Court Information
Ontario Court of Justice
Date: January 31, 2018
Court File No.: 16 F 5653
Between:
Her Majesty the Queen
— and —
Selena Holder-Zirbser
Before: Justice Norman D. Boxall
Reasons for Sentence released on: January 31, 2018
Counsel
P. Meilleur-Durand — counsel for the Crown
S. Ahsan — for the accused
Decision
BOXALL J.:
1. OVERVIEW
[1] The defendant, Selena Holder-Zirbser, pleaded guilty to possession for the purpose of trafficking in cannabis marijuana, cannabis resin and cannabis edibles in an amount less than 3 kg.
[2] The defendant worked at a marijuana dispensary. The Ottawa Police executed a search warrant on this dispensary and arrested the defendant, who was present and working at the time. The defendant was an employee, not an owner. No owners or persons in a management role have been charged in connection with this search.
[3] At the sentencing hearing on November 17, 2017, both the Crown and Defence agreed that a discharge would be appropriate, given the defendant's circumstances. They disagreed on whether that discharge should be conditional or absolute.
[4] For the reasons that follow, I discharge Ms Holder-Zirbser absolutely.
2. ANALYSIS
2.1 Discharges Generally
[5] Section 730(1) of the Criminal Code states that where an accused pleads guilty or is found guilty of an offence other than one where a minimum punishment is prescribed or one punishable by imprisonment for 14 years or more, the Court may discharge the accused instead of convicting them. A discharge can be absolute, or on the conditions prescribed in a probation order. Regardless of whether the discharge is conditional or absolute, it must be in the best interest of the accused and not contrary to the public interest.
[6] The offence of possession for the purpose of trafficking in less than 3 kg of marijuana is punishable by a maximum of five years less a day, and there is no prescribed minimum.[1] Thus, a discharge is available, and the Court must consider the best interest of the accused and whether a discharge is not contrary to the public interest. In this case, the Crown and Defence necessarily agree that both criteria are met.
[7] The manifest purpose of the discharge provisions in the Criminal Code is to enable the Court, in appropriate circumstances, to avoid giving the accused a criminal record. R v McInnis, (1973), 1 OR (2d) 1 (Ont CA).
[8] The accused does not have to satisfy the Court that the discharge is in the public interest, but rather, only that it is not contrary to the public interest. R v Bothman, [1983] OJ 70 (Ont CA). The standard of not being contrary to the public interest is far lower than being in the public interest. Gilles Renaud, Sentencing in Ontario (Landon Legal Library Press, 2012) vol 1 at 91.
[9] Sentencing is always case specific; however, in determining whether to grant a discharge, the trial Court has a statutorily created wide judicial discretion. R v Sanchez-Pino, [1973] 2 O.R. 314 (Ont CA).
[10] In using that discretion, the following question arises: To what extent, if any, should possible changes to the marijuana legislation play a role in sentencing? Relying on a decision of the Saskatchewan Court of Appeal, the Crown submits that judges are bound to apply the law as it currently stands. R v Neary, 2017 SKCA 29 at para 44. I agree. In R v Mahdavi (July 19, 2017) (unreported) at para 21 [Mahdavi], I noted that it is nevertheless a factor, albeit a limited one, in assessing the defendant's degree of moral responsibility.
[11] Even though proposed changes to the law play a limited role, ignorance of the law as it currently stands may be a mitigating factor in sentencing. See for example R v Hawkins, 86 CCC (3d) 246 (Ont CA), revd, [1995] 4 SCR 55 (SCC).
2.2 Why a Discharge is Appropriate
[12] At least one discharge has been granted in a trafficking case where the quantity of drugs vastly exceeded the amount in question here. R v DeSousa, 2012 ONCA 254, 109 OR (3d) 792 [De Sousa].
[13] Here, the defendant has had a difficult upbringing and has had to face numerous hardships in life. Despite this adversity, the pre-sentence report is exceedingly positive. I find that the following mitigating factors make a discharge appropriate:
The defendant has no criminal record and was only 21 years old at the time of her arrest. She has pleaded guilty, expresses regret and remorse, and takes responsibility for her actions.
The defendant did not realize that the dispensary in which she worked was operating illegally. She was not aware that her activities were considered to be trafficking, and would not have taken the job had she been aware of the possible consequences.
The defendant felt it was necessary to accept employment at the dispensary, on a temporary basis, because of financial difficulty and its associated emotional distress.
Since the time of her arrest, the defendant has stopped working at the dispensary and has found various forms of legal employment.
The defendant has long term plans to work as a veterinarian and open animal sanctuaries. As a start, she has accepted training to become an animal groomer, and has plans to pursue studies as a veterinarian technician. A criminal record would impact her ability to practice in this field.
