Court Information
Date: February 9, 2017
Ontario Court of Justice Old City Hall – Toronto
Between: Her Majesty the Queen And: Varun Sriskanda
Counsel:
- D. Morlog, for the Crown
- L. Adler, for the Offender
Heard: September 15 and January 7, April 1, August 18, October 25, November 1 and December 16, 2016
Reasons for Sentence
Justice Melvyn Green
A. Introduction
[1] Varun Sriskanda pled guilty in September 2015 to two counts of trafficking in a "Schedule II" substance, namely "hashish oil (shatter)". Neither "hashish oil" nor "shatter" are defined by statute or specifically listed in the Controlled Drugs and Substances Act (hereafter, the Act or the CDSA). Counsel, however, have proceeded throughout on the assumption that "shatter", like hashish, is a form of "cannabis resin" embraced by Schedule II to the CDSA and thus subject to the Act.
[2] The two cannabis transactions to which Sriskanda pled guilty, and a third which he also acknowledges, were to an undercover member of the Toronto Police Service (TPS). All three involved the hand-to-hand sale of a single gram of shatter for $70. These exchanges occurred two years ago, in February 2015. No quantitative analyses followed. Accordingly, there is no evidence as to the THC content – that is, the quantitative concentration of the psychoactive ingredient in cannabis – of any of the seized shatter.
[3] Sriskanda's sentencing hearing occupied some seven separate and substantive court appearances extending over 15 months. The unduly protracted proceedings were largely the product of a "Gardiner hearing" launched by the Crown to establish, as aggravating factors, purported dangers associated with both the manufacture and use of shatter. On November 22, 2016, following a lengthy voir dire, I dismissed the Crown application to admit ostensible expert evidence pertaining to these matters: R. v. Sriskanda, [2016] O.J. No. 5975. Later, on December 16, 2016, I further ruled that the Crown had not adequately satisfied me, by way of further allegations of aggravating circumstances, that the evidence supported the inference that the offender was involved in the production of shatter.
[4] Crown counsel's aggressive carriage of this matter has been largely driven by an effort to elevate what the Public Prosecution Service of Canada (in effect, the prosecutorial arm of the federal Crown) appears to view as disproportionately lenient sentences for shatter trafficking. There may be an empirical foundation for this posture but, if so, it has not been demonstrated in the matter before me. I have not been provided with any evidence pertaining to the distribution of sentences for shatter trafficking in Toronto, or elsewhere in the country, or of any change in the incidence of such trafficking.
[5] In R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 89, the Supreme Court held that, "[t]he frequency of a type of offence in a particular region can certainly be a relevant factor for a sentencing judge". The Court further held, at para. 95, that a sentencing judge, in determining the relevance of general deterrence and denunciation and the weight to be assigned these factors, could "take judicial notice of the evil represented by the large number of offences [at issue] … that are committed in the … district" in which the justice presides. Unlike the sentencing judge in Lacasse, I am not privy to any anecdotal evidence or any gleaned from my judicial perch that would permit me to take judicial notice of a sudden spike in the incidence of shatter trafficking or of adverse social consequences associated with its use. Indeed, by way of trial, preliminary inquiry and, particularly, plea and sentencing proceedings, I preside, and have for close to a decade, over hundreds of drug prosecutions each year in the only courthouse in all of Toronto in which such proceedings are conducted. This case is the first and only prosecution I have entertained for an offence involving shatter.
[6] Crown counsel's alternative, narrower and case-specific position is that certain aggravating and contextual features of the offender's criminal conduct move him up the ladder of moral turpitude and thus disentitle him to a disposition by way of discharge (as urged by the offender's counsel). The ensuing discussion is largely dedicated to assessing the correctness of this latter proposition.
[7] By way of framing the contest, Sriskanda, the offender, is enrolled in law school. He is a relatively young man without criminal antecedents. The Crown suggests that a conviction followed by the imposition of a suspended sentence and two years of probation (free of onerous conditions or counselling) is a proportionate disposition. Defence counsel seeks, instead, a discharge. Drawn sharply, the difference between the parties' positions comes down to whether or not a fit sentence for the offender's criminal conduct need include the gravitas and stigma of a conviction.
