R v Roeske, 2018 ONCJ 874

R v Roeske

Court Information

Court: Ontario Court of Justice

Date: October 16, 2018

Court File No.: Ottawa 16-F5285, 16-RF1020

Before: Justice Heather Perkins-McVey

Reasons for Judgment released on: October 16, 2018

Counsel

Ms. Delinda Hayton — counsel for the Federal Crown

Ms. Kristen Macrae — counsel for the Accused, Andrew Roeske

The Accused — on own behalf

PART 1: CHARGES AND GUILTY PLEAS

[1] Overview

This sentencing involves an offender in possession of drugs and a loaded, prohibited firearm.

[2] Guilty Pleas

The Accused Andrew Roeske pled guilty to:

• Possession for the Purpose of Trafficking in a Schedule 1 substance (Cocaine)
• Possession for the Purpose of Trafficking in Schedule 1 substance (Codeine)
• Careless Storage of a .32 Calibre handgun
• Possession of a loaded prohibited .32 Calibre handgun at 1601-234 Rideau Street without being the holder of an authorization or licence contrary to s. 95(2) of the Criminal Code of Canada
• Possession of a Weapon that being a .32 Calibre handgun for a purpose dangerous to the public peace contrary to s. 88(2) of the Criminal Code of Canada

For events arising from December 10, 2015, and one count of Breach of Recognizance contrary to s. 145(3) of the Criminal Code arising from events of March 28, 2016.

[3] Exhibits and Pre-Sentence Report

The Synopsis setting out the Agreed Statement of Facts was filed as Exhibit No. 1. The Accused's Criminal Record showing one prior entry for Impaired Driving was filed as Exhibit No. 2. In preparation for sentence, a Pre-Sentence Report was ordered.

[4] Sentencing Materials

A Book of Sentencing Materials consisting of thirty-five tabs of character letters, proof of education upgrading, reports and assessments from the Royal Ottawa Mental Health Centre, medical professionals, reference letters, proof of intensive treatment at Harvest House, proof of attendance at Smart Recovery and his OAARS Assessment was provided. There is also proof of his completion of 2,109 hours of Community Service including speaking at local High Schools about the dangers of drug use and where to get help. Filed as Exhibit No. 6 is a video of the accused speaking to John Macrae High School. There was an additional book of Supplementary Sentencing materials filed as Exhibit No. 8.

FACTS

[5] Investigation and Warrant

During December 2015, the Ottawa Police Drug Unit began an investigation into the Accused's activities. Surveillance showed the Accused was involved in activities consistent with drug trafficking. On December 10, 2015, a CDSA warrant was obtained for the accused's residence at 235 Rideau Street and the Accused's motor vehicle.

[6] Arrest and Initial Search

The Accused was followed to the Loblaws parking lot at the corner of the Vanderbilt Parkway and MacArthur Avenue. The Accused was arrested along with another male. The Accused was found to be in possession of a dime bag of marijuana and $115 of Canadian dollars.

[7] Residence Search and Seizures

There was a subsequent search of the Accused's residence where a .32 Calibre handgun loaded with four rounds of ammunition was found in an open safe inside a bedroom. The search also found:

• 145 twelve-gauge shotgun shells
• Five .32 Calibre rounds
• Eleven 9mm Calibre rounds
• 120.9 grams of cocaine
• 53.36 grams of MDMA
• 8.1 grams of crack cocaine
• 10.5 pills of Clonazapam
• 97 pills of Methamphetamine
• Packaging material
• Debt list
• $4,210.00 of Canadian dollars

[8] Breach of Recognizance

The facts of the Breach charge are that on March 28, 2016, the Accused was inside his apartment with his then girlfriend. The Accused woke up to find his girlfriend unresponsive from a drug overdose. He called a friend to assist who was trained in overdose prevention. The friend gave a dose of Naloxone. The girlfriend did not respond so 911 was called. The Accused, in fearing police involvement, moved the girl into an elevator and left her in front of her apartment. The original person called to assist her was left to await emergency personnel. The Accused later returned to the scene and was arrested for Obstruct. Search incident to arrest found Xanax and Hydromorphine tablets, which amounted to a breach of his release conditions.

POSITION OF THE PARTIES

[9] Crown's Position

The Crown seeks a sentence of five years less twelve months consideration for the time spent at Harvest House and under restrictive conditions. The Crown agrees that thirty days PSC can be attributed toward the Breach of Recognizance. The Crown argues that such a sentence is required to adequately reflect the need for general deterrence and denunciation of crimes involving a large quantity and variety of drugs and the presence of a loaded gun. The Crown does not dispute that the Accused should be given a significant amount of credit for the work he has done towards his rehabilitation but disagrees with the quantum proposed by Defence counsel.