The defendant has made ongoing efforts to improve her lifestyle.
The defendant is at a very low risk of reoffending.
[14] The Defence also submitted a letter from Ms Aileen Lee, one of the defendant's teachers. Ms Lee speaks very highly of the defendant's character, noting that she is a good person with strong values, and with an intense desire to do good. Ms Lee believes that the defendant's poor choice was uncharacteristic, and made out of desperation. I find this letter extremely helpful. Along with the factors mentioned above, it leads me to believe that the defendant, like the defendant in DeSousa, is a young first offender with a promising future.
[15] Given the overwhelming number of mitigating factors, it is in the interests of the defendant, and not contrary to the public interest, to grant a discharge. I believe it is appropriate to discharge Ms Holder-Zirbser absolutely, unless conditions are necessary. As I will now discuss, I find that no conditions are warranted in the circumstances of this case.
2.3 Why Conditions are Unnecessary
[16] There is no specific test for when a conditional discharge should be preferred to an absolute one. However, the following framework may be helpful: Are conditions necessary to achieve an appropriate sentence? If they are, the Court should grant a conditional discharge. Otherwise, the discharge should be absolute.
[17] Future employment and travel prospects have played an important part in determining whether to grant an absolute discharge. The Defence has submitted two cases on that subject: R v Dzabic [Dzabic], an Ontario Superior Court decision, and R v Price, 2016 BCPC 216 [Price], a British Columbia Provincial Court decision.
[18] Dzabic was a case where the Court varied the sentence from a conditional to absolute discharge. In Dzabic, the defendant was convicted at trial of having assaulted his wife with a weapon. The Court noted that (1) an absolute discharge was critical to defendant's ability to enter the United States; and (2) a conditional discharge would hinder the defendant from growing his company, keeping existing clients, and supporting his child. It based this conclusion on fresh evidence that the defendant was 34 years old, self-employed, and provided worldwide marketing and sales services. The Court noted that while a conditional discharge would have been appropriate at time of trial, this fresh evidence suggested that an absolute discharge was now appropriate.
[19] Price was a drug case where the British Columbia Provincial Court granted an absolute discharge to the defendant, who had pleaded guilty to possessing cocaine contrary to section 4(1) of the Controlled Drugs and Substances Act. The question before the Court was the same as here: Both the Crown and Defence had already agreed that a discharge was appropriate, but disagreed on whether that discharge should be conditional or absolute.
[20] The circumstances of the defendant persuaded the Court in Price to grant the absolute discharge. The defendant was 21 at the time of the offence, had low moral culpability, showed remorse, and had already completed 21.5 hours of community service. The Court found that besides the nature of the drug itself (cocaine), all other factors were mitigating, specifically "the minimal amount of drugs in the offender's possession, his early guilty plea, his age, his lack of criminal history, and his otherwise prosocial lifestyle" (Price at para 15).
[21] In Price, the Court specifically noted the impact a conditional discharge would have on the defendant's ability to travel to the United States:
It has long been my understanding that the border authorities in the United States refuse entry to those convicted of simple possession of illicit substances such as cocaine. My understanding arises from my experience and the submissions of many senior defence lawyers that the United States draws a distinction in practice between a conditional discharge and an absolute discharge. The former is viewed as a conviction and the latter is not (Price at para 30). [Emphasis in original.]
Because of this impact, the Court found that it would be disproportionately harsh to discharge the defendant conditionally given his otherwise good character.
[22] The Ontario Court of Justice has also considered travel and employment to be important factors. In R v Di Gianni, 2011 ONCJ 792 [Di Gianni], the Court granted an absolute discharge. The Court discussed several characteristics that led to that sentence. The Court remarked that a conviction, or even a conditional discharge, would likely result in the defendant losing his license to sell real estate. It was also important for the defendant's career that he be able to travel to the United States.
[23] In Di Gianni, Justice Brown made the following remarks about the public interest when evaluating whether an absolute discharge would provide enough general deterrence:
[T]he perception of the public and the public interest presumes an informed public, cognizant of the frailties of the human condition, and the fact that rehabilitation is a real and attainable pursuit of the criminal justice system and of the individuals enmeshed in it (Di Gianni at para 56). [Emphasis added.]
Despite the seriousness of the offence in that case, the Court found an absolute discharge appropriate given the defendant's circumstances.
[24] Both the Crown and Defence have submitted my decision in Mahdavi. In that case, both accused pleaded guilty to possessing less than 3 kg of marijuana for the purposes of trafficking. Both were dispensary employees. In that case, I discharged both accused conditionally.
