Court File and Parties

Court File No.: Halton 12-263 Date: May 6, 2013 Ontario Court of Justice

Between: Her Majesty the Queen — and — John Constantine Bonnie

Before: Justice R. Zisman

Heard on: January 10 and March 7, 2013

Reasons for Judgment released on: May 6, 2013

Counsel:

• Cathy Hoffman for the Crown
• Logan Rathbone for the accused John Bonnie

Reasons for Judgment

Introduction

[1] John Bonnie pleaded guilty to a charge that he was trafficking in a quantity of marijuana under 3 grams contrary to section 5(1) of the Controlled Drugs and Substance Act ("CDSA") and a charge that he was in possession for the purpose of trafficking oxycodone pursuant to section 5(2) of the CDSA. A pre-sentence report was ordered and prepared and the matter is before me for the imposition of sentencing.

Background

The Offence

[2] The police received a report from security officers at Sobeys grocery store that individuals were conducting drug transactions in their parking lot. The Halton Regional Police Service reviewed video surveillance of suspicious activities in the parking lot and as a result undercover police officers were dispatched to the parking lot.

[3] On January 20, 2012 the police observed the defendant hand another individual a small baggie of marijuana. Both individuals were stopped and searched. The defendant admitted that he had sold the other person marijuana. Both the defendant and the person he sold the drugs to were employed by Sobeys.

[4] When the defendant was searched he had 54 grams of marijuana in 11 baggies and 68 oxycodone tablets of 40 ml. in strength. The defendant admitted that he did not have a prescription for the oxycodone, that he was not selling oxycodone that day but does sell it "to a few guys here and there, for $10.00 a pill". The defendant stated that he uses the pills himself for chronic back pain. The defendant also had $1,045.00 Canadian and $539.00 US cash, a debt list and a cell phone.

[5] The defendant was co-operative with the police and was released from the police station on his own recognizance.

The Offender

[6] The defendant is 63 years old and has no previous criminal record. The defendant was born in Jamaica and enjoyed a very good, upper middle class upbringing. He had two children with a woman in Jamaica and has a relationship with his daughter but not his son. He moved to Canada in 1977 and married in 1981 to his wife who already had five children. He reports that they have a very good marriage. They now have 21 grandchildren.

[7] Since coming to Canada, the defendant has worked steadily. Initially he worked in the security field and then worked for 28 years for a food distribution company. Even after the company was sold, he continued to be employed until he was charged with the offences before the court.

[8] He is currently not employed and receives a pension. He reported that his wife also receives a pension and they are financially stable.

[9] In the pre-sentence report, the defendant did not identify any substance abuse issues or alcohol issues. He reported that he began to smoke marijuana about five years ago to relax himself and claimed to only smoke once a week. He did not mention the use of oxycodone.

[10] He reported that he "deeply regrets" his actions and "the day he made that mistake." He stated that he "regrets it from the bottom of my heart" and is reported to have become quite emotional. He has not told most of his children or associates about the charges as he was embarrassed. He identified himself as a good person who had never been in trouble, that he completely regretted his actions and was prepared to comply with any order of the court.

[11] At the sentencing hearing, counsel for Mr. Bonnie presented a copy of an occupational therapy report indicating that Mr. Bonnie had been in a motor vehicle accident in October of 2007 and submitted that he continued to suffer pain as a result. No updated report was provided nor does the report indicate he was prescribed oxycodone at the time of the accident.

[12] A drug test dated January 15, 2013 was also submitted that indicates oxycodone was not detected.

[13] A letter was also adduced confirming that Mr. Bonnie attended on May 29, 2012 a one day education group to provide general information about alcohol and drugs and their physical and psychological effects and to help clients evaluate their own substance use.

[14] Counsel for Mr. Bonnie confirmed that he was not submitting that Mr. Bonnie was addicted to oxycodone but simply that he used it from time to time to deal with his pain.

Position of the Parties

[15] Both Crown and defence counsel agree that given the mitigating factors namely, that the defendant has no prior criminal record, his guilty plea and his age that a term of incarceration in the range of eight to ten months is the appropriate sentence.

[16] However, counsel for the defendant submits that the principles of sentencing can be met by the defendant serving his sentence in the community by means of a conditional sentence.

The Principles of Sentencing

[17] A determination of an appropriate sentence involves a consideration of both the facts of the offence and the antecedents of the offender.

