REASONS FOR SENTENCE

MELVYN GREEN, J.

A. INTRODUCTION

Each case must be considered in the light of its own circumstances and if those circumstances are extraordinary or rare, and suggest that a jail sentence is not appropriate, then a jail sentence should not be imposed.

Gale, C.J.O. R. v. Doherty (1972), 9 C.C.C. (2d) 115

[1] The appeal in R. v. Doherty was heard in an era when very few persons convicted of drug trafficking avoided a sentence of imprisonment. The trial judge effectively said as much, lamenting the absence of "guidelines as to what constitutes exceptional circumstances" justifying a departure from this rule. The Court of Appeal demurred: "[I]t would not only be unwise, but dangerous to attempt any such exercise". Individual circumstances, the Chief Justice was saying, matter. Whatever the rule, if "a jail sentence is not appropriate, then a jail sentence should not be imposed".

[2] Following a trial, I found Tianna Zachar guilty of trafficking in close to an ounce of both heroin and cocaine in October 2016. She was barely 18 at the time of the offence. She is the product of a broken home, presents as immature and vulnerable, and turned her life around in the nearly two years since her arrest. Crown counsel allows that the offender's role in the criminal enterprise was no greater than that of a courier and that she was likely exploited by others. Nonetheless, he commends a penitentiary sentence of three years – the lower end of what he says is the appropriate sentencing range of three to five years of imprisonment. The defence position is very different. Relying on the purported "exceptionality" of the circumstances surrounding the offence and the offender, defence counsel urges that passage of his client's sentence be suspended and she be placed on a lengthy period of probation.

[3] This case, as do many, invites consideration of the appropriate role and application of sentencing "ranges" in achieving a proportionate disposition. The matter is a source of recurrent judicial debate.

[4] Until modified by the Supreme Court's 2015 judgement in R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, the conventional approach to sentencing assumed a trial court's close adherence to quantitative sentencing ranges for sub-categories of offences as delineated by provincial courts of appeal. Lacasse authoritatively recast the role of court-endorsed ranges, defining them as but one of various aids available to trial judges, rather than as the first and fundamental building blocks to the crafting of just sentences. Although hardly a radical proposition, Lacasse emphasized the importance of individualized proportionality grounded in the consistent application of principle rather than result, with comparative reference, not obeisance, to the ranges proposed by appellate authorities in factually proximate circumstances. These predecessor comparators served merely as historical guides to a fit disposition. As said in a now hackneyed metaphor, they are but one tool among many in the calculus of sentencing.

[5] The Supreme Court's most recent discussion of sentencing protocols suggests a further readjustment. To the degree that a court's practice is a reliable indicator of its theory, the Supreme Court is now signaling a return to analytical dominance of a range-driven paradigm. As modeled in R. v. Suter, 2018 SCC 34, a trial judge first focuses on the nature of the offence, then determines the judicially sanctioned range of sentence for the identified offence category and, finally, applies established goals and principles of sentencing to locate the offender along the prescribed penal range. Absent sufficiently exceptional circumstances, there is no lawful escape, to use a different metaphor, from the gravitational pull of a judicially endorsed range.

[6] Irrespective of its precise duration, the prosecution's view is that a penitentiary-length custodial disposition is necessary to meet the here-relevant objectives of sentencing. The Crown position tracks long settled recognition, as reflected in judicially sanctioned ranges, that trafficking in addictive drugs should be met with a severe sentence intended to advance the goals of deterrence and denunciation. On the other hand, the principles of rehabilitation and restraint are generally paramount in sentencing youthful first offenders. Fairly resolving this tension is a familiar challenge. As Schreck O.C.J. (as he then was) said in R. v. Fernandez, [2018] O.J. No. 2213, at para. 22:

It is one faced by most sentencing judges. There is ultimately no one correct way to achieve this balance, which is why courts are usually given a wide latitude in determining the appropriate sentence in any given case.

[7] I surveyed several of the issues that arise in the instant prosecution in R. v. McGill, 2016 ONCJ 138. Rather than reinventing the wheel, in the reasons that follow I liberally draw, from among many precedents, on my decision in McGill.

B. SENTENCING: THE LEGAL FRAMEWORK

(a) Introduction

[8] Over ninety percent of criminal charges that are neither withdrawn nor stayed result in findings of guilt. Overwhelmingly, sentencing is what trial court judges do. A judge's discretion is broad and subject to appellate deference, but it is not absolute. For every criminal offence, Parliament prescribes the variety and range of sentences following a guilty verdict. For each offence or category of offences, Parliament fixes both the floor and the ceiling for the exercise of judicial sentencing discretion.

[9] For most, but not all offences, no floor, or minimum sentence, is prescribed. Some, however, carry minimum fines or, more commonly, minimum terms of imprisonment. Absent certain aggravating circumstances (none of which here obtain), there is no minimum sentence for the drug trafficking committed in this case and therefore no statutory impediment to a trial judge determining the brevity of an appropriate custodial disposition.

[10] All criminal law statutes prescribe a sentencing ceiling for each offence. As dictated by s. 5(3) of the Controlled Drugs and Substances Act (CDSA), a person, as here, convicted of trafficking in heroin or cocaine is "liable to imprisonment for life" – the most severe sentence known to Canadian law. The statutory ceiling undoubtedly reflects the gravity with which Parliament views the commercial distribution of addictive and otherwise personally and socially harmful drugs. By operation of law, a maximum penalty of life imprisonment precludes access to certain alternative sentences, in particular "discharges" (non-custodial dispositions that avoid a record of "conviction") and "conditional sentences" (whereby an offender ordered imprisoned for less than two years may be directed to serve her or his sentence in the community, including, typically, a period of "house arrest"). Despite the onerous maximum penalty, the suite of available sentencing options includes one that does not compel the imposition of a term of imprisonment: absent, as here, any minimum sentence requirement, nothing in the CDSA or the Criminal Code forecloses a court from declining to impose a carceral disposition for drug trafficking and, instead, suspending the passing of an offender's sentence and subjecting her or him to a period of probation.

[11] In summary, there are here two realistic sentencing alternatives: a sentence of imprisonment of fit duration (followed, if no longer than two years and where deemed appropriate, by a term of probation) or a non-custodial disposition by way of suspended sentence and probation. Probation, in essence, involves the state-supervised monitoring and, ideally, rehabilitation of an offender in the community for up to three years, subject to conditions tailored and enforced by the court. As prescribed by the Criminal Code, a term of probation may not be added to a carceral sentence that is greater than two years. Translated to the immediate context: ratifying the Crown position of three years' imprisonment (or, indeed, anything greater than two years) would necessarily mean that the offender, Tianna Zachar, could not be placed on probation.

(b) Objectives and Principles of Sentencing

[12] While the available compass of sentencing discretion is expansive, its judicial exercise is subject to both statutory direction and appellate governance. As to the former, s. 718 of the Criminal Code requires a sentencing court, through the sanction it imposes, to achieve "one or more" of the identified sentencing objectives of denunciation, specific and general deterrence, societal separation ("where necessary"), rehabilitation, reparation for harm done, and promotion of a sense of responsibility. Further, any sentence must reflect a collection of guiding principles set out in the Code and, in particular, the "fundamental principle" of sentencing, as prescribed in s. 718.1: "A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender". Sentencing jurisprudence uniformly treats the phrase "degree of responsibility" interchangeably with "moral blameworthiness", a locution that more transparently captures the full compass and complexity of relative personal fault.

[13] Judicial attention must also be paid to those supplementary sentencing principles set out in s. 718.2. These include "aggravating circumstances" (effectively restricted, in the case at bar, to the gravity of the offender's crimes) and other considerations, arguably more mitigating, such as those captured by the principles of parity, totality and restraint. Further, and "[w]ithout restricting the generality of the Criminal Code", s. 10(1) of the CDSA adds that the "fundamental purpose" of sentencing for drug-related offences 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.

Unlike the "fundamental purpose of sentencing" proclaimed in the Criminal Code, that set out in the CDSA does not expressly reference the objectives of denunciation or deterrence, while positively "encouraging rehabilitation".

(c) Range Sentencing

[14] The meaning and application of the codified purposes and principles of sentencing have been left to the judiciary and, in particular, appellate courts engaged in the review of the legal correctness of sentencing decisions. As very few such cases ever reach the Supreme Court, the task of passing on the propriety of trial-level sentencing predominantly falls to provincial courts of appeal.

[15] In exercising their supervisory jurisdiction, appellate courts have commonly held that certain offences or identified sub-classes should ordinarily attract custodial dispositions. The judicial construction of quantified sentencing ranges is an extension of this practice – that is, the creation of tiered sentencing brackets intended to reflect the relative gravity of criminal conduct within the same offence category. Fraud, for example, is typically the subject of a judge-made sentencing regime in which each step up the penal ladder is tied to an escalating level of quantified loss or defalcation. A sentencing judge, in applying this construct, is to appropriately credit any aggravating or mitigating factors bearing on the offence or the offender so as to fine-tune a fraudster's sentence within the parameters of the dollar-appropriate range fixed by an appellate court.

[16] The approach taken by courts of appeal to drug trafficking offences is much the same. The CDSA assigns identical penal discretion to judges sentencing persons convicted of trafficking in Schedule I drugs (basically, opioids, cocaine and amphetamines) – irrespective of the nature, amount, value, purity, addictiveness or other dangers of the drug, and irrespective of the sophistication or profitability of the enterprise or the motive, role, criminal history or other antecedents of the offender. Appellate courts have, in effect, layered their own quantitative sentencing grid on top of the broad latitude delegated trial judges by Parliament. Unlawful drugs are ranked by the personal and social harm appellate courts generically assign to each. Heroin, for example, is treated more seriously than powder cocaine. Based exclusively on weight-based divisions of the drug at issue, these same courts then attribute a step-ladder of penal severity to each drug or drug category. The graduated range of sentence assigned to commercial transactions involving ounces of either heroin or cocaine is harsher than that prescribed for gram- or multi-gram-level sales of the same substance. To be very clear, a single feature of the offence – the weight of the substance at issue – grounds, defines and governs range sentencing in the realm of drug trafficking.

