COURT FILE NO.: CR-17-082 DATE: 20181207 ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN Elizabeth Barefoot, for the Public Prosecution Service of Canada
- and -
DANIEL RICHARD CURRANT Jonathan M. Pyzer, for the Accused Accused
HEARD: November 15, 2018
REASONS FOR SENTENCE
FRAGOMENI J.
[1] The accused, Daniel Currant, pleaded guilty to two counts as follows:
Production of cannabis marihuana, contrary to section 7(1) of the Controlled Drugs and Substances Act;
Possession of cocaine for the purpose of trafficking, contrary to section 5(2) of the Controlled Drugs and Substances Act.
[2] An Agreed Statement of Fact was filed as Exhibit 1 at the hearing and it sets out the following, in part, in support of these charges:
SEARCH WARRANT EXECUTION AT THE PROPERTY
On April 6, 2016 the Ontario Provincial Police executed a judicially authorized CDSA search warrant at 429445 8th Concession B in the Municipality of Grey Highlands in the County of Grey (“The Property”). Police located the following inside of the residence: a. 1.02 kilograms of cocaine and $2200 in Canadian currency in the bedroom where Daniel CURRANT was located; b. 3,802 grams of Phenacetin, a cocaine cutting agent; c. 20 grams of cannabis marihuana shake; d. 1,283.3 grams of cannabis marihuana bud 2.5 grams of cannabis resin; and e. 351 cannabis marihuana plants at various stages of growth, located in the attached garage and a small basement grow room.
The 1.02 kgs of cocaine was packaged in the following weights and ready for sale: 67 x 1 gram baggies; 5 x 4 gram baggies, 58 grams in a baggie, and 881 grams in a baggie.
The estimated, combined, street value of the controlled substances seized by police was $296,916.00.
COCAINE HYDROCHLORIDE – PRICING
The price of cocaine is not always consistent however prices at the lower (gram) level have maintained a similar price over recent years, specifically $100 for 1 gram of cocaine hydrochloride. Factors such as demand, availability, wholesale and quality affect pricing. The following chart indicates current prices and common quantities of cocaine hydrochloride in the Windsor area (March 2017 – source: current CDSA investigations, confidential informants, open source).
| Amount | Low Range | High Range |
|---|---|---|
| 1 ‘kilo’ (kilogram 33.3 bulk ounces) | $40,000.00 | $65,000.00 |
| 9 ounces (“9 pack”) | $16,500.00 | $19,000.00 |
| 1 ounce (28 grams) | $1600.00 | $1800.00 |
| ¼ ounce (7 grams) | $500.00 | $700.00 |
| 3.5 grams (8 ball – 1/8th ounce) | $250.00 | $350.00 |
| 1.75 grams (half ball) | $150.00 | $200.00 |
| 1 gram | $75.00 | $125.00 |
| .5 gram | $40.00 | $60.00 |
DC Whitehouse updated the exhibit list with the results from Health Canada. On March 2, 2017 DC Whitehouse removed exhibit 45.14(c) from the drug vault, took a 3 gram sample, placed the sample in Health Canada envelope L0152873 and sealed it to be sent to Health Canada for purity analysis. The 3 gram sample was entered as exhibit 59 on the Master Exhibit Log by Detective Whitehouse. Health Canada confirmed exhibit 59 to be 73 % Cocaine.
Both Mr. Currant and his father had expired licenses to produce marijuana which were not renewed by Health Canada or valid at the time of the execution of the search warrant. However, both Mr. Currant and his father believed that the expired licenses were valid under what is commonly referred to as the ‘Allard’ injunction. Those expired licenses allowed each individual to produce 98 plants each for a combined total of 196 plants.
[3] Daniel agreed to these facts and as such findings of guilty were made and convictions entered on both counts.
[4] At the sentencing hearing Mr. Currant filed an Affidavit sworn November 15, 2018. It was filed as Exhibit 2. Exhibit 3 contained the Defence Materials on Sentencing which included nine character letters in support of Mr. Currant’s position.
