Court File and Parties

Ontario Court of Justice

Date: November 21, 2013

Court File No.: Kitchener 461-12

Between:

Her Majesty the Queen

— and —

Larry Chaves

Before: Justice G. F. Hearn

Heard on: May 23, 2013 and October 10 and October 23, 2013

Reasons for Sentence released on: November 21, 2013

Counsel:

• Clyde Bond, counsel for the Crown
• Craig Parry, counsel for the accused Larry Chaves

HEARN J.:

BACKGROUND

[1] The accused came before the court on May 23, 2013 and at that time entered pleas of guilty to numerous charges under the Controlled Drugs and Substances Act and the Criminal Code. The charges result from events occurring over a number of months from July of 2011 to November of 2011. The charges involve six counts of trafficking in cocaine, one count of possession of cocaine for the purpose of trafficking, seven counts of possession of the proceeds of crime, two counts of production of cannabis marihuana and one count of possession of cannabis marihuana for the purpose of trafficking.

[2] The matter was adjourned after pleas were entered and the facts were not before the court until October 10, 2013 when a statement of agreed facts was filed on consent (see Exhibit #1). The matter was adjourned to October 23, 2013 at which time submissions on sentence were received and thereafter sentencing was adjourned to today's date together with the sentencing of other individuals involved in this particular investigation.

CIRCUMSTANCES OF THE OFFENCES

[3] The statement of agreed facts filed sets out the particulars of the investigation leading to the accused and others being charged. The statement provides considerable detail. There is no need to recite all of the facts for the purposes of this sentencing and an overview is sufficient. The court has, however, taken into account the entire contents of the statement of agreed facts.

[4] In April of 2010 a confidential informant began to provide information to the Biker Enforcement Unit of the police services with respect to his association with the accused who is a member of the Hell's Angels Motorcycle Club. It is important to note, however, for the purpose of this sentencing the court is proceeding on the agreed basis and submissions of counsel that that particular criminal organization had no role in this matter and the accused was acting independently of such membership in that organization at all relevant times.

[5] The confidential informant agreed to act as a police agent to gather evidence against the accused and others in an investigation which came to be known as Project Longridge.

[6] That particular investigation involved wiretap authorization for the interception of private communications for various persons, including the accused. Those interceptions were coupled with surveillance, a tracking device and the use of other investigative techniques ultimately leading to the arrest of a number of people including the accused who was arrested on November 4, 2011 at his residence.

[7] The statement of agreed facts sets out the nature of the investigation and the involvement of the accused as perceived by the police leading up to the first charges before the court involving the accused which initiate in July of 2011. It is important again to note that the statement sets out certain facts leading to the initial charges to which the accused has pled but there is no acknowledgement of those facts by the accused. The Crown does not seek to prove the truth of those allegations but only submits them as part of the narrative.

[8] The various charges to which the accused has pled guilty are summarized as follows:

(1) Trafficking of five ounces of cocaine by the accused ultimately to the co-accused Brian Galway for the sum of $5,500 on August 10, 2011 (Counts #6 and #7).

(2) Production of cannabis marihuana with respect to a marihuana grow operation situated in the upstairs apartment at 29 Adam Street in the City of Cambridge, which grow operation consisted of two tables containing 92 plants and 87 plants respectively (Count #9).

(3) Trafficking of five ounces of cocaine in the timeframe from August 16 to 23, 2011 for a value of $7,250 (Counts #10 and #17).

(4) Counts of production of cannabis marihuana and possession for the purpose of trafficking in cannabis marihuana relating to events on August 18, 2011 at which time an indoor marihuana grow operation operated by the accused was located at 102 Sekura Crescent, Cambridge, Ontario and includes the trafficking in four and a half pounds of cannabis marihuana by the accused on or about that date. The accused has also acknowledged, although denying any direct involvement in a grow operation situated at a residence in New Hamburg that he provided financial assistance with respect to that operation and some spare equipment to assist the operator of that operation who in fact was the agent employed by the police (Counts #13 and #16).

