Court File and Parties
Date: April 29, 2019
Court File No.: 0411-18-30517
Ontario Court of Justice
Her Majesty the Queen
v.
Colin Marsden
Reasons for Sentence
By the Honourable Mister Justice N. Boxall
on April 29, 2019, at Ottawa, Ontario
Appearances
N. Somju – Counsel for the Crown
W. Murray – Counsel for Mr. Marsden
Monday, April 29, 2019
Reasons for Sentence
Boxall, N. (Orally):
Colin Marsden pled guilty to possession for the purpose of trafficking in cannabis marijuana in an amount less than three kilograms.
Mr. Marsden was stopped in the course of traffic enforcement for an expired licence tag on September 30, 2017. Prior to towing the vehicle, the officer detected an odour of marijuana, and 2.75 kilograms of marijuana was found in the vehicle. Although the quantity and packaging were consistent with trafficking, and we have the accused's admission of the purpose, I note that none of the other indicia of trafficking, such as debt lists, money, scales, multiple cell phones, etcetera, were presented in evidence.
Mr. Marsden's arrest took place in the Province of Quebec, however he transferred the charges to Ottawa and pled guilty November 9, 2018. At the time of the plea of guilt, the Crown conceded that there were triable issues.
A pre-sentence report was ordered, which I characterize as favourable, indicating Mr. Marsden would be a suitable candidate for community supervision.
The Position of the Parties
The Crown seeks a jail sentence of six months followed by probation. The Crown submits that trafficking in controlled drugs for monetary gain requires a custodial sentence. Given the accused's age and circumstances, the Crown suggests a sentence of six months, but concedes it could be served in the community.
However, the Crown very fairly supplied a case book and a memorandum of law that I found helpful. In that memo, it states, among other statements, that the overall range of available sentences is broad, and includes conditional sentences, conditional and absolute discharges, and substantial fines. The memo states in the conclusion, amongst other conclusions, that a conditional or absolute discharge is available when exceptional circumstances are present. Absent such circumstances, frequently conditional sentences are imposed where the accused is a first time offender, has a supportive family, and a positive pre-sentence report, as set out in the Crown memo.
Position of the Defence
The defence seeks a conditional discharge. The defence points to the accused's youth, lack of prior record, acceptance of responsibility, but also to what the defence characterizes as the changing public view of the severity of marijuana offences generally.
Analysis: Is Incarceration Necessary?
I propose first to consider if a sentence of incarceration is necessary. In considering if a conditional jail sentence is required, I must first determine if a sentence of incarceration is required.
Conditional jail sentences are jail sentences, and should only be imposed when a sentence of actual incarceration is required. The fact that a conditional sentence is available should not expand the sentencing net and increase the use of incarceration when it is not necessary.
The Court of Appeal has repeatedly indicated that absent exceptional circumstances, a sentence of incarceration is required for offences involving possession for the purpose of trafficking or trafficking in drugs.
Without considering the impact of any changes in legislation or possible changing public views, I am of the opinion that the sentence of incarceration is not required. If a conditional sentence was not available, I am of the view that I would not impose a regular custodial sentence.
I find that the following mitigating factors make a jail term inappropriate:
- The defendant has no criminal record, and was only 18 years old at the time of his arrest. In fact, he was only one month beyond his eighteenth birthday. This is a very important factor in this case.
- He has pled guilty, expresses regret and remorse, and takes responsibility for his actions. This carries additional weight in this case as the Crown conceded at the time of the plea that there were triable issues.
- Since the time of his arrest, the defendant has obtained employment in the construction field, where he works long hours with his father.
- The defendant had made ongoing efforts to improve his lifestyle with his work and choice of peers and activities.
- The defendant is at very low risk of reoffending.
A term of custody is not necessary for specific deterrence. On the facts of this case, a sentence of incarceration is not necessary for general deterrence or denunciation. Given that I believe a jail sentence is inappropriate, I must then consider if the sentence should be a suspended sentence and probation, or a conditional discharge with probation conditions.
Discharges Generally
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.
The offence of possession for the purpose of trafficking in less than three kilograms of marijuana is punishable by a maximum of five years less a day, and there is no prescribed minimum at the time of this offence. Thus, a discharge is available and the court must consider the best interests of the accused and whether a discharge is not contrary to the public interest.
The manifest purpose of the discharge provisions in the Criminal Code is to enable the court, in the appropriate circumstances, to avoid giving the accused a criminal record, see R. v. McInnis, [1973] 1 OR (2d) 1, Ontario Court of Appeal.
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, see R. v. Botham, 1983 O.J. No. 70 Ontario Court of Appeal.
The standard of not being contrary to the public interest is far lower than being in the public interest, see His Honour Gilles Renaud in his book, Sentencing in Ontario (Landon Legal Library Press) 2012, Vol. 1 at page 91.