[5] Mr. Currant also testified at the sentencing hearing about his personal circumstances and how these charges have affected his life. In summary, Mr. Currant testified to the following:
− after this arrest he spent 20 days in custody and was eventually granted bail on April 25, 2016; − he was on house arrest terms for a period of 10 months and he felt very isolated; − he could not have communication with his wife, Jennifer Farrow, as she was the co-accused on these charges; − Mr. Currant indicated that he was addicted to cocaine and was using between 2 to 4 grams daily; − after his arrest on these charges he stopped consuming cocaine; − he confirmed what he set out in his Affidavit at paragraphs 19 and 20, which set out the following:
I was battling an addiction to cocaine at the time of my arrest for these charges. My addiction began following my father’s brain surgery. The stress and pressure from my father’s illness as well hanging out with the wrong people led to my addiction to cocaine. I was using anywhere from 2-3 grams of cocaine per day. My addiction had become so bad by February 2015 that I had begun smoking the cocaine in addition to snorting it. My nose had become so badly damaged as a result of my daily use. My arrest on these charges was a major wake-up call for me. I have not used cocaine since my arrest. I have no intention of ever using cocaine again.
As a result of our production of marijuana, my father and I incurred a substantial hydro bill. The hydro meter melted off on the side of the house. As a result we did not receive a hydro bill for more than a year. By the time the problem was corrected, My father and I had incurred a bill in excess of $25,000.00. I was shocked and desperate. My addiction grew worse under the financial pressure.
− he acknowledged that he was fronted the 1 kg of cocaine at a price of $56,000.00 and as set out in the analysis it was of good quality at 73% purity.
[6] In his Affidavit Mr. Currant sets out his employment background at paragraphs 8 and 9 as follows:
I have a lengthy employment history. I began working at a young age, helping my parents with their breeding kennel and then later in their pet stores. I have also worked as a landscaper, labourer, fork lift operator and salesperson over the years.
I began breeding exotic reptiles a few years ago with the view to starting a exotic pet business. More recently I have begun organizing Muay Thai events and Mixed Martial Arts events. I hope to pursue a career in these business areas upon my release from custody.
[7] Mr. Currant also described his numerous health issues which include the following:
− In 2001 when he was 24 years old he fell off a ladder and sustained injuries to his right leg and lower back. At the age of 25 he had to have lower back surgery; − In 2002 he was in a motor vehicle accident and sustained injuries to his right arm and neck; − In 2010 as a result of the injuries he had sustained he had to have neck surgery. After the surgery he began to experience extreme chronic pain including migraines. He was unable to work and on April 26, 2013 he started receiving ODSP (Ontario Disability Support Program). He is still on ODSP; − In 2011 he sought out medical marijuana as an alternative treatment for his chronic pain systems.
[8] At paragraph 21 of his Affidavit Mr. Currant expresses his remorse and acceptance of responsibility as follows:
I acknowledge that the cocaine seized from my residence on April 6, 2016, was possessed by me for the purpose of trafficking. I acknowledge that the motivation for my trafficking in cocaine was to try and assist my father and I in overcoming the crippling debt we had incurred. I am remorseful and regretful for my actions. I acknowledge what I did was wrong and the harm cocaine has on our society. I am truly sorry for my actions and will do everything I can to never find myself before the criminal courts again.
POSITION OF THE CROWN
[9] The Crown submits that the appropriate sentence in this matter is 8 years in a penitentiary, less 30 days of pre-trial custody. The Crown also seeks the following orders:
− DNA order − s. 109 order for 10 years and life − forfeiture order
[10] In support of her position the Crown points to the following aggravating factors:
− The nature of the substance, cocaine being a hard drug; − Mr. Currant was motivated by monetary gain. He was not trafficking to feed a habit; − The almost 4 kg of cutting agent seized along with the 1 kg of cocaine, along with the purity of the cocaine seized, demonstrates that Mr. Currant could derive a huge profit from the sale of this cocaine; − The quantity and value of the cocaine seized is significant as set out in the expert’s report; − The number of marihuana plants seized was 155 over the amount even Mr. Currant thought he could possess.
