Court Information and Parties

Information Nos.: 2811 998 14 13201-02, 2811 998 14 25264-02

ONTARIO COURT OF JUSTICE

Her Majesty the Queen v. Isan Jupiter

Proceedings at Judgment and Sentencing

Before: The Honourable Justice M.S. Felix

Date: May 25, 2015

Location: Oshawa, Ontario

Appearances

Counsel for the Federal Crown: A. Weiler

Counsel for Isan Jupiter: G. Grill

Reasons for Judgment and Sentencing

FELIX, J. (Orally):

Because of scheduling I am addressing Mr. Jupiter and Mr. Murley separately. I will not repeat findings of fact made in my trial judgment, reported as R. v. Murley, 2015 ONCJ 50, except in a summary manner.

During this sentencing judgment I will attempt to balance all of the relevant sentencing considerations with the goal of imposing a fit and proportionate sentence.

Sentencing Positions

Trafficking in cocaine is a very serious criminal offence, punishable by life in prison.

Mr. Jupiter submits that:

1. A sentence of 18 to 24 months incarceration is appropriate;
2. He should receive credit for 1.5 or one and a half days for each day in pre-sentence custody; and
3. This court should decline to make an order with respect to his parole, pursuant to section 743.6(1) of the Criminal Code of Canada.

The Federal Crown submits that:

1. A sentence of 6 years incarceration, minus credit for pre-trial custody is appropriate;
2. Mr. Jupiter should receive diminished credit for pre-sentence custody because of his conduct while on release for this matter;
3. The court should admit the evidence of his conduct while on release for this matter; and
4. The court should order him to serve half of the sentence before being eligible for release on parole, pursuant to section 743.6(1) of the Criminal Code.

The parties are ad idem that the only ancillary order to address is a section 109 order. The court will make that order for life.

Background of the Defendant

Mr. Jupiter is a middle-aged recidivist. He has three children. His parents are within the jurisdiction. They provided guidance and contributed to a pro-social upbringing.

Mr. Jupiter's mother is retired from a career in public service in the Provincial government. His father worked his way up to become a manager at a major local employer.

As highlighted in the submissions of counsel, in this case and also during the sentencing of the defendant's son, Mr. Isan Murley, Mr. Jupiter's parents provided a model of behaviour in our society and contributed to Canada. They are decent, hard-working, humble persons of faith.

Two other children are thriving and productive members of the community. They followed the example of their parents.

There is no reason to view Mr. Jupiter as someone who was disadvantaged or especially challenged in some way by life. There really is no excuse for his conduct. There are some explanations for it.

Work History and Education

There is limited work history and education to consider. There is nothing really remarkable to say about his work history and education.

Criminal Record

Mr. Jupiter is a middle-aged recidivist with a lengthy criminal record. He also has a serious and concerning record for drug-related crimes.

This is the tenth conviction for a drug-related matter.

The highlights of his criminal record, marked as Exhibit 1 on sentencing in this proceeding, include:

• 1993: A conviction for possession of a restricted drug, fail to comply with recognizance, and possession of a restricted drug for the purpose of trafficking, for which he received two years less a day jail and probation for three years.

• 1998: A conviction for trafficking cocaine on the ounce level in a project, I am told in submissions is called Project Octopussy. On top of 15 months and 20 days pre-sentence custody, he received a 3 year and 5 month sentence.

• 2009: A three-year penitentiary sentence, which in submissions I learned was related to a police takedown in a drug-related investigation.

• He has two fail to comply with recognizance convictions, two fail to comply with probation convictions, and he has previously violated his parole and was placed back in custody in 2009.

Sentence Parity

There were several persons charged by the police as part of Project Winapitee. A variety of dispositions have occurred including withdrawals, guilty pleas before trial, guilty pleas after preliminary hearing, and those who have yet to have their trial.

The court has personally sentenced two other persons in this project. There are no sentence parity considerations based on those matters that the court is aware of.

Sentencing Issues

There are four important sentencing issues the court must address:

1. Whether to make an order pursuant to section 743.6 of the Criminal Code delaying Mr. Jupiter's parole.

2. Having regard to an application pursuant to sections 7 and 24(1) of the Charter of Rights and Freedoms, is section 719(3.1) of the Criminal Code constitutional?