[17] But for, as said in R. v. Doherty, "extraordinary or rare" scenarios (for which, historically, a high bar was erected), sentencing judges, to avoid the risk of reversible legal error, were generally expected to confine themselves to the case-appropriate penal range directed by their supervisory courts of appeal. Indeed, until R. v. Lacasse, supra, mere departure from a court-prescribed sentencing range was not infrequently treated as cause for appellate intervention. As noted, this sentencing model accommodates the occurrence of "exceptional" circumstances – that is, those affording an exception to, or exemption from, a court-endorsed range. Such exceptional circumstances, when established, are not necessarily extenuating. They may, depending on their forensic characterization as aggravating or mitigating, justify relief in either direction from the strictures of the sanctioned range – above, as in Lacasse, or below, as in Suter.

[18] R. v. Lacasse is a compendious restatement of the sentencing guidance incrementally developed by the Supreme Court in a number of antecedent judgements. Lacasse affirms that it is Parliament's job, not that of appellate courts, to create offence categories and, thereby, the parameters and compass of a trial judge's sentencing discretion. Sentencing "ranges", the Court held, are no more than appellate "guidelines", the departure from which does not itself constitute legal error. Indeed, unless a sentence is demonstrably unfit or the product of an impactful error of principle or failure to properly consider a relevant factor, an appellate court is to accord deference to the sentence imposed at trial rather than substitute its own view as to the appropriate disposition. In the end, and most importantly, sentencing is a wholistic exercise in individualized justice, one that must respond proportionately to both the unique circumstances of each offender and the offence or offences of which she or he has been found guilty.

[19] The doctrine of sentencing ranges is subject to a number of reservations grounded in law and policy. I touch on these in R. v. McGill, supra, at paras. 55-58. One persistent misgiving is that the offencentric nature of range-framed sentencing may distort the principle of individualized proportionality that defines and legitimates each sentencing project. As I wrote, at para. 56:

A sentencing levy based on the weight or amount of a drug inevitably prioritizes the gravity of the offence over the moral culpability of the offender. … It is this offence-weighted bias that led Lamer C.J., on behalf of the full Supreme Court in R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at para. 83, to caution that,

… such an approach focuses inordinately on the gravity of the offence and insufficiently on the moral blameworthiness of the offender. This fundamentally misconstrues the nature of the [fundamental sentencing] principle. Proportionality requires that full consideration be given to both factors. [Emphasis in original.]

Similarly, in R. v. Wells, 2000 SCC 10, [2000] 1 S.C.R. 207, at para. 46, Iacobbucci J., again speaking for a unanimous Supreme Court, re-affirmed that an offence-based "categorical approach represents only a partial, and therefore unbalanced, application of the fundamental sentencing principle of proportionality … ".

[20] The recent case of R. v. Sharma, 2018 ONSC 114, voices a similar note of caution respecting reliance on range-based sentencing. Hill J., drawing on his "over 20 years of conducting sentencings", expressed his "concern", at para. 83, that "Ontario Court of Appeal starting point ranges have become less flexible guidelines and more prescriptive constraints of judicial discretion". "Individualized sentencing", he warned, "cannot become an exercise of sentencing by the pound". (See, also, the thorough review of the Australian position on the same point in R. v. Parente, [2017] NSWCCA 284, as extensively quoted in Sharma, supra, at para. 92.)

[21] Lacasse, on its face, reads as an authoritative corrective to the mechanical application of range-predicated sentencing. Wagner J., as he then was, wrote for the majority. He said, at paras. 57 and 58:

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.

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. … Once again, everything depends on the gravity of the offence, the offender's degree of responsibility and the specific circumstances of each case.

[22] As clear from this passage, parity – the core rationale for range sentencing – is not only a prescribed goal but "a desirable objective". However, the reconciliation of individualization and parity must be conducted in a manner that does not sacrifice individual proportionality for categorical equivalence. As the Court makes patent, at para. 54, "[t]he principle of parity of sentences … is secondary to the fundamental principle of proportionality" (emphasis added).

[23] The preeminence afforded individualized proportionality is consistent with earlier Supreme Court judgements such as R. v. L.M., 2008 SCC 3, [2008] 2 S.C.R. 163 and R. v. Pham, 2013 SCC 15, [2013] 1 S.C.R. 739. In Pham, at para. 9, Wagner, J., spoke for a unanimous Court:

As a corollary to sentence individualization, the parity principle requires that a sentence be similar to those imposed on similar offenders for similar offences committed in similar circumstances … . In other words, "if the personal circumstances of the offender are different, different sentences will be justified" (C. C. Ruby, G. J. Chan and N. R. Hasan, Sentencing (8th ed. 2012), at §2.41). [Emphasis added.]

Or as I endeavoured to explain in McGill, supra, at para. 81:

[I]ndividual differences justify different sentences. The more substantial the differences, and the more salient they are to the recognized objectives and principles of sentencing, the greater the justification for principled disparity [from an endorsed range]. What the principle of proportionality demands is individualized parity, not class parity.

(See also R. v. Chaloner, 2018 ONCJ 577, esp. at para. 31.)

[24] Proportionality remains firmly entrenched as the "fundamental principle of sentencing". However, the strong emphasis in Lacasse on case-specific individualization and its de-emphasis of strict fidelity to sentencing brackets appears muted by the Supreme Court's recent deployment of offence-focused ranges as the foundational analytical tool in sentencing. The decision in question, R. v. Suter, supra, is primarily concerned with refining the meaning of the "collateral consequences" of an offence and their potentially attenuating role in sentencing. However, Suter's analytical syntax affords an authoritative exemplification of the continuing organizing centrality of ranges to the tailoring of a just sentence. Suter is also a sobering reminder of the high standard that must be met before departing from appellate "guidelines" for identified offence categories.

[25] In Suter, the Supreme Court expressly endorsed a substantial penitentiary-length sentencing range of between two and ten years for fatality-associated drinking and driving-related offences. The offender was a retired man with no criminal record. While bickering with his wife, he mistakenly pressed the gas rather than brake pedal, accelerating his vehicle onto a restaurant patio in South Edmonton and tragically killing a two-year-old child and injuring others.

[26] The offender was arrested while being beaten at the scene. He was charged with impaired driving causing death and impaired driving causing bodily harm. Following a lawful breath demand, he was afforded telephone access to duty counsel who used confusing legal jargon, never inquired as to the offender's alcohol consumption, and expressly advised him to decline to provide a breath sample. The offender followed this erroneous advice. As a result, he was also charged with refusing to provide a breath sample after causing an accident resulting in death. The maximum penalty for each of these offences is life imprisonment and, as the Supreme Court observed, at para. 2, "for sentencing purposes, these three offences will typically be treated alike".

[27] Sometime after his release on bail, hooded men abducted the offender, covered his head with a canvas bag, drove him to a secluded area, amputated his thumb with pruning shears, and left him unconscious in the snow. His wife was attacked in a separate incident, resulting in her teeth and nose being broken. In the course of the offender's sentencing proceedings, it was determined that he had been "sober" at the time of his errant driving. The tragic "fatal accident", said the Supreme Court, at para. 3, "was caused by a non-impaired driving error". Further, his refusal to comply with the police breath demand was "because", the Court held, "he received bad legal advice".

[28] The offender pled guilty solely to the offence of refusing to provide a breath sample after causing an accident resulting in death. The other charges were withdrawn. He was sentenced to four months of incarceration. The Alberta Court of Appeal increased the sentence to 26 months, one within the customary range assigned the offence. Upon consideration of the circumstances of the offence and the appellant offender (including, by way of collateral consequences, the brutal assaults he and his wife suffered at the hands of vigilantes), all but one of the Supreme Court panel reduced the sentence to, in effect, "time served" – the equivalent of 15 to 18 months, about midway between those sentences imposed by the trial and intermediate appellate courts.

[29] The majority, at para. 25, repeated its holding in Lacasse that "sentencing ranges must in all cases remain only one tool among others that are intended to aid trial judges in their work". Nonetheless, an analytic based on a fixed sentencing range is the first tool employed by the majority in Suter and the one that frames the inquiry that follows. Moldaver J. writes for the majority. His acknowledgement, at para. 4, that "[s]entencing is a highly individualized process" serves to affirm the continuing authority of the range sentencing that follows:

Accordingly, there will be cases where the particular circumstances of the offence and/or the offender call for a sentence that falls outside of the normal sentencing range.

Consistent with the analytical steps directed by this approach, Moldaver J. first defines the offence category. Then, after agreeing that the appropriate "sentencing range" is one of two to ten years, he, at para. 90, effectively re-asserts the conventional rule:

In unique cases, mitigating factors, collateral consequences, or other attenuating circumstances relating to the offence or offender may warrant the imposition of a sentence that falls below this broad range.

Finally, at para. 94, the majority opinion concludes that, "the various attenuating factors in this case operate to remove Mr. Suter's sentence from the normal range for [the] offence".

[30] But for the dissenting opinion of Gascon J., the Court's judgement conspicuously eschews the word "exceptional", substituting "unique" throughout. There is no doubt that the particular constellation of extenuating circumstances in Suter is both unprecedented and close to unconceivable. On reviewing the broad compass of comparable authorities, Gascon J. notes, at para. 190, that,

There are no reported decisions where someone convicted of refusing a breath sample after a fatal accident was found factually sober and was expressly instructed by a state-provided lawyer to refuse to provide that sample. [Nor is there] … any such case where the individual convicted, and his wife, both suffered appalling vigilante attacks.