POSITION OF THE DEFENCE
[11] The defence submits that a period of incarceration of 4 years is appropriate. The defence consents to the forfeiture order and the s. 109 orders. However, the defence does not consent to a DNA order being issued in the circumstances of this case.
[12] The defence points to the following mitigating factors in support of his position:
− Mr. Currant has no criminal record; − Mr. Currant has entered pleas of guilt; − Mr. Currant was addicted to cocaine at the time of these offences; − Mr. Currant has the support of his family and friends as demonstrated in the character letters filed; − Mr. Currant’s early life was one of marked instability; − Mr. Currant continues to suffer from health issues which will make any period of custody difficult; − Mr. Currant’s parents have suffered and continue to suffer from serious illness and his absence in being able to help them will be difficult; − He has been on strict bail and some deduction should be made on that basis.
ANALYSIS & CONCLUSION
[13] Both the Crown and the defence filed case briefs. I will not review all of the cases in these reasons, however, I do wish to make reference to some.
R. v. Barreiras, [2015] O.J. No. 6020
[14] In this case the accused pled not guilty to one count of possession for the purpose of trafficking cocaine. As a result of the execution of a search warrant the police seized the following:
− 145.06 grams of crack cocaine − 1,180.06 grams of powdered cocaine − $8,090 in cash
[15] In his analysis, Campbell, J sets out the following at paras 33 to 43:
The aggravating circumstances of this offence are clear. First, there is the sheer gravity of the offence. The accused was in possession of a very large quantity of cocaine (1.325 kilograms or 2.921 pounds) for purposes of trafficking. This quantity of cocaine had a very significant street value of between $49,000 and $154,000, depending on how it was packaged and sold. The accused was in possession of this large quantity of cocaine for precisely that reason – to profit economically on its sale.
Second, the accused has a lengthy criminal record. This is his 21st adult criminal conviction, over the span of 16 years. Significantly, the accused has prior convictions for drug-related offences, including trafficking and possession for the purpose of trafficking. Even after being effectively sentenced to a four-year term of imprisonment in 2004 in relation to firearms offences, the accused continued to commit criminal offences, including further drug-related offences.
In this regard, I note that, according to s. 10(2)(b) of the CDSA, if a person is convicted of a designated substance offence, for which the court is not required to impose a minimum punishment, the court imposing sentence shall consider any relevant aggravating factors including that the person was previously convicted of a designated substance offence. In the present case, the accused has been previously convicted of a designated substance offence, so that is a statutory aggravating circumstance in this case.
On the other hand, there are also a number of mitigating circumstances in the present case. First, the accused moved to efficiently resolve this case at a relatively early opportunity, following the conclusion of a four-day pre-trial motion concerning the admissibility of the evidence obtained as a result of the execution of the search warrant. The Crown fairly conceded that the accused should be given considerable credit for adopting this responsible approach to the necessary litigation in this case, explaining that this was why the Crown was seeking a sentence at the lower end of the appropriate range of sentence.
Second, notwithstanding the problems he experienced in his formative years, the accused has periodically sought to improve himself, working to gain his secondary school graduation diploma and taking most if not all of the available correctional services programs to prepare himself for his ultimate release from custody. In addition, the accused has indicated that he wants to pursue a college education in business/marketing and wants to become an “event planner.” Defence counsel suggests that the accused has finally realized that he cannot continue as he has in the past, and promises no more criminal behaviour.
Ultimately, I agree with the Crown that, in all of the circumstances of this case, the effective global sentence that should be imposed upon the accused is five-and-a-half years imprisonment. Indeed, this is arguably a somewhat lenient sentence given the quantity of cocaine possessed by the accused for the purpose of trafficking and his lengthy criminal record.
As the Court of Appeal for Ontario observed in R. v. Woolcock, [2002] O.J. No. 4927, at para. 8, cocaine is an “extremely dangerous and insidious drug with potential to cause a great deal of harm to individuals and to society.” See also R. v. Daya, 2007 ONCA 693, 227 C.C.C. (3d) 367, at para. 18; R. v. Harris, [2008] O.J. No. 1976 (S.C.J), at paras. 21-22. Lengthy penitentiary terms of imprisonment are regularly imposed upon offenders that possess substantial amounts of cocaine for the purpose of trafficking.