[8] The answer, in my view, is that the registry of a conviction is here unnecessary to properly honour the objectives and principles of sentencing. The more difficult question is whether a period of probation should accompany that disposition, by way of a "conditional discharge", or whether an "absolute discharge", unburdened by any community supervision or further restrictions of the offender's liberty, would suffice. The following reasons more fully address these issues and endeavour to resolve those left dangling.
B. The Factual Context
(a) Introduction
[9] Every sentencing is an individualized process, more craft than science. The exercise is primarily animated by the inevitably unique circumstances of the offence and the offender, which, in turn, inform the proper application of the relevant principles as directed by the Criminal Code, the CDSA and the common law.
[10] The essential starting point is Parliament's direction as to the lawful range of sentence for the offence at issue. Trafficking in a Schedule II substance (that is, cannabis) where, as here, the amount exchanged is no more than the ceiling of three kilograms prescribed in Schedule VII to the CDSA, carries a maximum penalty of five years less a day. There is no minimum penalty. The penal regime is indifferent as to whether the drug trafficked is marihuana or cannabis resin. Within the mandated range there may, of course, be an array of sentences that adhere to the "fundamental principle" of sentencing, as set out in s. 718.1 of the Code: that a sentence "be proportionate to the gravity of the offence and the degree of responsibility of the offender". Accordingly, the quest is for a fit or proper sentence not one that is perfect or ideal.
(b) The Offence and the Offender's Role
[11] Members of the TPS spotted a Craigslist posting for shatter on February 1, 2015. An undercover officer called the listed number, arranged to meet the vendor, and completed the purchase of a single gram of shatter from Sriskanda the next day. Effectively identical transactions occurred on February 12th and, again, on the 23rd, when the offender was arrested. The purchase price in each instance was $70. There was no display of or offer to sell larger amounts of the drug.
[12] The offender was surveilled going to and from Unit 206 in a nearby residential building. A CDSA search warrant was executed in that unit following the offender's arrest and his transport to a police station. Three men were found inside the apartment, along with evidence of drug trafficking paraphernalia and some equipment alleged to be related to the production of shatter. Sriskanda was never charged with production of shatter, nor were any of the men found within the apartment.
[13] During the search of Unit 206, the TPS seized a further gram of shatter (again, of unassessed THC concentration) and about a half-kilogram of dry leaf marihuana. They also located $420 in a kitchen cupboard and, on a kitchen counter, a butane torch, a vacuum sealer, a grinder, digital scales and a bong (a smoking device). They also found a money counter, a vacuum pump and a box containing butane canisters in the closet of an adjoining bedroom, the same room in which some personal documents tied to the offender were also located. Further, Sriskanda carried a key to Unit 206 when arrested. A rental agreement named Sriskanda as the lease holder of the apartment while another man (whose personal property was located, along with assorted drugs, in another bedroom) was identified as the "occupant". There is no evidence that the offender or anyone else actually inhabited or resided in the apartment.
[14] As I noted in my November 2016 Ruling, no evidence was led as to the immediate or on-going production of any drug, including shatter, in Unit 206. While items notoriously associated with drug trafficking were found and some consistent with the production of shatter, no evidence was ever tendered of any residue, laboratory apparatus, production notes or schedules, instructions, manuals or any other physical indicia of a controlled drug ever having been manufactured in Unit 206. In the end, as detailed in my Ruling in December 2016, while I was persuaded that Sriskanda had knowledge and a measure of joint control of that paraphernalia found in plain view in the kitchen and adjoining bedroom in Unit 206, I also found that the production of shatter in that apartment was, at highest, then a matter of contemplation rather than realization.
[15] I was also unpersuaded that assertions attributed to Sriskanda suggesting his participation in shatter production were anything more than puffery. The offender was undoubtedly aware that shatter is the product of subjecting marihuana to a chemical process and that someone somewhere in the chain of distribution above him was ultimately engaged in its production. However, this does not elevate his culpability to that of those who manufacture the drug. The risk of overreaching in this realm of criminal liability was addressed by G.A. Martin J.A for the Court of Appeal in R. v. Longworth, Freeman, Newton and Wolfe (sub-nom. R. v. Wolfe), 38 O.R. (2d) 367. Although there considered through the lens of a charge of conspiracy, the Court's reasoning is here apt:
I cannot think that a retailer who merely purchases from a distributor a relatively small quantity of marijuana for resale to his customers thereby becomes a party to an over-all conspiracy having for its object the distribution of marijuana (which might involve millions of dollars worth) and to which the distributor, his supplier and all the distributor's customers are parties. It seems to me that if the mere purchaser thereby becomes a party to such an over-all conspiracy, there is no logical reason why he does not equally become a party to a conspiracy to import where he knows that the marijuana is of foreign origin.