Professor Tim Quigley's annotation accompanying the publication of R. v. Suter in the Criminal Reports is to identical effect. The "facts", he writes, "are so unusual that it is difficult to imagine that the case will have a great deal of precedential effect".

[31] What is of precedential or, inevitably, persuasive effect is not the sentence imposed but the Court's sentencing methodology. Irrespective of the language it uses to describe the distinguishing features of the factual scenario, and despite the qualifications and reservations expressed in Lacasse, the majority opinion in Suter applies an analytical template anchored in judge-made sentencing ranges. There is no escape, says Suter, from their "straightjackets" (as disparagingly characterized in Lacasse) absent the identification of sufficiently compelling "exceptional", "unique" or otherwise "unusual" circumstances. With respect, the majority's approach again risks preferencing parity over individualized proportionality.

[32] Subject to further clarification from the Court, Suter appears to re-elevate sentencing ranges from "mere guidelines" to rules, the legal grip of which cannot be avoided without first clearing a hurdle of exceptionality. This approach, as already noted, is difficult to reconcile with that expressed in earlier judgements such as Lacasse and R. v. Nasogaluak, supra, at para. 44, where LeBel J., speaking for the entire Supreme Court, reminded trial judges that, while they

… should pay heed to these ranges, they are guidelines rather than hard and fast rules. A judge can order a sentence outside that range as long as it is in accordance with the principles and objectives of sentencing. [Emphasis added.]

With respect, "pay[ing] heed" to malleable "guidelines" is a very different instruction to trial judges than one that commands not only the identification and application of an offence-dictated range but, as well, adherence to that sentencing bracket absent sufficiently extenuating conditions.

[33] By way of international comparison, the methodology sanctioned in Suter does not fit comfortably with that developed in comparable common law jurisdictions such as the United States (see Gall v. U.S., 128 S. Ct. 586, 595-596 (2007)) and Australia (see Robinson v. R. [2017] NSWCCA 205, esp. at paras. 69-71, and R. v. Parente, supra).

[34] In R. v. Sharma, supra, at para. 90, Hill J. cautioned that, "[t]here is a risk that the search for exceptional circumstances will convert judicially identified guideline ranges of sentence into presumptive restraints upon discretion to impose a proportionate sentence". This is a well-founded concern. I do note, however, that Suter does not expressly assign a burden respecting proof of unique or otherwise exceptional circumstances. And although chiefly intended to curb retrospective appellate intervention, I note as well that Suter confirms, at para. 27, that,

As long as the sentence meets the sentencing principles and objectives codified in ss. 718 to 718.2 of the Criminal Code, and is proportionate to the gravity of the offence and the level of moral blameworthiness of the offender, it will be a fit sentence.

(d) Exceptionalism

[35] As Suter implicitly re-affirms, departures in either direction from approved sentencing ranges are generally rationalized through the doctrine of exceptional circumstances. I more fully addressed this construct in McGill, at paras. 69 and 78:

… "exceptional circumstances" is the analytical device by which sentences below an approved range find lawful purchase. Functionally, the doctrine serves as a means for preserving the continuing authority of the sanctioned range while allowing for more lenient treatment of "exceptional", "rare", "unusual" or "extraordinary" cases that, through such legal characterizations, can be fairly and sympathetically addressed without jeopardizing the sentencing norm for any given class of cases. "Exceptional circumstances" … seems rooted as much in equity as settled legal principle. The elasticity of the doctrine's boundaries is understandable given the vicissitudes of human experience. Said otherwise, the categories of cognizable "exceptional circumstances" are far from closed.

Canadian sentencing jurisprudence treats "exceptional circumstances" as rare occurrences, perhaps exceedingly rare. To acknowledge any greater frequency would, of course, risk the exception swallowing the rule … . Too many exceptions threaten boundary maintenance.

[36] In the end, as said by Watt J.A. for the Court of Appeal, court-endorsed "sentencing 'ranges' … are not immovable or immutable": R. v. Jacko (2010), 2010 ONCA 452, 101 O.R. (3d) 1, at para. 90. In cases of domestic violence and child sexual abuse, for example, the ceilings of the customary ranges have been judicially elevated over the past 20 years to reinforce deterrent and denunciatory goals while channeling enhanced public condemnation of these offences. On the other hand, the severity of the appellate response to the production and commercial distribution of cannabis attenuated long before the government's recent legalization initiatives.

[37] The focus must remain on the combined force of the presenting circumstances of the offence and the offender in each case. Nonetheless, courts identify categories of law-breakers who share features that may diminish individual members' moral culpability. Said otherwise: while the ultimate proportionality assessment must always be individualized, there is broad recognition of mitigating circumstances that forensically define sub-populations of offenders.

[38] The stance adopted by various appellate courts to "addict traffickers" (that is, persons whose primary motivation to sell drugs is to fund their own dependencies) affords one illustration. In R. v. Farizeh, for example, the Ontario Court of Appeal "stress[ed]" that, absent "exceptional circumstances", the "sale of heroin even in small amounts by first offenders who are addicts will call for a penitentiary sentence" (emphasis added). Crown counsel relies on Farizeh as authority for the penitentiary-length sanction sought in the present case. While I am sensitive to its continuing precedential invocation (see, for example, R. v. Banovac, 2018 ONCA 737, at para. 5), Farizeh is factually removed from the case before me. Further, as any observer of routine drug prosecutions in this courthouse will attest, "first offenders" who plead guilty to trafficking in the same small, street-level quantities of cocaine or heroin involved in Farizeh generally attract, at harshest, sentences measured in single-digit months – not the years prescribed by cases like Farizeh.

[39] Of greater immediate relevance, however, is the judicial re-orientation to the sentencing of drug dependent offenders. While re-affirming the propriety of significant custodial dispositions for "hard drug" trafficking, courts increasingly extend lenient consideration to those "addict traffickers" whose personal circumstances warrant a relaxation of the general rule. In recognition of the physical tenacity of drug dependency and the value of rehabilitation over punishment as a means of effectively redressing the personal and social problems of addiction, trial courts not infrequently impose relatively brief or non-custodial sentences on addict traffickers who demonstrate their therapeutic resolve and amenability to continued counseling under state supervision. For example, in R. v. Lazo, 2012 ONCA 389, at para. 8, the Court of Appeal commented that,

Successful treatment of addiction is the best means of addressing drug crime. The public interest is served by diverting individuals in the appellant's situation into drug treatment programs that address the addictions which fuel their criminal activity.

(See also, R. v. Dzienis, 2012 ONCJ 442, at paras. 24-34 and R. v. Azeez, 2014 ONCJ 311, at paras. 25-30.)

[40] To be clear, the offender Tianna Zachar, while an historical consumer of marijuana, is not an "addict trafficker" of hard drugs. To be equally clear, and Farizeh aside, there remains ample appellate authority for the proposition that, absent exceptional circumstances, trafficking in near ounce-level quantities of either heroin or cocaine should ordinarily result in a substantial sentence of imprisonment. The point I draw from the preceding review is that trial and appellate courts have developed a more flexible approach to certain recognizable complexes of "exceptional circumstances". They serve, in appropriate cases, as mitigative shortcuts that rescue individually proportionate justice from the onerous consequences of strict application of fixed sentencing ranges. The more lenient treatment accorded some addict traffickers is but one illustration of judicial recognition that the members of certain definable classes of offenders share characteristics of such extenuating value that they may amount to exceptional circumstances upon individual assessment.

[41] The application of "Gladue principles" is another example of this redirection. In McGill, the circumstances that effectively removed the offender from the compass of a range-based custodial disposition for constructive trafficking in approximately a third of a kilogram of cocaine was the close relationship between his Indigenous heritage and both the determinants of his criminal conduct and the restorative value of his post-arrest efforts to reclaim his identity and self-worth. Put otherwise, the sentence crafted in McGill was largely informed by the rationale for and purpose of the principles enshrined in R. v. Gladue, [1999] 1 S.C.R. 688 and R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433. The Manitoba Court of Appeal's judgement in R. v. Peters, 2015 MBCA 119, 323 Man. R. (2d) 237, is to similar effect. To state the obvious, Indigeniety and a capacity for restorative justice are but some of many acknowledged circumstances, defining the offender or the offence, that may justify, on grounds of individualized proportionality, a fit sentence that falls outside an approved range.

[42] Another widely acknowledged category of potential extenuation, and one much closer to the offender Tianna Zachar's forensic profile, pertains to relatively low-level cocaine and heroin traffickers who exhibit sustained rehabilitation, normative reintegration and little if any risk of recidivism. When the mitigative force of these and other individually attenuating factors amount to exceptional circumstances, there is a growing body of jurisprudence (referenced below) countenancing the imposition of non-custodial dispositions, by way of suspended sentences, for qualifying members of this demographic.

(e) Suspended Sentences

[43] "Conditional sentences", as already noted, are fixed-length sentences of imprisonment of less than two years that, where other statutory pre-conditions are met, are served in the community rather than a bricks-and-mortar reformatory. Some "hard drug" dealers were sentenced to this mode of non-custodial disposition prior to the late-2012 amendments foreclosing access to conditional sentences for trafficking in Schedule 1 drugs. (See, by way of several examples, R. v. Kerr, [2001] O.J. No. 5085, 153 OAC 159, the various appellate decisions cited therein, at para. 14, and the additional Ontario-based cases referenced in R. v. McGill, supra, at para. 60.) Where the principle of proportionality can be honoured without resort to imprisonment, various trial and appellate courts have since relied on suspended sentences and substantial terms of probation to achieve a similarly just non-custodial result.