[18] The fundamental purpose of sentencing as set out in s. 718 of the Criminal Code is to ensure respect for the law and the maintenance of a just, peaceful and safe society. The imposition of just sanctions requires the court to consider the sentencing objectives referred to in that section and the sentence the court imposes should attempt to achieve those objectives. These are denunciation, deterrence, both specific and general, separation of offenders from society when necessary, rehabilitation, reparation for harm done and the promotion of a sense of responsibility in the offender and acknowledgement of the harm which criminal activity brings to our community.

[19] Section 718.1 provides that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[20] Section 718.2 provides that a sentence should be increased or decreased to take into consideration any aggravating and mitigating circumstances. It also requires that a sentence be similar to those imposed on similar offenders in similar circumstances, that the combined duration of consecutive sentences not be unduly long, that an offender not be derived of liberty if less restrictive sanctions may be appropriate and that all available sanctions other than imprisonment that are reasonable in the circumstances be considered.

[21] Further, s. 10(1) of the CDSA provides that the fundamental purpose of any sentence for a drug offence is to contribute to 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 the community.

[22] Section 10(2) of the CDSA requires a sentencing judge to consider any relevant aggravating factors.

[23] As has been emphasized many times, sentencing is an individualized process. All of the sentencing objective must be considered and the weight to be given to each objective can differ. In determining a fit sentence, a judge must consider the specific circumstances of the particular offender and the offence.

Analysis

[24] In this case it is important to note that the offences before the court relate to trafficking in drugs and possession for the purpose of trafficking. This is not a case of an offender who has drugs in his possession for personal use or an offender who is an addict.

[25] Although trafficking in marijuana is a serious criminal offence by far the more serious charge relates to the defendant's possession of oxycodone for the purpose of trafficking.

[26] Pursuant to s. 5(2) and 5(3)(a) of the CDSA, the maximum punishment for trafficking or possession for the purpose of trafficking a Schedule 1 drug is life imprisonment. Oxycodone is a Schedule 1 drug. Both offences are indictable which another indication of the seriousness of the offences.

[27] Ms Hoffman on behalf of the Crown provided the court with a very helpful chart of cases at all levels of court dealing with sentencing ranges for possession for the purpose of trafficking oxycodone and trafficking oxycodone.

[28] The Ontario Court of Appeal has been clear that the paramount consideration in sentencing persons who deal in "hard drugs" like heroin or prescription drugs like oxycodone is denunciation and deterrence. Such offenders can expect to receive severe penalties and sentences imposed generally result in substantial periods of incarceration and in some cases, a penitentiary sentence of two years or more.

[29] The courts have consistently emphasised the need for deterrent sentences for drug trafficking related offences and the harm that drugs pose to our society.

[30] In the case of R. v. Paper 2010 ONCJ 88, [2010] O.J. No. 1131, Justice Beverly Brown thoroughly reviewed the Supreme Court of Canada's sentencing principles for such offences. As paragraphs 13 to 14 and 58 of that decision she states as follows:

13 Courts have renewed emphasis on deterrent sentences for drug trafficking-related offences. Courts are eminently aware of the dangers posed to society by drug crime and the importance of deterrent sentences for drug traffickers. In R. v. Smith (1987), 34 C.C.C. (3d) 97 (S.C.C.) Lamer, J. noted:

"those who import and market hard drugs for lucre are responsible for the gradual but inexorable degeneration of many of their fellow human beings as a result of their becoming drug addicts ... such persons, with few exceptions ... should, upon conviction, in my respectful view, be sentenced to and actually serve long periods of penal servitude."

14 The Supreme Court of Canada further considered drug offences in Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982 (S.C.C.). Cory J. wrote of the social and economic costs of illicit drug use in Canada and stated at pages 1039-1040:

"The costs to society of drug abuse and trafficking in illicit drugs are at least significant if not staggering. They include direct costs such as health care and law enforcement, and indirect costs of lost productivity.

In Canada, the total cost to society of substance abuse has been estimated to be $18.45 billion annually (Canadian Centre on Substance Abuse, the Costs of Substance Abuse in Canada: Highlights (1996), at p. 2). Of this amount, the cost flowing from illicit drugs is $1.4 billion (McKenzie & Single). In 1992 there were 732 deaths, 7,095 hospitalizations and 58,571 hospital days in Canada attributable to illicit drugs (McKenzie & Single). Mortality from illicit drugs is less than for alcohol and tobacco, but tends to involve younger victims (Costs of substance Abuse in Canada, supra, at p. 6)

These significant and often tragic consequences serve to emphasize that the harm caused by trafficking in illicit drugs is very properly a grave concern in Canada, as it is throughout the world."

