Court File and Parties
Ontario Court of Justice
Date: 2017-11-20
Court File No.: Toronto Region CR-16-15002207
Between:
Her Majesty the Queen
— and —
Joshua Dos Santos
Before: Justice H. Pringle
Heard on: November 15, 2017
Reasons for Judgment released on: November 20, 2017
Counsel
I. Glasiner — counsel for the Crown
M. Macchia — counsel for the accused
Reasons for Judgment
PRINGLE J.:
Facts and Guilty Plea
[1] On three occasions between February 23 and March 23, 2016, Joshua Dos Santos met with an undercover police officer and sold him small amounts of powder cocaine. The first transaction was .88 grams for $120; the second transaction was .36 grams for $120, and the third transaction was 1.59 grams for $240. Although Mr. Dos Santos has pled guilty only to count three, which relates to the sale of 1.59 grams for $240 on March 23rd, 2016, the facts of the other two transactions were read in on consent of the defence. Pursuant to R. v. Garcia and Silva, [1970] 3 C.C.C. 124 (Ont. C.A.), the evidence of the other two transactions may be treated as aggravating factors and I have factored them into my decision as such.
[2] Mr. Dos Santos has pled guilty to this offence, always a significantly mitigating factor, and the defence has adduced evidence on his behalf. Exhibit 1 is a compilation of medical records, a letter from a pharmacist dated September 16, 2017, a letter demonstrating family support, and a letter confirming four years of stable employment.
Medical Evidence and Addiction
[3] The medical records prove that in late 2014 and early 2015, Mr. Dos Santos sought medical treatment for two physical ailments. The treatment he received included addictive painkillers. At hospital, he received oxycodone and percocets, and he continued to be prescribed percocets after being discharged. This painkiller prescription led to a painkiller addiction. The Crown accepts that at the time Mr. Dos Santos committed the offences at bar, he was a drug addict. This addiction is a fact which also factors into my decision.
The "Addict-Trafficker" Issue
[4] The Crown and defence, while at one on the issue of Mr. Dos Santos being an addict, disagreed on whether he was an "addict-trafficker". The term "addict-trafficker", in this context, addresses whether Mr. Dos Santos sold small amounts of cocaine to feed his own addiction, as opposed to for profit and greed. I had the benefit of full submissions on this issue. In his reply submissions, Crown counsel fairly stated that while he was not disagreeing with the description of Mr. Dos Santos as an "addict-trafficker", he was leaving the issue open for me to decide.
[5] I adjourned the decision in this case to give anxious consideration to this question, and to have time to carefully review the evidentiary record and the cases. After doing so, I have decided that Mr. Dos Santos is properly characterized as an "addict-trafficker". The evidentiary record amply supports this inference and, in drawing it, I have taken into account all of the evidence, but in particular have relied upon the following:
The fact that Mr. Dos Santos comes to the court with no criminal record at the age of 28;
Mr. Dos Santos sold small quantities of cocaine, consistent with someone selling something quickly to get a small amount of money which would enable him to get a quick "fix";
No other narcotics or money were found on Mr. Dos Santos following his arrest on March 23;
Proof of Mr. Dos Santos' addiction is firmly rooted in the evidentiary record – in the hospital records where the addiction began, in the letter of family support which references the addiction and the achievement of sobriety, in the proof of methadone treatment and the need to demonstrate regular clear urinalysis results to obtain that methadone, and;
The letter of Mr. Dos Santos' treating physician, which had a significant impact on me and which I will return to later.
Moral Blameworthiness and Denunciation
[6] Painkiller addiction is a horrible thing. So is cocaine addiction. Mr. Dos Santos dealt cocaine and risked placing other people in the miserable world of addiction that he himself was trapped in. He understood, better than most people, that behind each deal was a potential victim who could become addicted to cocaine, just as he was addicted to painkillers. The sentence I impose must denunciate the wrongness of his actions.
[7] But when a person's decision to sell small quantities of drugs springs from their own addiction and need to feed it, case law clearly establishes a reduced moral blameworthiness. To draw from just one of many examples, in R. v. Azeez, [2014] O.J. No. 3091, a case from this court and this community, Green J. held at para. 25 that:
Addicts are neurologically rewired by their dependence. As said in R. v. Preston, (1990), 79 C.R. (3d) 61 (B.C. C.A.), "heroin addicts must variably support [their] addiction with some form of criminal activity". Their crimes – typically burglaries, soliciting, drug store robberies and, most frequently, street-level trafficking – are driven by the need to finance their pharmacologically induced cravings. They do not have the same degree of moral liberty as those who deal drugs for purely commercial motives and, as courts have long recognized, their moral blameworthiness is accordingly attenuated.
Similarly, in R. v. Acorn, [2010] O.J. No. 1626 (Ont. C.J.), Green J. observed at para. 12 that:
User-dealers such as the offender – as opposed to those motivated by greed – are treated with some compassion by the law, particularly where, as here, they demonstrate insight into their condition and a genuine desire to reform. As said very recently by the Manitoba Court of Appeal in R. v. Draper, 2010 MBCA 35, [2010] M.J. No. 94 (Man. C.A.), at para. 24, "A drug addiction is not an excuse, but is a factor to be taken into account and weighed along with other factors on sentencing".
