Court File and Parties

Court File No.: Central East – Newmarket – 13-01320 Date: 2015-05-14 Ontario Court of Justice

Between: Her Majesty the Queen — and — Darryn Fronte

Before: Justice P.N. Bourque

Counsel:

• F. Monardo, for the Crown
• P. Lewin, for the accused Darryn Fronte

Reasons for Sentence

Released on May 14, 2015

Overview

[1] I am dealing with the matter of Mr. Darryn Fronte.

[2] On the 5th day of February 2015 at Edmonton, Alberta, Mr. Fronte was sentenced on the following offence, which he was found guilty of on the 27th of October 2014. The offence was that between the 6th day of March 2008 and the 7th day of March 2008 at or near Edmonton, Alberta, did unlawfully traffic in a controlled substance, to wit: cocaine, contrary to section 5(1) of Controlled Drugs and Substances Act ("CDSA").

[3] At that time Mr. Fronte was sentenced to a conditional sentence of imprisonment for two years less a day upon extensive terms and conditions. I point out what I think are the most important ones for the purpose of my consideration of this matter. First of all, paragraph six of the conditional sentence order provides that for the first three months the defendant was to remain within his residence 24 hours a day, 7 days a week, subject to what I would call usual and normal exceptions, and after that first three months he is then put under a curfew.

[4] The conditional order goes on and discusses many other factors and many other provisions. I point out what I believe, and I look at the numbers and it seems a little strange, but I think it is paragraph 40, even though sequentially you would think it would be paragraph 11, but I am sure it says 40 and basically there is a provision there of community service hours.

[5] On February the 18th, 2015 at the City of Markham in this Region the defendant had gone to meet with his supervisor. On his return from meeting with his supervisor, instead of going directly to his residence, as per the provisions of the conditional sentence order, he instead went to a friend's residence, which was somewhat close by. Amongst other things, while at that residence he purchases from his friend several grams of marijuana, which he put in his vehicle. He then drove his friend to a location, which was away from his residence and away from his friend's residence.

[6] The police intervened and as a result an application was brought by the Crown with an allegation of breach signed by an Elsa Lisi (ph) from February the 18th, 2015, which has alleged two breaches, one of which was the failure to be in his residence, and the second breach was a breach of the condition that he keep the peace and be of good behaviour and was alleged he breached it because he was in possession of the quantity of marijuana. As a further result Mr. Fronte was charged with the offence under the CDSA of unlawfully being in possession of marijuana from February the 18th, 2015, contrary to section 4(1).

[7] At the outset of the proceedings the defendant, through his counsel, acknowledged the two breaches of the conditional sentence order and he also pled guilty to the offence under the CDSA.

[8] My task here today is to determine the sentence for the offence that the defendant has pled guilty to and to determine what steps, if any, should be taken by me under section 742.6(9) of the Criminal Code, with regard to the breaches of the conditional sentence order.

Mitigating Factors

[9] The following I think is the important information that I must take into account in reaching a disposition. First of all, as a result of these offences this defendant was in custody for two days. Other than the offence for which he received this conditional sentence, for he has no other criminal record, I was very well informed by counsel of the many personal circumstances of this particular defendant. A lot of them are set out in Exhibit 1 to these proceedings, which was a book of documents which contains 12 documents. I am simply going to insert the other two loose pieces of paper with this book of documents to create the one exhibit and indicate there were twelve different documents within that exhibit.

[10] These particular documents set out first and foremost testimonials from family and friends, which say very positive things about this defendant. There is also a letter from a previous employer, which sets out positive things for this defendant. There is also a letter from a Dr. Seidman (ph), which talks about the various counseling that this young man has obtained and some reflections by the doctor about this young man.

[11] There are also documents indicating that this defendant has recently applied to a college, Centennial College, to take a course of hospitality management and while he has not been accepted at this stage, it has been indicated by his counsel that this is the career path that this young man wishes to follow. I also note that he spoke to me and it was clear that is what he wished to do as a career path. I note he has no employment at the present time.

[12] Based on this I take it that this young man has good family support for anything that he should undertake to do. He has sought counseling. I note that he has not breached any terms of his release conditions before this application today. I take almost everything that has been put before me in terms of his personal circumstances as largely positive.

Aggravating Factors

[13] With regard to the aggravating circumstances, they arise from the facts of the breach itself.

[14] First of all, there are two breaches, not just one, a breach of the condition that he remain under house arrest and the condition that he keep the peace and be of good behaviour.