[44] Several observations as to the meaning and implications of a suspended sentence are here apposite. First, Parliament, with an identical pen-stroke, could have as readily precluded the availability of suspended sentences for Schedule I drug traffickers as it did conditional sentences in the 2012 amendments. Instead, it elected to preserve this non-custodial sentencing option. And second, a suspended sentence and probation, while often viewed as a lenient disposition, carries a potent, if under-underutilized, mechanism of deterrence. My earlier comments in McGill, at paras. 47-51 and here abbreviated, remain apt:

… [A] suspended sentence is not a lawful substitute for a conditional sentence. … A suspended sentence is not a sentence of imprisonment. … Accordingly, the threshold question that must be addressed by any judge charged with sentencing a person convicted of trafficking in cocaine [or heroin] is whether the gravity of the offence and the moral responsibility and individual circumstances of the offender are such that, in the language of Proulx, supra, at para. 36, "no other sanction … is appropriate" other than a sentence of imprisonment. If so, … a suspended sentence cannot be substituted for a conditional sentence where imprisonment is the only fit sanction. Conversely (and fines aside), where imprisonment is not warranted, there is but one correct alternative: a suspended sentence and associated period of probation: R. v. Wu, 2003 SCC 73, [2003] 3 S.C.R. 530. [See also, R. v. Proulx, supra, at para. 37.]

… [S]uspended sentences are recognized as having a very significant deterrent element.

… As s. 731(1)(a) of the Code makes clear, a "suspended sentence" is one in which it is "the passing of sentence" that is suspended – not [the sentence or] service of the sentence itself. Where a person bound by a probation order attaching to a suspended sentence is convicted of a breach of his or her probation order or … any other offence, a court may, as with breaches of … a conditional sentence, amend the optional conditions of the order. However, unlike the case of conditional sentences, the court may instead extend the duration of the order for up to an additional year [or] … revoke the suspended sentence initially imposed and levy any sentence it could have imposed in the first instance [as] "if the passing of sentence had not been suspended".

... In R. v. Voong, 2015 BCCA 285, 325 C.C.C. (3d) 267, the Court, at para. 39, added:

Because a breach of the probation order can result in a revocation and sentencing on the original offence, it has been referred to as the "Sword of Damocles" hanging over the offender's head.

[45] The Ontario Court of Appeal has long recognized the same principle. For example, in R. v. Richards, [1979] O.J. No. 1030, 49 C.C.C. (2d) 517, at para. 35, Howland, C.J.O., speaking for a five-person panel, noted that,

[A] person released on suspended sentence and probation does not go scot free. … Any wilful failure to comply with the terms of the probation order is a punishable offence …, and the court, in those circumstances, in addition to imposing punishment for the breach of the probation order, is empowered to revoke the probation order and impose any punishment that could have been imposed if the passing of sentence had not been suspended.

[46] The deterrent value of the suspended sentence regime rests not only in its potential for resentencing in case of non-compliance or fresh criminality but, as well, on the grant of a very broad judicial discretion to impose not only terms of community supervision but, pursuant to s. 732.1(3)(h) of the Code, "such other reasonable conditions as the court considers desirable … for protecting society" (emphasis added). Bennett J.A., writing for the Court in R. v. Voong, supra, at para. 43, explained:

[I]mposing conditions for the protection of the community may have a deterrent and denunciatory effect in addition to a rehabilitative effect. Put another way, a condition need not be punitive in nature in order to achieve deterrence or denunciation.

(See also paras. 40-42, for additional appellate authorities supporting the potential deterrent impact of the terms of a probation order attached to a suspended sentence.)

(f) Exceptionalism, Revisited

[47] Suspended sentences aside, there remains the vexing questions of what constitutes such "exceptional circumstances" as to justify any departure from a judicially approved sentencing range. In R. v. Tran, 2015 MBCA 120, 323 Man. R. (2d) 293, at para. 17, the Manitoba Court of Appeal allowed that the concept "remains somewhat nebulous and devoid of a precise definition". Speaking through Monnin J.A., the Court approvingly cited its earlier drug trafficking decisions in R. v. M.F.D. (1991), 75 Man. R. (2d) 21 and R. v. Scanlon (1995), 107 Man. R. (2d) 190. In the first, Twaddle J.A. wrote, at para. 16:

It is not this circumstance or that which justifies a departure from the normal sentencing pattern, but the totality of the circumstances. For this reason, the circumstances which may be regarded as "special" are not susceptible of definition. The best we can do is to recognize that there will be exceptional cases in which the interests of society, or those of the victim and her family, will be better served by a sentence which gives more weight to rehabilitation than to the other sentencing aims. The identification of those cases must then be left to judges exercising their discretion judicially.

In the second, Twaddle J.A., again writing for the Court, stated, at paras. 12-13:

The general rule does not mandate a penitentiary term in every case. Sentencing judges retain a discretion to impose a lesser term, or even a non-incarcetory one, where the circumstances justify the chosen penalty. …

This court has frequently referred to such circumstances as "exceptional" (or sometimes "extraordinary"). … [H]owever, … the circumstances of an offence and an offender are of such infinite variety that it is next to impossible to say in the abstract which are usual and which exceptional. The best this court can do is to refer to earlier cases in which exceptional circumstances have been recognized as justifying departure from the general rule.

[48] The common element identified by the Manitoba Court of Appeal in Tran, at para. 24, "is that 'exceptional circumstances' invariably involve multiple mitigating factors". The authority invoked in support of this proposition is, again, that of R. v. Voong, supra, at para. 59:

Exceptional circumstances may include a combination of no criminal record, significant and objectively identifiable steps towards rehabilitation for the drug addict, gainful employment, remorse and acknowledgement of the harm done to society as a result of the offences, as opposed to harm done to the offender as a result of being caught. This is a non-exhaustive list, but at the end of the day, there must be circumstances that are above and beyond the norm to justify a non-custodial sentence. There must be something that would lead a sentencing judge to conclude that the offender had truly turned his or her life around, and that the protection of the public was subsequently better served by a non-custodial sentence.

In the end, Monnin J.A. concluded, at para. 27, that "in this canvass of factors warranting a consideration of 'exceptional circumstances', the aspect of demonstrated rehabilitation over a period of time might be the most persuasive of those factors" (emphases added).

[49] Monnin J.A., like the British Columbia Court of Appeal in Voong, was focused on the meaning of exceptional circumstances in the context of sentencing offenders convicted of hard drug trafficking. The Supreme Court, speaking more generally in Suter, affirmed, as noted earlier, an imprecise but broadly applicable, multifactorial window of relief from the confines of an approved sentencing range: "mitigating factors, collateral consequences, or other attenuating circumstances". Of course, the Suter methodology commands, as the first order of analytical business, regard for the nature of the offence and its corresponding sentencing range which, in effect, is to be treated as presumptively correct. And little if any assistance is provided as to the nature or height of the hurdle of exceptionality or "unique"-ness that must be cleared "to remove [an offender's] sentence from the normal range for [the] offence". However, as Justice Moldaver wrote for the Court of Appeal before his elevation, ranges "are not meant to be fixed or inflexible": R. v. D. (D.), 163 C.C.C. 471 (Ont. C.A.), at para. 33. "On the contrary," he continued, "sentencing is not an exact science and trial judges must retain the flexibility needed to do justice in individual cases". (The Court of Appeal employs identical language, if unattributed, in R. v. Sidhu, 2009 ONCA 81, 242 C.C.C. (3d) 273.)

[50] This review of the critical legal scaffolding – ranges, proportionality, individualization, parity and exceptionality – analytically frames the case at bar. I move now to the circumstances of the offender, her offences, and the application of the governing sentencing principles to these and other considerations bearing on a fit disposition.

C. THE FACTS

(a) Introduction

[51] The trial decision in this matter is reported as R. v. Zachar, 2018 ONCJ 149. The following review of the offence-related facts, as I found them, is drawn from these reasons. As the defence called no evidence at her trial, the information pertaining to the offender Tianna Zachar – her antecedents, character, personal circumstances and post-offence conduct and prospects – is derived from a positive pre-sentence report, letters of attestation filed on her behalf and, of course, the supplementary submissions of counsel.

(b) The Offences

[52] The Guns and Gangs Task Force of the Toronto Police Service (TPS) had been investigating one Sharla Turnbull. Undercover officers surveilled the human traffic in and out of Turnbull's apartment building on October 21, 2016. The police followed Turnbull later that afternoon as she boarded a Mazda, was driven to a nearby industrial mall, and there entered an automotive body shop. An unidentified woman arrived in a taxi while Turnbull was still in the shop. The woman carried a black duffel bag from the taxi to the backseat of the Mazda. A Honda pulled up nearby. Its female driver briefly entered the Mazda before returning to the Honda. Surveillance officers did not observe this woman carry anything into or out of the Mazda. Turnbull left the body shop and entered the front passenger seat in the Honda. She too was not carrying anything.

[53] The police closely followed the Honda, boxing it in some ten minutes after it left the plaza. Tianna Zachar, the offender before me, was behind the wheel of the Honda. A couple of buds of marijuana rested in "plain view" between the two front seats. Two baggies found in a sports bag in the back seat of the Honda contained 23 grams of heroin and 26 grams of crack cocaine, respectively. Some $350 cash was also seized, along with a digital hand scale located in a second bag. Expert evidence valued the seized cocaine at between $1,300 and $1,700 (if sold at the "ounce" level) and $5,100 if trafficked through street sales. The heroin was estimated to be worth about $4,500 if sold as a single unit and between $6,900 and $11,500 in retail street sales.

[54] The TPS executed a search warrant at Turnbull's apartment while she and the offender were being investigated and processed. An ammunition magazine, crack cocaine and digital scales were among the items seized at the apartment.

[55] Tianna Zachar was not the target of the police investigation. At highest, she was incidental by-catch who first drifted onto the police radar less than twenty minutes before she was apprehended. There no evidence of her association with any larger or other criminal enterprise. There is no evidence of her prior association with the Honda, Turnbull, Turnbull's apartment or any other participants in the criminality that led to police take-downs later that day. No evidence was led as to the offender's knowledge of the quantum or value of the seized drugs found in the Honda, or of her remuneration, if any, for her service. Nor was there any evidence as to the purity of either drug.

