R. v. Conceicao

Date: June 20, 2017

Court File No.: Toronto 15001159/16

Ontario Court of Justice

Parties

Between:

Her Majesty the Queen

— AND —

Kevin Conceicao

Before: Justice Paul H. Reinhardt

Heard on: 13 February, 13 June & 16 June 2017

Reasons for Sentence released on: 20 June 2017

Counsel

Anna Martin — for the Crown

Louis P. Strezos — for the defendant

REINHARDT J.:

[1] Introduction to the Sentencing

[1] This is a sentencing hearing for Mr. Kevin Conceicao, who pleaded guilty before me on 19 April 2017 to the following offence, that on 13 February 2016 in the City of Toronto:

He did unlawfully possess a controlled substance, to wit: cocaine, for the purposes of trafficking, contrary to section 4(1) of the Controlled Drugs and Substances Act.

[2] In this proceeding the Crown is seeking a carceral sentence of 15 months, while the defence is submitting that the appropriate sentence would be 3 to 6 months, followed by a three-year probation order, including community service and a curfew.

[3] I have concluded that the appropriate disposition is a period of six months in jail, followed by a period of three years' probation. These are my reasons.

1: INTRODUCTION

[4] Starting on 11 February 2016, Toronto police placed Mr. Conceicao under surveillance.

[5] On 13 February 2016, Toronto police executed a Controlled Drugs and Substances Act ("CDSA") search warrant at Mr. Conceicao's family home, an apartment at 1072 St. Clair Avenue West in Toronto.

[6] Moments before the execution of the warrant, Mr. Conceicao was arrested outside the apartment building in which he lived with his common-law partner, Maria Pinto, her teenage daughter, Paula, and Mr. Conceicao and Ms. Pinto's three small children, all of whom were at home at the time.

[7] At the time of his arrest outside the building, Mr. Conceicao began to sweat and take deep breaths while speaking to the officers.

[8] Mr. Conceicao was cooperative with the arresting officers, provided them with his key to enter the apartment, permitting a "soft" entry, obviating the need for a "dynamic" or forced entry.

[9] Once in the apartment, Mr. Conceicao immediately took them to where the drugs were concealed, hidden on an interior closet shelf, approximately seven feet above the floor.

[10] At this time, by fully cooperating, Mr. Conceicao allowed the police to seize the drugs without having to arrest the occupants, which included Ms. Pinto and the children.

[11] On 19 April 2017, Mr. Conceicao pleaded guilty to having in his possession, at that address, 81.64 grams of cocaine powder in two plastic bags and a small quantity of marihuana.

[12] Police also seized $2845 in cash, which included $1580 found hidden in a closet with the cocaine, and $1265 which was found on his person.

[13] The Crown has agreed to the return of the $1265 found on Mr. Conceicao's person, while the $1580 found hidden in the closet has been forfeited to the Crown as proceeds.

[14] Mr. Conceicao is forty years old, having been born on 14 February 1977 in Toronto.

[15] Mr. Conceicao has a criminal record with two entries in 1997 for property offences, and a single entry in 2004 for trafficking contrary to section 5(1) of the CDSA, for which he received a 12 month conditional sentence.

[16] In this hearing, counsel for Mr. Conceicao filed a Book of supporting documents and authorities, Exhibit 2, which included letters from the following individuals:

(1) Daniela Dal Ben, M.Ed. C. Psych, Mental Health Clinician, Urgent Care Clinic, Toronto Western Hospital, dated 31 May 2016;

(2) Dr. Lucas Tai, Suite 201, 1011 Dufferin Street, Toronto, Mr. Conceicao's family physician, dated 7 November 2016;

(3) Allison Cardoso, Mr. Conceicao's half-sister, undated;

(4) Maria Pinto, Mr. Conceicao's common-law partner, undated.

[17] In addition, I heard viva voce testimony from the following witnesses:

(1) Maria Conceicao-Xavier, Mr. Conceicao's mother;

(2) Natasha Cardoso, Mr. Conceicao's half-sister;

(3) Maria Pinto, Mr. Conceicao's common-law partner;

(4) Brian Cardoso, Mr. Conceicao's half-brother;

(5) Allison Cardoso, Mr. Conceicao's half-sister.

2: SUMMARY OF FACTS

Maria Conceicao-Xavier

[18] Maria Conceicao-Xavier was born in Portugal on 19 August 1957.