58 As noted by the Supreme Court of Canada in R. v. Pearson (1992), 77 C.C.C. (3d) 124:

"Drugs are responsible for 70 to 80% of prison terms: crimes resulting from the application of narcotics legislation (possession and trafficking); crimes committed under the influence of alcohol or other drugs (rape, violence and homicide); crimes committed to obtain drugs (theft and prostitution)."

[31] In that same case, Justice Brown had the benefit of evidence explaining the nature of oxycodone that is also referred to as "hillbilly heroin" which she describes as being as dangerous as heroin albeit having about half of the strength.

[32] At paragraph 36 of her decision she describes the effects of oxycodone as follows:

Oxycodone is an opioid. Opioids have effects like morpheine and can produce euphoria. Heroin is a type of opioid. People who use opioids regularly for their pleasurable effects soon develop tolerance to the effects. Use may increase to achieve the original intensity of the effect. As the amount taken increases, the risk of overdose increases. Chronic use can lead to psychological and physical dependence.

[33] There has been an alarming increase in the number of drug offences involving oxycodone in this community. On consent, the statistics relating to charges involving oxycodone in the Halton Region were admitted on sentencing. In 2009 there were only two charges; in 2010 12 charges; in 2011 90 charges and in 2012 there were 215 charges.

[34] The havoc and destruction caused by oxycodone is seen all too frequently in this court by persons addicted to this drug who commit further crimes in order to finance their dependencies. The harm done to them personally and the devastating effect on their families and this community are deeply concerning. There is a growing concern about the ease of availability of this drug in this jurisdiction.

[35] Accordingly, denunciation is particularly important in this community with the ultimate goal being to deter like-minded individuals from trafficking in drugs.

[36] The chart of cases presented by the Crown is a useful starting point as are the several cases that the crown relied upon. In addition, to the cases from the Ontario Court of Appeal, the Crown relies on both reported and unreported decisions of the Superior Court of Justice and the Ontario Court of Justice. In all but one case, terms of incarceration were imposed ranging from four to 10 months for small amounts of oxycodone to five to seven years for trafficking in large amounts of the drug. But given the individual factors that must be considered in each sentencing case, none of the cases have the same amount of drugs or circumstances surrounding the offence or an offender with the same antecedents and frequently there is a multitude of various drugs involved.

[37] However, the general principles are consistent. Oxycodone is considered to be a dangerous drug rivalling heroin and more serious than cocaine, an addict-trafficker is considered a mitigating factor and absent exceptional circumstances generally a term of incarceration is imposed.

[38] As previously indicated both counsel submit that a range of eight to 10 months is appropriate but counsel for the defendant submits that the principles of deterrence and denunciation can be achieved by the imposition of a conditional sentence.

[39] The criteria determining an offender's qualification for a conditional sentence at the time of this offence are set out in section 742.1 of the Criminal Code:

1. The offence does not involve serious personal injury, terrorism or criminal organization offences;
2. The offender must be convicted of an offence that is not punishable by a minimum term of imprisonment;
3. The term of imprisonment imposed must be less than two years;
4. The safety of the community would not be endangered by the offender serving the sentence in the community; and
5. A conditional sentence would be consistent with the fundamental purposes and principles of sentencing set out in ss. 718 to 718.2 of the Criminal Code.

[40] The first four criteria are prerequisites that must be satisfied before a conditional sentence can be imposed. The first four criteria are met in view of the nature of the offence, there was no minimum penalty at the time of the offence and the length of incarceration proposed is less than two years. Based on the pre-sentence report and the evidence presented at this sentencing, it is unlikely that the defendant would commit further drug-related crimes. I am confident that he would comply with the conditions of a community supervised sentence and therefore there is little risk of danger to the public through the imposition of a conditional sentence.

[41] However, the fifth criteria must also be satisfied. A conditional sentence, with appropriate restrictions, can meet the principles of both specific and general deterrence and denunciation.

[42] In seminal case R. v. Proulx, Justice Lamer speaking for the court explained that denunciation was the expression of society's condemnation of the offender's conduct representing society's abhorrence of particular types of crime. At paragraph 102, he noted that incarceration will usually provide more denunciation that a conditional sentence. But a conditional sentence can still provide a significant amount of denunciation particularly if there are onerous conditions imposed and the duration of the conditional sentence is extended beyond the duration of the jail sentence that would ordinarily be imposed.