[56] Tianna Zachar was charged with possession for the purpose of trafficking of the cocaine and heroin found in the Honda. Assuming possession was established, the defence took no issue with the impugned purpose of that possession. Irrespective of commercial intent, mere "transport" of a Schedule I drug falls within the CDSA definition of "traffic". The prosecution's case against the offender was entirely circumstantial. For the reasons set out in my earlier judgement in this matter, I found her guilty of the two constructive trafficking offences. She was also charged with possession of criminal proceeds – the $350 found near the drugs. As explained at para. 39 of my Reasons for Judgement at trial, I was not satisfied that the Crown had proven an essential element of the actus reus – that the seized cash was in fact the proceeds of a criminal offence. Accordingly, and without needing to address the question of Ms. Zachar's control of the money or knowledge of its existence or illicit origins, I found her not guilty of this third charge.

[57] It is of some irony that Ms. Zachar's acquittal of the least serious of her three charges precludes her from even consideration of one lawful path to a non-custodial disposition. Unlike Schedule I drug trafficking, a conditional sentence is an available sentencing option following a conviction for the Criminal Code offence of possession of criminal proceeds. As said by the Supreme Court in R. v. Wu, supra, at para. 25,

A conditional sentence is a sentence of imprisonment, albeit the sentence is served in the community. It is imprisonment without incarceration.

If the offender had been convicted of all three offences with which she was charged, and if imprisonment was the fit result in the immediate case, and if the length of that sentence did not exceed two years less a day, and if consistent with application of the totality principle, a just non-carceral sentence could be lawfully fashioned by imposing a conditional sentence for the proceeds offence with concurrent suspended sentences and probation for the two CDSA offences. This hypothetical exercise still begs the threshold question of whether a sentence of imprisonment is the only proportionate disposition in the circumstances of this case. The same question presents in light of the two convictions actually registered. There is, however, a critical difference. In the real-world scenario that reflects the verdict at trial, a sentence of imprisonment, if appropriate, necessarily means a carceral disposition: even if under two years, a sentence of imprisonment for Schedule I drug trafficking cannot be served in the community.

(c) The Offender

[58] The offender turned 18 a week before her arrest. (In my Reasons for Judgement, I mistakenly described her as 19 at the time of the offence.) Had the events at issue occurred only slightly earlier than they did, she would, in law, be treated as a "young person" governed by the Youth Criminal Justice Act (YCJA), rather than the CDSA and the Criminal Code. Nonetheless, she could hardly be a younger adult offender. Although she had a single prior conviction under the YCJA for simple possession of an unidentified drug, I adopt Crown counsel's fair recommendation that I characterize Ms. Zachar as a "youthful first offender" for purposes of sentencing. Before being granted bail, Ms. Zachar was detained for four days – which, pursuant to R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575, Crown counsel agrees should be treated as the equivalent of six days for sentence computation. The offender was subject to a very strict curfew (from 8pm to 6am, daily) for the first seven months of her judicial interim release. This condition was amended, with consent of the Crown, on May 25, 2017 to permit her to fulfil her employment obligations. There is no suggestion that the offender has done other than fully comply with the terms of her recognizance over the past 23 months.

[59] The offender's parents separated when she was only three. She has since lived with her mother. She has had only minimal contact with her absent father. The author of her pre-sentence report (PSR) notes that the offender's school attendance and performance were poor and that she began associating with a negative peer group. A Youth Risk Need Assessment prepared at the time of the offender's YCJA disposition speaks to "inadequate supervision" and "overly permissive parent practices with little direction and structure" during her high school years.

[60] The offender, as confirmed by her mother, reported being harassed and threatened by persons involved in the criminal enterprise that led to her arrest. The intimidation caused the offender and her mother to move from Toronto to Barrie in 2017. The PSR notes that the offender "seems to have thrived since relocating". Her mother, who is described as a "big support", works fulltime from home and provides "a stable household".

[61] Ms. Zachar secured employment in November 2016, within a month of her release on bail. She continues to work for the same company and, as well, part-time for a second employer in the same trade whose clientele includes non-profit organizations and "several housing communities for the less fortunate". The work is not easy. Both of her employers provide clean-up and recovery services in response to emergency and catastrophic events such as flooding, sewage backup, mold, bed bugs, trauma scenes, and water and fire damage. As one of her bosses explains, the labour "can be rigorous and at times very disagreeable as workers are often dealing with gross filth contamination [while] wearing heavy personal protective equipment". After checking with the companies, the PSR writer advises that the offender had amassed "an exemplary work record" and is "considered a highly valuable employee". One of her managers describes the offender as a hard and tireless worker, "sometimes putting in 10 and 11-hour days". The owner of the second company attests to Ms. Zachar's professionalism, punctuality, work ethic and customer service skills. She has attended a number of training courses, earned several industry-recognized certificates, been granted one promotion and is being considered for a second.

[62] The offender's academic performance has also recovered. While she had earlier repeatedly dropped out of school, the offender has earned eight credits through an alternative school program since her release on bail. As of December 2017, she was only eight short of the thirty credits needed to graduate with a full high school diploma. The offender's post-arrest academic achievement is rightfully a source of pride, and she intends to complete her high school education in the near future.

[63] The PSR notes the offender's reports of ADHD and OCD diagnoses. She self-medicated with marijuana before her arrest. She has since abstained from the use of any unlawful substance despite a "high level of anxiety" arising from the uncertainty surrounding her prosecution and ultimate disposition. There is no indication of regular consumption of alcohol.

[64] The offender appeared attentive but emotionally wrought throughout her trial and sentencing proceedings. By way of a teary-eyed allocution, she expressed earnest remorse for "what [she] did" and for the impact it had on her family. The author of the PSR confirms that the offender "shows remorse for her involvement in the present offence". Her mother reports that she was "badly frightened by [her] criminal peers long after she was charged". As summarized in the PSR, the offender "appears to have changed her lifestyle to aid in her rehabilitation" and is agreeable to "counselling to assist her with abandonment issues and depression associated with the offence".

[65] Jurists familiar with the conventions of pre-sentence reports know that their authors typically couch their closing "recommendations" in cautious language that properly avoids advocating for a particular sanction. The focus, instead, is on assessing an offender's amenability to and suitability for community supervision lest the court be minded to consider probation or its equivalent as part of the sentence it ultimately imposes. While careful not to expressly direct or otherwise intrude on the exercise of my sentencing discretion, the PSR here concludes that, "It is questionable whether a jail sentence would benefit this offender". Equally unusual, the officer in charge of the case, as reported in the PSR, volunteered that the offender was "not completely involved in the incident".

D. ANALYSIS

(a) Introduction

[66] Said again: appellate authorities routinely confirm that, absent exceptional circumstances, a custodial disposition, not infrequently one of greater than two years, is an appropriate sentence for persons who traffic in Schedule I drugs in quantities akin to those transported by the offender. Consistent with this tariff, Crown counsel urges that Ms. Zachar be sentenced to three years of imprisonment in a penitentiary. With respect, the Crown position, if endorsed, would effectively sentence the offence rather than the offender. As said by LeBel J. on behalf of all but one member of the Supreme Court in Ipeelee, supra, at para. 75, a "fundamental duty" of sentencing judges is,

[T]he requirement that [they] engage in an individualized assessment of all of the relevant factors and circumstances, including the status and life experiences, of the person standing before them. [Emphasis added.]

It is the offender and not the offence on whom any penal sanction is visited. It is also the individual offender, not a representation or composite borrowed from other cases, who is subject to a court's adjudicative scrutiny. As asked, if rhetorically, by LeBel J. at para. 86, "Who are courts sentencing if not the offender standing in front of them?" Or as approvingly adopted by the Supreme Court in Lacasse, at para. 128:

If a judge fails to individualize a sentence and to consider the relevant mitigating factors while placing undue emphasis on the circumstances of the offence and the objectives of denunciation and deterrence, all that is done is to punish the crime. [R. v. R. (M.), 2010 QCCA 16, 73 C.R. (6th) 136, at para. 49.]

[67] I do not here attempt to delineate the precise parameters of the conventional range for the offence at issue. Without weighing the mitigative impact of any factors other than her extreme youth, my review of the authorities suggests that Ms. Zachar's exposure to penal liability would most likely not extend beyond that of a reformatory-length disposition of under two years. I do not endeavour to more exactly define the boundaries of any range because, in my view and in the totality of considerations that here informs a fit disposition, it is an unnecessary exercise. To be clear, I have concluded that "No" is the just answer to what I earlier styled the "threshold question" – the question of whether a sentence of imprisonment is the only proportionate disposition in all the circumstances of this case. For the reasons that follow, I find the circumstances of the offence and the offender are here sufficiently exceptional that the purpose, principles and objectives of sentencing are best met by the imposition of non-carceral disposition. In the result, Ms. Zachar's sentence will be suspended and she will be placed on concurrent terms of probation for the next two years.

(b) Applying Proportionality, The Fundamental Principle

(i) Introduction

[68] Judicial restatements of the "fundamental" sentencing principle are legion. I have already recited several. As framed by the Supreme Court in R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773, at para. 43, "imposing a proportionate sentence is a highly individualized exercise, tailored to the gravity of the offence, the blameworthiness of the offender, and the harm caused by the crime." In R. v. Hamilton and Mason, 186 C.C.C. (3d) 129 (Ont. C.A.), at para. 87, Doherty J.A. said that, "the fixing of a fit sentence is the product of the combined effects of the circumstances of the specific offence with the unique attributes of the specific offender." However defined, proper application of the principle compels close and balanced attention to the case-specific features of both the offence and the offender.

