ONTARIO COURT OF JUSTICE

CITATION: R. v. Khan, 2019 ONCJ 29

DATE: January 18, 2019

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

SHAHBAZ KHAN

Before Justice John North

Heard on July 5, September 17 and October 23, 2018

Reasons for Sentence released on January 18, 2019

K. Ramchand and S. Lefrance..................................................................... counsel for the Crown

D. Vago………………………………………………………….........counsel for Shahbaz Khan

NORTH J.:

Introduction

[1] On July 5, 2018, Shahbaz Khan pleaded guilty to trafficking 1.08 grams of powder cocaine. He is now before the court for sentencing.

The Offence

[2] On October 29, 2017, members of the Toronto Police Drug Squad were made aware of a Craigslist advertisement which appeared to contain coded language regarding the sale of cocaine. An undercover police officer called the phone number in the advertisement and spoke with Mr. Khan. During this conversation, Mr. Khan agreed to sell a quantity of cocaine to the undercover officer for $150. They agreed to meet later that day for the purpose of completing the transaction.

[3] That evening, Mr. Khan met with the undercover officer in a plaza on Weston Road in Toronto. The undercover officer provided Mr. Khan with $150. Mr. Khan handed the undercover officer 1.08 grams of powder cocaine.

[4] Once the transaction had been completed, Mr. Khan was placed under arrest. During a search of Mr. Khan incident to arrest, police officers found the cell phone used by Mr. Khan when he initially spoke to the undercover officer and $150.

The Offender

[5] Mr. Khan and his wife, Sarah Warsi, testified at this sentencing hearing.

[6] Mr. Khan is 37 years old. He and his wife have been married for nine years.

[7] Mr. Khan testified that when he committed this offence he was in the midst of a “long and dark journey.” According to Mr. Khan, he was addicted to online gaming. More specifically, in June, 2017 he became addicted to one particular online game. Mr. Khan testified that this game “took over his life” and contributed to a downward spiral. It took him away from family and friends. He said that when family members raised the issue of his online gaming, he would deflect. He testified that he had to schedule his life around this game. He was constantly distracted at work. In July, 2017, he was fired by his employer because his work performance had suffered as a result of being constantly distracted.

[8] Over the course of approximately one year, he spent close to $25,000 on this game. Mr. Khan’s financial records support this part of his testimony. These records also reveal that during this period he and Ms. Warsi’s were facing serious financial difficulties.

[9] Mr. Khan paid for his gaming activities through various means, including his credit cards, his wife’s credit cards, payday loans and credit cards belonging to his parents. Family members confronted him about his use of their credit cards. He once withdrew $5000 from his RRSP to play this game.

[10] Mr. Khan testified that after he lost his job in July, 2017, he started to associate with “not the best people.” He started to use cocaine in August, 2017. He said that he was using a “point or two” of cocaine a day. Some of the cocaine he used was provided to him in exchange for giving rides to a person who was a cocaine trafficker.[^1]

[11] At the time he started to use cocaine, he was unemployed and broke. It occurred to him that he could pay for his online gaming addiction by selling cocaine on Craigslist. He also planned to sell cocaine to obtain more cocaine for his own use. He thought he would be able to make $40 a day by selling cocaine through Craigslist.

[12] He testified that, prior to the sale to the undercover officer, he sold a gram of cocaine on one previous occasion in October, 2017.

[13] He testified that he stopped using cocaine the day he was arrested. He no longer associates with the people who supplied him with cocaine. Mr. Khan testified that he was not addicted to cocaine. He believes that he used cocaine to help forget about other issues in his life.

[14] Mr. Khan testified that it was difficult for him to break his addiction to online gaming. He said that he was depressed about his need to play this game. By March, 2018, he knew that he was addicted and that he needed help. On March 14, 2018, he went to an addiction treatment facility in York Region. He started to see a psychotherapist. As a result of counselling, he believes that he has meaningful insight into his addiction. In the summer of 2018, he sold his gaming account.

[15] Mr. Khan testified that he was deeply remorseful for selling cocaine. He repeatedly acknowledged the seriousness of his offence. He understands that that he caused a lot of pain for a number of people, including his wife. He said that his judgment was seriously clouded by his addiction. He testified that he was glad that he was caught by the police before anyone was harmed by the cocaine that he was selling.

