Court File and Parties

Court File No.: St. Catharines - 2111-998-09-NR5412-02

Date: 2014-03-25

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

John Vandyk

Before: Justice D.A. Harris

Heard: October 1, 2013 and February 27, 2014

Reasons for Sentence: March 25, 2014

Counsel:

D. Anger and V. Essert, counsel for the Federal Crown

M. Evans, counsel for the Accused, John Vandyk

Reasons for Sentence

HARRIS J.:

Overview

[1] John Vandyk pled guilty to possessing cocaine for the purpose of trafficking.

[2] He is before me today to be sentenced.

[3] Crown counsel suggested that I should sentence him to imprisonment for 15 months.

[4] Counsel for Mr. Vandyk suggested that I impose a conditional sentence of imprisonment followed by a period of probation.

[5] Both counsel agreed that I should make the following ancillary orders:

1. A forfeiture order;
2. A firearms prohibition; and
3. A DNA order.

[6] I find that a conditional sentence is not appropriate in this case. My reasons are as follows.

Conditional Sentence

[7] The conditional sentence came into being when section 742.1 of the Criminal Code was proclaimed in 1996.

[8] The Supreme Court of Canada subsequently stated in R. v. Proulx that "Parliament clearly mandated that certain offenders who used to go to prison should now serve their sentence in the community."

[9] The Supreme Court of Canada stated further that an offender who meets the criteria of section 742.1 will serve a sentence under strict surveillance in the community instead of going to prison. His liberty will be constrained by conditions to be attached to the sentence. In case of breach of conditions, the offender will be brought back before a judge who may order him to serve the remainder of the sentence in jail, as it was intended by Parliament that there be a real threat of incarceration to increase compliance with the conditions of the sentence.

[10] Section 742.1 lists five criteria that a court must consider before deciding to impose a conditional sentence. These are:

1. the offender must be convicted of an offence that is not specifically excluded under the legislation;
2. the offender must be convicted of an offence that is not punishable by a minimum term of imprisonment;
3. the court must impose a term of imprisonment of 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 purpose and principles of sentencing set out in sections 718 to 718.2.

[11] The first four criteria are prerequisites to any conditional sentence. These prerequisites answer the question of whether or not a conditional sentence is possible in the circumstances. Once they are met, the next question is whether a conditional sentence is appropriate. That decision turns upon a consideration of the fundamental purpose and principles of sentencing set out in sections 718 to 718.2.

[12] In Mr. Vandyk's case, the first four prerequisite criteria have been satisfied.

[13] His offence was not excluded under section 742.1 at the time that he committed it.

[14] Nor was it punishable by a minimum term of imprisonment.

[15] Both counsel agreed that I should impose a sentence of imprisonment for less than two years.

[16] Finally, I find that Mr. Vandyk serving his sentence in the community, subject to appropriate conditions, would not endanger the safety of the community. He had a prior criminal record for similar offences but those convictions occurred in 2002 and there were no further offences during the intervening seven years. He has stayed out of trouble since being charged with the current offence a little over four years ago. His health has deteriorated during that time. His financial position has improved. I am satisfied that, with the appropriate safeguards in place, there is no danger that he would return to crime following the imposition of a conditional sentence.

[17] That then leaves the question of whether a conditional sentence is appropriate in all of the circumstances of this case. In making this decision, as I said before, I must consider the fundamental purpose and principles of sentencing set out in sections 718 to 718.2 of the Criminal Code.

[18] The fundamental purpose of sentencing is to contribute to respect for the law, the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the objectives of denunciation; deterring the offender and other persons from committing offences; separating offenders from society, where necessary; assisting in rehabilitating offenders; providing reparation for harm done to victims or to the community; and promoting a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

[19] The relevance and relative importance of each of these objectives will vary according to the nature of the crime and the circumstances of the offender.

[20] The fundamental principle of sentencing is that the punishment should be proportionate to the gravity of the offence and the degree of responsibility of the offender. The punishment should fit the crime. There is no single fit sentence for any particular offence.