Sentencing is always case specific, however in determining whether to grant a discharge, the trial court has a statutorily created wide judicial discretion, see R. v. Sanchez-Pino, [1973] 2 OR 314 Ontario Court of Appeal.
In using that discretion, the follow question arises: to what extent, if any, should changes to the marijuana legislation play a role in sentence?
The Saskatchewan Court of Appeal in R. v. Neary, 2017 SKCA 29 at paragraph 44 indicated that trial judges are bound to apply the law as it currently stands. I agree with that provision.
In R. v. Mahdavi (unreported) (July 19, 2017) at paragraph 21, I note that it is nevertheless a factor, albeit a limited one, in assessing the defendant's degree of moral responsibility. I will have more to say on that issue later in this decision.
Is a Discharge Appropriate?
At least one discharge has been granted in a trafficking case where the quantity of drugs vastly exceeded the amount in question here, see R. v. DeSousa, 2012 ONCA 254.
I also wish to refer to R. v. Novielli, 2015 ONCJ 192 at paragraphs 19 and 20 where the court says:
It seems to me that when 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.
Continuing at paragraph 20 of that decision:
What the cases do not seem to consider in much, if any, detail is to what extent the terms of a conditional discharge might inform the analysis of whether a discharge rather than a suspended sentence with criminal conviction is the more appropriate outcome. It seems to me that this is a discussion worth having because the substance of the sentence might often serve more to modify an offender's behaviour and to serve society's interests than the long-term consequences of a criminal conviction. In this case, for example, the original Crown position … was for a suspended sentence with a modest number of community service hours. It is fair to ask whether the sentence ultimately imposed, a conditional discharge with a much longer period of probation and many more community service hours than originally sought by the Crown is ultimately the more fit sentence and overall more responsive to the various objectives … set out in the Criminal Code.
Undoubtedly, there will remain many cases in which some aspect of the offence or characteristic of the offender will make a discharge contrary to the public interest.
The pre-sentence report, as I said, is positive. I find that the following mitigating factors make a discharge appropriate:
- The defendant has no criminal record and was only 18 years at the time of his arrest. In fact, he was only one month beyond his eighteenth birthday. This is a very important factor in this case.
With respect to this factor, which was a factor relied on to grant a conditional discharge in R. v. Moore, 2005 YKTC 10, for offences of possession of a prohibited weapon and possession of marijuana for the purpose of trafficking. The court made a number of comments about very youthful offenders that I agree with. The court, in Moore, said the offender's youth generally will be held to be a mitigating factor. A youth has limited life experience on which to make informed judgments. They are more easily influenced by negative peers. The court said:
His first offence is more likely to be as a result of a poor decision rather than as a result of a commitment to a life of crime. Keeping a youthful first offender out of the criminal justice system altogether is often more rehabilitative than imposing a jail term.
Later in the decision, again still quoting from R. v. Moore:
In the case at bar, Clayton Moore was 18 years old at the time of the offence, a few months older than J.F. in the case cited above. Although not a "young person" within the meaning of the Youth Criminal Justice Act, it is appropriate for this court to recognize that maturity and responsibility do not automatically vest on a person's 18th birthday, nor does good judgment. In the case of a young adult, it is important to distinguish between an error in judgment that is unlikely to repeat and an offence that is indicative of a criminal mindset. In my opinion, Clayton falls into the former category.
Mr. Moore was granted a conditional discharge and 12 months' probation. The statements made in R. v. Moore with respect to very youthful offenders, particularly those that are just barely over 18 years old, in my opinion, are accurate, and I note that the accused in this case was even younger than Mr. Moore was at the time of the occurrence, just one month past his eighteenth birthday.
Mr. Marsden has pled guilty. He has expressed regret and remorse, and he took responsibility for his actions. This carries additional weight in this case as the Crown conceded at the time of the plea there were triable issues. As I have already indicated, he has obtained employment in the construction field, where he works long hours with his father. A criminal conviction record would impact his life for a disproportionate period of time, given his age when committed. The offence was committed when he was just barely 18. He would not even be eligible for a record suspension until he would be in his thirties if a conviction was entered. He has made ongoing efforts to improve his lifestyle with his work, choice of peers, and activities. He is at a very low risk of reoffending. Denunciation and deterrence can still be met with a discharge, particularly if conditions are attached.
The Impact of Legislation Changes with Respect to Marijuana
On the facts of this case, I place very little significance on the legislative changes, however given counsel argued it, and the frequency this issue may arise, I will address it.
The criminalization of marijuana has traditionally aimed to address a number of key concerns:
Marijuana has historically been perceived by Canadian law as a dangerous drug with a harmful societal impact, particularly for youth.
The production and trafficking in marijuana is often linked to criminal organizations and other illicit activities.