[19] She came to Canada as a landed immigrant on 11 October 1969, and became a citizen in 1975.

[20] She worked as a cleaning lady, and married her husband, a steel-worker, in 1974.

[21] She and her husband had two children, first Kevin, and then his younger brother, Mitchell.

[22] She lost her husband, and Mr. Conceicao lost his father at the age of three, when his father died of leukemia, in 1979.

[23] According to his mother, Kevin, her first-born, took his father's death very hard.

[24] According to his mother, Kevin as a young child would continually ask her where his father was, and when the phone would ring and she would answer, inquire of her, if it was his father calling.

[25] Mrs. Conceicao testified that as a single mom, she found her son taking on familial tasks and responsibilities very early in his life.

[26] Mrs. Conceicao testified that although she gave birth to four children by a second partner, after her husband died, the relationship did not succeed, and following her separation from her second partner, Kevin became the responsible male figure in the family.

[27] She testified that from the age of about ten he took on the role of a parent and father figure both with his younger brother, Mitchell, and within his extended family, with her four other children, and continues to have this role to this day.

[28] That extended family includes:

(1) His mother, Maria Conceicao-Xavier, age 60;

(2) His common-law partner, Maria Pinto, age 45;

(3) His three children with Maria Pinto:

• a. C, age 9;
• b. J, age 8;
• c. J. L., age 4;

(4) Maria Pinto's teenage daughter, P, age 17

(5) His brother Mitchell, age 37;

(6) His step-sister Allison, age 30;

(7) His step-brother Brian, age 28;

(8) His step-sister Vanessa, age 27;

(9) His step-sister Natasha, age 25

[29] The characterization of his mother, that Mr. Conceicao was a father-figure for his mother's second family was confirmed by the testimony of three of them, Natasha, Brian, and Allison Cardoso.

[30] Natasha Cardoso testified that when she was eight-years-old, she and her siblings Allison, Brian and Vanessa where taken into the care of the Children's Aid.

[31] Ms. Cardoso testified that it was her half-brother, Kevin, who held her family together during this period in their lives.

[32] She testified that he would bring them home to visit with their mother, take them to sporting events and generally provide all the children with continuing contact with their mother and siblings.

[33] She concluded that without his constant care and attention, the family unit would not have been able to be maintained, and would not have survived.

Maria Pinto

[34] Maria Pinto is Mr. Conceicao's common-law partner of almost 17 years.

[35] She is 45-years-old, having been born 6 September 1971.

[36] In addition to taking care of her three young children with Mr. Conceicao, and her own teenage daughter, P, she works as a part-time cleaning lady for Camwood Properties, earning approximately $600 per month.

[37] Ms. Pinto testified that she and her children are dependent on Mr. Conceicao for the necessities of life, including the roof over their heads.

[38] In cross-examination, Ms. Pinto testified that when Mr. Conceicao was charged and pleaded guilty in 2004 to trafficking in cocaine and received a 12 month conditional sentence, she left him, because of the charges, but they reconciled after two months.

[39] She further testified that although she was very upset when he was charged initially, in 2004, and was devastated by the new charges now before the court, she has never found any drugs in the home.

Medical Evidence

[40] Presented as part of the compendium, Exhibit 2 in this sentencing hearing, and not disputed by the Crown are two letters, one from Mr. Conceicao's family physician, Dr. Lucas Tai, dated 7 November 2016, and the second from a clinician at Toronto Western Hospital, Urgent Care Unit, Daniela Dal Ben, to whom he was referred by Dr. Tai.

[41] Dr. Tai states in his letter:

He consulted me on Feb 23, 2016 with stomach pains which did not improve with medications prescribed. It was during the follow up visits on March 4th and 9th when he was diagnosed with depression and stress over the drug related charges. He was subsequently referred to counsellors at the Urgent Care at Toronto Western Hospital for support and crisis intervention.

His symptoms have improved with the counselling sessions. He has shown remorse, he now has good insight, and is very motivated to stay out of trouble, for himself and his family. It is my opinion that he is a low risk to re-offend, as he has "learned" from his poor decision making in the past.

[42] The letter from his clinician, Daniela Dal Ben, M.Ed. C. Psych, Mental Health Clinician, Urgent Care Clinic, Toronto Western Hospital, is dated 31 May 2016, and confirms that Mr. Conceicao had been seen by her on four sessions of supportive talk therapy, following his arrest on 13 February 2016.

