Court File and Parties

Ontario Court of Justice

Date: 2019-11-14

Court File No.: Newmarket 18-05611

Between:

Her Majesty the Queen

— and —

Justin David Rose

Reasons for Sentence

Counsel:

• Javier Arvizu, for the Crown
• Robb MacDonald, for the Defendant

Before: Kenkel J.

Introduction

[1] Mr. Rose pleaded guilty to two counts of Trafficking contrary to s 5(1) of the CDSA. He admitted to selling cocaine to undercover officers on ten occasions in amounts ranging from $200 to over $8000. The last transaction involved a sale of half a kilogram for $28,000. A search warrant executed on his residence after arrest resulted in the seizure of cocaine, scales, packaging material and cash. The total amount of cocaine that he trafficked and possessed was approximately 1 kilogram.

[2] As part of the sentencing process, a Gladue report was prepared and a sentencing circle was held. Both provided important insight into the personal and systemic factors that brought the accused before the court and the steps he's taken since towards rehabilitation. The Federal Crown submitted that sentences for cocaine trafficking at this level typically range from 5 to 8 years. Given the guilty plea and the circumstances of this offender, the Crown submitted a 4 year sentence would be the least restrictive punishment that could address all of the applicable sentencing principles. The defence submitted that general sentencing ranges focused on deterrence are often not applied or given less weight in cases involving Indigenous offenders. The defence proposed a restorative justice approach, with a custodial sentence of 3 to 6 months followed by a lengthy probation. In the alternative, the defence submitted that the minimum federal term of 2 years would be appropriate.

[3] The most interesting comment during the sentencing circle was made by the Elder and caseworker Mr. Cliff Sharpe, who counselled Mr. Rose after his arrest. One of the first things he mentioned in the circle was how conflicted he felt when he first agreed to help the accused. He accepted that Mr. Rose had a genuine interest in pursuing counselling within the community, but he also knew first-hand from his work with many others the significant harm that cocaine causes both generally and within the Indigenous community. That observation succinctly captures the tension between two important principles of sentencing in this case.

Circumstances of the Offences

[4] Mr. Rose was identified as a suspect in Project Cutter. He admitted he sold cocaine to undercover officers on ten occasions. The initial sales involved $200 exchanges for 2 grams. Within two months he progressed to $2000 sales. The following months involved sales of 128g of cocaine (4.5 oz), each priced over $8000. The final sale involved half a kilogram of cocaine for $28,000.

[5] Only the $28,000 from the final sale was retrieved. Police also seized as offence related property a GMC Tahoe and a BMW both belonging to the accused. At his home they found 193 grams (6.8 oz) of cocaine along with a digital scale and packaging.

The Gladue Report

[6] A detailed Gladue report was prepared by Aboriginal Legal Services to assist the court in understanding Mr. Rose's personal circumstances in his context as an Indigenous person. The report was marked as Exhibit #2 on sentence. Due to the personal nature of its contents, while it was made available to the parties it was otherwise ordered sealed.

[7] Mr. Rose is registered with the Chippewas of Rama First Nation. He derives his Indigenous ancestry from his mother and grandmother. To this point in his life he's had minimal exposure to his Indigenous culture. He grew up in Mount Albert and Newmarket attending local schools. He was bullied at a very young age from grades 2 to 5. At times Mr. Rose would also be teased for identifying with his heritage even though he didn't seem to others to look Indigenous.

[8] In high school Mr. Rose did well to the end of grade 10, but then he started drinking and using drugs and he "went downhill." His mother describes that period as the worst years of their life with him. From 17 to 18 he received drug use and mental health counselling through probation in response to youth drug offences. He did well over that year, but the counselling ended at 18. At that age he received a $10,000 settlement from the Williams Lake Treaty and he chose to spend it on a car and drugs. He worked for a year at a technical company. After high school, Mr. Rose attended Fleming College in Lindsay where he completed their heavy equipment operator program. At 19 he started gambling and subsequently became addicted to that activity.

[9] Mr. Rose has maintained a relationship with his girlfriend for the past five years. His parents are concerned that their relationship is not always a healthy one, but they support their son. He continues to have the support of extended family and friends.

[10] Since his arrest Mr. Rose has engaged in counselling for substance abuse and gambling. He has signed a lifetime self-exclusion from casinos in Ontario. He has applied to attend the Ngwaagan Gamig Recovery Centre, a First Nations facility on release. He is also interested in serving sentence at the Wasekun Healing Centre should a federal custodial term be imposed. Mr. Rose has made progress with counselling to date and has a genuine interest in pursuing further programming and counselling within the Indigenous community.

