DATE: 20011227

DOCKET: C36128

COURT OF APPEAL FOR ONTARIO

LABROSSE, ABELLA and CHARRON JJ.A.

B E T W E E N:

HER MAJESTY THE QUEEN

Alan D. Gold For the appellant

Respondent

• and -

JAMES WILLIAM KERR

Susanne Boucher For the respondent

Appellant

Heard: December 10, 2001

On appeal from the sentence imposed by Justice Donald Cooper dated March 20, 2001.

ABELLA J.A.:

1. [1] This is an appeal from a sentence of eighteen months’ incarceration imposed after the appellant, James William Kerr, pleaded guilty to three counts of trafficking in heroin and one count of improper storage of a firearm. The appellant argues that the trial judge erred by not imposing a conditional sentence. For the reasons that follow, I agree.

BACKGROUND

2. [2] The appellant was 27 years old at the time of sentencing and the youngest of three children in a close-knit family. He has a stable and close relationship with his parents and two sisters. He has no criminal record, and his family indicates that he has never been violent or verbally abusive.

3. [3] The appellant began using various street drugs when he was sixteen. He stopped using marijuana two years ago. His first use of heroin occurred at the age of nineteen, when he took the drug to alleviate pain from a serious bowel operation. He was able to stop taking heroin for a year, but became an addict again after a subsequent bowel operation also caused a great deal of pain. His sale of drugs was to feed his own addiction.

4. [4] In September 1999, Hamilton police began investigating the appellant for trafficking in heroin by using an undercover police officer. Between September 14 and October 20, 1999, the appellant sold the same officer heroin for amounts between $40 and $150.

5. [5] On February 1, 2001, the appellant pleaded guilty to three counts of trafficking in heroin contrary to s. 5(3) of the Controlled Drugs and Substances Act, and one count of improper storage of a firearm, contrary to s. 86(3) of the Criminal Code.

6. [6] The evidence before the sentencing judge included a pre-sentence report, and a letter and testimony from Dr. Jollymore, who had treated the appellant for his heroin addiction since November 6, 1999. The pre-sentence report indicated that the appellant was a suitable candidate for community supervision. According to the report, the appellant: had no previous criminal record; was co-operative and appeared to appreciate the seriousness of his situation; had “fallen victim to drug addiction” but was willing to accept responsibility for his offences; had a caring and supportive upbringing and family; lived with his parents, who supported his intention to remain there; had friends who were of good character and had no criminal record; was working full-time in his father’s home improvement/renovation business; and was “academically capable” and talented at art.

7. [7] The letter from Dr. Jollymore, dated December 28, 2000, indicated that the appellant had made considerable progress toward rehabilitation in the fourteen months he had been treating him. The letter also indicated that sentencing the appellant to incarceration would only negate his progress. The letter is significant and is set out in full:

8. I initially evaluated James Kerr on November 6, 1999, following an “emergency” call from his father. At that time, he had been released on bail from several drug-related charges. A condition was that he seeks treatment for his addiction.

9. Mr. Kerr presented as a quiet, soft-spoken individual who understandably was nervous. He proceeded to give a history of being addicted to opiates with a four-year escalating requirement for their use. He initially began using opiates to relieve a chronic gastro intestinal problem. He admitted to having used other illicit substances before that, but had a lengthy period of being drug free before he started using heroin in 1995.

10. He has attended this clinic as scheduled since that date. His drug screens have been clean for illicit use throughout this period, and he appears to be making a sincere effort in his rehabilitation. He is currently on 20 mgms of methadone daily. He continues to be stable, is gaining a good insight into his addiction, and has re-established his relationship with his family.

11. Incarceration would be a deterrent to Mr. Kerr, who is making steady progress in his rehabilitation. Drugs are readily available in jail, and Mr. Kerr would have great problems enduring the tougher aspects of prison society. Mr. Kerr, at this point, is making a worthwhile contribution to society. A jail sentence could only negate the progress he has made.

12. Although I recognize the punitive requirements he must face for his mistakes, I hope consideration can be given for the positive steps Mr. Kerr has taken.

13. It would be more beneficial to Mr. Kerr and society if he were to be put on probation with strict conditions. He could continue in his rehabilitation, do community service or whatever the court deems appropriate, outside of incarceration.

14. I would be willing to continue to monitor him and to co-operate with the courts as required. [Emphasis added]

15. [8] The trial judge sentenced the appellant to eighteen months’ incarceration, followed by three years’ probation. In holding that a conditional sentence was inappropriate, he repeatedly emphasized the need for general deterrence:

16. I am not of the view that this is an appropriate case for a conditional sentence. I think one of the key factors has to be that of general deterrence, and those that would be deterred would be those who are selling and using this deadly drug, which has been with us for decades. It is one of the most insidious, destructive drugs in society. It is a killer drug, highly addictive, and is virtually a cancer on society.

17. I do take into account the pleas of guilt to the three charges, and the fact that the accused has no prior criminal record, comes from a good family, and all the things that have been capably put by [counsel for the accused].

18. The accused is an addict selling small amounts, that is true, but there was the three separate incidents, and had these gone to being sold to another addict, instead of an undercover police officer, it could have gone on to ruin other’s lives.