[43] Ms. Dal Ben, states:

Mr. Conceicao was referred to this clinic by his family doctor Dr. Lucas Tai. The initial referral was for treatment of a depressive episode secondary to recent legal charges. Supportive talk therapy was provided to Mr. Conceicao to assist him in his crisis. He presented to our clinic in distress and with poor coping skills secondary to legal charges. Mr. Conceicao was able to talk about his anxieties and worries surrounding the legal charges and the impact it would have on his family. He was able to show insight by holding himself accountable for the charges and showed great regret for his poor decision making.

3: SUBMISSIONS

[44] Ms. Martin submitted that Mr. Conceicao should receive a fifteen-month sentence for the following reasons:

(1) 15 months is within the appropriate range for the offence, based upon the quantity of cocaine seized from his home, 81.64 grams, almost 3 ounces.

(2) It is an aggravating factor Mr. Conceicao had no personal addiction issues at the time he committed the offence;

(3) It is an aggravating factor that the cocaine was found in a family residence in which there were living three young children and a teenager.

(4) The connection of drugs with violence.

(5) The manifest harm to the community which requires a sentence that reflects denunciation and deters others from engaging in the activity.

(6) Mr. Conceicao's criminal record, although dated, includes a previous conviction for trafficking, in which he was given the benefit of a 12 month conditional sentence.

(7) Although there are significant mitigating circumstances, they are by no means exceptional.

[45] Mr. Strezos submitted that the appropriate sentence should be in the range of three to six months followed by three years' probation, for the following reasons:

(1) He is extremely remorseful.

(2) He co-operated fully with the police at the time of the execution of the CDSA warrant, including permitting their unforced entry into the residence and taking them to where the drugs were hidden, on a shelf in his closet.

(3) Mr. Conceicao is a central parental figure and financial provider for his common-law partner, her teenage daughter, and their three young children;

(4) Mr. Conceicao also exerts an essential emotional support role for his extended family, which includes his mother and his mother's four children by a second union, following the death of his father.

(5) He has a very dated criminal record.

(6) Except for this offence, Mr. Conceicao is a very pro-social person, both as a parental figure within his extended family and as a hard working employee and contributor in the work place.

(7) As such, he has held his extended family together for many years, and will continue to do so on his release from custody;

(8) He has suffered deeply during this proceeding, realizes the jeopardy and potential hardship he has visited on those who depend on him for emotional and financial support.

(9) It is unlikely that he will re-offend.

(10) A short custodial sentence followed by three years' probation, including a curfew and community service can meet the needs of denunciation and both specific and general deterrence, while permitting Mr. Conceicao to make a positive contribution to social awareness in the community regarding cocaine abuse by young people.

4: THE LEGAL FRAMEWORK

4.1: The Legislative Framework, The Criminal Code, Part XXIII, SENTENCING

Section 718 — The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

Section 718.1 — A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

Section 718.2 — A court that imposes a sentence shall also take into consideration the following principles:

(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,

(i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or any other similar factor,

(ii) evidence that the offender, in committing the offence, abused the offender's spouse or common-law partner or child, or

(iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim shall be deemed to be aggravating circumstances,

(iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization, or

(v) evidence that the offence was a terrorism offence;

shall be deemed to be aggravating circumstances;

(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

(c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;

(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and

(e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.

Section 718.3(1) — Where an enactment prescribes different degrees or kinds of punishment in respect of an offence, the punishment to be imposed is, subject to the limitations prescribed in the enactment, in the discretion of the court that convicts a person who commits the offence.

Section 718.3(2) — Where an enactment prescribes a punishment in respect of an offence, the punishment to be imposed is, subject to the limitations prescribed in the enactment, in the discretion of the court that convicts a person who commits the offence, but no punishment is a minimum punishment unless it is declared to be a minimum punishment.