For example, in R. v. Bajada (2003), 169 O.A.C. 226, 173 C.C.C. (3d) 255 (C.A.), Weiler J.A., delivering the judgment of the court, observed, at paras. 12-14, that “sentences of five to five and one half years are not uncommon for possession of a substantial amount of cocaine for the purposes of trafficking” even where the accused has entered “a plea of guilty or where the accused has no prior record.” Further, in R. v. Bryan, 2011 ONCA 273, [2011] O.J. No. 1581, the court noted, at paras. 1-2, that “normally” sentences ranging from five to eight years imprisonment “would reflect the proper range” of sentence “for someone, without a record, convicted of possession for the purpose of trafficking in slightly more than a pound of cocaine.” See also R. v. Muise, [2007] O.J. No. 5553 (C.J.), at para. 47, affirmed, 2008 ONCA 665, [2008] O.J. No. 3791; R. v. Peltier, 2013 ONCA 141, 303 O.A.C. 87, at para. 15; R. v. Italiano, 2015 ONSC 2216, [2013] O.J. No. 6459, at paras. 25-31; R. v. Feeney, 2015 ONSC 3218, [2015] O.J. No. 2584, at paras. 32-40, 44-45, 55-68.
As I have mentioned, the accused in this case was in possession of cocaine so that he could sell the drug to others. In short, the accused was motivated by financial gain. Accordingly, the sentencing principles of denunciation and deterrence are of primary application. To paraphrase the sentiments expressed by Lamer J., as he then was, in a different context in R. v. Smith, [1987] 1 S.C.R. 1045, at p. 1053, those who market such hard drugs for monetary reward “are responsible for the gradual but inexorable degeneration of many of their fellow human beings as a result of their becoming drug addicts.” As they are the “direct cause of the hardship cast upon their victims and their families,” drug traffickers must, through the sentencing process, be “made to bear their fair share of the guilt for the innumerable serious crimes of all sorts committed by addicts in order to feed their demand for drugs.” Such drug traffickers should, generally speaking, be sentenced to “long periods of penal servitude.”
In my view, the four-year sentence proposed by the accused would be an inadequate and unfit sentence. Such a sentence would not properly reflect the gravity of the offence, would not sufficiently denounce and generally deter the commission of such offences, and would not provide the necessary element of specific deterrence to the accused personally. The accused has, in the past, received an effective global sentence of four years imprisonment, and yet has continued to commit criminal offences with some regularity. The accused must be made to understand that if he continues to commit serious criminal offences, he is going to receive increasingly lengthy sentences of imprisonment.
In the result, after giving the accused credit for having already served the equivalent of approximately 32 months, I now impose a sentence of 34 months of penitentiary imprisonment upon the accused. This results in an effective total sentence of 66 months imprisonment, or five-and-a-half years.
R. v. Lee, [2015] O.J. 3546
[16] As a result of executing a search warrant the police located the following:
− 324.9 grams of crack cocaine − 368.7 grams of powder cocaine − 12,020 in Canadian currency
[17] Mr. Lee had a criminal record that included similar offences as an adult and on two separate occasions as a youth. At the time of sentencing Mr. Lee was 27 years old, having committed the offences when he was 24. At paras. 30-32 McCarthy J. states:
Although I am attracted to the sentence range suggested by the Crown for the reasons set out above, I remain mindful of the jump principle, the relatively young age of the offender, and the fact that rehabilitation cannot be ruled out as means through which the Defendant may still be able put his life in order. That said, denunciation and deterrence, both general and specific, must always be factors in drug related offences.
I have concluded that the circumstances here are deserving of a sentence somewhere in the middle of the spectrum applicable to mid-level trafficking cases.
Junior Lee, I sentence you to four years in the federal penitentiary. I deduct from that sentence the period you have served in pre-trial incarceration and post-conviction incarceration which, when applying the ratio of 1.5:1, amounts to 153 days. Based on the principles set out in Downes, I would deduct from your sentence a further 90 days for the fact that your liberty was partially impaired during the period of JIR. That leads to an effective sentence to be served as of today of 3 years and 122 days from today’s date.