[10] Defence's Position

The Defence, on behalf of the Accused, is seeking a Conditional Jail sentence for the weapons offences and a suspended sentence followed by two years' probation for the drug charges arguing that the Accused will then be supervised in the community for a total of four years. Defence counsel argues that the Accused should be credited for the 650 days the Accused resided at Harvest House and seeks credit of 3/4 of that amount or 487 days or approximately seventeen months. Defence counsel argues that this must be one of those exceptional cases where such a sentence is warranted given the Accused's extraordinary efforts to address his addiction issues, his return and graduation from the Business Administration program and his finding employment.

PERSONAL CIRCUMSTANCES OF THE ACCUSED

[11] Age and Family Support

A Pre-sentence report was prepared to assist the court. The Accused is 26 years old and has one prior entry on his record for impaired driving. His parents do not condone their son's actions but remain very supportive of their son given the steps he has taken to address his addiction issues.

[12] Education and Academic Achievement

The Accused was diagnosed with a learning disability but with an individual learning plan was able to do relatively well in school. He had attended Algonquin College in a business administration program and had completed two years of that program but dropped out in 2014 when his substance abuse increased. He took time away from school to address his addiction problems but returned to complete his final year in September 2017 and graduated with a diploma in Business Administration - Finance. Included in the Sentencing materials are letters of support from four of his professors at Algonquin College. He is described as being an active participant in class who engaged positively with his peers and someone who was clearly invested in achieving his best possible results. Heidi Upton in her letter addressed to the Court states that Andrew "often used the open-ended and creative manner of assignments to thoughtfully" reflect on his past and his incarceration in a way that impressed her as being contemplative and frankly honest.

[13] Employment Offer

Subsequent to graduating from Algonquin College, Andrew also successfully completed the Canadian Securities Course and the Investment Funds in Canada course. He has also been offered full-time employment at TK Financial Group. This is a company in which his father is one of three partners. The letter of employment is signed by Sharon Holmes Controller of TK Financial and Steve Roeske who is shown as the President of TK Wealth Management. The offer describes that Andrew would be a Licensed Assistant. The Crown challenged this offer and as such Mr. Steve Roeske took the witness stand and gave evidence that he had been open and transparent with Ms. Holmes regarding Andrew's criminal record, his past addiction problem and the charges before the court. Mr. Roeske recognized that it may be difficult for Andrew to obtain a license but indicated he felt with the work that Andrew has done that it might be possible that he would have a provisional license subject to certain conditions or supervision. I am satisfied that this is a genuine offer of employment in an effort to keep Andrew on the right career path given his education and an attempt to assist him in finding employment despite having a criminal record for serious offences.

[14] Employer Support

It should also be noted that Sharon Holmes, controller of TK Financial Group also wrote a character letter in support of Andrew. She comments that she observed negative changes in Andrew in 2014 when he was using drugs. She states that Steve Roeske has explained to her the charges in detail and that she understands the seriousness of the charges for which he has been found guilty. She reflects that she has observed the positive changes in Andrew since he began treatment. She asks the Court to consider giving Andrew a second chance perhaps like the one she is giving him through the offer of Employment.

[15] Rehabilitation Efforts and Treatment

Andrew Roeske was very co-operative in the preparation of the Pre-Sentence Report. He indicated that he became involved in drug trafficking to support his own drug habit. To address his substance abuse issues he entered Harvest House in April 2016 and was a resident there for 15 months before graduating. He told the probation officer that this intervention saved his life. He is seen to have fully committed to his sobriety as he wanted to make a real change. It is confirmed in the Pre-Sentence Report and in the letters from Harvest House that even after leaving Harvest House he returned there to attend weekly meetings and to tutor residents doing their GED. In November 2017, the Accused in fact moved back to Harvest House as he feared stress and anxiety might cause him to relapse. He asked to live at Harvest House on the weekends in order to have a safe environment to return after school. This was seen as a mature and responsible decision demonstrating his commitment to recovery. Andrew returned to live full time at Harvest House in May 2018 but was asked to leave Harvest House May 12, 2018, after testing positive for a substance. Andrew maintains that he took over the counter cold medication and that this accounts for the positive test. Mr. Roeske's doctor, Dr. Tobin, agrees that false positive results for MDMA can in fact occur if someone ingests cold medication. The Crown is not seeking to prove the departure from Harvest House as an aggravating factor. Dr. Tobin also provided a letter to the court commending the Accused for his rehabilitation, his volunteer work speaking at schools about his addiction and his commitment to continuing his education and leading a pro social life style.