There is no policy which requires the law of conspiracy to be interpreted so broadly as to automatically make the mere purchaser of an illicit drug a party to an over-all conspiracy to distribute that drug. [Emphasis added.]
By way of further example, a street-level heroin dealer may well understand that ruthless international cartels have harvested, processed, imported and distributed through many levels the few capsules he sells by way of hand-to-hand transactions. The street-dealer, if caught, has his own cross to bear, but he does not inherit the sins of the fathers who devised, manage and extract the bulk of the profit from the overall scheme. He is not vicariously liable for their crimes nor does their criminality aggravate his own misconduct.
[16] When, as here, assessing the appropriate sentence for persons engaged in a chain of illegal distribution, an offender's generalized degree of moral blameworthiness is largely a function of his or her location along that continuum of fault. Sriskanda was at or near the bottom rung of the distribution ladder. He was the most exposed and thus most vulnerable to law enforcement. He sold single grams of shatter, never more, to a retail purchaser for that person's own use rather than for resale. There is no evidence that he maintained a stash or any satisfactory evidence that he had ready access to larger amounts of the drug. Other than the $70 in "buy money" found in his pocket upon arrest, there is no evidence of any accumulation of wealth or even profit associated with Sriskanda's trafficking. I am not satisfied that he was involved in the production of shatter or that he had ever done more, at highest, than contemplate that prospect. His degree of moral responsibility is to be measured by what he did, not what he may have at some time considered doing or what others higher in the distribution hierarchy had done.
(c) Circumstances of the Offender
[17] Two years have passed since the commission of the two offences to which Sriskanda pled guilty. He is not responsible for this delay. Indeed, at some ways he may be seen as a sacrificial lamb in the Crown's crusade to establish a new high-water tariff in the enforcement of cannabis trafficking offences.
[18] Sriskanda entered a plea of guilty less than seven months after his arrest. Inter-counsel correspondence filed in the course of these proceedings makes clear his still earlier intention to resolve the matter by way of such plea. The Crown's legitimate effort, if ultimately futile, to establish certain aggravating elements of his involvement explain the protraction of what, in the ordinary course, would take less than an hour of court time to complete.
[19] The delay has undoubtedly taken its emotional and financial toll on the offender. Still, the passage of time has to at least some degree worked to his advantage. It has allowed me to realistically assess the sincerity of his claim of contrition and the likelihood of recidivism and any future dangerousness. Said more positively, Sriskanda's "post-offence conduct", as it is put in very different legal context, has confirmed his rehabilitation, normative aspirations and the absence of any social pathology or basis for continuing societal concern. Indeed, Crown counsel has fairly made clear that it is the aggravated nature of the offence, as he seeks to portray it, and not the background or character of the offender that warrant the entry of a conviction.
[20] Sriskanda was 29 years old at the time of the offences. He was born in Sri Lanka and emigrated to Canada with his parents in 1991 to escape the civil war then raging in that country. Sriskanda was then about six. He has no criminal record. He has no outstanding charges. He served two days in custody following his arrest. There is no suggestion that he did other than fully comply with his conditions over the almost two full years he has been on bail.
[21] It is not unfair to say that Sriskanda's material circumstances in Canada were more advantageous than those of many immigrants. His parents were both trained as lawyers and his father was ultimately able to secure a position in that profession in Canada. His parents also placed a very high value on educational achievement. One sibling is a pediatrician. His brother-in-law is a post-doctoral fellow. While Sriskanda's family was and remains supportive, there was always pressure to succeed.