(ii) "Gravity of the Offence"

[69] There is here no doubt as to the serious "gravity of the offence". Heroin is often judicially described as the most "pernicious" of hard drugs, and its trafficking as "despicable". (See, for but one example, R. v. Sidhu, supra, at paras. 10 and 11.) Trafficking in cocaine is viewed as only marginally less insidious. (See the authorities collected in R. v. Acorn, 2010 ONCJ 142, at para. 10.) The amounts involved – nearly an ounce of cocaine and three-quarters of an ounce of heroin – are clearly indicative of a level of distribution at least one step removed from the street, and the value of the drugs (estimated as between $12,000 and $16,000 if parceled out in hand-to-hand street sales) speaks to the commercial nature of the larger enterprise. On the other hand, the offences do not reflect the aggravating features of the most serious drug trafficking cases. The amounts involved, although far from trifling, are under an ounce, and there is here no allegation of importation – unlike, for example, the earlier-noted cases of R. v. Sharma and R. v. Sidhu where multi-pounds of Schedule 1 drugs were being smuggled into the country when intercepted by customs authorities. There are gradations in the gravity of heroin and cocaine trafficking offences. Those at issue in the case before me are not at the very bottom of a long ladder of relative severity, but they are only one or two rungs removed.

(iii) "Degree of Responsibility of the Offender"

1. Introduction

[70] The second half of the s. 718.1 proportionality equation – the "degree of responsibility of the offender" – commands attention to two distinct dimensions of relative liability impinging on the determination of a fit sentence. One involves an assessment of the nature and degree of the offender's participation – her or his role or involvement – in the criminal conduct. The second concerns the offender's moral blameworthiness other than that arising from her or his physical or instrumental role in the commission of the offence. These two facets of "responsibility" are often analytically conflated. They benefit from independent consideration in the immediate proceedings. By way of a simple, and factually unrelated, hypothetical: the moral fault of someone who is the primary perpetrator of a serious offence may well be diminished if she or he was acting under extreme duress falling short of a cognizable defence. Similarly, the blameworthiness of First Nations offenders is assessed not only by reference to their role in the crime under consideration but, as well, by their nexus to the intergenerational trauma attributable to colonialism. As said by the Supreme Court in R. v. Ipeelee, supra, at para. 73,

[S]ystemic and background factors may bear on the culpability of the offender, to the extent that they shed light on his or her level of moral blameworthiness. This is perhaps more evident in Wells, [supra,] where Iacobucci J., [at para. 38,] described these circumstances as "the unique systemic or background factors that are mitigating in nature in that they may have played a part in the aboriginal offender's conduct" … [T]he reality is that [the] constrained circumstances of [Indigenous offenders] may diminish their moral culpability. [Emphasis added in Ipeelee.]

2. The Offender's "Role"

[71] As conceded by the Crown, the offender's role in the two offences was no higher than that of a courier. Her culpability for trafficking is premised on her involvement in the local transport of the drugs, nothing more. I do not mean to suggest that her participation was immaterial to the larger enterprise, but that she was not the mastermind, the instigator, the orchestrator, or otherwise a principal. Nor was she someone who was likely to be involved in the sale or further distribution of the drugs or who would otherwise benefit from such transactions.

[72] There is, as I have already noted, no evidence that she had any prior association with the criminal operation or its members, that she had any knowledge of the quantum or value of the seized drugs, or that she was provided, or even offered, financial remuneration for her service. I appreciate, as summarized by Durno J. in R. v. Vu, 2015 ONSC 5834, at para. 116, that, an "offender is not entitled to be sentenced on the most favourable set of facts imaginable". (See also, R. v. Holt (1993), 4 C.C.C. (3d) 42 (Ont. C.A.) and R. v. Smickle (2013), 2013 ONCA 678, 304 C.C.C. (3d) 371.) Nonetheless, I think it a reasonable inference, and one consistent with her extreme youth and the Crown's fair concessions (including that she was "likely exploited"), that Ms. Zachar's participation was a product of her manipulation by others, persons older and certainly more criminally sophisticated than her. Nor do I see any reason to infer (nor am I urged to do so), that she was involved on any day other than the one during which she was arrested. In short, the offender's role in the trafficking was temporally and functionally narrow. She was a very small cog in a much larger wheel.

3. The Offender's "Moral Blameworthiness"

[73] As to the second dimension of the analysis: an assessment of the offender's moral culpability necessarily draws on her age, immaturity, vulnerability, "first offender" status and, by way of rehabilitative potential, the encouraging features of her occupational and educational pursuits since the occasion of the offence.

[74] Consideration of the influence of this offender's individual circumstances on the determination of a fit sentence must begin with her age, barely 18, at the time of the offence. As already noted, the provisions of the Youth Criminal Justice Act (YCJA) would govern the disposition of this prosecution had she then been but a week younger. Sentencing under the YCJA is far less punitive than that prescribed by the CDSA. For example, the offences of which the offender was here convicted carry a maximum sentence of three years under the YCJA (see s. 42(2)(n)) as opposed to life imprisonment under the CDSA. As well, the aims of sentencing under the YCJA reflect a very different correctional emphasis than that projected through the Criminal Code. As directed by s. 38(1), the "purpose" of sentencing under the YCJA is twofold: first, to hold "young persons" (that is, those under 18) meaningfully accountable for their offences and, second, to "promote [their] rehabilitation and reintegration into society". These objectives mirror the principles enunciated in the Act's "Preamble" and its "Declaration of Principle". Section 3(1)(b) of the latter "Policy" statement declares, inter alia, that "the criminal justice system for young persons … must be based on the principle of diminished moral blameworthiness or culpability" (emphasis added).

[75] Of course, Tianna Zachar, having reached the age of legal adulthood, is subject to the penalties and sentencing principles and directives prescribed in the CDSA and the Code. Nonetheless, the rationale for the prominence given rehabilitative and ameliorative objectives in the YCJA affords transitional guidance. While acceptance of "the principle of diminished moral blameworthiness or culpability" is no longer a statutory imperative, the inherent immaturity, formative challenges and still-evolving sense of responsibility and judgement of older adolescents remain relevant mitigative considerations. As put by the Supreme Court in R. v. D.B., 2008 SCC 25, [2008] 2 S.C.R. 3, at para. 41, "because of their age, young people have heightened vulnerability, less maturity and a reduced capacity for moral judgment". Addressing here-analogous circumstances, the Saskatchewan Court of Appeal, in R. v. B.F., 2009 SKCA 136, 249 C.C.C. (3d) 366, at para. 38, commented that,

[T]he sentencing judge recognized youthfulness did not cease to be a mitigating factor [on adult sentencing] and in fact ruled the opposite to be true. As stated earlier she said "[t]he younger the individual, the more heightened become the factors of youth and the potential for rehabilitation." [Emphasis added.]

And as said by the Manitoba Court of Appeal in R. v. Leask (1996), 113 Man. R. (2d) 265, at para. 3,

[T]he transition from statutorily defined young person to adult should not be marked by an immediate abandonment of rehabilitation as the primary goal in cases where the prospect of successful rehabilitation is real. [Emphasis added.]

The Supreme Court approvingly quoted this passage in Lacasse, supra, at para. 134.

4. Youthful Offenders and the Principle of Restraint

[76] Although hardly exclusive to youthful offenders, the principle of restraint, as set out s. 718.2(d) and (e) of the Code, is here particularly germane. The provisions read:

(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 and consistent with the harm done to victims or to the community should be considered for all offenders … .

As made clear by the Supreme Court in R. v. Gladue, supra, at para. 36, the principle of restraint,

applies to all offenders, and states that imprisonment should be the penal sanction of last resort. Prison is to be used only where no other sanction or combination of sanctions is appropriate to the offence and the offender. [Emphasis added.]

[77] Well before Gladue, the Court of Appeal affirmed the importance of conscientious application of the principle of restraint to youthful offenders. In the influential case of R. v. Priest, 110 C.C.C. (3d) 28, the Court dealt with an appeal from the custodial disposition imposed on a 19-year old first offender. In granting the appeal, Rosenberg J., speaking for the Court, observed, at paras. 18 and 20-22, that even before the amendments codifying the principle of restraint,

it has been an important principle of sentencing in this province that the sentence should constitute the minimum necessary intervention that is adequate in the particular circumstances. This principle implies that trial judges consider community-based dispositions first and impose more serious forms of punishment only when necessary.

The duty to explore other dispositions for a first offender before imposing a custodial sentence is not an empty formalism which can be avoided merely by invoking the objective of general deterrence….

… [T]he term "youthful offender" refers not simply to chronological age and must include some consideration of the offender's maturity. …

The rule laid down by this court is that ordinarily for youthful offenders, as for first offenders, the objectives of individual deterrence and rehabilitation are paramount. These objectives can be realized in the case of a youthful offender committing a nonviolent offence only if the trial judge gives proper consideration to alternatives to incarceration. [Emphasis added; citations omitted.]

See also R. v. Batisse, 2009 ONCA 114, 241 C.C.C. (3d) 491, at paras. 32-34.

[78] In dealing with a youthful, first offender, I "first", as instructed by the Court of Appeal in Priest, "consider community-based dispositions". I well appreciate that where, as here, the offence at issue ordinarily attracts a sentence of imprisonment, this analytical starting point is facially inconsistent with that illustrated, if not effectively directed, by Suter. However, in my view the principle of individualized proportionality here generates the same outcome, that of a non-custodial sentence, whether reached by application of a doctrine of exceptionalism or the primacy granted that of restraint. What matters is not the method but that the result honours the principle of proportionality.

(c) Applying the Purpose and Goals of Sentencing

(i) Introduction

[79] Proportionality, the "fundamental principle" of sentencing is, as noted earlier, complimented by a "fundamental purpose", as prescribed in s. 718 of the Criminal Code: the protection of society "by imposing just sanctions" that meet one or more of a number of identified "objectives". Those of immediate concern to the sentencing of drug traffickers include denunciation, deterrence and, where appropriate, rehabilitation. I addressed the meaning and application of each of these sentencing objectives in McGill, a case involving, as here, the possession of cocaine for the purpose of trafficking.