[16] Continued Treatment

Despite leaving Harvest House, Andrew has continued to attend Smart Recovery meetings proof of which has been provided to the court.

[17] Self-Awareness and Anger Management

The Probation Officer states that Andrew did not try to sugar coat his past drug use and that he also identified as having past Anger management issues. It is confirmed that while at Harvest House, he successfully completed a forty hour session called Anger Management Controlling Ourselves in April 2017. Andrew also self-identified negative peer influences by previously associating with people from the drug world when he was using. He says he was able to identify this problem while he was in treatment and that he has made a commitment to avoid this type of person in future as he recognizes it as being one of his triggers.

[18] Remorse and Accountability

The Probation Officer identifies that Andrew has a great deal of remorse and appreciates that for these serious offences he must be held accountable. It is recognized that Andrew possesses the tools to become a productive and valued member of the community.

[19] Character Letters and Community Recognition

In addition to reports from Harvest House and professors, the Defence has provided me with numerous character letters from friends and family. What stands out in all of these letters is how grateful they are that Andrew was fortunate enough to attend the Harvest House Program as through this program they see that he has learned valuable life skills working in the kitchen, that he has matured and gained real insight and self-esteem through his speaking at schools and all of his volunteer activity. They are all proud and impressed with the hard work Andrew has done to address his addiction and continue his education. None of the letters in any way attempt to deny the seriousness of the offences before the court. Tyler Pirie in his letter writes "Andrew serves as an example of what a rehabilitative judicial system can do". He says Andrew is a role model to anyone struggling with addiction.

[20] Impact on Students

While all of the letters from family and friends are helpful in their observations of the changes seen in Andrew since 2016, the letters from the teacher from St. Peter High School, Angie Shaheen and the letters from those who organized the Reality Tour are those that have had the greatest impact. Ms. Shaheen is clearly aware of the nature of the charges before the court. She says for the past several years she has been inviting clients from Harvest House to come and speak to her class. She states "I have listened to, and sometimes witnessed, the stories of drug addicts who have lost control over their lives and a rare few that have regained control over their lives". She reports that Andrew volunteered to share his story twice in one day though he was not obliged too. She reported that Andrew made a genuine impact on her students and that he spoke with overwhelming empathy and unexpected openness about moments in his life that people in denial or those with ego would not share. He explained to the students that addiction creeps up slowly and that drug dealers may appear charming. But that it is all for personal gain. He explained how drugs affected his life and relationships and that a mind under the influence is not a rational one. Ms. Shaheen says that she also spent some time talking with Andrew about his fears regarding the court process and his goals for the future. She says through his talk and their conversation, it is evident that Andrew would like to regain his life and become a contributing member of society. Ms. Shaheen was very supportive of Mr. Roeske opining that there was something different about him than other speakers from Harvest House and that is why he has been so memorable to her.

[21] Reality Tour Participation

Mr. Roeske also volunteered at a Reality Tour Event. This organization is an intense fact based anti-drug initiative. Andrew spoke to the attending families about his addiction, how it affected his life and he spoke of the harsh reality of the world of substance abuse. The letter says that perhaps the most telling indicator of the impact of Andrew's testimony was the standing ovation he and other Harvest House participants received from the audience. The raw truth of his personal story will be remembered by all present. He received numerous letters of commendation for his involvement with the Reality Tour.

[22] Video Presentation

A part of the sentencing submissions and filed as Exhibit No. 6 is a video of the Accused speaking at John McRae Secondary School. This video is very powerful. By the time of this speaking engagement, he had been at Harvest House for twenty-one months. In this video, the Accused speaks of the friends that have died from drug abuse and in graphic detail how his drug use crept up on him and how it went from innocent fun to a problem out of control. He spoke of how difficult it has been to beat the addiction and how his goal is to ensure others avoid making the mistakes he has made. Watching this video was helpful to allow the court to see what others had described in such glowing terms.

[23] Community Service Hours

As of January 2018, Andrew has completed 2,109 hours of community service. This amount is a under estimate given that we know Andrew continued throughout 2018 speaking at schools and events and volunteered to tutor persons at Harvest House. It is estimated that he has 133 hours volunteer work speaking at schools. A list of those schools as of April 2017 is found at Tab 28 of the Sentencing materials.