3. Should Mr. Jupiter receive enhanced credit for pre-sentence custody?

4. Is evidence from another unrelated trial involving Mr. Jupiter admissible on this sentencing?

Parole Ineligibility: Section 743.6 of the Criminal Code of Canada

In R. v. Dankyi, the Quebec Court of Appeal held, with respect to section 741.2 as it then was:

"...since the scope of permissible sentences is itself conceived to accommodate the best and worst of cases, section 741.2 can only be justified as an exceptional measure reserved for particular circumstances requiring an additional form of denunciation and deterrence."

The Quebec Court of Appeal was referring to drug trafficking in that decision.

In R. v. Goulet, the Ontario Court of Appeal held that a section 741.2 order is an exceptional measure, requiring clear evidence that an increase in the period of parole ineligibility is required. A trial judge should give clear and specific reasons for the increase in parole ineligibility.

The court has also considered the guidance of the Supreme Court of Canada in R. v. Zinck, 2003 SCC 6, at paragraphs 24 and 29 to 37, because the court finds that analysis helpful to its considerations.

At paragraph 24 of that decision, the Supreme Court of Canada provided the following guidance:

"Delaying parole can be a significant component of a sentence. It may almost entirely extinguish any hope of early freedom from the confines of a penal institution with its attendant rights or advantages. In this manner, it brings a new element of truth, but also of harshness, to sentencing. The time served in a penitentiary will be closer to the sentence imposed, although under the Act the sentence is not over. Given its potential impact it would have been preferable to be clear about when and why this new sentencing tool is to be used. Regrettably, the drafting of section 743.6 left many substantive and procedural questions unanswered. As Fish, J.A. in the Quebec Court of Appeal pointed out on one of the earliest cases on the interpretation of this provision, which was decided, like the Goulet case, before the enactment of 743.6(2), its conceptual basis remains 'elusive'. It concerns offences in respect of which the sentencing judge must first apply the normal principles of sentencing to the facts in order to determine a fit punishment for the crime. Then, the Court must use the same principles all over again, in respect of the same facts -- although now with a priority to deterrence and denunciation, pursuant to section 743.6(2) -- in order to decide whether parole should be delayed..."

The nature of the analytical process required in order to comply with this provision remains far from clear. This degree of uncertainty goes a long way towards explaining the problems courts have encountered in their search for workable and consistent interpretation of section 743.6, as well as the development of apparently conflicting jurisprudential currents in provincial appellate courts.

Having regard to the sentence that the court intends to impose in this case, the court is not satisfied that this exceptional measure need be invoked to properly address denunciation, deterrence, and the other relevant aims of sentence.

It strikes the court that where it can achieve a proportionate sentence, a sentence that achieves all of the sentencing principles without resort to this order, it should decline to make the order.

Credit for Pre-trial Custody

Mr. Jupiter brought a Charter application pursuant to section 7 and 24(1) of the Charter for an order that section 719(3.1) of the Criminal Code is inconsistent with section 7 of the Charter, in that it limits credit for pre-trial custody to one day for each day spent in custody, if a person was detained pursuant to sections 524(4) or 524(8) of the Criminal Code.

The court permitted the application to proceed even though it was not brought in compliance with the criminal rules. The court also permitted a response from the Federal Crown that was not in compliance with the time considerations in the Criminal Rules.

Relevant Procedural History

On June 26, 2013, Mr. Jupiter was arrested and charged with the offences before the Court. On July 2, 2013, he was released on judicial interim release. On October 3, 2013, Mr. Jupiter was arrested and charged with new offences. He consented to the cancellation of his prior release, pursuant to section 524(8) of the Criminal Code of Canada, and applied for judicial interim release concerning the matter before this Court and the new allegations. His application was denied and he was detained in custody on both the offences before this Court and the new allegations.

Position of the Applicant

The applicant submits that section 719(3.1) engages Mr. Jupiter's section 7 liberty interests, violates the fundamental sentencing principle of proportionality, is arbitrary and over-broad.

Mr. Jupiter requests that the court grant him credit for 1.5 days for each day of pre-sentence custody.

Position of the Respondent - Federal Crown

The Federal Crown submits that as Mr. Jupiter was detained pursuant to section 524(8), he is captured by the operation of section 719(3.1), and is limited to the maximum credit of one day for each day of pre-trial custody.

Analysis

This issue has been considered by an experienced and learned justice of the Superior Court of Justice, Madam Justice B. Wein, in R. v. Dinardo, 2015 ONSC 1804. Madam Justice Wein held at paragraph 133:

"The operation of section 719(3.1) in conjunction with sections 525(4) and (8) violates section 7 of the Charter and is not saved by section 1 of the Charter. To that extent those portions of the provision are declared to be of no force and effect, pursuant to section 52(1) of the Charter."