[43] Justice Lamer also noted that while incarceration may also provide more deterrence than a conditional sentence, a conditional sentence can also meet the principles of both specific and general deterrence by the imposition of punitive conditions and if the public is made aware of the severity of these sentences.

[44] But Justice Lamer also made the following observations at paragraphs 106, 107, 113 and 114:

However, there may be certain circumstances in which the need for denunciation is so pressing that incarceration will be the only suitable way in which to express society's condemnation of the offender's conduct. ….

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……

In determining whether a conditional sentence would be consistent with the fundamental purposes and principles of sentencing, sentencing judges should consider which sentencing objectives figure most prominently in the factual circumstances of the particular case before them….

Where punitive objectives such as denunciation and deterrence are particularly pressing, such as cases in which there are aggravating circumstances, incarceration will generally be the preferable sanction.

[45] In the summary of cases submitted by the Crown there was only one case, R. v. Dormevil where a conditional sentence was imposed for trafficking in oxycodone. Counsel for the defendant relies on this case and the case of R. v. Grammatikos, a decision of the Manitoba Queen's Bench where a conditional sentence was imposed for eight charges of possession for the purpose of trafficking in various pharmaceutical drugs including oxycodone.

[46] Although not usual, in principle there is no impediment to imposing a conditional sentence for offences of trafficking in hard drugs such as oxycodone.

[47] In the case of R. v. Dormevil, Justice Melvyn Green of the Ontario Court of Justice imposed a conditional sentence of 16 ½ months on a youthful first offender who pleaded guilty to several counts of trafficking in cocaine, oxycodone, amphetamine and other illicit drugs. He had spent 19 days in pre-trial custody, was subject to a lengthy term of restrictive release and returned to work and school and was volunteering in the community. The court considered that it would be crushing and unnecessary to send him to prison when he had taken such positive steps to rehabilitate himself and make amends for his transgressions. The court held that his pre-trial custody and virtual house arrest were significant factors in satisfying the need for specific deterrence.

[48] In contrast, the case of R. v. Reis, Justice Green declined to impose a conditional sentence on a mature man who was engaged in a commercial enterprise of drug trafficking. The accused in that case was arrested after police surveillance and police seized cocaine, heroin and oxycodone. The accused had no criminal record, was remorseful, had served 22 days in pre-trial custody and was compliant with his bail conditions. The court held that a sentence of 11 months and a term of probation were necessary to serve the sentence objectives of denunciation in light of the high degree of moral blameworthiness and his conscious and continuing choice to traffic in illegal drugs.

[49] The case of R. v. Grammatikos, supra, relied on by counsel for the defendant involved a defendant who was 64 years old with significant medical issues and with no criminal record. He had not been re-involved in any criminal activities since his arrest and release nine years earlier. Despite the fact that the defendant had been engaged in a large scale pharmaceutical trafficking operation for financial gain, the court granted him a conditional sentence of two years less a day followed by two years of probation. The court noted that the fact he had been on release for nine years without any criminal re-involvement was a significant factor in the imposition of the conditional sentence order. The court also had some concerns that his medical conditions could not be managed in jail. The court held that this was one of the exceptional cases where the principle of denunciation could be met by a stringent conditional sentence order.

[50] I have reviewed the sentence ranges for trafficking in oxycodone in the sentence summary provided by the Crown and it is difficult to find a case that is exactly comparable to this one. It is difficult to draw comparisons between the various cases that have been provided due to the unique circumstances in each case. In many of the case the accused were convicted of trafficking in various drugs including oxycodone. The nature and quantity of the drug is an important consideration as are the personal circumstances of the defendant including if the crime is purely profit motivated or if the defendant is also an addict. What is abundantly clear is that this is considered a very dangerous drug and the sentence ranges reflect the court's emphasis on deterrence and denunciation.

[51] By way of some examples, I will briefly review the sentences where the accused were convicted of only trafficking in oxycodone.

[52] In the case of R. v. Roper, the accused who had a prior drug record and was addicted to cocaine and oxycodone was sentenced to a term of 19 months for trafficking 34 oxycodone pills over several days to an undercover police officer.

[53] In R. v. Armstrong, a sentence of 10 months was imposed for trafficking in 32 oxycodone pills, the court held that the mitigating factor was that the accused had no prior record but the aggravating factors were that he breached his bail provisions not to possess drugs, the offences were repetitive, escalating and motivated by profit.

[54] In the case of R. v. Snow, an accused who had a prior record was sentenced to 11 months for trafficking in 30 oxycodone pills where the offence was held to be motivated by profit.