SENTENCING FRAMEWORK

[24] Sentencing Jurisprudence

Counsel provided several cases involving firearms offences, drug offences, and offences including both firearms and drugs. As in all cases there is no case with similar facts or involving an accused who has undergone such profound rehabilitation. Sentencing is always unique to each offender and each set of facts. These cases do however provide a framework through which the court can consider the aggravating as well as the mitigating facts.

[25] Aggravating Factors

In consideration of what would be the appropriate sentence for this Accused I take into account the following aggravating facts:

• The seriousness of the offences involving drugs and the possession of a loaded .32 Calibre gun inside an open safe inside his residence. There was also ammunition for other types of weapons. This is a toxic combination of drugs and guns;

• The variety of Schedule 1 Drugs he possessed and the quantity of those drugs. He had cocaine, Codeine, MDMA. He also had over $4,000.00 in cash, scales and a debt list;

• He breached his recognizance when his girlfriend overdosed and he was found with drugs on his person.

[26] Mitigating Factors

There are also a significant number of mitigating factors to consider:

• He pled guilty to these serious offences and has saved the court significant court time by pleading guilty;

• The Accused is extremely remorseful. He accepts full responsibility for his criminal acts and recognizes the harm his addictive behaviour has had on others;

• He is a youthful offender being twenty-four years at the time of the offences;

• He has a strong supportive family and group of friends;

• He has returned to school and has now graduated with a Diploma in Business Administration. He has also completed the Canadian Securities Course and the Canadian Investment Course;

• He has been offered a full-time job at $40,000 per year at TK Financial. His charges and rehabilitative efforts are known and supported by the partners of that firm;

• He has been involved in intensive rehabilitation in a residential treatment setting. He resided full-time at Harvest House from April 8, 2016 until June 2017. He returned there on weekends from November 2017 until May 2018 and then again full time at Harvest House May 2 to May 12, 2018. While at Harvest House he worked and later managed the kitchen, he engaged in fundraising and was involved in the running program. He also tutored other residents who were working on their GED. He also took and completed the anger management course and engaged in 650 hours of counselling in total;

• When he left Harvest House, he continued treatment or after care through Smart Recovery meetings;

• Mr. Roeske has done over 2,109 hours of community service, including participating in speaking at schools in excess of 133 hours;

• After leaving Harvest House in May 2018, Mr. Roeske further continued his rehabilitation by attending Smart Recovery meetings and he also attended a program called "Time for Change (T4C)" offered through the John Howard Society of Ottawa. This is an individual counselling program which he attended on a weekly basis since June 2018. He plans to continue this counselling following his sentencing hearing;

• By all accounts through this lengthy rehabilitation process the accused has ceased using drugs and he has completely changed his life.

SENTENCING RANGES

A. Sentencing Ranges

[27] Availability of Conditional Sentences

The Court of Appeal struck down the three-year mandatory minimum for firearms offences (though three years is warranted in some cases). Further given the maximum penalty is 10 years, a conditional sentence is therefore available for firearms offences and can address both punitive and rehabilitative objectives. However, a conditional sentence is not available for drug trafficking offences.

i. Firearms Sentences

[28] Spectrum of Firearms Offences

There is a wide range spectrum for s. 95 firearms offences, ranging from mere regulatory to 'true crime' where the firearms possession poses a real danger to the public. For most offenders, possession of a prohibited firearm falls towards the 'true crime' end of the spectrum as it "is directly connected to criminal activity and/or poses some other immediate danger to other persons." The parties agree that the case at bar falls somewhere in the middle.

[29] Sentencing Range for Firearms

The sentence for firearms offences ranged from a custodial sentence of two years less a day to 40 months' imprisonment reduced for pre-trial credit. In many of the cases provided, the offender was in possession of a firearm in a public place, which is distinguished from the case at bar where the offender was arrested in his car and the gun was found in his condo. It is noted there is no evidence the accused brought any weapons with him was engaged in drug trafficking activity. R v Molin where a loaded, prohibited firearm was found inside a residence, hidden in a gym bag. While the firearm did not pose an immediate threat as it was not in public, it still fell within the 'true crime' end of the spectrum deserving harsh denunciation. Balancing this with the offender's "real potential for rehabilitation" the offender was sentenced to a two-year penitentiary term followed by a two-year period of probation.

ii. Drug Sentences

[30] Drug Trafficking Sentencing Range

The sentence range for drug offences depends on the nature and quantity of drugs involved. In the cases provided, sentences ranged from two years less a day to a suspended sentence. In R v Gabbidon, Schreck, J. noted that "sentences in trafficking cases must reflect the seriousness of the offence and the moral culpability of the offender" as drug trafficking involves a distribution hierarchy. He goes on to say that a lenient sentence on one count can be balanced by a concurrent sentence on another count, provided both sentences are within the appropriate range and reflect the gravamen of the conduct. The offender, a street-level dealer, was sentenced to nine months imprisonment for drug trafficking (81 grams of cocaine) and 18 months suspended sentence for possession of proceeds of crime not exceeding $5,000.00.