The illegal sale of marijuana meant that Canadians were consuming an unregulated, untested drug, which may pose serious health risks.
Public perception of marijuana has evolved tremendously as, over time, society began to view marijuana as a so-called soft drug with potentially legitimate medical benefits. This shift in societal mores is most crucially evidenced by the recent enactment of the Cannabis Act, which permits adults to legally possess up to 30 grams of marijuana for recreational use, or produce a few plants for their own use.
In legislating to decriminalize personal possession of marijuana, Parliament acknowledged changing public opinion with respect to the dangerousness of cannabis, while still maintaining sufficient regulation over marijuana to protect public health and safety. In particular, the Cannabis Act aims to:
- Protect youth from the risks associated with marijuana by restricting access
- Deter the illicit production and trafficking in marijuana by providing a legal avenue of purchase
- Deprive criminal organizations of the revenue derived from marijuana sales
Legalization is intended to enable the government to provide Canadians with access to a quality controlled supply of marijuana while generating tax revenue. Access to recreational marijuana under the Cannabis Act is regulated in a manner somewhat similar to alcohol and tobacco, in recognition of the parallel public concerns around the three products. Mechanisms such as age limitations, packaging, and labelling requirements, and product display restrictions ensure Canadians are informed of the potential harms associated with marijuana consumption, while also preventing youth from accessing the drug legally. Similarly, government regulation of marijuana ensures consumers that the marijuana products are in fact safe for consumption.
The production of marijuana and possession for the purpose of trafficking in marijuana continues to be a criminal offence under the Cannabis Act. The illegal production and distribution of marijuana sometimes continues to be linked to and provide revenue streams for criminal organizations, while simultaneously representing a loss of public revenue. Illegal transactions also provide youth with an alternative avenue to access marijuana, posing a health risk.
The growing societal acceptance of personal marijuana use compared with Parliament's recent legislative changes appears to have contributed to a shift in sentencing for marijuana convictions that are viewed as having lower moral culpability, see R. v. Santos, 2014 BCPC 266 at paragraph 25.
This shift has not included cases that continue to involve criminal organization and other illicit activities. Ultimately, sentencing of marijuana offences exists on a spectrum that is influenced by changes in societal mores, and presently ranges from permissive activity involving marijuana to harmful criminal acts. It is difficult to reconcile sentencing outcomes for cases involving possession for the purpose of trafficking and trafficking generally with those specific possession for the purpose of trafficking and trafficking charges that involve illegally operating dispensaries.
Recent cases have seen dispensary operators who have pled guilty to trafficking marijuana receive absolute or conditional discharges, as well as monetary fines. Perhaps, in some cases, a distinguishing feature which may contribute to the discrepancy in sentences are the fact that the dispensaries operate openly in public, sometimes as tax-paying, licenced businesses, while other forms of illegal marijuana distribution are concealed. This was a key consideration of the court's decision in R. v. Louka, 2017 Carswell Ont. 14008, at paragraph 24, to grant an absolute discharge. Nevertheless, it is difficult to reconcile some of the decisions in the dispensary cases involving significant vendors with the general principles of trafficking.
I also wish to make mention of the recent Court of Appeal decision in R. v. Strong, 2019 ONCA 15 paragraph 3. This was an accused appeal of sentence, and the accused's main argument rested on the assertion that the change to societal attitude towards marijuana use warrants a reduction in established range for this kind of offence. The Court of Appeal rejected that submission in that case, saying:
While the societal perception of the seriousness or harmfulness of the offender's conduct has a role to play in considering factors such as denunciation and deterrence, we see no basis to conclude that the conduct involved in this case would be viewed as anything other than serious criminal misconduct.
And later:
Parliament has not significantly altered the applicable penalty. Nor, in our view, can one assume that a large scale, prolonged trafficking for profit in marijuana is somehow viewed as less serious because of the legislative changes in respect of personal possession and use. The sentence was within the established range. We would dismiss the appeal.
In my opinion, the principles in R. v. Strong obviously apply. At the same time, the case before me is not a case of a large scale prolonged trafficking for profit in marijuana. This case is being decided on the unique facts of this particular case and the factors I have outlined.
Clearly, with respect to marijuana offences, sentencing in this area is still evolving, and additional to societal attitudes, there may be other developments, such that the unregulated possession or trafficking in marijuana may become less connected to ancillary criminal activities and organizations, or it may not. Time will tell.
I am sentencing this particular young man on the law as it stands now, based on the penalties that were in effect at the time of his commission, taking into account the general principles of sentencing and his particular facts.
Conclusion
In conclusion, 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 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 a conditional discharge. Please come forward, Mr. Marsden.
