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
. 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.
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.
reduced the sentence from the normal
range of six to eight years, because of a
offer of co-operation by the
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."
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,
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
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.
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.
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."
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
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.
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.
is a recognition that enormous sentences [of drug couriers] had absolutely no
effect," on reducing the importation of illegal drugs, said Rusonik.
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.
a political game," said Rusonik.
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.
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.
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.
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.
Shulman, who represented John Doe, agreed that a defendant must provide real
assistance to receive a sentencing discount.
it really co-operation or conduct that looks like co-operation, but isn't that
much," said Shulman.