[80] By way of both brief summary and modest elaboration of my earlier comments, I begin by noting that deterrence and denunciation are the rationales for the strict sentencing ranges maintained for trafficking in Schedule 1 drugs. Deterrence has two facets, specific and general. The first, specific deterrence, reflects the notion that, where not otherwise assured, a sentence needs to be sufficiently impactful to inhibit the offender before the court from reoffending. The second objective, general deterrence, is directed to the larger community; the severity of the sentence is intended to dissuade others who may be inclined to engage in similar misconduct. The purpose of each is to positively deter persons from trafficking in dangerous drugs.

[81] Unlike deterrence, denunciation serves a more symbolic than instrumental sentencing function. Lamer, C.J.C., in R. v. Proulx, supra, at para. 102, observed that, "[d]enunciation is the communication of society's condemnation of the offender's conduct". (See also, R. v. M. (C.A.), [1996] 1 S.C.R. 500, at para. 81.)

[82] Like deterrence and denunciation, rehabilitation of offenders is an important sentencing objective. It is also one of principal consideration in the sentencing, as here, of youthful first offenders. Attention also need be paid to the express inclusion of the objective of "encouraging rehabilitation" in the statement of sentencing "purpose" for drug offences set out in s. 10 of the CDSA. In regard to this provision, Rosenberg J.A., speaking for the Court in R. v. C.N.H. (2002), 170 C.C.C. (3d) 253 (Ont. C.A.), noted, at para. 31:

[T]he importance of s. 10 is to encourage courts to recognize the particular problem that in many cases persons convicted of drug offences are themselves victims of the drug culture. [Emphasis added.]

[83] Rehabilitation, like deterrence, has an instrumental purpose: the repudiation of criminal activity and transition to a pro-social lifestyle offers the best assurance of continuing societal protection. But rehabilitation also has an expressive role that, like denunciation, conveys shared normative principles and values through its considered application. As explained in the introductory passages to R. v. Lacasse, at para. 4:

One of the main objectives of Canadian criminal law is the rehabilitation of offenders. Rehabilitation is one of the fundamental moral values that distinguish Canadian society from the societies of many other nations in the world, and it helps the courts impose sentences that are just and appropriate.

I turn now to the relevance and application of each of these sentencing objectives to the case at hand.

(ii) Deterrence: Specific and General

1. Introduction

[84] Deterrence, both specific and general, is dedicated to securing a single behavioural goal: the discouragement, through the infliction or promise of penal consequences, of the recidivist inclinations of, respectively, an offender and like-minded members of the community at large. As R. v. Priest, supra, among other authorities, makes clear, the sentencing of older adolescents, particularly, as here, those who present as first offenders, focuses on rehabilitation and the need, if any, for individual deterrence. As a broad proposition, general deterrence, like denunciation, is of secondary concern in dealing with young offenders.

2. Specific Deterrence

[85] A week after her 18th birthday, Ms. Zachar spent four days in an adult remand facility before being released on a surety recognizance. She spent the next seven months of her life, and first seven months of her bail, on restrictive conditions that included a rigorous daily curfew. As the Court of Appeal recently confirmed in R. v. Adamson, 2018 ONCA 678, [2018] O.J. No. 4104, at para. 106:

[I]t is beyond controversy that prior decisions of this court authorize a sentencing judge to take into account, as a relevant mitigating circumstance on sentence, time spent under stringent bail conditions … : R. v. Downes, (2006), 79 O.R. (3d) 321, at para. 33; R. v. Ijam, 2007 ONCA 597, 87 O.R. (3d) 81, at para. 37.

[86] The mitigating effect of pre-sentence custody and strict bail conditions is ordinarily treated by way of a compensatory reduction of the duration of any incarceration that would otherwise obtain. To be clear, I do not mean to suggest that the two or three months of imprisonment I could nominally attribute to the offender places her in the equivalent of a "time served" position so as to obviate the need for any further carceral punishment. Rather, and much more directly, Ms. Zachar's brief exposure to remand custody and her strict interim release conditions eliminate, in my view, any need for prospective specific deterrence, let alone through imprisonment.

[87] I am satisfied that the offender's pre-sentence custody and stringent bail terms have had both deterrent and salutary effects. She has faithfully complied with the conditions of her judicial interim release for almost two years. She has physically removed herself from the environment that abetted if not provoked her delinquency. She has expressed sincere remorse for her misconduct. She has redirected her life in a manner that can only be described as personally and socially productive. Ms. Zachar's own conduct in the two years since her arrest has erased any realistic concern respecting her return to criminality. The author of her PSR expressed a similar sentiment.

[88] Societal protection is here best achieved by encouraging Ms. Zachar's progress, installing a lengthy measure of constructive supervision, and reminding her, as I forcefully do, of the risk of resentencing before me if she was to violate the terms of her probation or otherwise reoffend.

3. General Deterrence

[89] There is growing judicial disenchantment with the value of incarceration as a means of achieving the goal of general deterrence. (See, for example, the Supreme Court's reasoning in R. v. Proulx, supra, at para. 107, and R. v. Nur, supra, at para. 113.) More than 20 years ago, in R. v. Wismayer, 115 C.C.C. (3d) 18 (Ont. C.A.), at para. 47, Rosenberg J.A. famously observed that, "the general deterrent effect of incarceration has been and continues to be somewhat speculative" and that the related research "suggest[s] that general deterrence is not a sufficient justification for refusing to impose" a non-custodial sentence in otherwise appropriate cases.

[90] Most jurists recognize that general deterrence is a proper consideration in sentencing persons convicted of offences that require planning, calculation, and careful execution over extended periods of time. The goal is to curb the criminal temptations of others – particularly those who might otherwise abuse the privilege and access that accompanies their positions and power – by directing their rational minds to the risks and adverse consequences of any unlawful ambitions. Sophisticated financial frauds are an archetypal example of this category of offence. (See R. v. Dhanaswar, [2014] O.J. No. 6388 (S.C.), at paras. 18-19, aff'd 2016 ONCA 172 and R. v. Pavao, 2018 ONSC 4889, [2018] O.J. No. 4361, at paras. 23-24.) In Lacasse, the Supreme Court adopted a related approach, endorsing only a selective and restrained reliance on general deterrence. As summarized in McGill, at para. 104, the Court reasoned that, "application of the principle was most likely effective with 'law-abiding people' rather than those in a hypothetical target audience who have a history of or propensity to anti-social behaviour". Wagner J., at para. 73, offered, if tentatively, the following illustration of the potential utility of the doctrine:

[D]angerous driving and impaired driving may be offences for which harsh sentences plausibly provide general deterrence. These crimes are often committed by otherwise law-abiding persons, with good employment records and families. Arguably, such persons are the ones most likely to be deterred by the threat of severe penalties. [Emphasis added.]

The principles advanced in Lacasse and in the cases, for example, of those engaged in stock market manipulation might well apply to persons who plan and oversee the importation or distribution of very substantial quantities of drugs for profit. (See, for example, R. v. C.N.H., supra, at para. 36). On the same theory, however, low-level traffickers in hard drugs are, equally "arguably", among the least "likely to be deterred by the threat of severe penalties".

[91] In any event, and for the reasons already advanced, little more need be said about general deterrence in view of its subordinate role where, as in the matter before me, the offender was only 18 at the time of her criminal misconduct. Sentencing attention is here directed to the offender's societal reintegration rather than to over-punishing her as an object lesson for hypothetical third parties. In Lacasse, at para. 128, the Court approved the following passage from R. v. Paré, 2011 QCCA 2047, at para. 45:

Although a court can, in pursuit of the objective of general deterrence, impose a harsher sentence in order to send a message with a view to deterring others, the offender must still deserve that sentence.

In all the circumstances, Ms. Zachar does not "deserve" a harsh sentence, let alone one for which the severity of the punishment is propelled not by her moral blameworthiness but by the pursuit of an abstract goal of here dubious efficacy.

(iii) Denunciation and Rehabilitation

[92] Ms. Zachar's conduct since her release on bail evidences a thorough abandonment of her previous unsavoury associates and lifestyle, her capacity for and commitment to occupational and educational achievement, and the strong likelihood of sustained and positive social re-integration. The letters from her employers, the very favourable pre-sentence report, and the continuing support of her family confirm the offender's rehabilitative performance and potential. The protection of society, the overarching "purpose" of sentencing, as directed by s. 718 of the Code, is best achieved by encouraging and supporting the offender's palpable resolve to pursue a path of normative engagement and accomplishment. A custodial disposition, whatever its duration, could well jeopardize her progress, reintroduce her to a criminal culture she has worked hard to escape, and otherwise impede her normative transformation. A sentence of supervised probation in the community is the best guarantor of the offender's continued rehabilitation and, hardly incidentally, consequent community safety.

[93] Apart from its instrumental value, rehabilitation also serves a symbolic or communicative function. In R. v. Nasogaluak, supra, at para. 49, the Supreme Court held that a "proportionate sentence is one that expresses, to some extent, society's legitimate shared values and concerns". And in R. v. M.(C.A.), supra, at para. 81, the Court directed that,

in addition to attaching negative consequences to undesirable behaviour, judicial sentences should also be imposed in a manner which positively instills the basic set of communal values shared by all Canadians … .

Denunciation and rehabilitation both reflect normative principles. Their judicial expression communicates something of our common matrix of values – not only the community we are but the one to which we aspire. As said in R. v. M. (C.A.), again at para. 81, denunciation, when essential to proportionate sentencing, "represents a symbolic, collective statement that the offender's conduct should be punished for encroaching on our society's basic code of values". Similarly (here repeating R. v. Lacasse, at para. 4), "[r]ehabilitation is one of the fundamental moral values that distinguish Canadian society … and it helps the courts impose sentences that are just and appropriate". Even more than our abhorrence of serious crime, in dealing, as here, with youthful offenders it is important to communicate our commitment to the prospect of rehabilitation, redemption and recovery. It is equally important to encourage genuine efforts to reform rather than impeding their momentum, let alone extinguishing the possibility of second chances or even hope.