[16] Mr. Khan started working for a new employer shortly before he was arrested in October, 2017. Since September 2017, he has been employed as a project leader with a company in the food supply chain industry. Approximately 14 months later, he continues to work for this company. This employer has given him an opportunity to assume a leadership role within the company. He oversees a supply chain for a food network and trains other employees. He is also involved in enterprise resource planning and support for this company. Mr. Khan is clearly proud of the success he has in this job.

[17] His employment responsibilities are not limited to a standard 40-hour work week. His employer requires that he must be available to immediately respond to situations that could arise in the middle of the night or on weekends. A letter written by a manager with his company supports this part of Mr. Khan’s testimony. As he is required to be available to his employer on weekends and evenings, it was suggested by defence counsel that even an intermittent sentence could jeopardize his job.

[18] Since March 2018, he has volunteered over 60 hours of his time with Habitat for Humanity. He has been able to contribute to this organization by using his supply chain expertise. He described this experience as rewarding and intends to continue volunteering with Habitat for Humanity in the future.

[19] In 2004, Mr. Khan was convicted of possession of a Schedule I substance and received a suspended sentence with 12 months of probation.

[20] Ms. Warsi, Mr. Khan’s wife, is employed as a marketing manager for a technology firm. She described Mr. Khan as a kind, gentle and loving husband. She said that he is a bright and talented person. Over the years, he has been employed in a number of positions with significant responsibilities.

[21] Ms. Warsi also told the court that Mr. Khan has an addictive personality. In 2017, she noticed what she described as addictive behavior by her husband in relation to an online game that he played on his cell phone.

[22] Ms. Warsi testified that she did not realize the full extent of his addiction issues until he was charged with this offence. She described the past year as very difficult but stated that it had also been a “year of growth.” Mr. Khan sought professional help for his addiction issues. Ms. Warsi testified that she has been helping Mr. Khan deal with these issues. She testified that they are, as a couple, “on the mend” and “looking forward to starting a new chapter.” She said that Mr. Khan had demonstrated to her that he deeply regrets his actions, held himself fully accountable and understood the severity of the offence he committed.

The Positions of the Parties

[23] The Crown takes the position that the court should impose a 60-day intermittent sentence, an order under s. 109 of the Criminal Code and a forfeiture order. Crown counsel emphasized that deterrence and denunciation are of paramount importance when sentencing a person who trafficked cocaine. It was the position of the Crown that Mr. Khan’s motive for trafficking cocaine was financial gain. Crown counsel argued there was no nexus between Mr. Khan’s addiction and the commission of this offence. Crown counsel argued the fact that Mr. Khan sold the cocaine through Craigslist was an aggravating factor.

[24] Counsel for Mr. Khan takes the position that the court should impose a suspended sentence. Counsel argued that Mr. Khan sold the cocaine to support his addiction. Defence counsel asserted that the steps Mr. Khan has taken to address this addiction are significant mitigating factors. Finally, defence counsel suggested that Mr. Khan’s rehabilitative prospects are excellent, but they could be undermined if the court imposed a custodial sentence.

Legal Principles

[25] A sentencing judge must impose a sentence that reflects the fundamental purpose and relevant sentencing objectives and principles.

[26] Starting with the purpose and objectives of sentencing. For an offence of this nature, the fundamental purpose of sentencing is set out in s. 10(1) of the Controlled Drugs and Substances Act and s. 718 of the Criminal Code. In short, the fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society while encouraging rehabilitation and treatment of offenders and acknowledging the harm done to victims and the community. To achieve this overarching purpose, courts must impose just sanctions that have one or more of the following objectives:

• to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;

• to deter the offender and other persons from committing offences;

• to separate offenders from society, where necessary;

• to assist in rehabilitating offenders;

• to provide reparations for harm done to victims or to the community; and

• to promote a sense of responsibility in offenders.[^2]

[27] The relevance and weight to be given to these objectives will vary depending on the nature of the crime and the circumstances of the offender.[^3] In R. v. Nasogaluak, 2010 SCC 6, SCR 206, at para. 43, LeBel J. recognized that “[n]o one sentencing objective trumps the others and it falls to the sentencing judge to determine which objective or objectives merit the greatest weight, given the particulars of the case.” Having said that, the objectives of denunciation and deterrence will usually dominate the other objectives identified in s. 718 when an offence is particularly serious.”[^4] Trafficking cocaine is a serious offence.

[28] Turning to the principles of sentencing. The fundamental principle of sentencing is proportionality. Section 718.1 of the Criminal Code provides that:

“A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.”

