Court Information

Date: March 13, 2018

Information No.: 17-302

Court: Ontario Court of Justice

Before: Justice Sharman S. Bondy

Parties

Between:

Her Majesty the Queen

— And —

Kanathishan Suntharalingham

Counsel

For the Crown: B. Kim

For the Accused: E. Weber

Reasons for Judgment

BONDY J.:

[1] After plea, the defendant was found guilty of the offence of possession for purposes of trafficking in marijuana. The facts reveal that following a Controlled Drugs and Substances Act (hereinafter referred to as the "CDSA") search warrant being executed, the defendant's residence was searched and a total of 523.6 grams or approximately half a kilogram of marijuana was seized in the following quantities and manner of storage:

a) four plastic containers located under a desk with multiple Ziploc bags totaling 156.5 grams;

b) on his desktop a total of 14.1 grams of marijuana contained within four Ziploc bags;

c) on a nightstand next to his bed a green plastic container again containing two Ziploc bags together with a single Ziploc bag totaling 18.4 grams; and

d) in his closet two clear plastic containers with ten Ziploc baggies totaling 94.9 grams and a Rubbermaid container with two Ziploc bags totaling 240 grams.

[2] Also seized was a sum of money ($2,275.00) in Canadian currency from the defendant's desk, three cell phones, packaging materials, a digital scale and correspondence in the name of the accused being searched.

[3] The evidence reveals that the defendant's residence was located in close proximity to the University of Windsor and university students were his clientele.

[4] The defendant is a first-time offender. At the time of this offence he was 22 years of age. His parents emigrated to Canada from Sri Lanka and he is the youngest of five children. His family has since suffered financial and health difficulties. He describes his childhood as a "rocky road" asserting that his parents pushed for educational successes, expecting him to help out at their convenience store and forced him to follow their traditional Hindu beliefs. According to the defendant, he was bullied in middle school and experienced depression in high school.

[5] He is currently studying Business Administration at the University of Windsor, did not pursue the computer science program he originally enrolled for, and is seeing a psychiatrist and receiving medication for anxiety issues. No report from his psychiatrist was filed nor could he be reached for the purposes of the pre-sentence report. His parents do not know of this offence. His sister thinks the defendant was "always … to be the most successful" and describes him as hardworking.

[6] According to his pre-sentence report, the defendant started using marijuana in university and he increased this to daily use claiming it calmed him down and made him feel more normal. The report filed indicates the defendant expresses remorse for this offence. He also offered that he did not sell drugs to make money but was "trying to protect people from getting hurt from 'laced' drugs" and to force himself to socialize with people. In other words, by selling marijuana, according to the defendant he was trying to make and keep friends. The report does not disclose any rehabilitation or counselling undertaken by the defendant. He claims he is not using marijuana or drugs since his arrest. That is by self-report only.

Defence Position

[7] The defence seeks a conditional discharge in these circumstances relying on decisions such as R. v. Mantione, [2007] O.J. No 3583 (O.C.J.); R. v. Moore, [2005] Y.J. No. 14 (Yukon Territorial Court); R. v. Matheson, [2007] N.S.J. No. 327 (N.S. Prov. Crt.), and R. v. Mansour, [2013] O.J. No. 1077 (O.C.J.), for the proposition that conditional discharges under the provisions of s. 730 of the Code have been granted in drug related offences (i.e. possession for the purposes of trafficking and trafficking) with first-time offenders.

[8] One of the original arguments advanced by the defence was that marijuana is a controlled substance that is generally handled with a lesser degree of severity that other "harder" substances, in addition to the more recent dialogue in Parliament related to legislative amendments respecting marijuana possession which, the defence asserts, supports a reduced penalty on sentencing. Moreover, defence argues that cases such as R. v. Tran, [2017] O.J. No. 527 (Ont. S.C.), reflect the changing culture of sentencing for marijuana offences.

[9] Reviewing the cases, some of the factors generally relied upon include a first-time offender with good character status, an accused's supportive family, positive pre-sentence report findings, lack of violence, the size of the drug operation, whether the offender was otherwise hardworking and conscientious, instances where sales and/or possession of marijuana (for purposes of trafficking) are of last resort or acts of desperation (i.e. resulting from failed family finances or drug addiction issues), "exceptional" offender circumstances (i.e. where a conviction would compromise one's career permanently, create a loss of income to a desperately needy family or overcoming a family background of abuse or neglect). Police cooperation and a guilty plea were also important considerations. One judge described the grant of discharge as a demonstration of mercy (see Matheson). Many of the cases engage in an analysis of the effectiveness of general deterrence and its impact (or lack thereof) in considering the discharge provisions.

Crown Position

[10] The Crown seeks a fine and probation in this matter. They do not dispute the defendant's youthful age, his first-time offender status, his plea and his status as a student nor the impact a conviction would/might have on his future. What the Crown asserts is that the second part of the test for a conditional discharge is not met in these circumstances. Specifically, that deterrence and denunciation are still paramount sentencing objectives, particularly with marijuana trafficking offences and that it is contrary to and inconsistent with the public interest to grant the defendant a discharge.