(5) Between September 3 and 8, 2011 the accused has accepted responsibility for trafficking in five ounces of cocaine and being in the possession of two sums of money, $7,250 and $34,900 knowing that they were obtained by the commission of a criminal offence. These transactions involved, among other individuals, Scott Hutchings who is a co-accused in this matter and who has already been sentenced (Counts #20, #21 and #22).

(6) Pleas of guilty were entered to counts of trafficking in cocaine and possession of proceeds in the amount of $7,250 relating to the trafficking of five ounces of cocaine by the accused on September 15, 2011 (Counts #25 and #26).

(7) The accused has acknowledged trafficking in 20 ounces of cocaine between October 13 and 15, 2011 and being in possession of proceeds of crime in the amount of $28,500 as a result of that sale (Counts #29 and #30).

(8) A count of trafficking in three kilograms of cocaine on November 4, 2011. Also on that date after a search warrant had been executed at his residence and that of his family there is an acknowledgement of being in possession of one kilogram of cocaine found at that residence for the purpose of trafficking as well as possession of something just in excess of $43,000 found within the residence as being proceeds of crime (Counts #33, #34 and #35).

[9] Those are basically the facts, although as noted previously the statement of agreed facts does set out additional material surrounding the various events and more detail. It is clear from the facts that the accused was involved in the trafficking of significant quantities of cocaine as well as being actively involved in the production and sale of cannabis marihuana over the timeframe alleged in the information.

CIRCUMSTANCES OF THE OFFENDER

[10] Neither the Crown nor the defence requested a pre-sentence report in this matter and there is not a pre-sentence report before the court. Counsel for the accused has provided some details as to the background of the accused and his current situation.

[11] The accused is currently 34 years of age and married. His wife, in fact, is a co-accused in this matter and is a registered nurse carrying on her profession at the present time, although there have been interruptions in her work as a result of the charges before the court. It is the court's understanding the Crown will not be proceeding on the charges against the accused's spouse once his matters have been completed.

[12] The accused has a very minor criminal record which is somewhat dated and unrelated. The record consists of one entry in July of 2007 on a charge of failing to comply with a recognizance for which the accused was fined $100. That is the extent of his criminal record. He effectively then comes before the court on some extremely serious charges as a first-time offender to some degree. He acknowledges that he is a member of the Hell's Angels Motorcycle Club but the involvement with that club as submitted by both counsel is not apparent in the charges and the court has proceeded on the basis that the accused acted independently of that organization as agreed by counsel.

[13] He has three children who are still relatively young and with whom he resided prior to the events before the court. He has effectively been prohibited from having contact with the mother (his spouse) for an extended period of time since his arrest. His employment has been somewhat sporadic recently but that is largely as a result of a serious injury he suffered in January of 2010 while working construction. He broke his back on that occasion and his recovery involved the use of prescribed medication which led to issues thereafter with respect to the use of other substances including cocaine. It is quite evident, however, that the matters before the court evolve not from an addict trying to sell to support his own habit, but as a mid to high-level dealer in cocaine as a commercial enterprise. That is effectively acknowledged by his own counsel.

[14] The accused spent approximately two and a half months in custody following his arrest on November 4, 2011 and thereafter was released on a recognizance of bail which is extremely strict in its terms. His mother who is suffering ill health as well has been one of his sureties and he attends to her needs and assists her in dealing with her issues.

[15] Counsel advises that the accused was the primary caregiver for the children prior to his arrest as he was unable to work and his wife was the only partner who was employed. As a result of the charges before the court he has not been able to contact other members of his family, one of whom is also involved with Hell's Angels and has had a serious car accident. Counsel advises that as a result of the bail restrictions the accused was unable to see that brother during his recovery.