[29] Determining what constitutes a fit sentence requires “an examination of the specific circumstances of both the offender and the offence so that the ‘punishment fits the crime.’”[^5] That exercise requires a court to consider the life experiences of the person standing before them.[^6] However, factors that mitigate an offender’s personal responsibility “cannot justify a disposition that unduly minimizes the seriousness of the crime committed.”[^7]

[30] While proportionality is the fundamental principle of sentencing, other principles must also be considered when determining the appropriate sentence. In this case, a number of sentencing principles contained in section 718.2 are implicated, including:

• a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender;

• a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

• an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and

• all available sanctions, other than imprisonment, that are reasonable in the circumstances should be considered for all offenders.

Sentencing Ranges

[31] Appellate courts often establish ranges of sentences for particular offences. Sentencing ranges provide guidance for the application of all of the relevant principles and objectives. However, they are not hard and fast rules.[^8] Sentencing is “first and foremost an individualized exercise.”[^9]

[32] Sentencing judges retain the flexibility and discretion that is needed to do justice in individual cases. As the determination of a just and appropriate sentence is a highly individualized exercise, “there will always be situations that call for a sentence outside a particular range.”[^10]

[33] That being said, the discretion granted to sentencing judges is not unlimited. A sentencing judge must apply both the law enacted by Parliament and pay close attention to the guidance provided by the Court of Appeal.[^11]

Range of Sentences - Cocaine Trafficking

[34] Courts have repeatedly concluded that cocaine is an addictive and dangerous drug that causes immeasurable harm to individuals and society.[^12] The objectives of deterrence and denunciation are usually paramount when sentencing cocaine traffickers. Offenders who traffic a Schedule I substance usually receive a custodial sentence. Offenders who sell up to an ounce of cocaine will often receive a sentence of between 6 months to 2 years less a day imprisonment.[^13] But not always.

[35] Sentencing judges in Ontario have occasionally imposed a suspended sentence for trafficking in a Schedule I substance.[^14] A review of these decisions reveals that this outcome was often the result of a finding that the case involved “exceptional circumstances.”[^15]

Exceptional Circumstances

[36] On a number of occasions, courts have observed that it is difficult to provide a precise definition of “exceptional circumstances”.[^16] The Ontario Court of Appeal has stated that, “[i]t is impossible to catalogue the factors that in combination could justify a sentence below the usually applicable range.”[^17]

[37] This is not to say that there is no jurisprudential guidance. A number of courts have considered the types of facts that might support a finding of “exceptional circumstances.”[^18] For example, in R. v. Voong, 2015 BCCA 285 at para. 59, the British Columbia Court of Appeal provided a non-exhaustive list of facts that may, in combination, constitute exceptional circumstances that justify a non-custodial sentence for a “dial-a-dope drug seller”. The factors mentioned by the Court in Voong include:

• No criminal record;

• Significant and objectively identifiable steps toward rehabilitation for the drug addict;

• Gainful employment; and

• Remorse and acknowledgment of the harm done to society as a result of the offences.

Addiction

[38] As previously noted, defence counsel argued that Mr. Khan’s addiction to online gaming is a relevant consideration in determining the appropriate sentence.

[39] In 2018, the World Health Organization recognized “Gaming Disorder” in the International Classification of Diseases.[^19] The World Health Organization defines “Gaming Disorder”, as follows:

Gaming disorder is characterized by a pattern of persistent or recurrent gaming behaviour ('digital gaming' or 'video gaming'), which may be online (i.e., over the internet) or offline, manifested by: 1) impaired control over gaming (e.g., onset, frequency, intensity, duration, termination, context); 2) increasing priority given to gaming to the extent that gaming takes precedence over other life interests and daily activities; and 3) continuation or escalation of gaming despite the occurrence of negative consequences. The behaviour pattern is of sufficient severity to result in significant impairment in personal, family, social, educational, occupational or other important areas of functioning. The pattern of gaming behaviour may be continuous or episodic and recurrent. The gaming behaviour and other features are normally evident over a period of at least 12 months in order for a diagnosis to be assigned, although the required duration may be shortened if all diagnostic requirements are met and symptoms are severe.