[11] The Crown argues that the aggravating circumstances in this case are the amount of marijuana recovered and the fact that it was being supplied to students. They also argue there are no exceptional circumstances present with the defendant; they assert the facts do not reveal any real effort by the defendant at rehabilitation and there is nothing in the defendant's biography or family history that would support a discharge.

[12] The Crown relied on the following cases: R. v. Tran, 2017 ONSC 651 (Ont. S.C.); R. v. Young, 1989 CarswellNS 318 (N.S.C.A.); R. v. Rossowski, 2003 CarswellOnt 6632 (Ont. S.C.); R. v. Butt, 1993 CarswellNfld 284 (Nfld. C.A.); R. v. Maloney, 2011 ONCA 821 (O.C.A.). Tran involved both production and possession for the purposes of trafficking of 992 marijuana plants and 687.26 grams of processed marijuana. The accused was a party to a large scale marijuana grow operation for profit inside a house. A period of one year's custody was imposed. The case involves the issue of the mandatory minimum that applied in connection with the production charge.

[13] In Young, a 1989 decision, the offence was three counts of trafficking of hashish to an undercover officer under the former Narcotic Control Act which resulted in a period of incarceration for a repeat offender. The appeal court emphasized deterrence and denunciation together with protection of the public in drug trafficking cases in rejecting the trial judge's intermittent sentence. Rossowski is somewhat closer to the facts before me. 469 grams of marijuana were recovered from the 52 year old accused's vehicle. He was a first-time offender, a family man and his plea was received sometime after a trial date was set. Specific and general deterrence were emphasized and a conditional sentence was imposed. There is no suggestion of exceptional circumstances supporting a discharge.

[14] Butt is a Crown appeal of an intermittent sentence for possession of 328 grams of cannabis marijuana found in a vehicle together with 320 grams of cannabis resin taped to one of the defendant's legs. The appeal court rejected the Crown's argument that a period of one year's custody was warranted and was not inclined to vary the 90 day intermittent sentences, fine and probation orders imposed. Both accused were not first-time offenders. The Court emphasized deterrence as a significant component in drug trafficking offences and did find that generally persons found guilty of trafficking in a narcotic should expect to face some sort of prison term, absent exceptional or extraordinary circumstances.

[15] Maloney is an Ontario Court of Appeal decision involving the accused's possession for the purposes of trafficking of 521 grams of marijuana and 55 grams of resin found in a vehicle heading towards the Quebec border from Ontario. The issue in the case was the appellant's use of the marijuana for medical purposes. He suffered from back pain and did not have medical authorization for its use and could not find a doctor in Quebec to apply for its use. There is no discussion of the defendant's criminal antecedents. The Court reduced the sentence to one of time served with no order of probation to follow.

Court's Analysis

[16] In each of these cases I would note there is no analysis of the issue of whether a discharge was applicable or not. The Crown cases do not engage in any meaningful argument or analysis of the issue. Clearly, all of the Crown cases demonstrate that deterrence and denunciation are important sentencing principles in connection with trafficking cases, however, the authorities provided by the defence show that even in trafficking and possession for purposes of trafficking cases, the discharge provisions can apply. To be clear, legislative reforms relating to marijuana possession on the horizon do not entitle a sentencing judge to disregard the rule of law. (See R. v. Tran, 2016 ONSC 3225; R. v. Caporale, an unreported decision of King J. at Windsor Ontario Superior Court, dated April 14, 2016).

[17] Section 10 of the CDSA and s. 718 to s. 718.2 provide the framework for sentencing offenders who come before the Court charged with drug offences. Section 730 (1) sets out the discharge provisions. I am mandated by s. 10(2) of the CDSA to consider the aggravating factor that the drugs in question were near a school (i.e. University of Windsor) and near school grounds. Whether the sales were made to persons under the age of 18 years is unknown and was not part of the evidence before me.

[18] I agree with the Crown that the defendant's pre-sentence report can be characterized as neither positive nor negative. He appears to come from a good family who apparently ran into financial difficulties supporting extended family emigrating to Canada and providing a university education for their five children. I cannot determine if they are supportive as the defendant has not disclosed this offence to them. The only person who knows he is before this Court is his sister. He was motivated enough to start school but appears to be somewhat unfocused on what his end goal is. He may be starting up a business according to the defendant's counsel and he may need to travel. Without a discharge, a conviction would prevent and/or frustrate his travel. Again, I have no specific evidence relating to this impediment that was received.

[19] The amount of marijuana in question here is neither minimal nor at the same time suggestive of a large scale commercial operation. At the same time the defendant was found in possession of a relatively large quantity of cash for a university student coming from an impoverished family, three cell phones, packaging materials and a digital scale were also found. The marijuana discovered was packaged in various containers and Ziploc bags in varying amounts as I have disclosed above. I have no evidence as to what portion or part of the marijuana was dedicated for his personal use.