[31] Addict Traffickers vs. Commercial Traffickers

The courts have also distinguished between addict traffickers and commercial traffickers. In R v Thomas, the offender (aged 25) was sentenced to two years less a day plus two years' probation for possession of 188.77 grams of powder cocaine, and a smaller amount of crack cocaine; he was not a street-level dealer, not an addict trafficker, and there were no exceptional circumstances. The Court emphasized that drug addiction is a factor to consider, though the lines between addict trafficking and commercial trafficking can be blurred. The quantity of drugs in the case at bar indicates Mr. Roeske was both an addict and a trafficker. I accept his evidence that the accused sold drugs to feed his habit but clearly profited given the money found in his residence.

iii. Firearm and Drug Sentences

[32] Combined Offences - General Range

The sentence for firearm and drug offences ranged from four years imprisonment to two years less a day. In most cases, the drug offences were generally more serious, attracting a longer custodial sentence with the firearm offence served concurrently. After reviewing all four cases provided by the defence, I find they can be distinguished on the facts.

[33] R v Fisher - Analogous Case

The most analogous case in terms of variety of drugs is R v Fisher, where the offender pled guilty to possession for the purpose of trafficking (powdered cocaine, crack cocaine, MDMA, etc. valued at $300,000), proceeds of crime ($1,070) and two firearms; the police discovered these when responding to a call to remove people from the offender's apartment. The offender was youthful (aged 18), pled guilty, had strong family support, and was motivated to work; despite his prospects for rehabilitation, the principles of deterrence and denunciation, as well as parity, required a sentence of four years and nine months imprisonment for the drug offences and 30 months concurrent for the firearms offences. This can be distinguished from the case at bar as Mr. Roeske possessed a smaller quantity of drugs and only one firearm.

[34] R v Reyes

In R v Reyes, the offender was found in possession of a loaded gun and several drugs (22.7 grams of powder cocaine, 598.07 grams of marijuana, and 134 tablets of Xanax); the Court found this was a commercial amount. The offender (aged 23) had recently moved into a condo, had a stable upbringing, and was employed. However, the firearm and drugs were found when the offender was arrested in his car outside his condo, which is significantly different than the case at bar where the firearm and drugs were inside a private residence.

[35] R v Prosser

In R v Prosser, the offender (aged 18) was found in possession of a loaded firearm, 81.78 grams of cocaine for the purpose of trafficking, and proceeds of crime ($3,480) when police executed a search warrant of the apartment he shared with his mother and grandmother. He was not an addict trafficker, had no criminal record, had a positive pre-sentence report, and had significant support of family and loved ones. On appeal, the court upheld his 22-month sentence (reduced by six months for pre-trial credit) noting it was a lenient sentence. This case is distinguished from Mr. Roeske, who was living alone and was addicted.

[36] R v James

In R v James, two offenders, James (aged 25) and Dawson (aged 26), were convicted of possession of a handgun, proceeds of crime ($865), and simple possession of marijuana; Dawson was also convicted for possession of 23.47 grams of cocaine for trafficking. The Court noted that both were good candidates for rehabilitation, emphasizing that a balance must be struck "between an appropriate level of deterrence and denunciation on the one hand, and, on the other hand, a recognition that there is a good prospect that both of the defendants before the court will have learned their lessons and will lead productive lives going forward." This case can be distinguished on the facts, but Mr. Roeske likewise shows tremendous rehabilitative prospects.

SENTENCING PRINCIPLES

A. Sentencing Principles

[37] Statutory Framework

The principles of sentencing are set out in ss. 718 of the Criminal Code, and in s. 10(1) of the Controlled Drugs and Substances Act for drug offences (see Appendix "A").

[38] Individualized Sentencing

Sentencing is an individual process and ranges are "guidelines rather than hard and fast rules." While parity is important for consistency in sentences, Wagner J. in R v Lacasse stated:

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

[39] Denunciation and Deterrence

Denunciation and deterrence are paramount in firearms and drug offences. As Pringle, J stated in R v Reyes, quoting the Court of Appeal in R v Wong:

11 The courts have repeatedly emphasized that the toxic combination of drugs and guns poses a pernicious and persisting threat to public safety and the welfare of the community. The social ills, including associated criminal conduct, fuelled by this combination is now well recognized.