[16] Counsel advises that the accused, notwithstanding the charges might indicate otherwise, is a responsible parent. As noted, he was the primary caregiver of the children for an extended period of time prior to his arrest. He has explained to his children the probable consequences of his conduct and is prepared to accept responsibility as noted by his pleas. He fully appreciates that he will be in prison for an extended period of time as a result of his criminal activity. Counsel advises that he regrets such conduct and that the matters before the court are traumatic for not only himself but also his family. He also accepts that a period of imprisonment which he fully expects to receive will be significant and is a consequence of what he did.

[17] Counsel submits that he should be given significant credit for his pleas of guilty and for the fact that he has been on bail now for an extended period of time on strict terms without breaching any of the conditions of such release.

POSITION OF THE PARTIES

[18] Defence counsel submits that given the lack of record, the strict bail terms and the pleas of guilty that have been entered in this matter after crediting any time served and giving appropriate consideration for the strict bail terms that have been fully complied with an appropriate disposition is a global sentence of six years imprisonment. Defence acknowledges general deterrence and denunciation are important principles to be applied but asks the court to also keep in mind that rehabilitation and restraint are factors to be considered as well, particularly in view of the accused's relatively young age and lack of any significant record.

[19] Crown counsel advocates for a period of imprisonment significantly longer and asks for a sentence to be imposed of eleven years after crediting time served and any other credit that might be forthcoming as a result of the strict bail terms in place. Counsel for the Crown points out the aggravating factors of the charges before the court indicating the high level of involvement of the accused in the trafficking of cocaine and marihuana and submits activities such as the accused undertook should be significantly denounced by this court. The Crown submits that the aggravating factors are many while the mitigating factors are few. Counsel for the Crown also submits the lack of a pre-sentence report and the absence of any letters of reference or support that might be afforded from members of the community to the accused at this time represent a clear indication of the accused's choice of a criminal lifestyle. The Crown points out that, although "the club" of which he is a member is not involved in the charges before the court, his involvement in that club reflects on his character and points out that even his own mother indicated at the bail hearing she had urged him not to continue with such membership. Although the mother is generally supportive of her son, she is not in any way supportive of his membership in that organization.

PRINCIPLES TO BE APPLIED

[20] The sentencing of an individual such as the accused before the court is a difficult exercise. The accused faces some very serious charges which effectively cry out for denunciation. Still, the court recognizes that sentencing is a human process and the fit sentence to be imposed by this court is the product not only of the circumstances of the various offences to which the accused has pled guilty, but also the circumstances of the accused himself. Sentencing is not an exact science and the court retains the flexibility needed to do justice in individual cases. Each case that comes before the court is conducted as an individual exercise.

[21] The purpose of sentencing under the Controlled Drugs and Substances Act is set out in s. 10 of that legislation. Section 10 reads as follows:

Sentencing

Purpose of sentencing

10. (1) 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.

[22] Principles of sentencing are also set out in s. 718 to 718.2 of the Criminal Code. Section 718 reads as follows:

718. The fundamental purpose of sentencing is 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;

(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 and to the community.

[23] Section 718.1 states a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[24] The issue of proportionality is a principle rooted in notions of fairness and justice. The sentence must reflect the seriousness of the offence and the degree of culpability of the offender and the harm occasioned by the offence. The court must consider both aggravating and mitigating factors, look at the gravity of the offence and the blameworthiness of the accused and the sentence ultimately imposed must properly reflect in terms of gravity that which the offences generally bear to other offences.

[25] Section 718.2 sets out other principles to be considered including the principles that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances and where consecutive sentences are imposed the combined sentence should not be unduly harsh or long. Finally, if there are less restrictive sanctions appropriate the offender should not be deprived of liberty and all available sanctions other than imprisonment are to be considered. This is commonly referred to as the principle of restraint.

[26] Here, clearly the principles to be considered as primary factors are those of general deterrence and denunciation. Still, the court must show restraint and recognize that rehabilitation of the accused is also a factor to be considered. In addition, given the numerous charges before the court the issue of totality is a factor the court has considered. Any sentence imposed on the accused must not crush him.