[55] I am mindful that while these cases provide some guidance the predominant duty of a sentencing judge is to apply all of the principles of sentencing to determine a "just and appropriate sentence that reflects the gravity of the offence committed and the moral blameworthiness of the offender. Further, a "just and appropriate" balancing of the principles of sentencing depends on the needs and current conditions of and in the particular community where the crime is committed.

[56] In this case, I have determined that a conditional sentence would not be appropriate to meet the primary sentence principles in this case of denunciation and general deterrence in this community in view of the serious increase in drug trafficking of oxycodone.

[57] I have considered that Mr. Bonnie is a mature adult who on one occasion was observed in what is commonly known as a "hand to hand" transaction selling a small amount of marijuana. When searched he was found in possession of 54 grams of marijuana in 11 baggies and 68 tablets of oxycodone which he admitted he sold from time to time. Although he may use oxycodone on occasion there is no indication that he is addicted to that drug. Therefore, I conclude that he is a low level dealer and in possession of not a large amount of drugs but it is also not an insignificant amount. I find that the offence was motivated by profit.

[58] I also find that based on his comments in the pre-sentence that he has no real insight into his criminal behaviour. I am uncertain that he has any appreciation for the damage he does to society and this community by engaging in these drugs activities. Although he has family support and support in the community, he has not advised them of his criminal activity.

[59] I am therefore imposing a global sentence of 8 months in jail. As the trafficking in marijuana arises from the same transaction and has not been the subject of any submissions I assume counsel agree that the sentences are appropriately concurrent.

[60] This sentence is not meant to minimize the seriousness of the offences but recognizes the mitigating factors while still allowing the defendant and other members of this community to learn that this crime will not be tolerated.

[61] Mr. Bonnie is sentenced to two months for the offence of trafficking in marijuana and eight months concurrent for possession for the purpose of trafficking oxycodone.

[62] I am also imposing a term of probation to provide some reparation for the harm caused to this community and with the terms that have been recommended in the pre-sentence report that indicated Mr. Bonnie would be a suitable candidate for community supervision. This term of imprisonment is to be followed by concurrent term of probation for 12 months, subject to the following terms:

• Keep the peace and be of good behaviour
• Complete 60 hours of community service at a rate of no less than 10 hours a month
• Report within 48 hours following release from custody to the probation officer and thereafter as directed
• Do not purchase, possess or consume any drugs, except in accordance with a medical prescription
• Do not contact directly or indirectly Timothy Briggs

[63] There will also be the following ancillary orders on consent of counsel for the defendant. An order of forfeiture of the drugs and money seized, an order pursuant to s. 109 prohibiting you from possessing any weapons, ammunition, explosives and other offensive devise listed in that provision for a period of 10 years.

[64] You will be required to provide a D.N.A. sample.

Released: May 6, 2013

Signed: Justice R. Zisman

Cases Crown Relied Upon

• R. v. Roper, 2011 ONCA 479
• R. v. Roper (2010) O.J. No. 6087 (OCJ)
• R. v. Moore, 2011 ONCA 413
• R. v. Moore (2009) O.J. No. 6388 (OCJ)
• R. v. Paper, 2011 ONCA 56
• R. v. Paper, 2010 ONSC 42, O.J. No 113 (OCJ)
• R. v. Odish, 2008 ONCA 754
• R. v. Wells, (2005) O.J. No. 5035 (ONCA)
• R. v. Scott Graham, 2010 CarswellOnt 4278 (ONCA)
• R. v. Scott Graham 2009 CarswellOnt 9268 (SCJ)
• R. v. Glasner (2011) ONSC 7044
• R. v. Montgomery (2010) ONSC 4218
• R. v. Thomas Graham (2009) O.J. No 5655 (ONSC)
• R. v. Caruso; R. v. Smith (March 2, 2012) (unreported)
• R. v. Lapointe (Jan. 25, 2012) (OCJ) (unreported)
• R. v. Armstrong (April 27, 2011) (OCJ) (unreported)
• R. v. Dormevil, 2011 CarswellOnt 4981 (OCJ)
• R. v. Snow (February 28, 2011) (OCJ) (unreported)
• R. v. Krom (October 14, 2010) (OCJ) (unreported)
• R. v. Bonneville (April 14, 2010) (OCJ) (unreported)
• R. v. Kalenuik (2005) O.J. No. 4670 (OCJ)
• R. v. Pears (2004) O.J. No. 5679 (OCJ)