12 These offences called out for an exemplary sentence to achieve the important sentencing goals of denunciation and deterrence. Indeed, the firearms offences, standing alone, warranted a significant jail term.

13 The combination of drugs and guns is particularly concerning. This combination is a serious aggravating factor on sentencing.

[40] Rehabilitation as a Sentencing Objective

However, rehabilitation is also a relevant objective, even in drug and gun cases, and should be given real consideration. As Buckle, J. stated in R v Rushton"there is a place for leniency when sentencing youthful offenders, even for serious crimes. In the case of a youthful offender, rehabilitation has to be given real consideration; in many cases, it is more than a theoretical objective, it is a reasonable and viable hope." In R v Speziale, the Court of Appeal found that the trial judge erred on several grounds, including not taking the offender's rehabilitation into account. Several cases emphasize the importance of rehabilitation, though they are distinguished on the facts.

[41] General Deterrence and Individualization

Specific deterrence is not an issue in the case at bar: Mr. Roeske has made exceptional progress turning his life around and advocating against drugs. However, while sentencing is individualized, general deterrence is still a critical sentencing principle. A fit sentence should appropriately balance deterrence and denunciation with Mr. Roeske's tremendous rehabilitative potential.

PART II: EXCEPTIONAL CIRCUMSTANCES IN SENTENCING

[42] Exceptional Circumstances Doctrine

A conditional sentence is not available for an offender convicted of trafficking in a Schedule 1 substance. The general rule is that a custodial sentence will be imposed unless there are "exceptional circumstances" that justify a non-custodial (suspended) sentence or a sentence outside the normal range. Exceptional circumstances involve a multitude of mitigating factors.

[43] R v Hassan - Exceptional Circumstances

In R v Hassan, a youthful offender was found in possession of a prohibited firearm with ammunition while travelling in a vehicle. Backhouse, J. recognized exceptional circumstances:

What makes this case singular is not only Mr. Hassan's rehabilitation and the number of very experienced people who have concluded and are prepared to say that he is not a danger to the public and is very unlikely to reoffend. What distinguishes this case is that Mr. Hassan has been able to learn from his past experiences and act as a positive role model for at risk youth. He has gone from someone who associates and identifies with a gang and gang culture to someone who is a willing and effective communicator of the message that there is another path than being a gang member and a life of crime. Coming from the background he comes from, he is able to act as a spokesperson and mentor to marginal people who want to change. The people working with at risk youth recognize that there is a greater chance of the young people they are trying to influence getting the message from Mr. Hassan than from themselves.

In my experience as a judge of this Court I have never seen such a dramatic and sustained effort not only of personal rehabilitation but also of a commitment to helping youths who grew up in the kind of community Mr. Hassan grew up in to escape the strong pull of a life of gangs and crime.

[44] Application to Mr. Roeske

In imposing a two-year less a day conditional sentence, Backhouse, J. noted that "Mr. Hassan, if he is allowed to serve his sentence in the community, has the ability and the proven resolve to act as a positive role model and to influence youths at risk to get out of a life of crime." Similarly, Mr. Roeske has demonstrated the ability and resolve to act an advocate and role model in his own community, which should be attributed significant weight.

[45] R v Casey

In R v Casey, the offender (aged 20) pled guilty to trafficking .23 grams of crack cocaine. The Court found there were exceptional circumstances to justify a suspended sentence, including that he was youthful, had one prior unrelated conviction, expressed remorse, rehabilitated himself, was fully employed and supporting his family, and was a positive, pro-social role model for others. Many of these exceptional factors are also present in Mr. Roeske's case, including his age, prior unrelated conviction, rehabilitation, and positive role model. However, the offences are different in the quantity and variety of drugs in Mr. Roeske's case.

[46] R v McGill - Definition of Exceptional Circumstances

In R v McGill, the offender (aged 40) pled guilty to possession of 300 grams of cocaine for the purpose of trafficking. The Court found that a suspended sentence was appropriate given his employment, education, abstention from drug use, and counselling. This case is important for the significant discussion of what constitutes exceptional circumstances. Melvin Green J noted:

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. However, Parliament, while not removing a non-custodial sentence for this type of offence, has concluded that CSO [conditional sentence order] sentences are not available. Thus, it will be the rare case where the standard of exceptional circumstances is met.