At paragraph 134:

"Taking into account the decision in R. v. Safarzedeh-Markhali, the operative portion of the section shall now read; (3.1) Despite subsection (3) if the circumstances justify it the maximum is one and one half days for each day spent in custody."

The court must examine the impact of the Dinardo decision on its sentencing today. What is the impact of this declaration of invalidity? Is the Dinardo decision binding on this Court?

The state of the law in this area was set out by Justice Strathy [as he then was] in R. v. Scarlett, 2013 ONSC 562, at paragraphs 33 to 44, addressing the impact of the declaration and validity pronounced in R. v. Smickle, 2012 ONCJ 602. The court found this decision, provided by counsel, to be of key assistance.

At paragraph 33, Justice Strathy stated:

"The purport and effect of Smickle is to declare the minimum sentence for possession of a loaded prohibited weapon in section 95(2)(a)(i) of the Criminal Code to be null and void and of no effect, not only in that case but in all future cases. That was the conclusion reached by my colleague, Frank, J. in obiter in R. v. Williams (18 April 2012), Toronto (S.C.J.), in which the accused was convicted of possession of a loaded prohibited firearm in related offences. Frank J. concluded that a proper sentence in that case was in excess of three years, and it was unnecessary to consider the effect of Smickle. She stated, however: 'But had I been required to decide that issue I would have had no hesitation of finding that the declaration of invalidity [in Smickle] applies. In my view the answer to the question has been clear since the Supreme Court of Canada decision in R. v. Ferguson, [2008] 1 S.C.R. 96, 2008 SCC 6. The declaration of invalidity of section 95(2) was made pursuant to section 52(1) of the Constitution Act. The section is therefore null and void, not just in the specific case but for all purposes. But, a full analysis and decision on that issue must be left for another case.'"

At paragraph 34, Justice Strathy noted:

"The jurisdiction exercised by Malloy J, was pursuant to section 52(1) of the Constitution Act, which provides that: 'The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.'"

At paragraph 35, Mr. Justice Strathy continued:

"The appropriate remedy pursuant to this jurisdiction is a declaration of invalidity. The effect of the declaration is not, of course, to actually delete the provision from the Statute. Rather, it renders it of no force and effect the extent of its consistency with the Constitution: R. v. Turmel, R. v. J.P."

At paragraph 36, Justice Strathy stated:

"Where the legislation is declared unconstitutional, the declaration applies not merely to the parties immediately before the Court, but to the whole world. Lazar Sarna made this point in The Law of Declaratory Judgments, 3rd edition, (Toronto: Thompson Canada, 2007), at page 139. '[T]he Charter declaratory remedy declaring a statute invalid has effect erga omnes [toward everyone]. The invalidation of a statute, erga omnes creates a legal vacuum, which urgently calls for the legislature and the administrative agencies involved to amend enabling statutes and alter organizational structures.'"

At paragraph 37, Justice Strathy continued:

"This is why, in some cases, the declaration of invalidity is suspended for a period of time to permit Parliament or the legislature to address the issue. See, for example, Bedford v. Canada, (Attorney General)."

Mr. Justice Strathy continues in paragraph 38:

"It is clear from the reasons of Malloy J. in Smickle that she was declaring section 95(2)(a)(i) of the Criminal Code 'of no force and effect'. She stated at paragraph 162: 'A declaration shall issue that the reference to a minimum punishment of imprisonment for a term of, "in the case of a first offence, three years" as set out in s. 95(2)(a)(i) of the Criminal Code is inconsistent with the Charter and of no force and effect.'"

At paragraph 39:

"It would have been unnecessary to grant this remedy if the decision was only confined to the facts before Justice Malloy."

At paragraph 40:

"It is also clear that in considering whether the effect of the declaration should be suspended, Malloy J. concluded that in the absence of a suspension the declaration would be applicable to all other cases. She stated at paragraph 151: 'I see no reason why this decision should not take effect immediately. In Schachter v. Canada, the Supreme Court considered the appropriateness of suspending a declaration of constitutional invalidity of impugned legislation. Lamer C.J.C. noted that to delay the declaration "is a serious matter". A suspended declaration allows for a Charter violating state of affairs to persist. Lamer, C.J.C. provided guidelines as to when the suspension will be warranted.