[27] In Regina v. M.(C.A.), 105 C.C.C. (3d) 327, the Supreme Court of Canada indicated when dealing with the issues of retribution and denunciation at page 369 as follows:

The relevance of both retribution and denunciation as goals of sentencing underscores that our criminal justice system is not simply a vast system of negative penalties designed to prevent objectively harmful conduct by increasing the cost the offender must bear in committing an enumerated offence. Our criminal law is also a system of values. A system which expresses denunciation is simply the means by which these values are communicated. In short, in addition to attaching negative consequences to undesirable behaviour, judicial sentences should also be imposed in a manner which positively instils the basic set of communal values shared by all Canadians as expressed by the Criminal Code.

[28] The purpose of general deterrence in a sentencing is to protect the public from the commission of such crimes as before the court by making it clear to the accused and to other persons with similar impulses that, if they yield to them, they will be met with severe punishment. Effectively, as this court has said on many other occasions in similar matters, the period of imprisonment that is about to be imposed should simply be looked upon by the accused as one of the costs of doing business.

[29] Both counsel have provided a number of cases which the court has referred to. The court has reviewed those cases, understands the principles applied and the range of sentence indicated for matters such as that before the court. The court again also appreciates that sentencing is an individual exercise but considers the sentences that have been imposed for similar offences and the principles applied when such sentences are meted out by the courts. A schedule setting out those various cases has been prepared and will be provided to counsel, if requested.

[30] The court also considers the principle of restraint. As noted in Regina v. Batisse, 2009 ONCA 114, 93 O.R. (3d) 643, and other cases that have followed the restraint principle requires the court to consider all sanctions apart from incarceration and where incarceration, as here, must be imposed the terms should be as short as possible and tailored to the individual circumstances of the accused. Effectively general deterrence cannot be the sole consideration and appropriate consideration must be given to the rehabilitation of the offender. Further, the court is fully aware that the period of imprisonment to be imposed here will be significant and will be the first period of imprisonment in any institution of any length for the accused.

[31] When dealing with the issue of pre-trial custody, the accused was in custody for approximately two and a half months prior to his release on bail. Both counsel have agreed that it is appropriate for the court to give credit on a one-to-one and a half basis for each day in pre-trial custody in all the circumstances in this case.

[32] Further, the accused has been on very strict bail terms and effectively living in a "bubble" since his release from custody without issue. Again, both counsel agree that there should be some credit given to the accused for the strict bail terms with which he has been able to comply for a period approaching two years. This is consistent with the case law with respect to such credit. The issue for this court is to determine what actual credit is to be given for such compliance.

AGGRAVATING FACTORS

[33] The aggravating factors in this matter are as follows:

(1) The accused took part in the trafficking of a significant quantity of cocaine, both at the ounce and kilogram levels. He was at the very least a mid-level, and probably a higher level, trafficker in a dangerous and insidious drug in this community and others.

(2) His conduct continued over a number of months and it was only as a result of his arrest that his criminal activity ceased. There were in fact multiple transactions involving the accused during the timeframe set out in the counts.

(3) Not only was he in the business of trafficking in cocaine, he was also in the business of producing cannabis marihuana, assisting others in their grow ops and trafficking in marihuana. Again, not in insignificant amounts.

(4) Although there is little before the court to indicate he was a user, the court accepts counsel's submission in that regard. Still, his activity was not simply to support his own use but was primarily for commercial reasons. The actions of the accused were effectively motivated by greed. The court concludes that to be the case given the significant quantities of cocaine and cannabis marihuana trafficked in by the accused and the amount of money involved as evidenced by the charges before the court and as found in his residence when searched following his arrest.