[47] R v Sellars

In R v Sellars, the offender (aged 28) was arrested with a loaded handgun in a car. On appeal, the Court found that the suspended sentence imposed at trial was inappropriate but imposed a conditional sentence of two years less a day. His moral blameworthiness was mitigated by background factors including pressure to join a gang from a young age and early substance abuse. The Court noted he taken exceptional rehabilitative initiatives including addressing his chronic substance abuse issues, moving away from his community, distancing himself from gangs, and maintaining full-time employment. Both counsel in this case agree that Mr. Roeske has also made significant efforts to address his substance abuse issues. The issue for this court to consider is how much credit should be given for those efforts.

[48] Addict Trafficking Alone Not Exceptional

It should be noted that, while drug addiction is a factor to consider in sentencing, addict trafficking alone is not an exceptional circumstance and the courts have not taken the position that such persons should not be incarcerated even if they have excellent prospects of rehabilitation.

CONCLUSION

[49] Difficulty of Sentencing

Determining what might be the appropriate sentence is never an easy task but cases such as this involving serious offences and youthful offenders who have made real efforts to rehabilitate themselves are the most difficult.

[50] Transformation of the Offender

The difficulty lies in the fact that we are not sentencing the same person who committed the offences in December 10, 2015 or even the same person who committed the breach of recognizance. That Andrew Roeske was a young male riddled with addiction, who had dropped out of school, was hanging out with persons in the drug world selling drugs to feed his own addiction. Fortunately, for his friends and family and for the community at large Andrew Roeske has now completely changed in virtually every aspect of his life. He has engaged in intensive addiction treatment and is now drug and alcohol free. He returned to school and obtained his Business Administration Degree majoring in Finance. He has successfully completed the Canadian Securities course and the Canadian Investment Course. This is a significant achievement by any young person but all the greater given the degree of his addiction. He has tremendous insight into his addiction and its triggers. He returned to Harvest House last May as a protective measure fearing he might relapse. Although he did not stay at Harvest House, when he left there and returned to his parents' house he started individual counselling at the John Howard Society and has been attending NA or Smart Recovery meetings.

[51] Reparation to Community

Mr. Roeske cannot undo what he had done and he accepts full responsibility for his behaviour but he has attempted to make reparation to the community through hours of community service and most notably has been speaking at schools across the city about his addiction, his treatment with a view of preventing other young people from becoming involved with drugs. The video of his presentation at John McRae is powerful and inspiring.

[52] Personal Statement

Mr. Roeske also read his own personal statement to the court. He says in that statement that he wanted to give the court a perspective of his past, present and hopes for the future. In that letter he describes losing close friends to overdose, how his addiction spiralled out of control, that he suffered a drug psychosis in fall of 2015 just prior to the commission of the offences before the court. He speaks of his relapse in 2016 when the breach occurred and his girlfriend overdosed. He speaks of the day he went to Harvest House and he started his journey to sobriety. He talks about how staying sober is not easy and nor was going back to school. He says he has committed to telling his story to young people to discourage them from making the mistakes he did.

[53] Statutory Framework and Principle of Restraint

Section 718 to s.718.2 of the Criminal Code provides judges the framework within which to determine sentence. That framework directs the courts to impose just sanctions that have one or more the following objectives: denounce the conduct, deter the offender and other offenders from committing offences, separate offenders from society where necessary, assist in rehabilitating offenders, provide reparation for harm done to victims and to the community and promote a sense of responsibility in offenders. Section 718.2 (d) and (e) remind the court to exercise the principle of restraint. Justice Greene's decision in R. v. McGill, 2016 ONCJ 138, undertook a thoughtful and comprehensive review of the principles of sentence including the principle of restraint and discusses the imposition of sentences below what is usually imposed where exceptional circumstances warrant. As he states at para. 120 quoting the Supreme Court of Canada in R. v. Ipeelee at para. 86: "Lebel, J instructs that the codification of the principle of restraint must be held to apply to offences of any gravity since any other construction would deprive s. 718.2 (e) of much of its remedial power given the focus on reducing over reliance on incarceration".