Aggravating Circumstances

[11] The aggravating circumstances include:

• The total amount of cocaine trafficked and possessed;
• The significant amounts of money involved in those transactions and in trafficking cocaine at the commercial level;
• The role as a commercial level trafficker directly able to arrange and conduct sales of large amounts of cocaine;
• The impact of cocaine on this community including the significant impact on Indigenous persons as described in the sentencing circle;
• Prior record which includes two youth findings of guilt in 2015 for possession of a Schedule I substance (Crystal Meth) for the purpose of trafficking and three adult convictions from 2015 to November of 2017 for possession of a weapon, break and enter, and failing to comply with an undertaking.

[12] The profits from commercial level trafficking allowed Mr. Rose to engage in drug use and gambling, but the circumstances of the offences and arrest, the defence psychological report and discussions in the sentencing circle all show the central motivating factor for the offences was greed.

Mitigating Circumstances

[13] The mitigating circumstances include:

• The guilty plea, expression of remorse in the sentencing circle and conduct after arrest which all show that remorse is genuine;
• Attendance at two individual counselling sessions and four group sessions with Addiction Services York Region;
• Community service work on a local farm;
• Registration for indefinite self-exclusion from OLG gambling sites;
• Full engagement in psychological assessment and counselling. While the report identified several areas of concern, the overall assessment showed there was no serious psychological condition that would prevent rehabilitation. The participation in counselling was positive and consistent with stated commitment to change;
• Status as a youthful offender. Although there are prior convictions, this will be the first custodial sentence;
• Continued support of family and community as shown in the letters of support.

[14] Mr. Rose served 18 days of pre-trial custody prior to release. Both parties agree that time should be considered as 27 days custody towards the sentence. He was on strict "house arrest" terms of bail for 4 months and a further one month credit is applied on that basis.

Sentencing Circle

[15] I want to acknowledge and thank all those who took part in the sentencing circle – Mr. Cliff Sharpe, Gladue Worker and Elder, Ms. Patti Pettigrew, Gladue Report writer, Ms. Abby Carpenter, Sentencing Circle Facilitator and Mr. Rose's girlfriend and members of his family. It is a particularly meaningful process that requires the offender to acknowledge and discuss his actions and the impact of the offences. He must review very personal issues in a forum that includes family members. The process in this case was focused primarily on identifying a rehabilitative path forward, but with full recognition and responsibility for the errors that led to this point.

[16] Cocaine trafficking at the commercial level is a highly profitable enterprise. The discussion in the sentencing circle confirmed that motivation for the offences. As the Elder described it, Mr. Rose took a shortcut towards immediate gratification. The easy money though did not improve his life but diminished it as he engaged in self-destructive behaviours.

[17] Since his arrest he's done everything he's been asked to do by his community counsellors and more. Mr. Rose says he's been sober for 11 months. He now realizes the consequences of his actions and he's worked hard to address the behaviours that contributed to those offences. His family remains supportive and they've noticed positive change. All agree with Mr. Rose that his arrest was something that "had to happen" in order for him to get his life back on track.

Cocaine Trafficking – Range of Sentence

[18] The Ontario Court of Appeal has identified a general range of 5 to 8 years imprisonment for trafficking cocaine in amounts up to a kilogram.

[19] In the case of R v Haye, [2013] OJ No 6493 (SCJ) affirmed [2014] OJ 6575 (CA), Justice Code cited the same range for those involved in trafficking of "substantial amounts of cocaine." Sentences of 5 to 5.5 years are available for first offenders who plead guilty. Recidivists receive sentences up to 8 years. His Honour explained the important point that drug trafficking sentences are not calibrated simply to reflect the amounts involved – "Having 50 grams less in one case than another does not automatically result in a discount. The main significance that attaches to the quantity possessed in drug trafficking sentencing is that it helps to give rise to an inference about the position the accused occupies in the drug trafficking hierarchy."

[20] How is this range of sentence applied in the case of an Indigenous offender? In R v McIntyre 2016 ONCA 843, the Court of Appeal reduced an 8 year sentence after trial for one instance of trafficking a kilogram of cocaine to 5 years for an Indigenous accused with no record. There was no evidence of prior drug trafficking. An 8 year sentence should not have been imposed on a first offender, particularly where two others involved received lesser sentences. Information in a Gladue Report received as fresh evidence and consideration of s 718.2(e) of the Criminal Code along with the other principles of sentence led to a reduction to 5 years.

[21] The defence submits that Gladue factors can result in sentences well below the range typically imposed. In R v McGill, 2016 ONCJ 138, the Crown requested a sentence of two years less one day for an Indigenous offender who had been in possession of 300 grams of cocaine for the purpose of trafficking. The defence sought a 90 day intermittent sentence. The court acknowledged that a penitentiary sentence would typically follow, but the accused's very difficult background including alcoholic and abusive parents, subsequent foster care and growing up in the then impoverished Regent Park area of Toronto all required consideration of another approach. Mr. McGill had a prior record that involved two years of trouble, but that had been followed by a 14 year gap and he had taken significant rehabilitative steps in the lengthy period after arrest. Justice Green found the case involved "exceptional circumstances". While the Crown's submission took into account Gladue principles, the court found the adjustment from the typical sentence was not sufficient. The court found that it was the "rare, if not unprecedented" case where a suspended sentence and a strict probation for 30 months best met the principles of sentencing.