[94] Returning to R. v. Priest: denunciation, like general deterrence, is not a principal sentencing goal in cases such as the one before me. Courts, through sentences that encourage and support rehabilitation, mitigate the danger of premature stigmatization and labeling. More positively, a focus on rehabilitation reinforces the value we as a society invest in our youth and ascribe to education and the development of social conscience and personal responsibility. Rehabilitation is part of the calculus that informs every offender's sentencing. However, "for youthful offenders, as for first offenders, the objectives of individual deterrence and rehabilitation are paramount": R. v. Priest, at para. 22

[95] In R. v. Tran, supra, the Manitoba Court of Appeal conducted a detailed survey of the considerations justifying a departure from the carceral sentences that routinely follow convictions for trafficking in hard drugs. As earlier noted, the Court, at para. 27, concluded that "demonstrated rehabilitation over a period of time" is the "most persuasive" of those factors "warranting a consideration of 'exceptional circumstances'". The offender in Tran had been convicted of possession of more than 300 grams (11 ounces) of cocaine for the purpose of trafficking, valued at approximately $30,000. He was a 19-year-old first offender at the time of his arrest. He had complied with his bail terms for several years, secured employment, and enjoyed the support of his employer. The Court, in dismissing the Crown appeal against the offender's non-custodial disposition, held, at para. 32, that, "In the long term, society will be best protected and served by having this accused rehabilitated and continuing to be a productive member of the community as opposed to serving time in jail".

[96] Like the Court's description, at para. 31, of the offender in Tran, Ms. Zachar has exhibited "more than apparent rehabilitation". Given that Mr. Tran's offence date preceded the relevant Code amendments, he received a conditional sentence. This disposition is no longer available to persons convicted of actual or constructive trafficking in Schedule I drugs. There are, however, numerous cases, emanating from across the country and at every level of trial and some appellate courts, in which suspended sentences have been imposed for the same offence. See, for example: R. v. Fergusson, 2014 BCCA 347; R. v. Voong, supra; R. v. Peters, 2015 MBCA 119, 323 Man. R. (2d) 237; R. v. Carrillo, 2015 BCCA 192, 322 C.C.C. (3d) 514; R. v. Caputi, unreptd., July 17, 2013; R. v. Azeez, supra; R. v. Moniz, unreptd., Nov. 4, 2015; R. v. Duncan, [2016] O.J. No. 25 (C.J.); R. v. Dickey, 2015 BCSC 1210; R. v. Orr and Lai, 2015 BCPC 206; R. v. McGill, supra; R. v. Rushton, 2017 NSPC 2; R. v. Maynard, 2016 YKTC 51; R. v. Thevarajah, 2016 ONSC 6739; R. v. Wiebe, 2016 MBPC 43; R. v. Christmas, 2017 NSPC 48; R. v. Casey, 2017 NSPC 55; R. v. Dallal, 2018 ONSC 715; R. v. Saldanha, 2018 NSSC 169; R. v. Touchie, 2017 BCPC 119; R. v. Hillier, 2018 ONCJ 397; R. v. Dias, 2016 ONCJ 500; R. v. Abdelkarim, 2017 ONCJ 807; R. v. Dos Santos, 2017 ONCJ 855 and R. v. Wardell, 2017 NWTTC 12. R. v. Nashkewa, 2016 ONCJ 729, involving the importation of a third of a kilogram of cocaine, may also properly be included in this inventory.

[97] The result in each of these cases reflects the distinctive circumstances of the offence and offender before the court. What they have in common, and in common with Ms. Zachar's circumstances, is that the combined vigour of the mitigating factors, and in particular the confirmed efforts toward and prospect of enduring rehabilitation, are in each case sufficiently extenuating to warrant, by way of a proportionate sentence, a considered departure from the custodial disposition that ordinarily follows a conviction for trafficking in hard drugs. The decision in R. v. Kerr, supra, is here particularly instructive. Rather than sustain an 18-month sentence of incarceration for a 27-year-old addict heroin trafficker who had demonstrated rehabilitative progress, the Court of Appeal substituted a non-custodial disposition. As said by Abella J.A., as she then was, at para. 17:

Although the seriousness of the offence is clearly relevant, to under-emphasize rehabilitation in this case would … send the unwarranted signal that courts will sacrifice evidence of considerable rehabilitative progress on the altar of general deterrence.

Nor, I venture to add, would the sacrifice be any more warranted on the altar of denunciation. Justice Abella, at para. 18, concluded:

It seems to me that this is a case where the ultimate interests both of the community and of the appellant are best served by a sentence most conducive to eliminating the risk of re-offending. And that, in turn, argues for a sentence that both acknowledges and facilitates the ongoing rehabilitation of the appellant.

E. CONCLUSION

[98] The language of "unique", as used in Suter to define the amalgam of collateral and offence- and offender-related circumstances justifying "remov[al]" from a "normal" sentencing range is, with all due respect, a functionally unhelpful synonym for exceptionality. As an aid, if so intended, for sentencing judges, it ambiguates more than it clarifies. No doubt the constellation of attenuating circumstances in Suter is extraordinary. However, describing their coincidence solely as "unique" offers no more explicatory guidance to trial courts struggling to determine when a deviation from a conventional sentencing range is warranted than did the Court of Appeal in Doherty nearly 50 years earlier.

[99] Every case is unique. As said in Lacasse, supra, at para. 58: "each crime is committed in unique circumstances by an offender with a unique profile". And as asked rhetorically in Ipeelee, supra, at para. 86: "Who are courts sentencing if not the offender standing in front of them?" An appreciation of the unique features of the offence and the offender is key to application of the fundamental principle of sentencing, that of individualized proportionality. Indeed, even the most factually unique of cases may, on a proper weighing of the relevant factors, be found to fall securely within the parameters of a conventional sentencing range. The uniqueness of a case may, as in Suter, enhance the challenge of locating comparably proximate precedents, but its rarity or peculiarity alone does not qualify an offender for "exceptional" treatment – that is, treatment that warrants an exception to application of the customary range. Rather, as Suter demonstrates, it is the combined mitigative strength of the defining circumstances, whether or not "unique", that merits an exceptional result.

[100] To be very clear, I do not rest my determination as to a just sentence for the offender before me on a semantic nicety. Moving back, even slightly, from a granular inspection of the case at hand, it is clear that, for all its uniquely personal or distinguishing elements, Tianna Zachar's life history shares commonalities with the experience of many older adolescents and young adults in conflict with the law: immaturity, personal disadvantage, fractured parenting, vulnerability to the lure of easy money and the influence of predatory adults, faulty judgement and a still underdeveloped sense of responsibility. Although not here directly relevant, it cannot pass unnoticed that this constellation of potentially mitigating features (and others of at least equal adversity, including immersion in a culture of criminality, serial foster care, and exposure to interpersonal and systemic racism) defines in particular the life experience of far too many youthful members of marginalized Canadian communities.

[101] For the purpose of finely distinguishing between penal gradations, Ms. Zachar's circumstances are not particularly unique. They are, in sometimes despairing ways, all too common. That does not detract, in my view, from the application of appropriate sentencing principles to achieve a non-custodial result where, as here, a young offender's background, criminal antecedents, case-specific blameworthiness and reformative potential prioritize public protection through rehabilitation, even in a serious case, over less tangible and personally remote goals of general deterrence and denunciation. Mitigative exceptionality, in short, does not depend on the occurrence of unique or unprecedented circumstances so much as it does on determining, through the lens of venerable sentencing goals and principles, whether individualized consideration of both the offence and the offender merits a sentence served in the community or one otherwise outside the range ordinarily imposed for the criminal conduct at issue. Again, "the "principle of parity of sentences", as said in Lacasse, "is secondary to the fundamental principle of proportionality". In any event, to be meaningful rather than mechanical, parity need be assessed though comparison with sentences (such as those earlier cited) imposed on persons who closely share the individual circumstances of the offender and the offence at issue.

[102] In my view, and for the preceding reasons, the totality of the circumstances in the case at bar justifies the imposition of a non-custodial disposition. The here primary objective of specific deterrence is convincingly met without further penal sanction. That of sustained rehabilitation should be monitored and guided rather than jeopardized. Accordingly, I suspend the passing of sentence. In view of the lengthy period she has been subject to strict bail and her consistent compliance with its terms, Tianna Zachar will be placed on probation for two years (rather than the maximum permissible three years) for each offence, to be served concurrently. Apart from the statutory conditions, the terms of her probation include the following:

• Report promptly and thereafter as required to a probation officer;

• Reside with her mother for at least the first six months of her probation or, in any event, at an address approved by her probation officer, and obtain consent of the probation officer in advance of any change of address;

• Not to possess or consume any drugs or substances listed in Schedule I of the Controlled Drugs and Substances Act, unless in possession of a valid prescription in her own name;

• Attend and actively participate in any assessment directed by her probation officer and, if then so indicated, such counselling or other rehabilitative programs as directed, and sign such releases as are necessary to enable her probation officer to monitor her attendance and progress;

• Maintain suitable employment, and provide proof thereof as required by her probation officer;

• Pursue her education, and provide proof thereof as required by her probation officer;

• By way of restorative justice, complete 100 hours of community service within the first year of her probation, as directed by her probation officer.

I have considered and decline to impose a curfew as a further condition of probation. Ms. Zachar has been free of a curfew condition for the past 16 months without breach or other complication. The inclusion of such condition at this stage would do nothing to enhance the protection of the public. It would, rather, amount solely to punishment. As such, it is not authorized by the Code provisions governing the imposition of probation.

[103] A weapons prohibition order for ten years, pursuant to s. 109 of the Code, completes this disposition.

Released on September 18, 2018

Justice Melvyn Green