[46] In addition to this framework, Bill C-10, the Safe Streets and Communities Act, which received royal assent on 13 March 2012, amended section 742.1, to specifically exclude the availability of a conditional sentence for the offence to which Mr. Conceicao has pleaded guilty:

742.1 If a person is convicted of an offence and the court imposes a sentence of imprisonment of less than two years, the court may, for the purpose of supervising the offender's behaviour in the community, order that the offender serve the sentence in the community, subject to the conditions imposed under section 742.3, if

(e) the offence is not an offence, prosecuted by way of indictment, for which the maximum term of imprisonment is 10 years, that

(ii) involved the import, export, trafficking or production of drugs;

4.2: Case Law and Legal Framework under The Controlled Drugs & Substances Act

[47] The Controlled Drugs & Substances Act, Section 10, lists factors that should be considered in sentencing involving offences in relation to controlled drugs:

Sentencing

Purpose of sentencing

Section 10(1) — Without restricting the generality of the Criminal Code, the fundamental purpose of any sentence for an offence under this Part is to contribute to the respect for the law and the maintenance of a just, peaceful and safe society while encouraging rehabilitation, and treatment in appropriate circumstances, of offenders and acknowledging the harm done to victims and to the community.

Circumstances to take into consideration

Section 10(2) — If a person is convicted of a designated substance offence, the court imposing sentence on the person shall consider any relevant aggravating factors including that the person

(a) in relation to the commission of the offence,

(i) carried, used or threatened to use a weapon,

(ii) used or threatened to use violence,

(iii) trafficked in a substance included in Schedule I, II, III or IV or possessed such a substance for the purpose of trafficking, in or near a school, on or near school grounds or in or near any other public place usually frequented by persons under the age of eighteen years, or

(iv) trafficked in a substance included in Schedule I, II, III or IV, or possessed such a substance for the purpose of trafficking, to a person under the age of eighteen years;

(b) was previously convicted of a designated substance offence; or

(c) used the services of a person under the age of eighteen years to commit, or involved such a person in the commission of, a designated substance offence.

Reasons

Section 10(3) — If, under subsection (1), the court is satisfied of the existence of one or more of the aggravating factors enumerated in paragraphs (2)(a) to (c), but decides not to sentence the person to imprisonment, the court shall give reasons for that decision.

Case Law

[48] Counsel have provided me with cases that have applied these principles and factors, which I will now review.

[49] In R. v. Woolcock, [2002] O.J. No. 4927, the Ontario Court of Appeal reduced a sentence of two-years-less-a-day incarceration to one of fifteen months incarceration on a conviction after trial for possession for the purposes of trafficking, possession of the proceeds of crime and possession of marijuana. In an investigation over a number of weeks, police observed what appeared to be trafficking occurring from the residence, and in addition seized 5.3 grams of crack cocaine, 1 gram of marijuana, a digital scale, evidence of drug packaging and a debt list. $926 in Canadian cash was seized along with U.S. $60. Mr. Woolcock was a 53 year-old with two prior convictions for drug related offences in 1998. The court felt that the real possibility for rehabilitation had not been adequately considered and therefore reduced the sentence.

[50] In R. v. Spencer, [2004] O.J. No. 3262, the Ontario Court of Appeal overturned a conditional sentence of two-years-less-a-day by the trial judge of a black single mother with three children who pleaded guilty to 733 grams of 82 percent pure cocaine, based on systemic racial and gender bias.

[51] Justice David Doherty, speaking for the court, concluded that the quantity of cocaine brought in to Canada, on its own, was a factor that precluded the trial judge's sentence. But, at paragraph 33, and following, he went further, regarding her personal culpability, based on the record at trial, and stated:

33 The trial judge held that as there was no evidence that Ms. Spencer was anything but a courier, she should be sentenced as a courier. The trial judge reached this conclusion in the face of Ms. Spencer's discredited evidence that she was an innocent dupe, and in the absence of any other evidence as to the nature of Ms. Spencer's involvement. Having declared Ms. Spencer a courier, the trial judge went further and said at para. 60:

Ms. Spencer likely fell prey to the suggestions of an overseer that she could make a "fast dollar" by being a courier.

34 I think it was open to the trial judge, given what she knew about Ms. Spencer, to conclude that the drugs she was carrying into Canada did not belong to her and that she was to have no role in their distribution. In my view, however, the trial judge could not go further and, in the total absence of evidence, speculate either as to the relationship between Ms. Spencer and those who hired her, or the circumstances that led her to agree to courier cocaine into Canada. The trial judge erred in diminishing Ms. Spencer's personal culpability based on speculation as to how and why she came to be involved in this crime.

