Court Information

Date: August 25, 2020

Ontario Court of Justice Old City Hall - Toronto

Between: Her Majesty the Queen And: Narottama De Souza

For the Crown: V. Fedorchuk For the Defendant: P. Lam

Heard: July 24, 2020

Reasons for Sentence

RUSSELL SILVERSTEIN, J.:

A. Introduction

[1] Mr. De Souza has pleaded guilty to a single count of possession of cocaine for the purpose of trafficking.

B. The Circumstances of the Offence

[2] On September 20, 2019, police were about to search an apartment in connection with an investigation into a certain Mr. Knights. Just as they were about to enter, Mr. De Souza arrived and began to open the door to the apartment with a key in his possession. The police eventually found 55.69 grams of cocaine in the apartment. Mr. De Souza was arrested. He pleaded guilty on June 24, 2020.

C. The Circumstances of the Offender

[3] Mr. De Souza is 31 years old. He has no criminal record prior to this incident. He is employed in his father's business and has a high school education and studied for one year at the University of Toronto.

[4] Mr. De Souza lives with his father and brother. His father suffers from Parkinson's disease and from some form of dementia. His father has also been diagnosed with colon cancer. Although his father's situation is not yet dire, he relies on Mr. De Souza for day to day support.

[5] Mr. De Souza has spent five days in pre-sentence custody and has been subject to a strict house arrest (with an exception for employment) since his release. He has complied scrupulously with his bail conditions.

D. The Positions of the Parties

[6] Mr. Fedorchuk, for the Crown, seeks a sentence of five months. In his view, absent extraordinary circumstances, which he says are not present here, the principles of denunciation and deterrence require a sentence of incarceration for possession of this amount of cocaine for the purpose of trafficking.

[7] Mr. Lam seeks a suspended sentence and probation. He further submits that if I decide that a suspended sentence and probation is too lenient a sentence for Mr. De Souza, I should impose a conditional sentence. He further submits that if I am of the view that Mr. De Souza must be sent to prison, the sentence should be one of 60 days, to be served intermittently. He agrees that in the absence of extraordinary circumstances a sentence of imprisonment is indicated by the prevailing jurisprudence, but argues that his client's circumstances, especially as they relate to his father, are indeed extraordinary.

E. The Principles of Sentencing

[8] The principles of sentencing are set out in Part XXIII of the Criminal Code.

[9] According to s. 718 of the Criminal Code, the "fundamental purpose" of sentencing is to contribute 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, namely: (a) to denounce unlawful conduct; (b) to deter the offender and others 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 the community; and (f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and the community.

[10] Further, according to s. 718.1 of the Code, the "fundamental principle" of sentencing is that a sentence "must be proportionate to the gravity of the offence and the degree of responsibility of the offender."

[11] Section 718.2 of the Code also dictates that, in imposing sentence, the court must also consider a number of principles including the following:

• A sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender;

• A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

• Where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;

• An offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and,

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

F. The Aggravating and Mitigating Circumstances

(a) Aggravating Factors

[12] The drug in question is a dangerous one. The only other aggravating factor present in this case is the amount of cocaine. While not a large amount in absolute terms (roughly two ounces), it is nonetheless a significant amount in the eyes of the law.

(b) Mitigating Factors

[13] Mr. De Souza has no prior record. He is employed. He pleaded guilty at an early opportunity and is remorseful to some degree. By pleading guilty he has foregone the opportunity to pursue Charter arguments that had some merit. He has served five days in presentence custody. Since his release on bail he has been on a strict house arrest with an exception for employment. He has abided by his bail conditions.

[14] The most significant mitigating factor is the poor health of Mr. De Souza's father and the important role that Mr. De Souza plays in caring for his father.

G. The Caselaw

[15] It is a well settled principle of criminal law that like offenders who commit similar offences should receive similar punishment. Our Court of Appeal has held that the normal "sentencing envelope", (as Green J. refers to it in R. v. McGill, 2016 ONCJ 138, at para. 54), for possession of 55 grams of cocaine for the purpose of trafficking is 6 months to two years less a day: R. v. Woolcock, [2002] O.J. No. 4927 (C.A.) Yet, almost 50 years ago our Court of Appeal made clear that "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": R. v. Doherty (1972), 9 C.C.C. (2d) 115 (Ont. C.A.) at p. 117.

H. Discussion

[16] When counsel first argued their respective positions, s. 742.1 of the Criminal Code stipulated that a conditional sentence was not available for the crime Mr. De Souza has pleaded guilty to. While my decision was on reserve, the law changed. In R. v. Sharma, 2020 ONCA 478, the Court of Appeal for Ontario ruled that this section is unconstitutional and thus of no force and effect. The parties have made further submissions and agree that a conditional sentence is now available in Mr. De Souza's sentencing. They further agree that if I do choose to impose a conditional sentence it should be of six – nine months' duration.