[21] Doherty J.A. of the Ontario Court of Appeal stated in R. v. Hamilton that:

The "gravity of the offence" refers to the seriousness of the offence in a generic sense as reflected by the potential penalty imposed by Parliament and any specific features of the commission of the crime which may tend to increase or decrease the harm or risk of harm to the community occasioned by the offence.

[22] He went on to state that:

The "degree of responsibility of the offender" refers to the offender's culpability as reflected in the essential substantive elements of the offence - especially the fault component - and any specific aspects of the offender's conduct or background that tend to increase or decrease the offender's personal responsibility for the crime.

[23] He then quoted Rosenberg J.A. who had previously described the proportionality requirement in R. v. Priest:

The principle of proportionality is rooted in notions of fairness and justice. For the sentencing court to do justice to the particular offender, the sentence imposed must reflect the seriousness of the offence, the degree of culpability of the offender, and the harm occasioned by the offence. The court must have regard to the aggravating and mitigating factors in the particular case. Careful adherence to the proportionality principle ensures that this offender is not unjustly dealt with for the sake of the common good.

[24] On this point, Doherty J.A. concluded by stating that:

Fixing a sentence that is consistent with s. 718.1 is particularly difficult where the gravity of the offence points strongly in one sentencing direction and the culpability of the individual offender points strongly in a very different sentencing direction. The sentencing judge must fashion a disposition from among the limited options available which take both sides of the proportionality inquiry into account.

[25] Proportionality is the fundamental principle of sentencing, but it is not the only principle to be considered.

[26] I must specifically consider section 718.2(d) which provides that "an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances".

[27] I must also consider the impact of section 718.2(e) which provides that "... all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders."

[28] The Supreme Court of Canada discussed the application of this section in Gladue v. The Queen and said that section 718.2(e) applies to all offenders, and that imprisonment should be the penal sanction of last resort. Prison is to be used only where no other sanction or combination of sanctions is appropriate to the offence and the offender.

[29] The Supreme Court also noted that section 718 now requires a sentencing judge to consider more than the longstanding principles of denunciation, deterrence and rehabilitation. Now a sentencing judge must also consider the restorative goals of repairing the harms suffered by individual victims and by the community as a whole, promoting a sense of responsibility and an acknowledgment of the harm caused on the part of the offender, and attempting to rehabilitate or heal the offender. As a general matter restorative justice involves some form of restitution and reintegration into the community. A conditional sentence is much more effective than jail in achieving these restorative justice goals.

[30] I must also note that the Supreme Court of Canada expressly said in R. v. Proulx that a conditional sentence is "a punitive sanction capable of achieving the objectives of denunciation and deterrence" although it is not as effective as a sentence of real imprisonment.

[31] I must also look at the specific provisions in the Controlled Drugs and Substances Act with respect to the fundamental purpose of sentencing. Section 10(1) of that Act provides that:

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.

[32] Section 10(2) enumerates a number of aggravating factors to be considered during the sentencing process "including that the person was previously convicted of a designated substance offence."

[33] In addition, I have reminded myself repeatedly that there was no presumption against the imposition of a conditional sentence and that I must consider all of the circumstances and not apply a perfunctory rule that the case "is not one of those rarest of cases", without further consideration.

[34] I must, however, also consider the fact that Parliament has since amended the Criminal Code such that a conditional sentence is not available for the offence committed by Mr. Vandyk. I am satisfied that I should view this amendment as a reflection of Parliament's intention that such offences should be treated differently now.

[35] Before I can apply the applicable principles of sentencing, however, I must look at the facts underlying the offence here and at Mr. Vandyk's background.

The Offence

[36] Niagara Regional Police officers executed a warrant at Mr. Vandyk's residence on November 13, 2009.

[37] They found 53.5 grams of cocaine, 1.5 grams of marihuana and two ecstasy tablets. Other items included $580 Canadian currency, two cell phones and three electronic scales.

[38] Mr. Vandyk has admitted that he was selling cocaine for financial gain.

Background of Mr. Vandyk

[39] I have had the benefit of a Pre-Sentence Report which has provided me with the following information.

[40] Mr. Vandyk is 65 years old.