[20] It is a specific aggravating factor that the defendant's residence was located near the university and he was selling to university students. The evidence reveals that he uses marijuana daily and that he suffers from anxiety and in the past with depression, but I have no information from his psychiatrist to assist me with that claim. At the same time he is not, nor am I aware, that he has ever participated in any type of drug treatment or counselling. He claims he is no longer using drugs despite the fact that until these charges he used marijuana daily.

[21] Initially, the defendant claimed that he was not motivated by profit but rather trying to protect other students from "laced marijuana" and to help him with socializing. On sentencing, his counsel conceded that he trafficked in marijuana in part to make a profit. This is at the same time that his father is described as ill with both parents living on Ontario Works and a sister moving into their home to assist them financially. There is no suggestion that the monies he earned were to help his parents.

[22] To be clear, there are mitigating factors here. The defendant pled guilty to this offence and he accepts responsibility. He is a youthful first-time offender with no criminal record. He does not appear to be involved in a sophisticated high level scheme of drug distribution, but at the same time, the manner in how the marijuana was stored, packaged and assembled suggests this was an arrangement that took some organization and skill – it was not a one-time only event as some of the trafficking cases show with small marijuana sales to undercover officers. Whether or not the defendant is highly motivated with excellent prospects for rehabilitation has not been established in any meaningful way before the Court. His assertion that a conviction would compromise his travel plans with a business and thereby create drastic consequences is an unknown factor.

[23] I find the mitigating factors here do not outweigh the aggravating ones. The defendant appears to have no sense of the harm he might create by selling drugs to students or the impact his daily use has on his own health and well-being, other than he sees marijuana sales as helping him socialize and helping others avoid laced drugs. These explanations defy logic and explanation. There is a reason Parliament does not want individuals selling substances to its citizens unless those drugs are controlled by the state. The premise is that society has a strong interest in knowing that what they are ingesting is safe, but in the short and long term, or at the very least [Canadians] can make themselves aware of potential harm and make a decision based on the known side effects. (See R. v. Dylan South, 2017 MBPC 3). To repeat, to justify the defendant's conduct based on Parliament's intention for reform as originally proposed by the defendant's counsel, still does not entitle me to disregard the rule of law. I reiterate Justice Trotter's caution in Bentley.

[24] To be sure, a conditional discharge that results in no conviction for the defendant is clearly in the defendant's best interests. He appears to be of general good character and young. There was no evidence the marijuana was associated with violence. He gave a guilty plea; he is remorseful. His family, however, is not supportive; they do not even know of these charges, save and except his sister. I cannot ascertain his academic potential. A conviction will have no drastic and permanent effect on his future. I have no positive letters of reference and I cannot ascertain whether these proceedings have had a specific deterrent effect on him. As it relates to his rehabilitation, he says he has simply stopped using. He has no plan for drug rehabilitation. Funding his drug use was not the reason for his marijuana sales. The amount of marijuana in his possession is troubling. Clearly, he was motivated by profit that he did not use to even support his impoverished parents.

[25] Adding to these factors is the importance of deterrence and denunciation that a conviction will provide to the defendant and to the public. I think there is still an important place for deterrence and denunciation in cases such as this. First, I am not at all confident that despite the defendant's plea and indications of remorse that he actually sees the error of his ways. He appears to think he is involved in some type of public service objective in selling marijuana to students. He does not understand the basis of his own use and addiction and the evidence before me suggests that he was primarily motivated by profit and at the same time took no steps to assist his impoverished parents.

[26] This is not a case for incarceration (nor does the Crown seek this) given the mitigating factors here, including the defendant's plea, the amount of marijuana involved, its characterization in the case law as a "soft" drug and his lack of criminal antecedents. However, the offence before the Court is a serious one. There is an important public interest in deterring others from flouting the law, for respect for the law, and for the public interest objectives in maintaining a just, peaceful and safe society with the imposition of just sanctions that denounce and deter others. These principles are reinforced within s. 10 of the CDSA and s. 718 of the Criminal Code.

Conclusion

[27] There are two lingering issues that I have identified in these circumstances and on the facts of this case which compel me to reject the conditional discharge request in these circumstances. They are as follows:

a) I am not satisfied that the defendant would be deterred from future offences or that he would seek or pursue rehabilitation without a conviction in place. He lacks the basic comprehension and appreciation of the circumstances that have led to his criminal behaviour; and

b) I am not confident that the second part of the R. v. Fallofield test, [1973] B.C.J. No. 559 (B.C.C.A.), has been met in these circumstances; that the public interest would be served with a discharge in these circumstances, where the offence appears to have been primarily motivated by profit or greed and to some degree, elements of planning and forethought, and where the public interest in respect for the law and safety of the community in these circumstances needs to be reinforced.

[28] For these reasons, there shall be a fine of $1,000.00 to be paid in 6 months' time and an order of probation for 12 months. Order of forfeiture granted and mandatory s. 109 for 10 years to issue.

Dated at Windsor this 13th day of March, 2018

Original signed and released

Justice Sharman S. Bondy