Sentencing Disposition
Mr. Marsden, this is the disposition in your case. It is no indication of what the disposition would be in another case. I am granting you a conditional discharge, but I am placing you on probation for a term of 18 months. I realize the offence occurred about 18 months ago. So 18 months from now, it will be three years after, and as I am sure your counsel will explain to you, conditional discharges are kept track of also for another period of years. So this isn't the end of it. However, in granting you the conditional discharge and not imposing a conviction, if you complete the period of probation and you complete the statutory period that is required before this matter can be removed from the database, it will give you a chance to proceed forward to your full ability without the hindrance of a criminal conviction.
I am going to place you on probation for a period of 18 months. You will report to a probation officer today and thereafter as required. There are statutory conditions, to keep the peace and be of good behaviour, report any change of name, address, or occupation to the probation officer. You will attend such counselling or rehabilitative programs as are recommended by your probation officer. You will sign any releases or waivers so that they can monitor that. In addition, if there is any homework assignments or written proof required, you will produce those to the probation officer.
I am imposing a condition on your probation that you not possess any weapons, in addition to which, I am going to order that you perform some community service. In this particular case, you have already done approximately 20 hours, I am going to order that you do 50 more. You will perform 50 hours of community service at a rate of time to be determined by the probation officer, but not less than five hours per month. It shall commence no later than 60 days from today's date, and it shall be completed within 12 months from today's date.
I am prepared to transfer, if everybody is in agreement, transfer the probation order to Kingston. Crown, is that fine?
MS. SOMJU: That's absolutely fine, Your Honour.
THE COURT: Okay. In addition, is this a secondary offence for DNA?
MS. SOMJU: I'm not certain about the DNA, but I know that it would warrant a firearms....
THE COURT: And 109 is mandatory. Okay.
MS. SOMJU: Yes, it would warrant a firearms prohibition.
THE COURT: Okay. Mr. Murray, I will hear from you, but the s. 109 order is mandatory, so I am prohibiting you from firearms, explosives, ammunition, other items listed in there, crossbows, for a period of ten years. All right, so if you have any of those, you can't. Do you have any of those types of items?
MR. MARSDEN: No.
THE COURT: Okay. So no hunting, nothing like that, okay.
MR. MARSDEN: Yes.
THE COURT: I will hear you with respect to the DNA, Mr. Murray, but the nature of the offence, even if I granted a discharge, I am going to tell you, I am strongly inclined to grant it.
MR. MURRAY: Well, Your Honour, I think Your Honour's decision put this in the appropriate context, in terms of this is an individual who is not going to get in trouble again. This is an individual who really has learned from this and is taking steps forward. In my respectful submission, his privacy interests should outweigh any remote possibility that it be useful to the authorities.
THE COURT: I disagree. Mr. Marsden, I am going to order you supply a sample of your DNA for the DNA databank. If you are what Mr. Murray says, it will never mean anything. In fact, it could only help you. It could only exclude you if you were a suspect, right. On the other hand, it is the modern equivalent of a fingerprint. This was a serious offence, and the disposition is a large variety of circumstances, one of which I placed quite significant weight was that you were just borderline past the youth age, but you were past it, and I am ordering you to supply a sample of your DNA for the DNA databank. Do you understand the terms of probation?
MR. MARSDEN: Yes.
THE COURT: I should caution you, if you breach any of the terms – actually before I get to that, Madam Crown, I know what the Crown's position was with this. Is there other terms of probation you would suggest?
MS. SOMJU: I don't believe so at this time, Your Honour. I think you have addressed it.
THE COURT: Okay, thanks. I should caution you, if you break any of the terms of probation, the discharge can be cancelled, a conviction can be entered. You can waste all the work you are doing, and your mom is sitting here, your parents work to try and raise you to be an adult without a criminal record, and your lawyer and everything, you are going to waste it all. If you break it, the discharge will be taken away. In addition to which, you can be charged with breach of probation, and you should assume you will be going to jail for that. Do you understand?
MR. MARSDEN: Yes.
THE COURT: Do you understand the terms of probation?
MR. MARSDEN: Yes, sir.
THE COURT: Is there anything you don't understand?
MR. MARSDEN: No, sir.
THE COURT: Is there anything you can't do?
MR. MARSDEN: No, sir.
THE COURT: Okay. All right, and Mrs. Marsden, it is always helpful to have the parents here and follow up. They turn 18, but once a mom, always a mom. Okay, so you will have to sign the papers. You will have to go up to the probation officer in this building for intake. I am endorsing it to be transferred to Kingston, but you need to report today here.
MR. MURRAY: Your Honour, I would like to take him outside briefly. He will be back to...
THE COURT: Yes.
MR. MURRAY: Thank you.
MS. SOMJU: And the remaining order should be - charges should be withdrawn if they haven't already been done.
THE COURT: Thank you.
Released: April 29, 2019 N. Boxall, Justice