A striking down the legislation without enacting something in its place would pose a danger to the public;

B striking down the legislation without enacting something in its place would threaten the rule of law; or

C the legislation was deemed unconstitutional because of underinclusiveness rather than overbreadth and therefore striking down the legislation would result in the deprivation of benefits from deserving persons without thereby benefiting the individual whose rights have been violated.

None of these factors support a suspension of the finding of invalidity. The underlying offence will still exist. The same maximum penalty will still apply for those convicted of it. There is therefore no danger to the public or interference with the rule of law. Judges will simply sentence individuals convicted of this offence in accordance with the sentencing principles set out in the Criminal Code and judicial precedent.'"

Mr. Justice Strathy, as he then was, goes on in paragraph 41 to cite the Supreme Court of Canada in Nova Scotia v. Martin and R. v. Ferguson, previously cited.

In paragraph 42, he relied upon Chief Justice McLachlin's approach in R. v. Ferguson:

"McLachlin expressly rejected the notion that after a declaration of invalidity in one case, the Court should continue to consider the issue on a case by case basis, requiring the accused to seek a constitutional exemption in the circumstances of his or her particular case. She noted at paragraphs 72-73, that this would create uncertainty for accused persons, and for Parliament, concerning the precise scope of the law. It would also lead to an unequal application of the law."

At paragraph 43:

"The decisions of judges of coordinate jurisdiction, while not absolutely binding, should be followed in the absence of cogent reasons to depart from them: see Re Hansard Spruce Mills Ltd., [1954] 4 D.L.R. 590, (S.C.), R. v. Northern Electric Co. L.T.D., [1955] O.R. 431. Reasons to depart from a decision, referred to in Hansard Spruce Mills, include (a) that the validity of the judgment has been effected by subsequent decisions; (b) that the judge overlooked some binding case law or a relevant Statute; or (c) that the decision was otherwise made without full consideration. These circumstances could be summed up by saying that the judgment should be followed unless the subsequent judge was satisfied that it was plainly wrong."

The court is not satisfied that the decision in R. v. Smickle is plainly wrong.

At paragraph 44, Mr. Justice Strathy, as he then was, indicated:

"In a Constitutional case where a statute has been declared invalid by a judge of coordinate jurisdiction, there is strong reason for judicial restraint on the part of the subsequent judge for the reasons identified by Chief Justice McLachlin in Ferguson. To create a judicial exemption, based on the facts of a particular case before me, would create uncertainty and unfairness. This is particularly so because an appeal of both Nur and Smickle is to be heard by a single panel of the Court of Appeal next month."

The court has considered this case. The court has also considered two helpful articles provided by counsel that were submitted: Debra Parks, "Precedent Unbound Contemporary Approaches to Precedent in Canada" (2007) 32 Man LJ 135; David Stockwood QC, entitled "Stare Decisis": "The heart of the system rarely visited" (Winter 2003) 22 Advocates Society J 3, 1-6.

The court has also considered a case of Mr. Justice Duncan, in R. v. D.L. (No. 2), 2005 ONCJ 344. The court has obviously considered R. v. Scarlett, R. v. Ferguson, and several other authorities.

It is the court's respectful view that the declaration of constitutional invalidity issued in R. v. Dinardo should be followed in this case. Even if R. v. Dinardo is not legally binding upon the court, the court feels obligated to interpret section 719(3.1) in the manner set out by Madam Justice Wein for the following reasons:

(1) As per the Supreme Court of Canada in R. v. Ferguson: (i) a declaration of invalidity renders the impugned law null and void for all future cases; and (ii) the notion of continuing to consider the issue on a case-by-case basis creates uncertainty in the law, uneven application of the law, and unequal application of the law;

(2) Decisions of judges of coordinate jurisdiction should be followed unless there are good reasons to depart from them (e.g. a basis to distinguish them);

(3) The court finds the Dinardo decision to be meaningful and persuasive, leaving aside the issue of whether it is binding;

(4) Mr. Justice Peter De Freitas of the Ontario Court of Justice in this jurisdiction has followed Dinardo in a brief ruling, in a recent case not yet published; and

(5) The decision in R. v. Chambers, 2014 YKCA 13, a decision of the Yukon Court of Appeal is not binding and the court does not find it to be persuasive.

In summary, a Court of coordinate jurisdiction has issued a declaration of invalidity. Another court of coordinate jurisdiction has followed Dinardo, and the Ontario Court of Appeal has not yet decided the constitutionality of the impugned portion of section 719(3.1) at issue in this case.