[40] The description of this disorder is consistent with Mr. Khan’s account of his experience with online gaming. The Crown did not dispute that online gaming could be considered an addiction or a disorder. As no expert evidence was introduced at this hearing, I cannot say how an addiction to online gaming compares to other types of addictions. However, based on the evidence called at this hearing, I am satisfied that Mr. Khan was, at least in some sense of the word, addicted to online gaming.

[41] I am also satisfied that there was a connection between Mr. Khan’s sale of the one gram of cocaine to the undercover officer and his online gaming addiction. I found both Ms. Warsi and Mr. Khan to be credible witnesses. I accept that Mr. Khan trafficked a small amount of cocaine to, in large part, obtain funds to support his addiction.

[42] In some circumstances, addiction can be a relevant consideration in sentencing. Where an addiction is directly connected to the commission of an offence, the moral blameworthiness of the offender may be “significantly reduced.”[^20] Addiction may be one factor that provides support for a sentence that is “markedly more lenient than usual starting point ranges” as “the intensity of the message of deterrence and denunciation is properly blunted in circumstances of offending causally linked to illness.”[^21] However, health or addiction issues “cannot generally be used to avoid what is otherwise a fit and proper sentence.”[^22]

[43] The cases that deal with addiction as a potential mitigating factor usually involve a drug or gambling addiction. While there are likely differences between addictions of that nature and an addiction to online gaming, it is my conclusion that Mr. Khan’s addiction should be taken into account as part of my sentencing analysis. It is a relevant consideration in assessing Mr. Khan’s moral blameworthiness. The remaining question is how much weight should be given to Mr. Khan’s addiction in determining the appropriate sentence.

[44] In answering this question, it is important to remember that Mr. Khan was also going to use some of the profits from his cocaine sales to purchase cocaine for his own use. According to Mr. Khan, he was not addicted to cocaine. Further, at the time he committed this offence Mr. Khan could have continued to pay for his addiction by going even deeper into debt. Indeed, that is what he did after he was arrested. In these circumstances, Mr. Khan’s moral blameworthiness is not “significantly reduced” because of his addiction to online gaming. While his addiction is a relevant factor in determining the appropriate sentence, by itself, it does not constitute an exceptional circumstance that justifies a non-custodial sentence. It is entitled to limited weight in the determination of a fit sentence.

Rehabilitation

[45] As previously noted, deterrence and denunciation are important objectives when sentencing offenders who have trafficked cocaine. There are other objectives and principles that are also important in this case. They include rehabilitation and restraint.

[46] Since the time of this offence, Mr. Khan pulled himself out of a dark place in his life. He has taken positive steps towards rehabilitation. His efforts have been, to date, successful. He has the support of his wife. He has received counselling. He stopped using cocaine. He no longer associates with the people who sold him cocaine. He no longer participates in online gaming. He has maintained employment in a rewarding job for over a year. I believe that Mr. Khan’s job has significantly contributed to his rehabilitation. Mr. Khan’s position with this company requires that he be available to deal with problems at a moment’s notice. According to Mr. Khan’s supervisor, this position requires Mr. Khan to be accessible “24/7”. The imposition of even an intermittent sentence has the potential to put his job at risk.

[47] The Supreme Court of Canada recently stated that, “[r]ehabilitation must be designed with the specific offender in mind and is best advanced by appropriate treatment and/or punishment aimed at reintegration and future success.”[^23] I have applied that guidance in determining the appropriate sentence for Mr. Khan.

[48] In some cases, a term of imprisonment to foster the objectives of deterrence and denunciation will be counter-productive to important gains that an offender has achieved towards rehabilitation.[^24] This is such a case. In my view, society will be best served by the imposition of a sentence that provides the necessary supervision and support to keep Mr. Khan on a path towards rehabilitation. It is more likely that Mr. Khan will refrain from committing offences in the future if he is not incarcerated and is able to continue working in his current position. To impose a custodial sentence for the sake of general deterrence or denunciation in these circumstances may actually increase the danger to society.

[49] In my view, it is possible to impose a sentence that ensures Mr. Khan’s rehabilitation is not potentially undermined by the imposition of a sentence that could jeopardize his job without compromising general deterrence or denunciation.

Restraint

[50] Imprisonment is appropriate only when there is no other reasonable sanction.[^25] In my view, there is another reasonable sanction available in this case.