19. I am very concerned when considering conditional sentences, as to how they are perceived by those who might be affected by them. My primary concern here is, that a case such as this, which leads to a conditional sentence, becomes known to drug addicts and drug traffickers, that it will be seen as a signal, it is a light penalty which involves house arrest, and instead of being a deterrent, it is almost an incentive or an encouragement. Whether or not this case ever makes its way into the media is doubtful, but those in the drug subculture are the ones I am seeking to deter, and, as I say, I think it is sending out entirely the wrong signal.

20. I have carefully considered the cases from different jurisdictions and different fact circumstances, and I am grateful for the guidance of the Proulx case [2000 SCC 5, [2000] 1 S.C.R. 61], but the fact remains that each of these situations have to be judged on its own merits and its own individual factors, but there are cases on conditional sentencing justifying almost any position, and through every case, one can find justifying it, one can find another one where it has a contradictory result, but I think I would be remiss in my duty if I did not emphasize what I considered to be important, and that is general deterrence in this individual community and drug subculture.

21. I do not think that this case warrants a penitentiary term. There are a lot of favorable things about Mr. Kerr and I am sensitive to those. I do think it warrants a sentence in the upper end of the reformatory term, with the maximum term of probation, which would not be available with a substantial penitentiary term.

22. _____ …

23. I am going to impose a six-month jail term on each of the three charges, consecutive to each other, followed by the maximum three years probation. [Emphasis added]

24. [9] The trial judge also imposed terms of probation, including a mandatory ten-year order under s. 109 of the Criminal Code prohibiting the appellant from owning or possessing a weapon. It is clear from the imposition of a two-month concurrent sentence for the charge of improper storage of a firearm, that the trial judge accepted the submissions of defence counsel that the firearm was never used in connection with the drug offences, was an antique carnival popgun, and may not have been capable of being fired.

ANALYSIS

10. [10] With respect, in my view the trial judge erred in not imposing a conditional sentence in the circumstances of this case. He over-emphasized general deterrence and failed to take sufficient account of the personal circumstances of the appellant. In so doing, he appeared to treat drug trafficking as creating a presumption against conditional sentences. This approach contradicts the governing jurisprudence.

11. [11] In R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, the Supreme Court of Canada addressed the principles governing conditional sentences. The Court confirmed that conditional sentences were introduced to reduce reliance on incarceration and to increase the use of restorative justice principles in sentencing. At pp. 114-15, the Court found:

12. 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.

13. 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.

14. 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.

15. [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:

16. Section 742.1 does not exclude any offences from the conditional sentencing regime except those with a 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. As Rosenberg J.A. held in Wismayer, supra, [1997 3294 (ON CA), 115 C.C.C. (3d) 18 (Ont. C.A.)] at p. 31:

18. Parliament clearly envisaged that a conditional sentence would be available even in cases of crimes of violence that are not punishable by a minimum term of imprisonment. Thus, s. 742.2 requires the court, before imposing a conditional sentence, to consider whether a firearms prohibition under s. 100 of the Criminal Code is applicable. Such orders may only be imposed for indictable offences having a maximum sentence of ten years or more "in the commission of which violence against a person is used, threatened, or attempted" (s. 100(1)) and for certain weapons and drug offences (s. 100(2)).

20. Thus, a conditional sentence is available in principle for all offences in which the statutory prerequisites are satisfied. [Emphasis in original]

21. Several parties in the appeals before us argued that the fundamental purpose and principles of sentencing support a presumption against conditional sentences for certain offences. The Attorney General of Canada and the Attorney General for Ontario submitted that a conditional sentence would rarely be appropriate for offences such as: sexual offences against children; aggravated sexual assault; manslaughter; serious fraud or theft; serious morality offences; impaired or dangerous driving causing death or bodily harm; and trafficking or possession of certain narcotics. They submitted that this followed from the principle of proportionality as well as from a consideration of the objectives of denunciation and deterrence. A number of appellate court decisions support this position.

22. In my view, while the gravity of such offences is clearly relevant to determining whether a conditional sentence is appropriate in the circumstances, it would be both unwise and unnecessary to establish judicially created presumptions that conditional sentences are inappropriate for specific offences. Offence-specific presumptions introduce unwarranted rigidity in the determination of whether a conditional sentence is a just and appropriate sanction. Such presumptions do not accord with the principle of proportionality set out in s. 718.1 and the value of individualization in sentencing, nor are they necessary to achieve the important objectives of uniformity and consistency in the use of conditional sentences.

23. _____ ...

24. Incarceration, which is ordinarily a harsher sanction, may provide more deterrence than a conditional sentence. Judges should be wary, however, of placing too much weight on deterrence when choosing between a conditional sentence and incarceration: see Wismayer, supra, at p. 36. The empirical evidence suggests that the deterrent effect of incarceration is uncertain: see generally Sentencing Reform: A Canadian Approach, supra, at pp. 136-37. Moreover, a conditional sentence can provide significant deterrence if sufficiently punitive conditions are imposed and the public is made aware of the severity of these sentences. There is also the possibility of deterrence through the use of community service orders, including those in which the offender may be obliged to speak to members of the community about the evils of the particular criminal conduct in which he or she engaged, assuming the offender were amenable to such a condition. Nevertheless, there may be circumstances in which the need for deterrence will warrant incarceration. This will depend in part on whether the offence is one in which the effects of incarceration are likely to have a real deterrent effect, as well as on the circumstances of the community in which the offences were committed.