[52] In R. v. Ruggiero, [2008] O.J. No. 1569, the Ontario Court of Appeal upheld a sentence of forty-one months imprisonment, in addition to seven months' time served for a guilty plea on the fifth day of trial to possession for the purposes of trafficking of 769.22 grams of cocaine, including 517.96 grams of crack and 2000 ecstasy pills. Again no personal facts or antecedents were provided in the appeal ruling.

[53] In R. v. Stein, unreported, my colleague, Justice Marquis S. Felix of this court, received a guilty plea from Rene Stein, who was found to have in his residence 27 grams of cocaine for the purposes of trafficking, two digital scales, pre-recorded police buy money, along with $1060. At the sentencing hearing, Mr. Stein sought a sentence akin to a conditional sentence, a suspended sentence, with terms including house arrest and community service.

[54] Mr. Stein came before the court with no prior criminal record. A central issue on sentencing was whether incarceration was necessary, and whether it might have a disproportionate and unfairly heightened impact on Mr. Stein, due to his torture in another country, several decades before he came to Canada. The Crown in that proceeding did not dispute expert opinion evidence from Dr. Judith Plowsky to the effect that, as a result of that torture, he continued to suffer from post-traumatic stress, and further incarceration could have an added harmful effect, and undermine his likelihood of rehabilitation.

[55] In his ruling, Justice Felix concluded that the evidence tendered could not justify the sentence requested by the defence. At page 17, line 13 and following of the transcript of his oral reasons, he rejected the expert opinion evidence placed before him and stated:

When I keep in mind the guidance from the Supreme Court of Canada in the R. v. Sekhon 2014 SCC 15, [2014] S.C.J. No. 15, I am not prepared to accept a broad speculative opinion that a depression could lead to an increased risk of poor decision making.

This was not a crime motivated by addiction. This was not a crime driven by the primary diagnosis of Mr. Stein's post-traumatic stress disorder.

[56] In upholding the trial judge's sentence of 12 months in jail, the Court of Appeal, reported as 2015 O.J. No. 5574, paragraph 8, stated:

8 The trial judge, in careful and considered reasons, took into account the appellant's post-traumatic stress disorder, as well as the collateral consequences of the sentence he was about to impose. His reasons reflect no error in the weight he assigned to those factors. The sentence he imposed was within the applicable sentencing range and reflects a proper blend of the governing sentencing objectives, principles and factors. We see no basis upon which to interfere.

4.3: The Case Law on "Family Effect" as a Mitigating Factor

[57] In R. v. Forsythe, [1976] O.J. No. 1026 (Ont. C.A.) the Ontario Court of Appeal varied a trial court's sentence from an indefinite period not to exceed two years to an indefinite term not to exceed six months, together with 18 months' probation.

[58] A separated mother with a 14-year-old daughter, under treatment for epileptic seizures, which required the mother's care and attention, pleaded guilty to stealing $10,000 from her employer. On appeal, the Ontario Court of Appeal decided that the mother's presence in the home with her daughter as soon as reasonably appropriate was the most important single factor on sentencing.

[59] Chief Justice Charles Dubin, speaking for the court, stated:

5 This is a very serious offence involving as it does a breach of trust. Because of this we are all satisfied that, notwithstanding the appellant's prior good antecedents, the trial judge was correct in imposing a custodial term. We are not satisfied, however, that the public will best be served by affirming the sentence of the provincial judge. In our opinion a short custodial term plus a period of probation would be more appropriate. The fact that a prison term will be meted out to persons of like mind -- even first offenders -- of prior good character should be a sufficient deterrent to others who are tempted to conduct themselves in the manner that the appellant has done. That being said, the more immediate issue is what an appropriate sentence is for the appellant. She has exhibited great remorse. There is evidence of a reconciliation with her husband which should go a long way towards helping her psychologically. Her presence at home with her daughter, as soon as it is reasonably appropriate, is most important

[60] However, it is clear from Forsythe and other cases such as Spencer, supra, that when trial judges are attempting to take into account the impact of a sentence on the convicted person's family and dependents, they cannot ignore the other sentencing principles when attempting to fashion an appropriate sentence.