[41] He was born in Holland and came to Canada with the rest of his family when he was 11 years old.

[42] He came to Canada in 2005, sponsored by an older sister.

[43] He dropped out of school when he was 16.

[44] He has worked steadily since then although there were periods of unemployment due to seasonal work in construction.

[45] He is currently retired and supported by government pensions.

[46] He married when he was 19 years old and had two daughters. He and his wife separated amicably when the girls were young teenagers.

[47] He maintains contact with his daughters and participates in family activities with his youngest daughter and her children.

[48] The Pre-Sentence Report concludes with the following comments:

The subject presents as polite and cooperative and personal collateral contacts indicated that they have seen a positive change in his attitude in the last few years. They noted that his lifestyle has changed due to health concerns and that he is now a homebody who spends more time with family members. He demonstrates a willingness to make amends and accepts responsibility for his actions.

Community Supervision is recommended as the subject has strong positive family support and appears to be able to better manage his finances since he is receiving a steady income.

[49] Health concerns include Type II diabetes, high blood pressure, a blood clot in his leg and back problems.

[50] A report from his family doctor confirmed all of these concerns and set out his course of treatment. He sees his doctor regularly and has been prescribed a number of medications. Regular blood tests are required for his various ailments.

[51] There was no indication that these medical needs could not be met in a provincial reformatory. I recognize however that this may not be the best environment in which to monitor Mr. Vandyk's condition and provide treatment.

[52] Mr. Vandyk had a prior criminal record. The most significant entries are in September 2002 when he was sentenced to the equivalent of 11 to 12 months imprisonment for possession and possession for the purpose of trafficking. I was not told what the drug(s) or substance(s) were on that occasion.

[53] He was held in custody for six days before being released on bail with respect to the current offence. This predated the Truth in Sentencing Act. He was then subject to what his counsel described as "not onerous" bail terms. He has complied with these terms for more than four years.

Analysis

[54] There is much that can be said in favour of Mr. Vandyk.

[55] He pled guilty. He has accepted full responsibility for his offence and he has expressed remorse.

[56] He has been a productive and contributing member of society for much of his long life.

[57] He has made changes in his lifestyle and appears unlikely to reoffend.

[58] He is 65 years old and suffers from health problems which would likely make any time in jail more difficult.

[59] On the other hand, there are numerous aggravating factors present here.

[60] The offence that he committed is an extremely serious one.

[61] He possessed cocaine for the purpose of trafficking.

[62] Previous cases make it clear that denunciation and general deterrence are important principles if not the paramount sentencing principles in cases involving commercial trafficking of drugs.

[63] That is especially so for drugs such as cocaine which have long been viewed as dangerous. I note in particular the comments of Doherty J.A. in R. v. Hamilton that:

The immense direct and indirect social and economic harm done throughout the Canadian community by cocaine is well known … The use and sale of cocaine kills and harms both directly and indirectly. The direct adverse health effects on those who use the drug are enormous and disastrous. Cocaine sale and use is closely and strongly associated with violent crime.

[64] In R. v. Woolcock, the Ontario Court of Appeal stated that:

There is no disputing that crack cocaine is an extremely dangerous and insidious drug with potential to cause a great deal of harm to individuals and to society. Likewise, possession of crack cocaine for the purpose of trafficking is a serious offence warranting emphasis on the principles of deterrence and denunciation. However, when sentencing an offender convicted of such an offence, it is incumbent on the trial judge to consider all of the principles of sentencing - including the accused's prospects for rehabilitation. Section 718 of the Criminal Code directs a sentencing judge to consider the full panoply of sentencing objectives, including, but not limited to, assisting in the rehabilitation of offenders.

[65] Woolcock was in possession of less than seven grams of crack cocaine for the purpose of trafficking, along with less than one gram of marijuana, and drug paraphernalia including a digital scale, evidence of drug packaging and a debt list. In addition, $926 in cash and $60 in U.S. currency was also found. He was 53 years old when the offences occurred. He was not addicted to drugs. He had two prior convictions for drug related offences in 1998, for which he was sentenced to 30 days imprisonment.