The court can add nothing further to the reasoning and the thorough analysis set out in Dinardo. But in a summary way, the core of the concern is that the automatic denial of credit for pre-trial custody based on a determination pursuant to section 524 of the Criminal Code infringes on the court's ability to achieve a just and proportionate sentence. The impact of the impugned provision is that the sentence is partially determined by judicial interim release procedures and provisions that are irrelevant to the considerations that the court must engage on sentencing.

The court finds that the applicant has established a breach of section 7 of the Charter that is not saved by section 1 of the Charter.

Pursuant to the provisions therein, the court finds that the portion of section 719(3.1) that removes the court's ability to determine credit for pre-sentence custody is inconsistent with the Charter and is of no force and effect in this proceeding only. The court's jurisdiction extends to this matter and this matter only. The court does not have the jurisdiction to issue a declaration of invalidity.

The court will follow the Dinardo construction of section 719(3.1) as follows:

"719(3.1): Despite subsection (3), if the circumstances justify it the maximum is one and one half days for each day spent in custody."

Credit for Pre-sentence Custody

Given the court's ruling, the court may now determine the appropriate credit for pre-sentence custody. The court is mindful that there is no mathematical formula and the court, as the trial judge and the sentencing judge, is in the best position to weigh all of the relevant factors.

Quantitative and Qualitative Rationales for Pre-sentence Custody

The court has considered that Mr. Jupiter might have lost eligibility for early release and parole during pre-sentence custody.

The court is aware that even if it was to view his ineligibility for early parole to be unlikely, the court should view that loss as generally sufficient to consider awarding credit at the rate of 1.5 to 1 per the Supreme Court of Canada and R. v. Summers, 2014 SCC 26. The court must confess that this is normally a rather routine consideration in less complex cases. In this particular case, the court is not convinced that Mr. Jupiter deserves full consideration on these grounds. The court is troubled by several features of this case, involving Mr. Jupiter.

First of all, consider his extensive criminal record set out earlier in this judgment. This record includes four convictions for failing to abide by court orders and records the fact that he violated his parole and was returned to prison in 1995. Certainly his criminal antecedents and this current conviction should send a powerful message to the parole board.

The court has received evidence that Mr. Jupiter was subject to lockdown for approximately 49 days. The court notes that he did not avail himself of any available programs while in remand, including Chaplaincy, Social Workers, Psychology, Teachers, or even Library privileges. The court accepts as well that he was sanctioned for a violent assault on another prisoner - his partner in the assault was his son, Isan Murley. He was housed with his son for some 66 days and thereafter housed in the same range as his son.

The court has declined to make an order pursuant to section 743.6 of the Criminal Code. This should not be interpreted by the Parole Board as an endorsement of Mr. Jupiter's early parole candidacy or suitability.

Having considered all of these factors, the court has determined that it will grant Mr. Jupiter some credit for his pre-sentence custody. The amount of credit and the rationale for it will be apparent by the end of this sentence decision.

The court notes that Mr. Jupiter was arrested on June 26th, 2013, and subsequently released on judicial interim release on July 2nd, 2013.

On October 3rd, 2013, he returned to custody on new allegations and has remained in custody until today.

The court thanks counsel once again for their assistance in calculating accurately the total of 608 days of actual days in custody.

Admissibility of Evidence from Another Trial

Having regard to the court's finding with respect to credit for pre-sentence custody, this issue is of diminished importance. The court will still examine the issue in a summary way to assist any reviewing court with the sentencing decision.

The Federal Crown seeks to adduce additional evidence on the sentencing hearing. It was submitted that while on judicial interim release, Mr. Jupiter possessed drugs for the purpose of trafficking. A transcript of this was made available to the Court for the purposes of the argument. The court did not need to review the transcript because the court was able to absorb the issue and address it based on the following procedural history summary, which was not contested:

1. Mr. Jupiter was charged on October 3rd, 2013, in relation to the possession of cocaine and marihuana.

2. Mr. Jupiter consented to a revocation of his prior release, pursuant to section 524(8) of the Criminal Code of Canada. He was detained after a bail hearing on both the new allegations and the current matter before the Court.

3. During the trial into the allegations in relation to the charge on October 3rd, 2013, Mr. Jupiter chose to testify on a Charter application seeking to exclude evidence.

4. During his testimony on the Charter application, he testified that he was in possession of cocaine and marihuana on October 3rd, 2013.

5. Mr. Jupiter was acquitted of the charges on the basis of the successful Charter application.

The Federal Crown submits that notwithstanding his acquittal, Mr. Jupiter's admissions during the Charter application should be received by the Court for two distinct purposes:

(1) As important evidence relevant to the exercise of Court's discretion on the issue of credit for pre-sentence custody.