[15] I also note that the breach with regard to his failure to keep the peace and be of good behaviour is a drug offence. I accept that with regard to the seriousness of the drug offence it pales in comparison to the matter that was dealt with in Edmonton, Alberta on February the 5th, but nonetheless, it is another drug offence. I think the most aggravating feature of these breaches is that they both happen within two weeks of the making of the order in Edmonton. One can only come to the conclusion that the seriousness of what had been dealt with and the need for this defendant to observe strict compliance with the court order clearly at that time had not been brought home to him.

[16] I find as well that the breaches in this matter occurred on a day that his task was to meet with the probation officer, which he did, and various permissions were given to this defendant at that time indicating the things that he could be out of his home upon and it was on returning from that that for some reason it still had not been brought clearly to his attention that he was under a duty to strictly comply. In that sense, I cannot help but find that the breach was flagrant and in his own words, which I accept, it was inexcusable.

Legal Framework

[17] Section 742.6(9) sets out what my duties and powers are on such an application. It states as follows:

Where a court is satisfied on a balance of probabilities that the offender has without reasonable excuse, the proof of which lies on the offender, breached a condition of the conditional sentence order the court may:

(a) take no action;

(b) change the optional conditions; and,

(c) suspend the conditional sentence order and direct:

(i) that the offender serve in custody a portion of the unexpired sentence; and,

(ii) that the conditional sentence order resume on the offender's release from custody either with or without charges to the optional conditions; or

(d) terminate the conditional sentence order and direct that the offender be committed to custody until the expiration of the sentence.

[18] I note that the provisions of section 742.6 do not seem to incorporate any of the provisions of section 718 of the Criminal Code, which sets out the duties and considerations of a judge in imposing a sentence. However, that while section 742.6(9) appears on its face to simply give broad discretion, I feel it wise that I should consider the provisions of section 718 as a guide.

[19] I also take as a guide the specific provisions of this conditional sentence order and especially as per the terms of this order the first three months of this conditional sentence order were set for house arrest and the remaining term was curfew only.

[20] While the case of Regina v. Proulx, 2000 SCC 5, [2000] 1 S.C.R 61 states that there is a presumption that the offender serve the remainder of the sentence in jail, not every unexpected breach need result in the termination of the conditional sentence. A disposition appropriate to each offender and the circumstances of the breach must be fashioned so that the purposes of sentencing can be achieved and the public protected from further criminal activity. I cite the case of Regina v. T.E.L., 2005 BCCA 478, 202 C.C.C. (3d) 431 (B.C.C.A).

Sentencing Decision

[21] First of all, with regard to the offence of possession of marijuana there was a joint submission with respect to that offence. I accede to the joint submission. This defendant will be fined the sum of $150.00 plus the victim fine surcharge and I give him one year within which to pay the fine and the surcharge.

[22] With regard to the breaches of the conditional sentence, while I accept that the defendant has no other record, has supports, and is remorseful, I find that to simply continue with the conditional sentence would not take into account the fact that this was a twofold breach of his conditional sentence, which took place within two weeks of his imposition. I believe that the community generally would have difficulty understanding my forgiveness of such a breach, and perhaps more importantly, I wish to make sure that this particular defendant understands fully and completely the necessity for complying with the full terms of his conditional sentence.

[23] I take all of these factors into account and I take into account all of the submissions of the Crown and the defence. The Crown has asked that I invoke my powers under section 742.6(9)(d), terminate the order and direct that this gentleman be committed to custody until the expiration. The defendant requests that I simply amend the conditional sentence order to provide further terms such as a more strict means of having compliance, and also for further terms such as an increase in the community service hours.

[24] I am going to do the following, pursuant to section 742.6(9)(c)(i) I suspend this conditional sentence order and I direct that the defendant serve in custody a period of 87 days from today's date. I arrive at that time by taking a period of 90 days. I then give him, out of a sense of fairness, a credit for the three days that he has spent in pre-trial custody.

[25] Pursuant to section 742.6(9)(c)(2), I am going to amend the terms of the conditional sentence order to delete paragraph 6 in its entirety. With regard to paragraph 40 it will read as follows, to provide for 75 hours of community service, which will be completed within the first 12 months next from his release from custody at a rate to be determined by the supervisor and the defendant will provide written proof of satisfactory completion of the service hours to the supervisor.

[26] As a postscript, as I have discontinued the house arrest provisions I do not feel the need to consider the evidence of the electronic compliance monitoring. However, I do thank the attendance of Mr. Marshall from the Recovery Service Corporation for his evidence. I found it very illuminating and I will definitely keep it in mind in the future.

[27] I thank both counsel and I especially turn my thanks to the defence for his extensive materials and preparation for this matter, they were very helpful, thank you.

Signed: "Justice P.N. Bourque"

Released: May 14, 2015