[54] Doctrine of Exceptional Circumstances

In McGill commencing at para. 69 is a discussion of "exceptional circumstances in sentencing". The court writes in para. 69: "Functionally, the doctrine serves as a means for preserving the continuing authority of the sanctioned range while allowing a more lenient treatment of "exceptional" " rare " "unusual" or "extraordinary" cases that, through such legal characterization can be fairly and sympathetically addressed without jeopardizing the sentencing norm for any given class of cases." This doctrine has been adopted by Appellate Courts in R v. D'Souza, 2015 ONCA 805, substituting a conditional discharge for drug trafficking given the remarkable steps the accused took to change his way of life. That sentence is of course not available in this case but there have been other cases involving schedule 1 substances where the doctrine of exceptionality has been used. The BC Court of Appeal in R v. Carrillo found no reason to "disturb the judge's determination of Mr. Carrillo's highly distinctive personal circumstances as exceptional" which characterization justified the judge's departure from typical or usual range of sentence. The BC Court in R v. Voong, 2015 BCCA 285, also addressed the meaning of "exceptional circumstances" at para. 59:

Exceptional circumstances may include a combination of no criminal record, significant and objectively identifiable steps toward rehabilitation for the addict, gainful employment, remorse and acknowledgment of the harm done to society as result of the offences, as opposed to harm done to the offender as 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. However, Parliament while not removing a non-custodial sentence for this type of offence, has concluded that CSO sentences are not available. Thus, it will be the rare case where the standard of exceptional circumstances is met.

[55] Supreme Court Guidance on Individualized Sentencing

In addition, the Supreme Court of Canada in their decision of R v. Lacasse, 2015 SCC 64, at paras. 57-58 and 60-61, stressed that sentencing is a very individualized process and not a mathematical calculation and that sentencing ranges are nothing more than summaries of the minimum and maximum sentences imposed in the past which serve in any given case as guidelines for the application of all relevant principles and objectives. They further remind us that there will always be situations which call for a sentence outside a particular range and that these sentence will be fit providing there is a principled reason for the application of one or more principles of sentence.

[56] Finding of Exceptional Circumstances

In my view, given the extraordinary work Mr. Roeske has done and continues to do in addressing his addiction, finishing and upgrading his education and finding employment as well as the reparation he has made to the community through his community service puts this case fit in the 'exceptional circumstances' category taking the sentence outside the usual range of sentence. The offender is relatively youthful with one prior unrelated conviction and failure to comply with release conditions. Since the offence, he has completed nearly two years in a drug treatment program, over 2,100 hours of community service including advocating against drugs for youth at risk, and hundred(s) of hours in counselling. He has pursued education and employment, completing a business course and Canadian Securities Course, and has a job offer. He has a positive pre-sentence report. Both parties agree he has made a genuine effort to turn his life around.

[57] SENTENCE IMPOSED

That being said these are serious charges and the Accused will receive a sentence that places him under strict conditions and supervision for a lengthy period of time. He will serve a jail sentence of two years less a day to be served as a conditional sentence for the firearms offences on strict terms and conditions including house arrest in order to reflect the principle of general deterrence and denunciation of these offences. He is being given an opportunity to serve his jail sentence in the community as he poses no risk to the public given how he has turned around his life and given his exceptional rehabilitation efforts this sentence is the correct balance of the many principles of sentence at play and is consistent with the purpose and principles of sentence. This sentence will be followed by two years' probation on terms which focus on his continued rehabilitation. For the Drug charges, I will note the equivalent of twelve months' PSC given his time of almost two years under restrictive conditions and his time in a residential treatment facility and his community service hours. On these charges there a suspended sentence and two years' probation. The actual PSC of six days will be attributed to the Breach charge and on that count. There will be a suspended sentence 2 years' probation. There is a mandatory weapons prohibition for ten years and I will grant the Crown's request that a sample of his blood be taken for the DNA data bank.

SENTENCING SUMMARY

Firearms Offences: Two years less a day conditional sentence with strict terms and conditions including house arrest, followed by two years' probation

Drug Charges: Suspended sentence with two years' probation (with credit of twelve months PSC)

Breach of Recognizance: Suspended sentence with two years' probation (with credit of six days PSC)

Additional Orders:

• Mandatory weapons prohibition for ten years
• DNA sample to be taken for DNA data bank

Released: October 16, 2018

Signed: Justice Heather Perkins-McVey

APPENDIX "A"

Criminal Code of Canada, RSC 1985, c C-46, s 718

Purpose

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

(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;

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

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

(d) to assist in rehabilitating offenders;

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

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

Fundamental principle

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

Other sentencing principles

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

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

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

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

(ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years,

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

(iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation,

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

(v) evidence that the offence was a terrorism offence, or

(vi) evidence that the offence was committed while the offender was subject to a conditional sentence order made under section 742.1 or released on parole, statutory release or unescorted temporary absence under the Corrections and Conditional Release Act

shall be deemed to be aggravating circumstances;

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

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

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

(e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.