(2) As evidence of Mr. Jupiter's background and character.

The Federal Crown was careful to stipulate this evidence was not being adduced for the purpose of proving an aggravating factor on sentence.

Counsel for Mr. Jupiter argued that the admission of this evidence is barred by at least section 13 of the Charter.

The court must confess that the position of the Federal Crown makes intuitive sense to the court. At sentencing, shouldn't the Court have all available information? Mr. Jupiter chose to bring a Charter application. He made an informed decision to testify in that application. Why should this evidence be inadmissible on sentencing?

Notwithstanding this pragmatic, sensible view, the court is concerned that this approach runs afoul of the available binding jurisprudence and it would be an error.

First of all, the court believes that a synthesis of R. v. Henry, 2005 SCC 76, Dubois v. The Queen, and R. v. Nedelcu, 2012 SCC 59 leads one away from a focus on the circumstances surrounding the creation of the evidence sought to be adduced, for example notions of compelled or non-compelled evidence, toward a focus on the intended use of the evidence and whether it incriminates the defendant.

Second, it is arguable that where the accused does not testify at a trial, this sort of evidence is inadmissible for any purpose.

Third, it is the court's view that section 13 of the Charter applies at the sentencing stage, and the court finds the reasoning of Mr. Justice K. Campbell in R. v. Duhamel persuasive.

Mr. Jupiter did not testify during this trial or sentencing hearing, as is his choice.

The court finds that the evidence of the intervening conduct is inadmissible for any purpose at this sentencing.

Mitigating Factors

There are really no apparent mitigating factors in this case.

Mr. Jupiter is not a youthful first offender. The court is sentencing him after a trial in this matter, which is his right, so there is no understanding of remorse as is evident on a guilty plea.

A positive factor is the strong support that he has from his family. Were he to decide to embark upon a more positive approach to his life, there is little doubt that his parents would support him.

On the other hand, there really is no evidence before the court that he relies upon the guidance of his parents.

Factors Neither Mitigating nor Aggravating

The court is including here other factors that do not neatly fit into categories of mitigating and aggravating factors.

Here the court considers the fact that although the trial in this matter took several days, it is quite evident that Mr. Jupiter instructed his counsel to present a focused defence. There were triable issues. The issues were focused and litigated before the court in a most professional manner, and to that the court is indebted to counsel before the Court.

Aggravating Factors

Finally, it is the court's duty to address the aggravating factors in this case, and there are many of them.

A. Deterrence and Denunciation

Deterrence and denunciation are the primary sentencing considerations in this case. Rehabilitation is of a secondary concern, given Mr. Jupiter's criminal antecedents and the offence before this Court.

B. Criminal Record

Mr. Jupiter has a significant criminal record that the court has already set out in this judgment.

C. Moral Blameworthiness

There are at least two aggravating factors relevant to Mr. Jupiter's high moral blameworthiness in this case.

First of all, Mr. Jupiter engaged in this crime for the simple purpose of profit. It is a commercial enterprise for him. He was not servicing an addiction or supporting any other aim.

This is a very aggravating consideration, especially when considered along with his prior related drug offence convictions. R. v. Malenca.

The second factor involves Mr. Isan Murley - the son of Mr. Jupiter.

While the court accepts that Mr. Isan Murley is a youthful adult who makes his own decisions, and while the court acknowledges that in sentencing Mr. Murley he did not seek to blame his father, it is a particularly unique aggravating factor that Mr. Isan Jupiter was involved in this matter with his own son.

What example has he provided for his son? His son received a substantial jail sentence. Any right-minded member of the community would reserve special condemnation for this sort of behaviour.

Mr. Isan Jupiter's proper role is to guide his son in life, not participate in very serious criminal acts with him.

The Offence

Mr. Jupiter has been found guilty of a drug trafficking offence in which the court found him to be the directing mind. This was not an impulsive decision that he made. There was some planning and in fact the court detailed in the trial judgment the arrangements made by Mr. Jupiter to coordinate with others to arrange for this crime. The coordination with others was at the intended destination. The degree of planning and commitment to the endeavour is highly aggravating.

What Level of Drug Dealer is Mr. Jupiter?

It is important for the court to attempt to assess where Mr. Jupiter sits in the criminal hierarchy.

Aspects of the evidence indicate that Mr. Jupiter is a sophisticated mid-level drug trafficker. Other evidence suggests that his target market is street-level customers.