[66] The Court of Appeal reduced his sentence from imprisonment for two years less a day to imprisonment for 15 months after noting that:

The range of sentence for this type of offence appears to be 6 months to 2 years less a day (see R. v. Madeiros, [2001] O.J. No. 5664 (Ont. S.C.J.) and the decision in R. v. Radassao, [1994] O.J. No. 1990 (Ont. C.A.)). However, many of the cases that fall at the higher end of this range involved either larger quantities of narcotics or offences committed while the accused was still on probation for a similar offence. Those circumstances do not exist here.

[67] I note that both Hamilton and Woolcock were cases involving "crack" cocaine. I note also that previous courts have recognized that "crack" may be relatively more dangerous than powder cocaine since "crack" is more addictive. I note this distinction because Mr. Vandyk was in possession of powder cocaine.

[68] That distinction is a limited one however as I note that in R. v. Giroux, the Ontario Court of Appeal upheld a sentence of imprisonment for two years for trafficking two ounces of powder cocaine after quoting the above paragraph from Woolcock with approval.

[69] Mr. Vandyk has a prior record for the same offence. On that occasion, he received the equivalent of a sentence of imprisonment for just under one year.

[70] Counsel for Mr. Vandyk cited several decisions by Justices of the Ontario Superior Court of Justice in which similar offences resulted in conditional sentences despite the presence of prior records. These cases make it clear that such a sentence is possible in these circumstances. They do not however even suggest that this should be the norm.

[71] Appellate courts in Ontario have long held that a previous conviction for related drug offences is a very aggravating factor.

[72] Section 10(2) of the Controlled Drugs and Substances Act requires that I consider it to be an aggravating factor.

[73] I must also consider the fact that Parliament has since amended the Controlled Drugs and Substances Act such that possession of cocaine for the purpose of trafficking now attracts a mandatory minimum sentence of imprisonment for one year for anyone who was convicted of a similar offence within the previous 10 years. I am satisfied that I should view this amendment as a reflection of Parliament's intention that such offences should be treated more seriously than they were before.

[74] Andre J. certainly accepted that argument in R. v. Wasiluk, stating that:

In my view, a statutory increased penalty is a legislative signal that the sentencing paradigm has shifted towards a regime of tougher sentences than that which previously existed.

[75] After considering all of these factors, I have decided that a conditional sentence would not be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2.

[76] I am satisfied that Mr. Vandyk does not need to be deterred further. It is however necessary to impose a sentence that makes it clear to other potential drug traffickers that such behaviour is not acceptable and will likely result in a lengthy jail term.

[77] Having said that, I have also decided that, in light of the positive steps taken by Mr. Vandyk over the past four years, and the additional difficulties which his medical condition could cause in jail, 15 months is too long a period of imprisonment.

Sentence

[78] I sentence Mr. Vandyk to time served being six days pre-sentence custody credited as 12 days, plus imprisonment for a further 258 days. I am viewing that as the equivalent of a nine-month sentence.

[79] That will be followed by probation for three years.

[80] The terms of the probation will require that Mr. Vandyk:

1. keep the peace and be of good behaviour;
2. appear before the court when required to do so by the court;
3. notify the court or the probation officer in advance of any change of name or address and promptly notify the court or the probation officer of any change of employment or occupation;
4. report once only within two working days of his release to a probation officer;
5. abstain absolutely from the purchase, possession or consumption of illegal drugs except with a valid prescription.

[81] I am also making an order pursuant to section 109 of the Criminal Code and for the next 10 years, Mr. Vandyk may not own, possess or carry any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance.

[82] This is a secondary designated offence. In the circumstances, I am making an order pursuant to section 487.051 of the Criminal Code authorizing the taking, from Mr. Vandyk, of any number of samples of one or more bodily substances including blood that is reasonably required for the purpose of forensic DNA analysis.

[83] I am also making the requested forfeiture order.

[84] Finally, Mr. Vandyk will have 90 days in which to pay the victim fine surcharge, calculated at the old rate which was in effect at the time that he committed the offence.

Released: March 25, 2014

Signed: "Justice D.A. Harris"

Justice D.A. Harris