R. v. Andrews, [2016] O.J. No. 5563
[18] Mr. Andrews was found in possession of the following:
− 813 grams of marijuana − 676.5 grams of cocaine − 56 grams of psilocybin
[19] At paragraph 20 the Court states that Mr. Andrews was not a drug addict trafficking in drugs to support a habit. The Court found that he was engaged in the business of selling drugs for financial gain.
[20] Mr. Andrews was 35 years old. He had a dated and unrelated criminal record. At paras. 29, 30 and 35 the Court states:
The Ontario Court of Appeal in R. v. Bajada noted that sentences of five to 5 ½ years were ordinarily imposed in cases involving possession of substantial amounts of cocaine for the purpose of trafficking even in cases where the offender pleaded guilty or had no prior criminal record. Similarly, in R. v. Bryan the Ontario Court of Appeal noted that the normal range of sentence for a first offender convicted of possession of slightly more than a pound of cocaine for the purpose of trafficking is between five and eight years.
On the other hand, shorter sentences have been imposed in a number of cases. For example, in R. v. Lecompte, Justice Warkentin imposed a sentence of three years on a first offender who pleaded guilty to possession of cocaine for the purpose of trafficking. The offender had been found in possession of 133 grams of crack cocaine. In R. v. Ceballos, Justice MacDonnell sentenced a first offender found guilty of possessing 326 grams of cocaine to 2/12 years. Justice Dunn sentenced a first offender found guilty of possessing 431 grams of cocaine for the purpose of trafficking to 23 months after giving the offender one month credit for pre-trial custody.
In considering all of the circumstances of this case, including the amount of time Mr. Andrews was under house arrest conditions, and the relevant sentencing principles, I conclude that a fit sentence is four years in prison. This sentence is proportionate to the gravity of the crimes committed by Mr. Andrews and his degree of responsibility. It also recognizes his potential for rehabilitation.
Re: Bail Conditions
R. v. Lu, [2016] O.J. No. 128
[21] Parfett J dealt with the issue of credit for restrictive bail conditions at paras. 32 to 35 as follows:
Crown and Defence are also at odds concerning how much credit should be given for pre-trial bail conditions.
The issue of credit for restrictive bail conditions is complex. Recent appellate case law indicates that release on stringent conditions is a factor that may mitigate sentence. There is no set formula and the court ought to hear evidence of the impact of release conditions on the offender before determining what, if any, credit should be given. The issue is whether the release conditions imposed caused undue hardship or prejudiced the offender. In R. v. Downes, 2009 ONCA 849, the Court of Appeal suggested that the issue of credit for stringent release conditions be approached in this fashion:
- Time spent on stringent pre-sentence bail conditions, especially house arrest, is a relevant mitigating factor;
- As such, the trial judge must consider the time spent on bail under house arrest in determining the length of sentence;
- The failure of the trial judge to explain why time spent on bail under house arrest has not been taken into account is an error in principle;
- The amount of credit to be given for time spent on bail under house arrest is within the discretion of the trial judge and there is no formula that the judge is required to apply;
- The amount of credit will depend upon a number of factors including, the length of time spent on bail under house arrest; the stringency of the conditions; the impact on the offender’s liberty; the ability of the offender to carry on normal relationships, employment and activity; and
- Where the offender asks the trial judge to take pre-sentence bail conditions into account, the offender should supply the judge with information as to the impact of the conditions. If there is a dispute as to the impact of the conditions, the onus is on the offender to establish those facts on a balance of probabilities in accordance with s. 724(3) of the Criminal Code.
In this case, Lu was under house arrest and could only leave the house in the company of one of his sureties. After 14 months of house arrest, Lu’s conditions were varied to delete the house arrest condition and replace it with a curfew of 11:00 p.m. to 7:00 am. No evidence was offered as to specific impact of any of the conditions on Lu’s lifestyle, but it is common ground that the house arrest condition of the first 14 months was particularly onerous because he could not live with, or communicate with, his wife.
