information be recent, to suggest that all information is not wanted is surprising,"said the judge. "That approach flies in the face of statements in the courts over the years about efforts to get those higher up in the drug herarchy."

The Superior Court decisions follow a high-profile August 2004 ruling by the Court of Appeal which criticized Hill for the sentences he imposed against two drug couriers and suggested he had "assumed the combined role of advocate, witness, and judge."

The Court of Appeal said Hill was wrong to issue a conditional sentence, in part because he found that the defendants, both black single mothers, were "vulnerable targets" as a result of their race, gender, and financial circumstances.

"Sentencing is not based on group characteristics but on the facts relating to the specific offence and specific offender," wrote Justice David Doherty, a former colleague of Hill's in the Crown Law Office of the Ministry of the Attorney General.

"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," said Doherty.

The Court of Appeal said a conditional sentence for a cocaine courier may be a "viable option," only if there exists "one or more extraordinary mitigating factors such as co-operation with the authorities in their attempts to identify and arrest those behind the drug trade."

Reid Rusonik, a Toronto lawyer who represented A.B. and D.O., said it would be incorrect to suggest that Hill's recent sentences are an "end run" around the Court of Appeal's decision.

"Justice Hill would never sacrifice the law. He would always respect it. It is an illustration of Justice Hill's character that instead of moping, he tried to come up with a constructive response," said Rusonik.

The Toronto defence lawyer said judges such as Hill and Durno have responded to the Court of Appeal ruling by trying to encourage couriers to co-operate with authorities.

"It is a recognition that enormous sentences [of drug couriers] had absolutely no effect," on reducing the importation of illegal drugs, said Rusonik.

In the D.O. trial, Rusonik said he told the court that he would generally advise clients "with no viable defence" to co-operate, as long as there is some incentive with respect to sentencing. He suggested however, that police are often uninterested in the offer of co-operation.

"It's a political game," said Rusonik.

The Department of Justice did not appeal the sentences imposed by Hill and Durno in the A.B, C.D., John Doe, or D.O. proceedings.

John North, the federal Crown attorney who prosecuted John Doe, said the Department of Justice agrees there should be sentencing "discounts" for couriers who co-operate with the authorities.

"The principles are understood, it's the application of them that may be disputed," said North, who asked for a low penitentiary sentence in John Doe.

"An offer of assistance is important," North added. He stressed however, that "the assistance provided has to be timely and significant," for the Crown to agree to a sentence that is lower than the guidelines set out by the Court of Appeal.

Jeff Shulman, who represented John Doe, agreed that a defendant must provide real assistance to receive a sentencing discount.

"Is it really co-operation or conduct that looks like co-operation, but isn't that much," said Shulman.

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