(5) It appears that his business was often operated out of his home, as evidenced by the findings on the search of his residence. He stored a substantial amount of money and cocaine at what effectively was the family home occupied by himself and his three children. Counsel submits that prior to his arrest he was the primary caregiver of the children but it appears that he was also heavily involved in "taking care of business" from the family residence.

MITIGATING FACTORS

[34] The mitigating factors in this matter are:

(1) The accused has accepted responsibility, fully appreciating the serious consequences that will follow. He has eliminated the need for a lengthy trial and his pleas represent a significant mitigating factor.

(2) The accused effectively comes before the court as a first-time offender. The only entry on his criminal record relates to a breach of a recognizance in 2007. There are no entries for substantive offences involving that recognizance and other than that one entry he is free of a criminal record.

(3) Although not a youthful offender, he does, even as accepted by the Crown, present to the court as relatively young at currently 34 years of age, 32 at the time of the commission of these offences. He has a family and young children with whom he has been actively involved prior to his arrest and he has his family's support.

(4) The accused spent approximately two and a half months in custody prior to his release on January 18, 2012. The recognizance that he entered into can very reasonably be described as a recognizance with strict terms. Among other things he was prohibited from having contact with a number of people and was required to obey a curfew by remaining in his residence 24 hours a day except for very, very limited circumstances. In addition, he was not permitted to be alone in his residence unless one of his sureties or the surety's wife was present or a person 21 years of age or older was with the accused and that person had received the prior written approval of the surety and the Waterloo Regional Police. In addition, he was to abstain from communicating or having any contact with his wife who is a co-accused except in the presence of legal counsel and he could only see his children as arranged by his surety. He has been able to comply fully, as far as the court is aware, with those terms as well as the other terms contained in the recognizance. Both counsel have agreed and acknowledge that he is to be given some credit for such compliance.

SENTENCE TO BE IMPOSED

[35] The charges before the court are serious and the degree of culpability of the accused is high. General deterrence and denunciation are primary considerations on this sentencing, although, given the lack of record and the age of the accused together with his antecedents, rehabilitation is also a factor which cannot be ignored. Still, this community rightfully expects the court to deal with charges such as that before the court where significant quantities of controlled substances were trafficked and produced and made available within the community to impose a sentence that will denounce such conduct. The sentence should make it clear to others of similar inclination as the accused that if they get involved in this type of activity there will be significant consequences.

[36] Given the aggravating factors present and taking into account the mitigating circumstances and the principles set out within the appropriate legislation as well as the case law that has been provided the court is satisfied that the range of sentence in this matter is seven to ten years imprisonment. In the court's view, a sentence of nine years achieves the necessary balance with respect to the principles of sentencing to be addressed. In coming to that conclusion the court has also considered the issue of totality and the fact that any sentence imposed should not be crushing on an individual such as the accused who comes before the court with minimal record and who has accepted responsibility for his actions as evidenced by his pleas of guilty.

[37] The court is also satisfied that the sentences involving the cocaine can run concurrently as they all take place within a very short period of time, there was a close nexus between the offences both in time and place and such offences appear to be continuous criminal activity of the accused over the period set out in the counts. The counts relating to the cannabis marihuana should, in the court's view, be consecutive to the charges involving the cocaine but concurrent to each other to properly reflect the concerns the court has with respect to such matters, particularly the production charges involving two grow operations in residential settings.

[38] The court would also note that in arriving at the sentence to be imposed it has considered the case law provided and has as well taking into account the sentences imposed on other co-accused in this particular matter. Notwithstanding those sentences result in shorter periods of imprisonment, the court is satisfied that within this particular project the accused was at the top of the distribution chain, particularly of the cocaine, to other co-accused for use and/or distribution at their level. His culpability is high as noted, he faces numerous charges much more than some of the co-accused and his charges involve not only cocaine but also the production of cannabis marihuana and possession of that substance as well for the purpose of trafficking.