[22] Sriskanda struggled at university, but ultimately secured a BA from the University of Windsor in 2011. He developed a passion for the law and, with his parents' financial assistance, enrolled in the law program at the University of Buckingham in England. While there, he grew increasingly alienated and depressed and, on his account, began to heavily consume cannabis as a coping mechanism. He graduated, but his grades were far from stellar; indeed, they were inadequate to secure Canadian recognition of his British law degree. He drifted on his return to Canada, fell in with a similarly undirected group of friends, and in due course, and on his telling, occasionally sold grams of shatter to supplement his income as a process server. That period of his life spawned the two-year ordeal that brings him before this court for sentencing.
[23] Sriskanda was studying to qualify as a real estate agent at the time of his arrest. As attested to by letters from character witnesses, he then distanced himself from his friends at Unit 206, stopped using drugs and redirected his life. He soon secured his license and a job as a real estate agent with a firm in Markham. He also reapplied to law school and was accepted into the LL.M program at a reputable Toronto law faculty on a full-time basis in May 2016. He has now successfully completed one semester at the school.
[24] He is deeply ashamed by the pain he caused his family and is determined to pursue a legitimate and lawful career. His path since his arrest gives every indication of the earnestness of his ambition.
C. Analysis
[25] Many cases have been pressed upon me in aid of the Crown and defence positions. With all due respect to both parties, I mean to draw on the wisdom of only a few in support of my assessment as to the appropriate sentence.
[26] As made clear by the Supreme Court in R. v. Lacasse, supra, sentencing ranges for various offences, as endorsed by appellate courts, are descriptive not prescriptive. However, in the realm of sentencing tariffs for trafficking specifically in shatter, there is no appellate authority at all. Two cases, however, offer valuable guidance. The first is R. v. D'Souza, [2015] O.J. No. 6089, a late-November 2015 judgment of the Court of Appeal. The appellant, like Sriskanda, offered to sell marihuana on Craigslist. An undercover officer responded to the ad and purchased a quarter-pound (approximately 110 grams) of the product from D'Souza for $750. Following his plea to trafficking in cannabis, he was convicted and sentenced to pay a fine equivalent to the sale: $750. On appeal, D'Souza, as put at para. 3, "contend[ed] that a youthful first offender with good prospects does not deserve a criminal record". The Court effectively agreed. In light of the appellant's efforts "to change his way of life" – including, not incidentally, pursuing full-time university studies – it held, at para. 4, that there was "room to recognize that a criminal record for this first time youthful offender was not necessary". The conviction and fine imposed at trial were set aside and a conditional discharge substituted. The only condition was that the appellant keep the peace and be of good behaviour for a year. I note, as I have earlier in these Reasons, that the range of penalty prescribed by the CDSA for cannabis resin or shatter is identical to that prescribed for marihuana.
[27] Earlier in November 2015, my colleague Justice Malcolm McLeod had occasion to sentence an offender who, like Sriskanda, pled guilty to trafficking in shatter: see R. v. Defrancesco, [2015] O.J. No. 6485. The offender, again like Sriskanda, had advertised his product on Craigslist – and in virtually the same timeframe. And again like Sriskanda, he was a youthful first offender who had demonstrated his remorse and rehabilitative potential before being sentenced. Unlike Sriskanda, Defrancesco sold considerably larger volumes of the drug: two grams (for $120) on the first occasion; 17 grams (for $700) on the second; and 14 grams (for $600) in the final transaction before his arrest. More shatter and a substantial stash of marihuana were found upon the execution of a search warrant at his home.
[28] Justice McLeod noted, at para. 5, that the offender before him "was caught because the police routinely monitor Craigslist to catch people like him who are stupid enough to openly advertise that they have drugs for sale". After thoroughly reviewing the principles and authorities that govern the sentencing of drug traffickers, McLeod J., at para. 10, effectively anticipated the approach of the Court of Appeal in D'Souza when he thoughtfully wrote:
The final consideration is that the imposition of a criminal conviction would cause a hardship … given the nature of his work, because it will make it extremely difficult, if not impossible, for him to enter the United States. In this regard, I am satisfied … that there is a potential here for a disproportionate economic punishment. … It is not the purpose of sentencing to … close doors and opportunities in the future, It is not the point … to perpetuate the punishment past what is required. Unfortunately, this is often the effect of imposing conviction. … We should exercise greater care at the front end.