Sentencing Range and Flexibility
[7] Defence counsel has sought a suspended sentence and a one-year probation order. Crown counsel has sought six months in jail. He seeks no probation. Six months in jail is not an unreasonable position to take. In 2002, our Court of Appeal in R. v. Woolcock, [2002] O.J. No. 4927, at para. 15, spoke of a range from six months to two years in jail for similar offences. But I do not find Woolcock intended to set an immutable range applicable to every offender charged with cocaine trafficking offences. The exercise of sentencing must always retain flexibility in order to ensure fairness. Moreover, in Woolcock the appellant was not a drug addict: see para. 5. This is a significantly distinguishing feature from Mr. Dos Santos' case.
[8] In comparing Woolcock to the Court of Appeal's recent decision in R. v. Barkhouse, 2017 ONCA 29, the difference between sentencing a "for-profit" trafficker and sentencing an "addict trafficker"' becomes clear. In Barkhouse, a 15-month sentence of incarceration was imposed at trial for possession of cocaine for the purpose of trafficking. On appeal, the Court found the judge erred in treating a neutral factor as aggravating and overturned the sentence. Considering the issue of sentence anew, the Court concluded that a sentence of nine months in jail fit the circumstances of that offender and that offence. The quantum of cocaine in Barkhouse was 28 grams. But, like the case at bar, the appellant in Barkhouse had no prior criminal record, stable employment, and family and community support. He, like Mr. Dos Santos, was an addict-trafficker with strong rehabilitative potential.
Rehabilitation and Non-Custodial Sentencing
[9] Crown counsel correctly points out that the Court of Appeal in Woolcock was not blind to the goals of rehabilitation. It is true, and I accept, that in some cases a term of incarceration can achieve rehabilitative goals. But in some cases a term of incarceration can be counter-productive to achieving rehabilitative goals. Mr. Dos Santos's case falls into the latter category. If I sent him to jail, I would cut him off from the network of support he has set up for himself, including a treating doctor who cares about his recovery and is actively continuing to help him with that. Not only would he be cut off from this support network – his doctor, the Narcotics Anonymous meetings that he is going to whenever he feels vulnerable to using, his stable employment - but I would be sending him to a depressing environment where drugs are available. I adopt the conclusions of Hogan J. in R. v. Munroe, [2016] O.J. No. 5800, another case from this court and this community, where at para. 11 she held:
Mr. Munroe at the highest was a low level street trafficker, selling to support his own addiction. He has now as I have set out above, completely turned his life around and is no longer part of the drug and criminal culture – either as a user or trafficker. The public is much better protected by having Mr. Munroe continue with his rehabilitation than putting him back into a jail setting even for an intermittent period. There are drugs in the jails, no substance abuse programming for someone on an intermittent sentence and obviously no family support to assist him should he be tempted to use. Should Mr. Munroe start using again the public is less protected.
[10] I have no doubt that when Parliament removed the availability of conditional sentence orders for this offence, its decision to maintain suspended sentences as an available disposition was considered and reasoned. Sentencing is not an exercise where one size fits all. As has been said many times before, sentencing ranges are meant to be guidelines, not straitjackets.
[11] I also accept that a non-custodial sentence for this offence can and will serve the principles of general deterrence and denunciation. The British Columbia Court of Appeal, in R. v. Voong, 2015 BCCA 285, 325 C.C.C. (3d) 267, at para. 61, observed that the stigma of being arrested, tried and convicted of drug trafficking and the consequences of conviction, such as potential travel restrictions, employment restrictions – all these factors achieve deterrence and denunciation. Breaching the probation order can lead to revocation. Being subject to a probation order still restricts a person's liberty and freedom, just to a lesser extent than jail. I would add to this list the fact of pretrial custody, which in the case at bar was the equivalent of three days and no doubt left a lasting deterrent impact on a first offender like Mr. Dos Santos.
Exceptional Circumstances
[12] After considering all of the evidence, I find that Mr. Dos Santos does fit into the category of an "exceptional case" where a non-custodial sentence for this type of offence is appropriate: see also Azeez; Voong; R. v. Lazo, 2012 ONCA 389; R. v. Duncan, 2016 CarswellOnt 29 (C.J.); R. v. McGill, 2016 ONCJ 138, [2016] O.J. No. 1346 (C.J.); R. v. Thevarajah, 2016 ONSC 6739, [2016] O.J. No. 462 (S.C.). This is a man who fell into addiction after being prescribed serious painkillers for an injury. The ongoing prescriptions became a dependency and a physical and psychological need. Mr. Dos Santos then lived as an addict, a functioning addict but an addict nonetheless, for two years. When he was arrested for this offence, it was obviously a wake-up call for him to change his life around.