[22] In R v McIntosh, 2011 ONCJ 220, the accused received an 18 month sentence for aiding a trafficker by driving him to sell 7 grams of cocaine and for possessing 235 grams of cocaine for the purpose of trafficking. The Crown had requested a 3 year sentence, but the lack of any prior record combined with the accused's stable employment history, his guilty plea and his time spent on restrictive bail resulted in a reformatory sentence. A 15 month sentence following a trial was imposed in R v Clunis, 2018 ONCJ 194 for possession of 156 grams (described as 5.5 ounces) of crack cocaine for the purpose of trafficking. The court noted at paragraph 24 that there is room for judges to apply some creativity to meet sentencing principles, but not to the point where judges "do an end-run around Parliament's choices." The court acknowledged that "exceptional circumstances" may lead to sentences below the standard range, but Mr. Clunis' circumstances as a lesser-involved party with no record were not exceptional in that sense.

The Appropriate Sentence in This Case

[23] The Crown has shown that a sentence of five years would generally be appropriate for a first offender after a guilty plea for trafficking in cocaine at this commercial level. This is a crime of greed and that was the central factor in this case. The amounts of money involved were significant. As discussed in the sentencing circle, the distribution of this drug causes significant harm in the community on many levels. Given the lucrative nature of the activity and the effect on the community, general deterrence must be the principle factor on sentence.

[24] The sentence imposed must specifically deter Mr. Rose and acknowledge the harm done by his actions. Rehabilitation remains an important goal, particularly for a first offender. Mr. Rose has already taken significant steps towards rehabilitation and that is one of the most important mitigating factors that contributes to a reduction in the custodial term in this case.

[25] Consideration of Mr. Rose's Indigenous heritage was reflected in this sentencing process in four ways:

• By obtaining a Gladue report which provided important information about Mr. Rose, about his status as an Indigenous person and about the larger social and historical context relevant to this sentence;
• By holding a sentencing circle which itself is a meaningful part of the sentencing process specifically aimed at identifying the issues both personal and systemic that brought the individual before the courts. The circle also identified a "healing path" forward;
• By reflection in the custodial sentence imposed. Both parties have acknowledged that such consideration is appropriate, but they differ markedly as to the extent to which it should be applied in this case;
• By a recommendation that treatment provided as part of this sentence be done within the Indigenous community given the success Mr. Rose has had to date with counselling in that context.

[26] When Gladue principles result in a reduction of sentence it is not by way of simple discount but rather a recognition that in certain cases the moral blameworthiness of the offender is reduced by consideration of her or his background and the wider effects of our history of colonialism including intergenerational dislocation, trauma, poverty and racism. These circumstances must be considered even in cases involving serious offences – R v Ipeelee, 2012 SCC 13.

[27] Some persons suffer the worst of these effects directly as described in the McGill case. Others like Mr. Rose have grown up in a good family in a relatively affluent region and have successfully completed a college program. Indigenous offenders are not required to draw a "straight line" between their ancestry and the offences they've committed, and it's important to remember that the effects of colonialism may echo for generations past those who were taken during the "60's scoop" or forced to attend residential schools. Having said that, every offender has a unique history and it would be a mistake to treat Mr. Rose's case in the same way as others who have grown up without the advantages he's had. Consideration of sentence reduction depends entirely on the circumstances of the particular offender and the offence. Mr. Rose's circumstances are not such that a significant reduction in sentence would be appropriate. I agree with Mr. MacDonald that there are cases that require bold steps well outside of a general sentencing range, but this is not such a case. Despite that, all of the circumstances identified by the defence are important and must be reflected in the sentence imposed.

Sentence

[28] Considering all of the circumstances including credit for time served and time spent on restrictive release, I find a global sentence of three and a half years is appropriate. That sentence will be applied concurrently on both counts for a total custodial sentence of three years and six months.

[29] I recommend that Mr. Rose be permitted to serve a portion of his sentence at the Waseskun Healing Centre in Québec or a similar program. I further recommend that all effort be made to provide counselling within the Indigenous community while Mr. Rose is serving sentence. If he's granted parole, I recommend that counselling within the Indigenous community be considered as part of that process.

[30] Mr. Rose will be prohibited from possessing a firearm or any related items listed under s 109 of the Criminal Code for 10 years. Given the role that DNA can play in investigating drug trafficking and the offences of violence that often accompany that activity, the public interest in those investigations, and considering the privacy protections in the databank system, I find it necessary in the public interest to order that Mr. Rose provide a sample of his DNA for registration on the national databank.

Delivered: November 14, 2019.

Justice Joseph F. Kenkel