[61] Justice Doherty, in Spencer, in concluding that the accused should serve a carceral term of twenty months, elaborates at paragraphs 46 and 47 of his ruling:

46 It is a grim reality that the young children of parents who choose to commit serious crimes necessitating imprisonment suffer for the crimes committed by their parents. It is an equally grim reality that the children of parents who choose to bring cocaine into Canada are not the only children who are the casualties of that criminal conduct. Children, both through their use of cocaine and through the use of cocaine by their parents, are heavily represented among the victims of the cocaine importer's crime. Any concern about the best interests of children must have regard to all children affected by this criminal conduct.

47 The fact that Ms. Spencer has three children and plays a very positive and essential role in their lives cannot diminish the seriousness of her crime or detract from the need to impose a sentence that adequately denounces her conduct and hopefully deters others from committing the same crime. Nor does it reduce her personal culpability. It must, however, be acknowledged that in the long-term, the safety and security of the community is best served by preserving the family unit to the furthest extent possible. In my view, in these circumstances, those concerns demonstrate the wisdom of the restraint principle in determining the length of a prison term and the need to tailor that term to preserve the family as much as possible. Unfortunately, given the gravity of the crime committed by Ms. Spencer, the needs of her children cannot justify a sentence below the accepted range, much less a conditional sentence.

4.4: Deviation from Sentencing Range for Particular Offences

[62] In the recent appeal to the Supreme Court of Canada in R. v. Lacasse, [2015] O.J. No. 64 (S.C.C.), the court was dealing with a Crown appeal from a judgment of the Quebec Court of Appeal that reduced from six and a half to four years a term of imprisonment imposed on Lacasse after he had pleaded guilty to two counts of impaired driving causing death. The Court of Appeal found that the sentence was excessive. In the court's opinion, the trial judge should have given greater consideration to Lacasse's potential for rehabilitation and placed less emphasis on the objective of making an example of an offender.

[63] In allowing the Crown appeal, and restoring the trial judge's sentence, Justice Richard Wagner, speaking for the court, articulated the court's view of how trial judge's should factor sentencing ranges for particular offences into their calculation of a fit and proper sentence for the individual before them, beginning at paragraph 57, and following:

Sentencing ranges are nothing more than summaries of the minimum and maximum sentences imposed in the past, which serve in any given case as guides for the application of all the relevant principles and objectives. However, they should not be considered "averages", let alone straitjackets, but should instead be seen as historical portraits for the use of sentencing judges, who must still exercise their discretion in each case:

Even when an appellate court has established a range, it may be that a fact pattern will arise, which is sufficiently dissimilar to past decisions that the "range", as it were, must be expanded. The fundamental point is that a "range" is not a straitjacket to the exercise of discretion of a sentencing judge.

(R. v. Keepness, 2010 SKCA 69, 359 Sask. R. 34, at para. 24)

58 There will always be situations that call for a sentence outside a particular range: although ensuring parity in sentencing is in itself a desirable objective, the fact that each crime is committed in unique circumstances by an offender with a unique profile cannot be disregarded. The determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purely mathematical calculation. It involves a variety of factors that are difficult to define with precision. This is why it may happen that a sentence that, on its face, falls outside a particular range, and that may never have been imposed in the past for a similar crime, is not demonstrably unfit. Once again, everything depends on the gravity of the offence, the offender's degree of responsibility and the specific circumstances of each case. LeBel J. commented as follows on this subject:

A judge can order a sentence outside that range as long as it is in accordance with the principles and objectives of sentencing. Thus, a sentence falling outside the regular range of appropriate sentences is not necessarily unfit. Regard must be had to all the circumstances of the offence and the offender, and to the needs of the community in which the offence occurred.

(R. v. Nasogaluak, 2010 SCC 6, at para. 44)

[64] To summarise these cases, it would appear that there is a range of appropriate sentences for possession of cocaine for the purposes of trafficking and importing. Trial judges must be guided by Parliament's delineation of the mitigating and aggravating factors as set out in the sentencing provisions of the Criminal Code and the CDSA. In considering the appropriate range, it is important to consider the offence itself, the quantities trafficked or imported, the degree of personal culpability, as well as the antecedents of the accused, and the current personal factors in each case, at the time of sentencing.

[65] In this exercise, as summarized in Lacasse, supra, trial judges can order a sentence outside the generally accepted sentencing range where the particular facts in the case warrant that result.

[66] What then, is the appropriate range on the facts, for Mr. Conceicao, and what is the appropriate sentence that he should receive, having regard to the mitigating circumstances in his case, including his family circumstances?