Evidence of Rehabilitation
[13] And so he did. He has been on bail since his arrest in March 2016, successfully and without incident. Part of Exhibit 1 is a letter from Pharma Docs Pharmacy, which confirms that Mr. Dos Santos has been providing weekly clean urine samples in order to obtain a prescribed amount of methadone. Exhibit 1 also includes a letter from Mr. Dos Santos' brother, confirming his sobriety. Achieving this goal demonstrates Mr. Dos Santos was determined to get his life back on the right path.
[14] Most compelling, however, was the letter from Dr. Dale Ryan which was marked Exhibit 2. It was this letter that soundly convinced me that Mr. Dos Santos' case did, in fact, fall into the 'exceptional circumstances' category. For almost one year, Dr. Ryan has been Mr. Dos Santos' treating doctor at Pharma Docs Downtown – Addiction Treatment Centre. This is a centre which specializes in opioid dependency treatment. When Mr. Dos Santos came to the clinic, he met the criteria for opioid dependence. Now, today, his treating doctor writes that:
Joshua is one of my most stable patients. He has done exceptionally well and has remained abstinent almost from the very beginning. His urine drug screens have remained free of illicit substances and he has achieved what is referred to as level six carries. A carry is a take home dose and it benefits most patients who are granted carry doses as it eliminates the need to attend the pharmacy every day for an observed dose…
Josh very quickly worked his way up to level 6 carries which is a testament to his motivation to improve his life. Level six carries is often very difficult for many patients to achieve. In addition he is compliant with all of his appointments.
I also spend time providing supportive counselling to my patients and I have really gotten to know Josh over the last several months. Joshua represents what we, as methadone providers, genuinely want for all of our patients. He is very motivated and very committed to maintain ongoing abstinence.
I have spent a considerable amount of time counselling Josh on some of the events that occurred in his past when he was under the influence of opioids. He spends a lot of time perseverating on some of the drug-related negative aspects of previous years. He shows incredible remorse over some of the relationships that were compromised with family and friends and he has worked hard to repair some of these relationships. He is gainfully employed and a contributing member of society. While the methadone certainly helps with some of the physiologic aspects of addiction, it should be recognized that it takes tremendous commitment and perseverance to get to the place that Josh is in his life. He participates in some aftercare activities such as attending some NA meetings and he is always engaged in our counselling sessions. Joshua has agreed to continue on with the MMT while at the same time exploring what things have driven his addiction in the past. Joshua is probably one of my most successful patients in a very large practice of patients. I hope that this letter conveys the true picture of the person that I believe Joshua to be.
[15] Indeed it did. I have a very clear picture of how hard Mr. Dos Santos has worked on beating his addiction and rehabilitating himself prior to pleading guilty and being sentenced. Often a sentence speaks to a person's prospects for rehabilitation being good based on their past pro-social life and stability in the community. Not only are Mr. Dos Santos' prospects for rehabilitation excellent, I have compelling proof of his current and ongoing rehabilitation before the court.
[16] If Mr. Dos Santos does not return to drug use again, I am thoroughly convinced he will not commit any future offences and the public will be protected. The sentence I impose must ensure, as much as possible, that he does not return to drug use. The best way to do that, to protect the public, and to ensure no further re-offending, is to keep Mr. Dos Santos on the rehabilitative path he is already on.
Sentence Imposed
[17] On count three as pled to, I am imposing a suspended sentence and two years' probation. The mandatory conditions are:
Keep the peace and be of good behaviour;
Appear before the court when required to do so by the court;
Notify your probation officer in advance of any change of name, address, employment or occupation.
In addition, you will comply with the following conditions:
Report to probation today and thereafter as required;
Attend and actively participate in all assessment, counselling or rehabilitative programs for substance abuse as directed by the probation officer and complete them to the satisfaction of the probation officer;
Sign any release of information forms that will enable your probation officer to monitor your attendance and completion of any assessments, counselling or rehabilitative programs as directed;
Provide proof of your attendance and completion of any assessments, counselling or rehabilitative programs as directed;
Perform 100 hours of community service work. This work is to start no later than 60 days from the date of this order, and shall be completed at a rate of not less than 5 hours per month. You must complete all of your community service hours within the next 18 months.
Make reasonable efforts to seek and maintain suitable work and provide proof of same as required by the probation order.
Ancillary Orders
[18] I am granting the Crown's application for a s. 109 order, and ordering that you are prohibited from possessing any prohibited firearm, restricted firearm, prohibited weapon, prohibited device, ammunition, prohibited ammunition, or explosive substance for a period of 10 years.
[19] I am also granting the Crown's application for a DNA order pursuant to s. 487.051(3)(b) of the Criminal Code, and ordering that you provide samples of bodily substances reasonably required for the purpose of forensic DNA analysis to be used in accordance with the DNA Identification Act. It is a secondary offence, but given that Mr. Dos Santos trafficked drugs on three separate occasions and the serious nature of the drug trafficked each time, I find the benefits to the administration of justice, including exoneration of the innocent as well as the investigation of crime, outweigh any intrusion to his privacy and security of the person.
[20] Finally, I will impose the mandatory victim fine surcharge of $200 for the single indictable offence pled to.
Released: November 20, 2017
Signed: Justice Heather Pringle