[51] Mr. Khan has one entry on his criminal record – from 14 years ago. Given the nature and date of that previous offence, and applying the gap principle, I would not give much weight to the previous entry in determining the appropriate sentence. Mr. Khan is not far removed from the position of a first offender. That is a relevant factor when considering the principle of restraint.[^26]

[52] The principle of restraint also requires a sentencing judge to consider rehabilitation in determining the appropriate sentence.[^27] As previously mentioned, I have taken into account the fact that a custodial sentence could jeopardize Mr. Khan’s job and, consequently, have a negative impact on his rehabilitation.

[53] A term of imprisonment is not required for specific deterrence. I am satisfied that Mr. Khan understands the seriousness of his offence. He is truly remorseful and feels shame. He has taken meaningful steps towards dealing with his addictive behavior. A term of imprisonment is not required to deliver a message to Mr. Khan. I am satisfied that a suspended sentence will deliver that message.

[54] I am also satisfied that the objectives of general deterrence and denunciation will not be undermined by the imposition of a suspended sentence. While in most cases a custodial sentence will be imposed on an offender who has trafficked cocaine, sentencing is a highly individualized exercise. A suspended sentence in this case reflects the unique circumstances of this case.

[55] In assessing whether a suspended sentence is a reasonable sanction in this case, it is worth noting that while the primary objective of a probation order is rehabilitative, that is not the only objective.[^28] The potential deterrent effect of a suspended sentence has been recognized on a number of occasions.[^29]

[56] In my view, a suspended sentence is a proportionate sanction which properly balances all of the principles and objectives of sentencing, including deterrence, denunciation, restraint and rehabilitation.

Conclusion

[57] The unique circumstances of this case justify a non-custodial sentence. To summarize, the following factors, taken together, support the imposition of a suspended sentence:

• Mr. Khan pleaded guilty to one sale of a small amount of powder cocaine.[^30]

• Mr. Khan’s expression of remorse and shame was sincere. He understands the gravity of this offence.

• His only entry on his criminal record occurred 14 years ago and did not involve the sale of a controlled substance.

• Mr. Khan was addicted to online gaming and there was a connection between that addiction and his decision to sell cocaine.

• Since the time of this offence, Mr. Khan has remained out of trouble.

• Mr. Khan has made meaningful progress towards rehabilitation.

• Mr. Khan no longer uses cocaine.

• Mr. Khan no longer associates with the people who sold him cocaine.

• Mr. Khan has maintained the same job for 14 months. This job has contributed to his rehabilitation. Given his responsibilities with his employer, even an intermittent sentence could jeopardize his position with this company.

[58] It is necessary to deal with one final legal issue before imposing sentence. At one time, it was possible for an offender who trafficked cocaine to receive a conditional sentence. As a result of amendments to s. 742.1 of the Criminal Code, a conditional sentence is no longer available for such an offender. That was a policy decision made by Parliament. It would be inappropriate for a court to impose a suspended sentence as a substitute or disguised conditional sentence. If no sanction other than a term of imprisonment is appropriate, and a conditional sentence is not legally available, a suspended sentence cannot be imposed.[^31] To be clear, I have concluded that a term of imprisonment is not necessary.

[59] Mr. Khan, I will now address you directly. You committed a serious offence. The sentencing position advanced by the Crown was reasonable and close to the lower end of the usual range. However, it is my view that given the specific circumstances of this case more weight should be given to rehabilitation and restraint.

[60] If you were to commit a similar offence in the future, a sentencing judge would likely conclude that you failed to receive the appropriate message from the sentence that was imposed today. If you were found guilty of trafficking cocaine in the future, there is every reason to believe that you would likely be facing a significantly harsher sentence. As you move forward, it is important that you remember that.

The Sentence

[61] Mr. Khan’s sentence is suspended and he will be placed on probation for 30 months. In addition to the mandatory conditions that apply to every probation order, Mr. Khan will be subject to a number of other conditions. The discretionary conditions are, as directed by s. 732.1(3) of the Criminal Code, intended to both protect society and facilitate Mr. Khan’s successful reintegration into the community.[^32]

[62] Mr. Khan is required to comply with the following conditions:

• He must keep the peace and be of good behaviour.

• He must appear before the court when required to do so by the court.

• He must notify the court or the probation officer in advance of any change of name or address, and promptly notify the court or the probation officer of any change of employment or occupation.

• He must report to a probation officer within two working days after the making of the probation order and thereafter when directed by the probation officer in the manner directed by the probation officer.

• He must not possess any weapons as defined in the Criminal Code.