[17] It is important to note that the Court of Appeal's decision in Doherty came in 1972, before the advent of conditional sentences. After the introduction of conditional sentences in 1996, the question arose as to whether the dicta in Doherty meant that extraordinary circumstances were required to support a conditional sentence of imprisonment. That question is fully answered in R. v. Wellington (1999), 132 C.C.C. (3d) 470 (Ont. C.A.) and R. v. Kerr.

[18] In Wellington, at p. 475, the Court of Appeal said this regarding the imposition of conditional sentences in drug importing cases:

This court has not changed its policy of significant sentences for importing drugs into Canada with the advent of conditional sentences. However, where the sentencing judge determines that the appropriate duration of sentence in all the circumstances is less than two years, then the propriety of a conditional sentence to be served in the community instead of in custody must be considered in the usual manner. Therefore, although statistically conditional sentences will be less frequent in certain types of cases including drug trafficking and importing, the approach which a sentencing court is to take when considering imposing a conditional sentence in any particular case is the same for all offences. The court is not to begin with a rule that the circumstances of the case itself must be rare or unusual. Rather, each case must be approached on the basis that it will be considered on its particular facts taking into account the nature of the offence, the circumstances surrounding the commission of the offence, as well as the personal circumstances of the offender. [Emphasis added]

[19] In Kerr, supra, a drug trafficking case, at para. 11 the Court quoted extensively from the Supreme Court of Canada's decision in R. v. Proulx, [2001] 1 S.C.R. 61 as follows:

Two of the main objectives underlying the reform … were to reduce the use of incarceration as a sanction and to give greater prominence to the principles of restorative justice in sentencing -- the objectives of rehabilitation, reparation to the victim and the community, and the promotion of a sense of responsibility in the offender.

The conditional sentence facilitates the achievement of both of Parliament's objectives. It affords the sentencing judge the opportunity to craft a sentence with appropriate conditions that can lead to the rehabilitation of the offender, reparations to the community, and the promotion of a sense of responsibility in ways that jail cannot. However, it is also a punitive sanction. Indeed, it is the punitive aspect of a conditional sentence that distinguishes it from probation. As discussed above, it was not Parliament's intention that offenders who would otherwise have gone to jail for up to two years less a day now be given probation or some equivalent thereof.

Thus, a conditional sentence can achieve both punitive and restorative objectives. To the extent that both punitive and restorative objectives can be achieved in a given case, a conditional sentence is likely a better sanction than incarceration. Where the need for punishment is particularly pressing, and there is little opportunity to achieve any restorative objectives, incarceration will likely be the more attractive sanction. However, even where restorative objectives cannot be readily satisfied, a conditional sentence will be preferable to incarceration in cases where a conditional sentence can achieve the objectives of denunciation and deterrence as effectively as incarceration. This follows from the principle of restraint in s. 718.2(d) and (e), which militates in favour of alternatives to incarceration where appropriate in the circumstances.

[20] The Kerr court went on to say at para. 12:

Notably, the Court also held that no offences are excluded from the possibility of having conditional sentences imposed, except those with minimum terms of imprisonment. In addition, the Court held that no presumption in favour of or against conditional sentences for specific offences should be applied, at pp. 105-107 and 117:

Section 742.1 does not exclude any offences from the conditional sentencing regime except those with a mandatory minimum term of imprisonment. Parliament could have easily excluded specific offences in addition to those with a mandatory minimum term of imprisonment but chose not to.

[21] Thus, a conditional sentence is available in principle for all offences in which the statutory prerequisites are satisfied. See too R. v. Hayes, [2001] O.J. No. 684 (C.A.), R. v. Rahime, 2001 ABCA 203, R. v. Tahal (1999), 137 C.C.C. (3d) 206 (Ont. C.A.), R. v. Nguyen (1998), 113 B.C.A.C. 56, and R. v. Browne (1997), 119 C.C.C. (3d) 147 (Nfld. C.A.).

[22] In my view, this is a case where the imposition of a term of incarceration, as proposed by Mr. Fedorchuk, would be too punitive in the circumstances. It would not pay sufficient heed to modern principles of sentencing, especially as concerns the need to focus on rehabilitation and the importance of restraint. On the other hand, in my view, the imposition of a suspended sentence and probation is, in the circumstances, too lenient a disposition. It does not sufficiently respond to the principles of general deterrence and denunciation.

[23] Considering all the circumstances surrounding this case, a conditional sentence of imprisonment is the appropriate result.

I. Conclusion

[24] Mr. De Souza will be sentenced to an eight-month conditional sentence, the first five months of which will be under house arrest (with exceptions for employment and other issues to be addressed by counsel), and the final three months with a 9 pm – 6 am curfew.

[25] Mr. De Souza will then serve one year of probation with the usual statutory terms, as well as a requirement that he do 100 hours of community service over the course of the period of probation.

Released on August 25, 2020

Justice Russell Silverstein