In the end, McLeod J. granted the offender an absolute discharge.
[29] The authority to grant a discharge rather than convict is anchored in s. 730(1) of the Code. With some exceptions that do not here apply, the relevant portions of the provision read:
Where an accused … pleads guilty to or is found guilty of an offence … the court before which the accused appears may, if it considers it to be in the best interests of the accused and not contrary to the public interest, instead of convicting the accused, by order direct that the accused be discharged absolutely or on the conditions prescribed in a probation order … . [Emphasis added.]
A discharge is almost always "in the best interests of the accused", as Crown counsel rightly concedes. He takes issue, however, with the proposition that it is "not contrary to the public interest" in this case. I respectfully disagree. While the "public interest" is an imprecise concept of some elasticity, it most certainly includes encouraging rehabilitation and societal reintegration – particularly, as here, in the case of youthful first offenders who, by virtue of their post-arrest conduct, have convincingly demonstrated that deterrence is of diminished value in crafting a fit sentence.
[30] Significantly, and as many jurists have observed, the discharge provision is discretionary. Further, the exercise of that discretion on the second branch of the test is not whether the imposition of a discharge is "in the public interest" but whether it is "not contrary to the public interest". This inquiry inevitably comprehends the potential consequences of a conviction – ancillary or collateral consequences, as said in R. v. Pham, 2013 SCC 15, [2013] 1 S.C.R. 739 – that, as McLeod J. points out in Defrancesco, may well prove inequitable or unfair when measured against the gravity of the offence and moral fault of the offender. In such situations, the cardinal sentencing rule of proportionality is inevitably breached through imposition of a conviction. This risk is patent in the case of Sriskanda given his now-settled trajectory in the field of the law and the near-inevitable impediments to professional licensing and practice that would flow from a conviction rooted in an ephemeral exercise in poor judgement that, I find, was out of character.
[31] The collateral damage that radiates from a conviction grows more prejudicially substantial with each passing year. Justice Fergus O'Donnell sketched the nature of the concerns in R. v. Novielli, 2015 ONCJ 192, at para. 19:
[W]hen considering the suitability of discharges in 2015, judges might appropriately tweak their analysis from some of the categories of the past. I say this for two reasons. The first is that information in 2015 is not what it was in 1960 or 1970 or 1980. Computerization and information-sharing now mean that records of a person's criminal history, as well as many lesser contacts with law enforcement, are likely to be immeasurably more widely available than ever before, whether to the public on the internet or to foreign agencies by means of post-"9/11" data-sharing agreements, at the same time that the availability of a "pardon" (now a record suspension) has been constrained. The difference between a conviction and a discharge is now more acute than it has been in the past. The other consideration is that, sometimes for legitimate reasons and sometimes simply because it is possible, it seems to be much more common for employers and voluntary organizations to insist upon records checks. The potential for a criminal conviction to affect a much broader group of defendants is thus very real.
[32] Relying on the principle of restraint, the authority of the Court of Appeal in D'Souza and the complimentary reasoning of the other courts to which I have referred, I am firmly of the view that a conviction would be disproportionately harsh. A discharge is the appropriate sentence: it is certainly in Sriskanda's interest and could not be said to be contrary to the public interest in that it will facilitate rather than impair his capacity to achieve his professional goals and thereby contribute to the common good. Nor do I see any reason to levy a period of probation. The offender has been on bail for two years without incident. He has endured more than a year of fractured court attendances while his fate was publically debated. He has reclaimed his life and turned it in a positive direction. There is no need for community supervision or the gratuitous imposition of terms and conditions. An absolute discharge follows with respect to both counts to which he pled guilty.
[33] By virtue of the mandatory terms of s. 109 of the Criminal Code, Sriskanda is prohibited from possessing any firearms, ammunition or any of the other offensive devices listed in that provision for ten years. Finally, a forfeiture order respecting certain property located in Unit 206 accompanies this disposition.
D. Conclusion
[34] Varun Sriskanda pled guilty to two counts of trafficking in very small amounts of shatter. By way of sentence, and consistent with the reasons just elaborated, an absolute discharge is imposed with respect to each of these offences.
Released on February 9, 2017
Justice Melvyn Green