[39] With respect to credit for pre-trial custody and the restrictive bail conditions, both counsel have effectively agreed that the actual pre-trial custody should be enhanced by 1.5 days for every day spent in custody. There will therefore be a credit for such pre-trial custody in the amount of four months.

[40] With respect to the restrictive bail conditions, although the case law clearly indicates it is appropriate to take such conditions into account when imposing the appropriate sentence, there is no precise way expressed as to how much credit, if any, should be given. In this case it is absolutely clear that the conditions on release, whether suggested by defence counsel or not as indicated by the Crown, have significantly impacted the way the accused has conducted his life for almost two years since his release in January 2012. Both counsel agree that he is to be given some credit for complying with such conditions.

[41] In looking at the credit to be given the court notes the house arrest, the length of time the conditions have been in place, the stringency of the conditions otherwise and the obvious impact the conditions had on the accused to carry on his family relationships, any employment and his conduct otherwise. The court is satisfied that the appropriate credit to be given for compliance with the stringent pre-sentence bail conditions is six months.

[42] Accordingly, after applying credit for pre-trial custody and restrictive bail conditions the sentence will be one of eight years, two months.

[43] That sentence will be noted on the information as follows:

• Count #6: Trafficking in cocaine: seven years, two months imprisonment;
• Counts #10, 21, 25, 29, 33, 34 & 35: concurrent sentences of seven years, two months;
• Counts #7, 17, 20, 22, 26 & 30: Proceeds of crime: one year concurrent;
• Count #9: Production of cannabis marihuana: one year consecutive;
• Count #16: Production of cannabis marihuana: one year concurrent;
• Count #13: Possession of marihuana for the purpose of trafficking: one year concurrent.

[44] The total sentence still then to be served is eight years, two months. There will also be an order under s. 109(2)(a) for a period of ten years and (2)(b) for life. DNA orders will be made on the appropriate designated offences requiring a sample of the accused's DNA to be taken in accordance with the provisions of the Criminal Code. The victim fine surcharges on all counts will be waived. The court notes that on the last occasion a forfeiture order was signed with respect to this matter.

Released: November 21, 2013

Signed: "Justice G. F. Hearn"

SCHEDULE OF CASES

1. R. v. Bryan, 2011 ONCA 273
2. R. v. Majnoon, 2009 ONCA 876
3. R. v. Bajada
4. R. v. Muise, 2008 ONCA 665
5. R. v. Nero, 2008 ONCA 622
6. R. v. Chanmany, 2013 ONSC 5623
7. R. v. Oraha, 2012 ONSC 1439
8. R. v. Battista, 2011 ONSC 6394
9. R. v. Lithouthay Xaysy, unreported, January 11, 2007, Kitchener, Ontario S.C.J., Gordon J.
10. R. v. Michael Ladouceur, unreported, August 11, 2005, Kitchener, Ontario C.J., Woolcott J.
11. R. v. Wade Jette, unreported, September 15, 2005, Kitchener, Ontario C.J., Woolcott J.
12. R. v. Slavko Ilic, unreported, December 8, 2009, Kitchener, Ontario C.J., Epstein J.
13. R. v. Dennis Wihnon, unreported, September 11, 2012, Kitchener, Ontario C.J., Hearn J.
14. R. v. Comeau, [2008] O.J. No. 2585 (C.J.)
15. R. v. Le, [2006] O.J. No. 2789 (S.C.J.)
16. R. v. Meech, 2011 ONSC 1815, [2011] O.J. No. 1417 (S.C.J.)
17. R. v. Kum, [2012] O.J. No. 1000 (S.C.J.)
18. R. v. Russo & Vitone, [1998] O.J. No. 4143 (C.A.)
19. R. v. Bertucci, [2002] O.J. No. 3870 (C.A.)
20. R. v. Aguilera, [1998] O.J. No. 8 (C.A.)
21. R. v. Daya, [2007] O.J. No. 3865 (C.A.)
22. R. v. Ramage, 2010 ONCA 488, [2010] O.J. No. 2970