5: ANALYSIS

[67] In this proceeding the Crown elected to proceed by indictment.

[68] Subsection 5(3)(a) of the CDSA provides that a person who possesses a Schedule I substance, cocaine, for the purposes of trafficking is guilty of an indictable offence and is liable to imprisonment for life.

Mr. Conceicao's 2004 Conviction for Trafficking

[69] It is aggravating that Mr. Conceicao has a previous conviction in 2004 for trafficking.

The Cocaine was Concealed in a Family Residence

[70] I also accept the Crown's submission that it is aggravating that the powdered cocaine was in a family residence, in which were living three little boys, ages 4, 8 and 9, and a teenager.

The Fact that Mr. Conceicao Himself is not an Addict

[71] It is also aggravating that Mr. Conceicao is not, himself, an addict.

The Quantity of Powdered Cocaine Seized

[72] A review of the reported cases suggests that where cocaine powder in the amount seized here, 81.64 grams, is found, a period of incarceration in the reformatory can be appropriate, subject to mitigating factors, such as the possibility of rehabilitation, which I have found to apply in this case.

[73] In Woolcock, in 2002, the Ontario Court of Appeal reduced a two-years-less-a-day sentence to one of fifteen months, where 5.3 grams of crack cocaine was seized along with a digital scale, on the basis that the 53-year-old offender, with two prior for drug related offences within the previous four years based upon the real possibility of the accused's rehabilitation.

[74] More recently, in Stein, the Court of Appeal showed deference to the trial judge and did not interfere with the trial judge's sentence of twelve months, where the accused was found with 27 grams of cocaine, digital scales and police buy money, along with $1060.

[75] In this sentencing hearing, the Crown submitted that the quantity of cocaine powder alone requires not just a reformatory sentence, but an upper-reformatory sentence.

[76] I agree with the Crown that the large amount of cocaine powder seized, 81.64 grams, is the single most aggravating factor in this case, and requires a carceral sentence.

[77] However, I do not agree that it requires a period of incarceration in the range of fifteen months.

[78] As stated above, in my view, the case law does not suggest that "quantity" alone can dictate the sentence, although it is clearly aggravating, when such a large quantity is found.

[79] While I have concluded that the Crown's request for 15 month's is clearly within the range found in the case law for this quantity of cocaine powder seized, I have concluded that six months followed by a three year probation is consistent with the sentencing principles enumerated by Parliament on the facts in this case and although perhaps at the low end of the range I have been referred to by counsel, it is the appropriate sentence for this accused, for this offence, in all the circumstances of this case.

[80] Firstly, in my view, denunciation and deterrence do not require the sentence the crown is seeking.

[81] In my view, a shorter sentence, followed by a three year probation order, including a curfew and a community service condition, requiring him to perform not less than 180 hours of community service, can achieve that purpose.

[82] In R. v. Taylor [1997] O.J. 3196, Justice Peter Harris of the Ontario Court of Justice sentenced the accused to a twelve-month conditional sentence with 120 hours of community service for attempting, as a cross-border courier, to import approximately $40,000 of marihuana. Carol Taylor was a 33-year-old single parent and mother of three children. Miss Taylor had no prior record, is not involved in drug use and is described by sources as a kind and considerate person, honest and very loving mother to her children and gainfully employed.

[83] Although he was fashioning a conditional sentence, based upon the Parliamentary mandate at that time, in Section 742.1, Justice Harris's reasons speak to the appropriateness of a community service order as a form of deterrence and denunciation, short of incarceration.

[84] Justice Harris stated in his reasons:

¶ 28 Fundamentally the sentence in this case must be proportionate to the gravity of the offence and the offender's degree of responsibility. Balancing these important factors that may well-be inconsistent with a conditional sentence, I have considered the following aspects of the case that arguably favour a conditional sentence for Miss Taylor.

¶ 29 I accept that it would be highly unlikely that she would re-offend in the future. She was likely motivated by a desperate need to provide for four children under the age of ten years, one of whom is chronically ill. Miss Taylor has now managed to secure full time employment and become self-supporting, according to counsel. The accused has no prior criminal record and the offence involved what is known as a soft drug, probably comparable to alcohol. The accused was a courier or mule and the carrying of the drugs through customs in an Adidas sport bag was not a particularly sophisticated act. Finally Miss Taylor is a 33-year-old single parent, of apparently exemplary character who has expressed considerable remorse and accepted responsibility for her actions.