In my view, the length of time that Lu has been on release conditions is a factor that militates in favour of some credit being given. He has been on release conditions for approximately four and a half years. However, the lack of evidence indicating that there was any significant impact on his life after the house arrest condition was lifted limits the amount of credit that can be given. After considering the factors associated with this case, I will give Lu credit of 7 months for the time spent on release conditions.
Character Letters
[22] I have considered all of the character letters filed, however, I will not review them in detail in these reasons. I do, however, wish to reference some of the comments made.
Ann Currant - Mother My son always makes sure my husband and I are doing well. I am still disappointed in his actions
Dan Wilson – Father Danny is an excellent father to his 10 year old autistic daughter Kaitlyn, and an invaluable asset to his mother and I.
Jennifer Farrow – Wife I was very angry with Dan for a while. I am still disappointed, but I believe from his actions over the last few weeks that I have been able to see him, that he truly is remorseful for doing what he did, and putting our daughter, myself and his parents in that kind of jeopardy.
Achilles Meridis – Owner of Empire Mixed Martial Arts in Barrie Dan’s character is completely opposite from the situation he is in. Since joining the gym we have become very close. He helps me in the children’s classes and they love him. He has been guiding a few young men in the gym with his situation. In hopes they never make the same mistake as well. They seem to be listening to him and enjoy training with him.
[23] Section 718 of the Criminal Code of Canada states:
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.
[24] Sections 718.1 states:
A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
[25] Section 718.2 (b) – (e) states:
(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.
[26] Section 10(1) of the Controlled Drugs and Substances Act states:
Without restricting the generality of the Criminal Code, the fundamental purpose of any sentence for an offence under this Part is to contribute to the respect for the law and the maintenance of a just, peaceful and safe society while encouraging rehabilitation, and treatment in appropriate circumstances, of offenders and acknowledging the harm done to victims and to the community.
[27] The Crown has clearly set out the aggravating factors in this case and the defence has reasonably pointed out the mitigating factors as well.
[28] Mr. Currant pleaded guilty to these charges and I consider this to be a mitigating factor. It demonstrates an acknowledgement of responsibility and remorse for what he has done. In his address to the court following submissions Mr. Currant told the court that he wished to apologize for what he had done and that he was very remorseful. He also acknowledged the devastation of what he has done to his family.
[29] I accept that Mr. Currant is remorseful. I accept that he realizes that the choices he made not only impact him but also have a significant impact on his daughter, his wife and his parents.
[30] Mr. Currant is 42 years old and appears before me on these charges without a criminal record.
[31] The character letters filed demonstrate that he has the support of family and friends.
[32] The defence submits that Mr. Currant was battling an addiction to cocaine at the time of the offences. The defence acknowledges, however, that his crimes were motivated by financial gain to pay off his and his father’s hydro debt. The defence submits that his addiction issue can still be considered to help explain some of the poor decisions he was making at the relevant time. I agree with the Crown’s position on this point. Mr. Currant was not an addict trafficker dealing in drugs to feed his habit. Mr. Current was trafficking in cocaine for financial gain. Considering the amount of cocaine seized, the cutting agent available to increase sales, and the value and purity of the cocaine as set out by the expert, the potential financial profit for Mr. Currant was significant.
[33] In Bryan, the Court of Appeal stated the following at paras. 1 and 2:
Normally, in cases of this nature, sentences of 5 to 8 years would reflect the proper range for someone, without a record, convicted of possession for the purpose of trafficking in slightly more than a pound of cocaine. This case should not be taken as suggesting otherwise.
However, in the unusual circumstances of this case, where there are fairness concerns arising out of the way in which the respondent was persuaded to plead and where there was some litigation risks involved, we are not satisfied that appellate intervention is warranted. In so concluding, we reiterate that the sentence imposed fell below the norm.
[34] Slightly more than a pound equals .45 kg. In the case at bar, Mr. Currant is in possession of 1.02 kilograms of cocaine plus 3,802 grams of a cutting agent.