25. [13] This court has affirmed the principle that there is no presumption against conditional sentences for trafficking offences in R. v. Wellington (1999), 1999 3054 (ON CA), 132 C.C.C. (3d) 470, substituting a conditional sentence for a sentence of fifteen months’ incarceration for importing hashish. The court emphasized that the particular circumstances of the offence and the offender should govern, at p. 475:

26. 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]

27. [14] In other cases involving trafficking in serious drugs such as cocaine and heroin, appellate courts have held that conditional sentences can be imposed. (See R. v. Hayes, [2001] O.J. No. 684 (C.A.), R. v. Rahime, 2001 ABCA 203, [2001] A.J. No. 988 (C.A.), R. v. Tahal (1999), 1999 2517 (ON CA), 137 C.C.C. (3d) 206 (Ont. C.A.), R. v. Nguyen (1998), 1998 6126 (BC CA), 113 B.C.A.C. 56, and R. v. Browne (1997), 1997 10869 (NL CA), 119 C.C.C. (3d) 147 (Nfld. C.A.).

28. [15] It is true that sentencing judges have wide discretion and are entitled to considerable deference in the imposition of sentences. But in my view, the application by the trial judge of a presumption against the possibility of a conditional sentence constituted an error in principle. By relying exclusively on general deterrence, he appeared to disregard the evidence suggesting that not only had this particular offender made dramatic and, to date, successful efforts to confront his addiction since being charged, there was also a real risk that his genuine progress would be entirely undermined by incarceration. The likelihood of re-offending, in other words, would be enhanced by incarceration and the continued possibility of rehabilitation for this young addict would be profoundly impaired.

29. [16] The trial judge’s rejection of the availability of a conditional sentence, and his corresponding unwillingness to take into sufficient account the particularly positive steps taken by this offender, constituted an inappropriate fettering of his own discretion. In my view, any risk to the safety of the community in imposing a conditional sentence in this case can be addressed by the imposition of appropriate conditions. In fact, based on the evidence, the long-term prospects for the community’s safety are better served by not incarcerating the appellant, since this is the approach most likely to maintain the appellant’s progress and prevent the risk of re-offending.

30. [17] There is no doubt that this is a very serious offence. But the appellant’s personal circumstances, the small quantity of drugs involved, and particularly Dr. Jollymore’s evidence of the appellant’s progress, which he feels incarceration would negate, argue for a conditional sentence with strict terms. There is, of course, no guarantee that the appellant’s progress will continue indefinitely, but there is also a real risk, on the evidence, that incarceration will prematurely end it. Although the seriousness of the offence is clearly relevant, to under-emphasize rehabilitation in this case would, on the other hand, send the unwarranted signal that courts will sacrifice evidence of considerable rehabilitative progress on the altar of general deterrence.

31. [18] It seems to me that this is a case where the ultimate interests both of the community and of the appellant are best served by a sentence most conducive to eliminating the risk of re-offending. And that, in turn, argues for a sentence that both acknowledges and facilitates the ongoing rehabilitation of the appellant.

CONCLUSION

19. [19] Leave to appeal sentence is granted, the appeal is allowed, and the sentence of eighteen months’ incarceration is converted to a conditional one in accordance with the terms set out in the attached Schedule.

“Abella J.A.”

“I agree: J.M. Labrosse J.A.”

“I agree: L. Charron J.A.”

RELEASED: December 27, 2001

SCHEDULE

R. v. Kerr

21. In addition to the mandatory conditions for a conditional sentence, the following conditions are imposed on the appellant:

22. 1. Find and maintain employment, which can include self-employment.
23. 2. Reside at a place approved of by the supervisor.
24. 3. Not possess or consume any controlled substances within the meaning of the C.D.S.A. unless under the prescription of his physician.
25. 4. Not to possess syringes or other drug paraphernalia.
26. 5. Not to own, possess or carry a weapon.
27. 6. Remain continuously in his residence and not be outside his residence for any reason, except:

28. (a) In connection with his employment;

29. (b) While doing community service work or going directly to or from his place of community service, as ordered as a term of the conditional sentence;

30. (c) For the purposes of attendance at court as required by the court, or to report to his supervisor;

31. (d) For the purposes of receiving medical or dental treatment but only with prior written permission from his supervisor unless the treatment constitutes an emergency which requires him to go directly to the nearest hospital.

32. 7. To submit to blood/urinalysis on the demand of a police officer or his supervisor who has reasonable grounds to believe that he may have breached condition 6.
33. 8. Perform 240 hours of community service work, at a rate of not less than 15 hours per month.
34. 9. Attend a drug treatment program approved by the Province and the supervisor.
35. 10. Carry a copy of this order at all times while outside of his residence and produce it on demand to a police officer or supervisor.