The court has no evidence as to who the customers were going to be on this joint venture. The court knows that it involved several people and the renting of a hotel room. The court knows there was a local fixer named Nev who was organizing things on the ground at the destination. As set out in the trial judgment, Mr. Jupiter was making arrangements for this transaction early in the day. Mr. Jupiter was with Mr. Isan Murley. Mr. Murley was significantly implicated in other charges before the court, and a significant supplier of drug product. There was another person, Mr. Thomas Gwidz, who was, objectively speaking, a producer and a custodian of marihuana, as well as someone who assisted Mr. Isan Murley with the production of crack cocaine.

There are no wire tap communications involving Mr. Jupiter. He was not the focus of the police investigation in this case until implicated in the matter for which the court has found him guilty. The lack of electronic communications cuts both ways. Perhaps he is more sophisticated or careful. On the other hand, perhaps he simply was not as involved as others.

Nonetheless, he was the directing mind of this crime. He was making the arrangements. He was contacting the individuals long before he was picked up by his son and Mr. Gwidz.

There was a large amount of product under the hood of the car. There is a reasonable inference that Mr. Jupiter is more than just a street-level dealer, based on the amount of drugs possessed for the purpose of trafficking and the surrounding circumstances of travelling some distance for the purpose of trafficking. In addition, as the court pointed out, there is a clear inference that a number of parties were anticipating his arrival. With some caution, the court overlaid this on top of his prior related record, but the court's focus is the evidence in this case.

In the final analysis, the court must also recognize that while the court found that individuals in the car were embarking on a joint venture, it is difficult to concretely set out each person's role. The court is not prepared to view Mr. Jupiter as simply some street-corner level drug dealer. He is somewhere above that designation and below a mid-level supplier, on the evidence the court has before it. The court deems this to be an aggravating factor.

Sentences for Trafficking in Cocaine

Having set out the findings at trial and the relevant aggravating factors, some consideration of the sentences in this area is required.

The court has reviewed countless sentencing judgments in this area of law. Frankly, this review is of limited assistance.

Sentencing decisions are driven by a multitude of factors. Each case is driven by the particular facts and findings, the particular defendant's role, the background of the defendant, analyzed through all of the relevant sentencing principles. Mr. Jupiter engaged in a joint enterprise with his son, Isan Murley, and another person, Thomas Woods. As outlined in the judgment, they were embarking on a joint enterprise to distribute a large amount of cocaine in some remote community.

The court found Mr. Jupiter to be the organizing mind and set out explicitly the rationale for this finding in the trial judgment.

Mr. Jupiter is entitled to a proportionate sentence. One that properly accounts for his role, his criminal moral blameworthiness, his criminal antecedence, and his rehabilitative prospects going forward.

The court will briefly refer to a few of the decisions the court found most helpful.

In R. v. Woolcock, the Ontario Court of Appeal provided the following guidance at paragraph 8:

"There is no disputing that crack cocaine is an extremely dangerous and insidious drug with potential to cause a great deal of harm to individuals and to society. Likewise possession of crack cocaine for the purpose of trafficking is a serious offence warranting emphasis on the principles of deterrence and denunciation. However, when sentencing an offender convicted of such an offence it is incumbent on the trial judge to consider all of the principles of sentencing, including the accused's prospects for rehabilitation."

The court notes as well that Courts have repeatedly pointed out that cocaine is an extremely dangerous and insidious drug with the potential to cause a great deal of harm to individuals and to the community. R. v. Daya and R. v. Woolcock, cited a moment ago.

Courts have repeatedly stated that trafficking of cocaine or possession of cocaine for the purpose of trafficking poses a serious danger to society. See, for example, R. v. Brissett, R. v. Challenger.

It is not simply the trafficking that is so harmful. It is the ancillary crime perpetuated by those who are addicted. It is also a risk of violence and the potential for conflict inherent in most drug-related transactions. The seriousness of the offence of possession of cocaine for the purpose of trafficking warrants the emphasis on the principles of deterrence and denunciation. Emphasizing general and specific deterrence is necessary to denounce this criminal activity, R. v. Bertucci.

In a case called R. v. Bajada, the Ontario Court of Appeal quoted from the 5th edition of Clayton Ruby's book, "Sentencing" at paragraph 12. The court has read the 8th edition and nothing has changed.