[25] Finally, the main purpose of conditions in a probation order is to act as a rehabilitative sentencing tool. R v Shoker, 2006 SCC 44 at para 10, [2006] 2 SCR 399. It follows that where conditions would not meaningfully further the goal of rehabilitation, the Court should hesitate to impose them.
[26] On November 17, the Crown asked for only one condition of probation, that being to perform community service. Between November 17 and today, Ms Holder-Zirbser has voluntarily completed 31 hours of community service. I therefore see no benefit to making an order in that regard.
[27] I also see no rehabilitative value in imposing any other conditions. As I noted above, the defendant has already accepted responsibility for her actions, and shown remorse. She is at a low risk of reoffending. In fact, a discharge with probation conditions would likely detract from the defendant's ability to be a productive member of society.
[28] The next question is whether an absolute discharge, as compared to a conditional one, would provide the appropriate level of deterrence. The Crown argued that a conditional discharge was necessary to achieve this sentencing goal. As I noted in Mahdavi, conditions attached to a discharge may contribute to achieving the sentencing goals of denunciation and deterrence (Mahdavi at para 20).
[29] I find that conditions are not necessary to achieve specific deterrence. Ms Holder-Zirbser has experienced the process of being arrested and fingerprinted. Her life story has been on display for the public to see, both in the courtroom and in the media. This may affect Ms Holder-Zirbser, to one degree or another, on an ongoing basis. From my own observation of the stress the defendant showed during the November hearing, the criminal process appears to have caused her a great deal of anxiety. I therefore find that in the totality of the circumstances of this case, an absolute discharge provides more than adequate specific deterrence such that conditions would not further this sentencing goal.
[30] As for general deterrence, in this case the difference between a conditional discharge and an absolute one is largely illusory, in part given the inconsistent enforcement of trafficking in marijuana laws.
[31] General deterrence is best met by an increased certainty of apprehension. Given the number of dispensaries and the relatively few prosecutions, the government is seemingly either unwilling or unable to make working in or purchasing marijuana at a dispensary likely to result in apprehension.
[32] I should make it clear that the judiciary's role is not to instruct the executive branch of government on who it should or should not prosecute. It is, however, the role of the judiciary to determine the amount of general deterrence that is required, and the most appropriate means to achieve that deterrence, on cases that come before it. If the authorities choose to prosecute only certain individuals to combat dispensaries, that is within their discretion. But it is inappropriate for the Court to fight any battle against dispensaries on the backs of individuals with low moral culpability, significant remorse, and strong rehabilitative potential.
[33] In this case, imposing conditions on the defendant for what would, in my view, be ineffective at achieving general deterrence would simply be unnecessarily punitive. For one thing, a conditional discharge would have a disproportionally detrimental effect on the defendant's ability to travel to the United States. Both of the defendant's grandparents live in Florida, and she travels there regularly to visit them. Should the defendant receive a conditional discharge, she would likely be unable to visit her grandparents again in their lifetime. Given the totality of the circumstances, such an outcome would be cruel, and counterproductive to the defendant's rehabilitation and mental health.
[34] A conditional discharge would also have unnecessarily punitive consequences on Ms Holder-Zirbser's ability to obtain required criminal records clearances for employment. Such clearances would likely be necessary for the defendant to achieve her goals in life. The defendant has worked extremely hard toward her educational and career goals. She has done so in the face of enormous adversity. Were the Court to put a halt to the defendant's meaningful attempts to be a productive member of society through unnecessary conditions, it would fly in the face of the entire purpose of rehabilitation. It would fly in the face of justice and the public interest.
3. CONCLUSION
[35] As I noted in Mahdavi, sentencing is not a mathematical algorithm. It is an individualized process that leaves considerable judicial discretion to the trial judge to impose a just sanction that in his or her opinion, exercised judicially, in all of the circumstances, best meets the purposes and principles of sentencing. In all of the circumstances of this case, I believe that the appropriate and just sentence is to grant the accused an absolute discharge.
[36] The Mandatory Victim Fine surcharge of $200 applies.
Released: January 31, 2018
Signed: Justice Norman D. Boxall
Footnote
[1] The maximum penalty is 5 years less 1 day. This is an unusual maximum in the Criminal Code and the logical explanation of it is to deny the accused the right to a jury trial. Unlike perhaps complicated securities legislation the reasonable inference is that the denial of a jury trial is because a jury might not be prepared to convict for this offence. It was not necessary to consider this as a factor in this case although it might be a consideration in another case. This unusual maximum has one other consequence. Pursuant to s. 487.04, possession for the purpose of trafficking is a secondary designated offence for the purpose of ordering a DNA sample from the offender only if the maximum penalty is 5 years or more. Thus there is no jurisdiction to order a DNA sample be taken from these accused.