[35] Sentencing is an individualized process. The Court is guided by the cases filed by the Crown and Defence. The Court is also mandated to consider the statutory principles set out in the Criminal Code and the Controlled Drugs and Substances Act.
[36] There is no doubt that the distribution and sale of cocaine is a scourge on society. It leads to untold misery for so many. It is the genesis of so many other crimes such as gang turf wars, guns and gangs, property offences to get the means to purchase cocaine, collection of drug debts. The list goes on. Trafficking to feed addictions
[37] People who become addicted to cocaine are susceptible to losing so many things in their life. Mr. Currant is a clear example of this. He cannot help his parents while he is in custody. He cannot be a father to his autistic daughter while he is in custody. He cannot assist his wife with raising his daughter while he is in custody. His bad judgment and terrible choices to become involved in these matters not only affect him but has seriously and significantly impacted on everyone in his life.
[38] I am sensitive to the fact that Mr. Currant has an autistic daughter. However, the Court has to consider not only Mr. Currant’s child but how the proliferation of cocaine in the community affects all children whose parents become addicted to such hard and dangerous drugs. Justice Doherty made this point clear in R. v. Spencer, [2004] O.J. No. 3262 (ONT CA.) at paras. 46 and 47 as follows:
It is a grim reality that the young children of parents who choose to commit serious crimes necessitating imprisonment suffer for the crimes committed by their parents. It is an equally grim reality that the children of parents who choose to bring cocaine into Canada are not the only children who are the casualties of that criminal conduct. Children, both through their use of cocaine and through the use of cocaine by their parents, are heavily represented among the victims of the cocaine importer's crime. Any concern about the best interests of children must have regard to all children affected by this criminal conduct.
The fact that Ms. Spencer has three children and plays a very positive and essential role in their lives cannot diminish the seriousness of her crime or detract from the need to impose a sentence that adequately denounces her conduct and hopefully deters others from committing the same crime. Nor does it reduce her personal culpability. It must, however, be acknowledged that in the long-term, the safety and security of the community is best served by preserving the family unit to the furthest extent possible. In my view, in these circumstances, those concerns demonstrate the wisdom of the restraint principle in determining the length of a prison term and the need to tailor that term to preserve the family as much as possible. Unfortunately, given the gravity of the crime committed by Ms. Spencer, the needs of her children cannot justify a sentence below the accepted range, much less a conditional sentence.
[39] A strong and clear message must be sent that the cost of doing the business of selling cocaine is very high – it is the loss of freedom. General deterrence and denunciation are the sentencing principles at play in this case. I am satisfied that the principle of rehabilitation is also in play and I am satisfied that upon his release from custody Mr. Currant has a reasonable plan to be a productive member of society. With the support of his family and friends I am confident he can achieve those goals.
[40] In all of the circumstances of this case and considering the personal circumstances of Mr. Currant and guided by the sentencing principles, I am satisfied that a period of incarceration of six years is appropriate. The range of four years proposed by the defence does not, in my view, adequately take into account the aggravating factors of this case and it unduly minimizes the seriousness of possessing large quantities of cocaine for the purpose of trafficking.
[41] On the other hand, the Crown’s submission that eight years is appropriate does not adequately reflect the fact that Mr. Currant has pleaded guilty, has no criminal record and is facing his first custodial sentence in the penitentiary.
[42] In balancing all of the factors set out, I am satisfied that six years is the appropriate response from the court.
[43] I am prepared to deduct 30 days of pre-trial custody agreed to by counsel.
[44] With respect to a deduction for restrictive bail conditions I am satisfied that three months ought to be deducted from this sentence. His total time on bail was 2 years and 7 months. The accused was on house arrest for 10 months. He could not have any communication with his wife, Jennifer Farrow, who was a co-accused. It was difficult for him to carry on normal relationships with his family.
SENTENCE
- Mr. Currant is sentenced to six years in a penitentiary on Count 3 and 60 days concurrent on Count 1, less a total of four months for a total time remaining of five years and eight months.
- A forfeiture order shall issue.
- A s. 109 order shall issue for 10 years and for life.
- A DNA order shall issue.
Fragomeni J.
Released: December 7, 2018