At paragraph 12:

"Cocaine used to be regarded by the Courts as a drug which is somewhat more serious than marihuana but less serious than heroine, however, due to the existence of crack cocaine and intravenous cocaine users this attitude seems to be changing. More recent sentences for cocaine seem on par with those imposed for heroine possession or trafficking."

At paragraph 13, the Court of Appeal, Justice Weiler observed:

"It would appear that sentences of five to five and one half years are not uncommon for possession of a substantial amount of cocaine for the purposes of trafficking following an accused's plea of guilty or where the accused has no prior record."

In this case, as the court has pointed out, the court is dealing with someone who is not a youthful first offender.

Mr. Jupiter has many convictions for drug-related offences. Extensive planning and deliberation is evident. A large quantity of drugs is involved. He interacted with his own son and embarked upon a joint venture with him. What a spectacular way to violate a basic principle of life. Parents have an obligation to do no harm to their children.

Relevant Sentencing Principles

The court has considered section 718 of the Criminal Code of Canada. The court has considered section 10(1) of the Controlled Drugs and Substances Act, mandating this Court to keep in mind the fundamental purposes set forth in section 718 of the Code and the goal of rehabilitation, and the court must acknowledge the harm done to the community as a natural result of the conduct in this case.

The challenge the court has is to balance the objectives and aims set out in section 718 of the Criminal Code and section 10(1) of the Controlled Drugs and Substances Act, with a just sentence that is particularized to the offender, Mr. Jupiter.

Again, the court recalls that denunciation and deterrence are the primary focus in this sentencing.

Proportionality

This defendant, Mr. Jupiter, has served numerous jail sentences in the past, including lengthy reformatory and penitentiary sentences.

Mr. Jupiter is a middle-aged man for whom some prospect of rehabilitation must be considered. But frankly, it is a waning and secondary concern at this point, having regard to his antecedents.

The court must tailor a sentence to address this particular defendant before the Court and the serious offence he has committed with the goal of arriving at a proportionate sentence (R. v. Borde, R. v. Priest, R. v. Morrisey, 2000 SCC 39, R. v. M(CA)).

As per section 718.1 of the Criminal Code of Canada:

"A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender."

It is the court's respectful view that a strong deterrent message must be sent to Mr. Jupiter, given the weight of the aggravating factors in this case.

The court has considered carefully its view of the appropriate sentence in this matter. Of course, the court is aware that it is free to sentence Mr. Jupiter to the sentence that the court finds to be appropriate, but the court will not sentence him to more than that advocated by the Federal Crown.

Mr. Jupiter repeatedly engages in criminal conduct involving dealing drugs despite having received significant jail sentences in the past.

There is no apparent evidence that he has put this past behind him.

He engaged with his son in this serious illegal conduct.

These factors, in addition to all the other factors in this case, require a significant sentence to send a message to Mr. Jupiter that this repeated conduct will not be tolerated.

Sentencing Decision

Mr. Jupiter, you may remain seated.

A transcript of these reasons will be prepared.

As indicated at the outset, there will be a section 109 order for life.

Pursuant to section 743.21, there will be an order of non-communication with Thomas Gwidz.

Mr. Jupiter, I sentence you to the penitentiary for five and one-half years, which is approximately 66 months, and approximately 1,980 days.

On count 1, the pre-sentence custody is approximately 608 real days. For the reasons outlined during this judgment, I will give Mr. Jupiter some credit for pre-sentence custody but this credit will not be at one and a half to one. I will grant 730 days credit for the 608 actual days of pre-sentence custody, which is approximately 1.2 days credit for each day of pre-sentence custody, leaving a sentence of 1,250 days remaining to serve, or approximately 42 months.

With respect to count 2, the possession of cannabis resin, that arises out of the same transaction. I will sentence you to 90 days concurrent to the sentence on count 1.

That is the sentence of this Court.

MATTER ADJOURNED

Certificate of Transcript

FORM 2

CERTIFICATE OF TRANSCRIPT (SUBSECTION 5(2))

Evidence Act

I, Roberta McDowell, certify that this document is a true and accurate transcript of the recording of R. v. JUPITER, Isan, in the Ontario Court of Justice held at 150 Bond Street East, Oshawa, Ontario L1G 0A2, taken from Recording No. 2811-402-20150525-085650.DCR, which has been certified in Form 1 by Melissa Martin, as edited by the Honourable Justice M.S. Felix.

July 4, 2015

(Signature of Authorized Person)

Transcript Ordered: May 28, 2015

Transcript Completed: July 4, 2015

Ordering Party Notified: July 4, 2015