• He must not to possess or consume any drugs or substances listed in the Controlled Drugs and Substances Act unless in possession of a valid prescription in his name. He must notify his probation officer within seven days of all prescriptions he obtains for controlled substances.

• He must not play or otherwise participate in any online games or online gambling.

• He must attend and actively participate in all assessment, counselling and rehabilitative programs as directed by his probation officer and to sign such releases as are necessary to enable his probation officer to monitor his progress.

• He must maintain or seek suitable employment, and provide proof thereof as required by his probation officer.

• He must provide a sample of his bodily substance for purposes of analysis and on the demand of a peace officer or probation officer where that person has reasonable grounds to believe a drug abstention condition of the probation order has been breached.

• He must remain within the jurisdiction of the court unless written permission to do otherwise has been obtained from the court or a probation officer.

• He must not associate or communicate directly or indirectly with any person known to him to have a criminal or youth record (other than family members or any incidental contact at any employment, education, counselling or religious setting) unless he has the prior written approval of his probation officer.

• He must carry a copy of the probation order at all times when outside his residence.

• He must perform 200 hours of community service at a placement approved of by his probation officer. The community service must be completed within the first 18 months of this probation order and performed at a rate of not less than ten hours per month.

[63] Mr. Khan, you will receive a copy of the probation order. It will be explained to you and you will have to sign it and acknowledge your understanding of it. If you refuse to comply with the terms of the order, you could be arrested, prosecuted and potentially imprisoned.

[64] Further, if you are convicted of another criminal offence in the next 30 months, including a breach of this order, the Crown could apply to the court to change or add conditions or to extend the period for which this order is in force. The Crown could also apply to the court to revoke the probation order and ask the court to impose any sentence that could have been imposed if the passing of the sentence had not been suspended.

[65] Finally, there will be a weapons prohibition order pursuant to section 109 of the Criminal Code and a forfeiture order.

JUSTICE JOHN NORTH

Released: January 18, 2019

[^1]: Based on the very limited evidence on this issue, I cannot conclude that Mr. Khan, by giving rides to this person, knowingly played a role in the commission of any other offences.

[^2]: Section 10(1) of the Controlled Drugs and Substances Act addresses the issue of acknowledging the harm to victims and to the community as a fundamental purpose of sentencing. Section 718(1) of the Criminal Code deals with acknowledgment of harm as an objective that may be considered when imposing a just sentence, which promotes the fundamental purpose of sentencing.

[^3]: R. v. Hamilton and Mason, 2004 CanLII 5549, 72 OR (3d) 1 (CA), at para. 102.

[^4]: R. v. Hamilton and Mason, 2004 CanLII 5549, 72 OR (3d) 1 (CA), at para. 103.

[^5]: R. v. Proulx, 2000 SCC 5, 1 SCR 61, at para. 82.

[^6]: R. v. Ipeelee, 2012 SCC 13, 1 SCR 433, at para. 75. See also: R. v. Lacasse, 2015 SCC 64, [2015] 3 SCR 1089, at para. 12; R. v. Suter, 2018 SCC 34, at para 46.

[^7]: R. v. Hamilton and Mason, 2004 CanLII 5549, 72 OR (3d) 1 (CA), at para. 93.

[^8]: R. v. Lacasse, 2015 SCC 64, 3 SCR 1089, at para. 26.

[^9]: R. v. Boudreault, 2018 SCC 58, at para. 58.

[^10]: R. v. Lacasse, 2015 SCC 64, 3 SCR 1089, at para. 58; see also: R. v. Suter, 2018 SCC 34, at para. 4; R. v. Ipeelee, 2012 SCC 13, 1 SCR 43, at para. 37.

[^11]: R. v. Priest (1996), 1996 CanLII 1381 (ON CA), 30 OR (3d) 538 (CA).

[^12]: R. v. Daya, 2007 ONCA 693, at para. 18; R. v. Woolcock, [2002] O.J. No. 4927, at para. 8 (CA); R. v. Lloyd, 2016 SCC 13, 1 SCR 130, at para. 26; R. v. Apan, 2018 ONSC 3862, at para. 20.

[^13]: R. v. Woolcock, [2002] O.J. No. 4927 (CA). In R. v. Diedricksen, 2018 BCCA 336, at para. 35, the British Columbia Court of Appeal recently concluded that the bottom end of the range of sentences in that province for an offender who has been convicted of trafficking in cocaine “is in fact a suspended sentence, if the mitigating factors support such a sentence.” Obviously, trial judges in Ontario are guided by the Ontario Court of Appeal on sentencing issues and, as was recently observed by ODonnell J. in R. v. Clunis, 2018 ONCJ 194 at para. 22, the “sentencing approach in British Columbia has for a very long time been very different than the sentencing approach in Ontario.”