¶ 30 A sentence of incarceration would unquestionably crush any chance of career that she may have recently achieved and eliminate any hope of a future for her family.

¶ 31 After careful weighing and balancing the principles set out in Section 718 to 718.2 and a full consideration of the above factors for and against a conditional sentence, I have concluded that a conditional sentence can be fashioned that will involve sufficiently punitive sanctions that appropriately and reasonably address the need for deterrence and denunciation. My reasons are as follows.

¶ 32 First, the Ontario Court of Appeal decision in R. v. Hollinsky, (1996), 46 C.R. (4th) 95 states that:

"Denunciation can be expressed by a sentence which deprives an offender of liberty outside a prison."

¶ 33 Secondly, the Ontario Court of Appeal decision in R. v. Wismayer, supra, acknowledges that the principles of general deterrence and denunciation are not only given effect to by imprisonment.

[85] It is to be noted that in R. v. Hollinsky, (1996), 46 C.R. (4th) 95, Justice Saul Nosanchuk, prior to the amendments to the Code which created the conditional sentence, used a probation order and not a conditional sentence, to achieve his sentencing purpose.

[86] In my view, a carceral sentence of six months, followed by three years' probation does fall within the appropriate range for this offence and this offender.

Mitigating Factors

[87] In the case at bar, what are the mitigating circumstances that justify this result?

[88] Mr. Conceicao is forty-years-old, but as set out in the testimony in this sentencing hearing he has been an extraordinary contributor to his immediate and extended family over the years, commencing at the very young age of ten.

[89] I have heard from a numbers of family members, including his mother and a number of his siblings, and they have testified to his continuing central role in their lives.

[90] He has sought the assistance from his family doctor, and completed counselling to overcome his immediate depression following his arrest in February of 2016.

[91] Based upon the evidence of his family doctor and his mental health clinician, I am satisfied he has now realized the magnitude of the impact of his actions both on his immediate and extended family and on society, and is not likely to re-offend.

[92] In my view, Mr. Conceicao is a different person from the person he was in 2004, when he was convicted of trafficking, and, indeed, the person he was prior to his arrest on these charges sixteen months ago.

[93] If there is one thing I can take from the evidence and testimony in this proceeding, including his personal statement to me in open court at the end of this hearing on 16 June, it is that Mr. Conceicao is extremely remorseful, and has paid a significant price already by virtue of recognition of the jeopardy in which he has placed his immediate family and the fact that his case has been pending before this court for sixteen months.

[94] In my view, there is a real likelihood that Mr. Conceicao has learned from the court proceedings, and counselling, and will not be back before the courts in the future.

[95] Further, I am satisfied that Mr. Conceicao, in his current frame of mind and circumstances does not pose a danger to the safety of the community if he is released after serving his custodial sentence.

[96] I also believe that probation order of three years will further ensure the protection of the public and further insure against any possibility of his re-offending.

[97] I have concluded that this court can fashion a sentence that respects the sentencing framework in the Code, while not destroying this offender's family unit and his role in his extended family.

[98] In my view, a curfew, and 180 hours of community service, as part of a probation order, requiring him to speak publically about the devastation of cocaine use on young people in our society would meet the sentencing purpose of deterrence and denunciation as well as rehabilitation, in this case.

[99] Community service can promote a sense of responsibility in Mr. Conceicao and provide an acknowledgment of the harm he has done to the community. (See R. v. Hollinsky, [1995] O.J. 3521, Justice Saul Nosanchuk, Ontario Court of Justice, approved R. v. Hollinsky, [1995] O.J. 4126, Ontario Court of Appeal, cited with approval by Justice Peter Harris in R. v. Taylor, supra)

[100] In my view, these considerations suggest that a six month period of incarceration followed by a three-year probation order and a curfew would not be inconsistent with the principle of proportionality or with the other enumerated sentencing principles in sections 718 to 718.2 and consistent with the sentencing approaches found in the case law.

5: DISPOSITION

[101] For the reasons set out above, I therefore sentence Mr. Conceicao to sentence of six months, followed by a probation for three years, including a curfew, and the requirement that he perform 180 hours of community service.

[102] Counsel may now address on these conditions and any other conditions they submit I should include in the probation order.

Released: 20 June 2017

Signed: "Justice Paul H. Reinhardt"