Court of Appeal for Ontario

Citation: R. v. Lazo, 2012 ONCA 389 Date: 2012-06-07 Docket: C53810

Before: Gillese, Epstein and Ducharme JJ.A.

Between:

Her Majesty the Queen Respondent

and

Roger Lazo Appellant

Counsel: Timothy E. Breen, for the appellant Kevin Wilson, for the respondent

Heard and released orally: May 25, 2012

On appeal from the sentence imposed on May 30, 2011 by Justice T. Culver of the Ontario Court of Justice, sitting without a jury.

Reasons for Decision

Gillese J.A.:

[1] Roger Lazo (the appellant) seeks leave to appeal against sentence. The Crown concedes that the appeal should be allowed. Both parties submit that the original joint submission in this matter should be accepted by this court.

[2] The appellant was a first offender who sold $40 of crack cocaine to an undercover officer. He was addicted to cocaine. The appellant was approved by the Crown to participate in SURCH,[^1] an addiction treatment rehabilitation program aimed at offenders whose criminal conduct is driven by drug addiction. The program involved four months of individual counselling designed to address addictive behaviour and lifestyle. It is based on: abstinence, development of healthy supports, addressing addictive behaviours and lifestyle, and developing healthy boundaries.

[3] The appellant actively participated in the program and made positive steps towards rehabilitation. He met the expectations that had been set for him as part of the program, including attending scheduled sessions and maintaining abstinence from cocaine. He has abstained from drug use since his arrest. He enjoys strong family support.

[4] The appellant pleaded guilty to one count of trafficking in a controlled substance. Upon his successful completion of the program, the Crown joined with defence counsel in recommending the imposition of an eight-month conditional sentence, with four months of house arrest with exceptions for employment.

[5] At the sentencing hearing, the Crown conceded that the appellant was a cocaine addict who was trafficking at the street level. There was no evidence to the contrary.

[6] The sentencing judge rejected the joint submission and imposed a six-month jail term, followed by two years of probation. He did so based on a mistaken finding that the appellant had admitted to being "a middleman in the business of trafficking in cocaine". This was a misapprehension of the evidence. The agreed-on facts were that the appellant was an addict trafficker at street level.

[7] Moreover, although the sentencing judge acknowledged the appellant's participation in SURCH, in my view it was an error on his part to fail to consider that the appellant met the program's expectations and successfully completed it. In so doing, the appellant demonstrated a genuine effort and progress toward his rehabilitation. Furthermore, his steps towards rehabilitation will be encouraged by a conditional sentence, given the likelihood of incarceration in the event of a breach.

[8] A joint submission should not be departed from unless it is contrary to the public interest and would bring the administration of justice into disrepute: see R. v. Cerasuolo (2001), 2001 24172 (ON CA), 151 C.C.C. (3d) 445 (Ont. C.A.), at para. 8. This is a high threshold. Successful treatment of addiction is the best means of addressing drug crime. The public interest is served by diverting individuals in the appellant's situation into drug treatment programs that address the addictions which fuel their criminal activity.

[9] Accordingly, I would grant leave to appeal sentence and allow the appeal. I would accept the joint submission on sentence and, accordingly, vary the six-month jail term to an eight-month conditional sentence on the terms proposed at the sentencing hearing, less 11 days credit, for time already spent in custody.

Released: June 7, 2012 ("E.E.G.")

"E.E. Gillese J.A."

"I agree G.J. Epstein J.A."

"I agree E. Ducharme J.A."

[^1]: Substance Use Related Crime, Hamilton.