[^14]: R. v. Thevarajah, 2016 ONSC 6739; R. v. Dallal, 2018 ONSC 715; R. v. Strutt, [2018] O.J. No. 5184 (Sup. Ct.); R. v. McGill, 2016 ONCJ 138; R. v. Abdelkarim, 2017 ONCJ 807; R. v. Ricketts, 2018 ONCJ 441; R. v. Dias, 2016 ONCJ 500; R. v. Hillier, 2018 ONCJ 397; R. v. Dos Santos, 2017 ONCJ 855.

[^15]: In R. v. Zachar, 2018 ONCJ 63, at para. 5, Green J. concluded that, “to the degree that a court’s practice is a reliable indicator of its theory, the Supreme Court is now signalling a return to the analytical dominance of a range-driven paradigm…[a]bsent sufficiently exceptional circumstances, there is no lawful escape, to use a different metaphor, from the gravitational pull of a judicially endorsed range.”

[^16]: R. v. Tran, 2015 MBCA 120, at para. 17; R. v. Sharma, 2018 ONSC 1141, at paras. 84-92; R. v. Zachar, 2018 ONCJ 631, at para. 47.

[^17]: R. v. Drabinsky, 2011 ONCA 582, at para. 166, leave to appeal refused 2012 CanLII 16927 (SCC).

[^18]: R. v. Voong, 2015 BCCA 285, at para. 59; R. v. Dallal 2018 ONSC 715; R. v. Sellars, 2018 BCCA 195, at para. 34.

[^19]: International Classification of Diseases (11th ed.), June 18, 2018, 6C50.Z & 6C51.0, World Health Organization

[^20]: R. v. Sharma, 2018 ONSC 1141, at paras. 167-169; see also R. v. Dos Santos, 2017 ONCJ 855 at para. 7. However, addict trafficking, by itself, may not constitute an exceptional circumstance. For example, in R. v. Thomas, 2016 ONSC 7792, at para. 24, Goldstein J. concluded that, “much of the drug trafficking before the courts takes place in the context of low-level petty drug trafficking by addicts. It is difficult to see how something so widespread could be called exceptional.”

[^21]: R. v. Sharma, 2018 ONSC 1141, at para. 170; see also R. v. Corner, [2005] O.J. No. 3590 (S.C.J.), at para. 22.

[^22]: R. v. Heron, 2017 ONCA 441, at para. 25.

[^23]: R. v. Boudreault, 2018 SCC 58, at para. 82.

[^24]: R. v. Ghadban, 2015 ONCA 760, at paras. 23-25; R. v. Ramta, 2017 ONCA 580, at para. 23; R. v. Ricketts, 2018 ONCJ 441.

[^25]: Section 718.2(d) and (e) of the Criminal Code; R. v. Hamilton and Mason, 2004 CanLII 5549, 72 OR (3d) 1 (CA), at para. 98; R. v. Priest, 1996 CanLII 1381, 30 OR (3d) 538 (CA).

[^26]: R. v. Batisse, 2009 ONCA 114, 93 OR (3d) 643, at para. 32.

[^27]: R. v. Batisse, 2009 ONCA 114, 93 OR (3d) 643, at para. 33.

[^28]: R. v. Voong, 2015 BCCA 285, at para. 37.

[^29]: R. v. Voong, 2015 BCCA 285, at para. 39; R. v. Bent, 2017 ONSC 3189, at para. 55; R. v. Zachar, 2018 ONCJ 631, at paras. 44-46.

[^30]: As Hill J. noted in R. v. Johnson, 2015 ONSC 80, at para. 40, while trafficking powder cocaine is a serious offence, selling crack cocaine is “[g]enerally treated as a more serious crime.”

[^31]: R. v. McGill, 2016 ONCJ 138, at para. 47.

[^32]: R. v. McGill, 2016 ONCJ 138, at para. 121; R. v. Hillier, 2018 ONCJ 397, at 175; R. v. Shoker, 2006 SCC 44, 2 SCR 399, at para. 13; R. v. Voong, 2015 BCCA 285, at para. 38.