Court File and Parties

ONTARIO COURT OF JUSTICE

DATE: 2021 01 19 COURT FILE No.: Ottawa 18-1080-01

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

MOUSSA JABER

Before: Justice D. Berg

Reasons for Judgment Released on: January 19, 2021

Counsel: C. Liggett, counsel for the Crown L. Greenspon, for the defendant

Berg J.:

Introduction

[1] Moussa Jaber has pleaded guilty before me on July 22, 2019 to the following offences:

• That on or about June 20, 2018, for the purpose of trafficking, he did possess a substance included in Schedule I of the Controlled Drugs and Substances Act (CDSA), namely fentanyl and heroin;
• That on that same day, for the purpose of trafficking, he did possess a substance included in Schedule I of the CDSA, namely methamphetamine;
• That on that same day, for the purpose of trafficking, he did possess a substance included in Schedule II of the CDSA, namely more than 3 kilograms of cannabis marijuana;
• That on that same day, he did possess proceeds of crime, namely money of a value exceeding $5000, knowing that all or part of the said proceeds had been obtained by or derived directly or indirectly from an offence punishable by indictment, to wit: possession of a controlled substance for the purpose of trafficking;
• That on that same day, contrary to s. 91(3) Criminal Code (CC), he did possess without lawful excuse a high capacity magazine without being the holder of a licence permitting such possession;
• That on that same day, contrary to s. 95(2) CC, he did possess without lawful excuse a loaded restricted firearm, namely a Smith and Wesson 9mm handgun together with readily accessible ammunition capable of being discharged in the said firearm without being the holder of an authorization or licence permitting the possession at that place and the holder of a registration certificate for that firearm;
• That on that same day, contrary to s. 95(2) CC, he did possess without lawful excuse a loaded restricted firearm, namely a Para 1911 .45 Calibre handgun together with readily accessible ammunition capable of being discharged in the said firearm without being the holder of an authorization or licence permitting the possession at that place and the holder of a registration certificate for that firearm; and
• That on the same day, while bound by a probation order made by the Ontario Court of Justice on September 27, 2017, without reasonable excuse, did fail to comply with a condition of that order, to wit: Keep the Peace and be of Good Behaviour.

[2] Broadly speaking, after July 22, 2019, the matters went over from time to time as a Gardiner hearing was being contemplated. Ultimately, that hearing was not required and the matter was then adjourned for sentencing submissions. Alas, the COVID-19 pandemic intervened and submissions were only heard much later in the year: final submissions were made on November 9, 2020.

Facts

[3] As per an Agreed Statement of Fact, I have been advised of the following facts underlying the pleas of guilt:

1. In December 2017 and April 2018, police received information from a confidential informant about an individual selling cocaine, speed, and marijuana in Ottawa. The person had the first name of ‘Tanner’ and went by the nickname of ‘Flex’. He drove a silver Honda Civic. The confidential informant gave ‘Tanner’s’ address as 543 Burleigh Private.
2. In May of 2018, police queried Tanner West and learned that he lived at 543 Burleigh Private and had a 2005 silver Honda Civic registered to him.
3. Police conducted surveillance on ten days between May 9 and June 18, 2018. On multiple occasions on those days, they observed Tanner West engage in behaviour they believed was consistent with counter-surveillance manoeuvres and behaviour they believed was consistent with drug trafficking.
4. On June 5, 2018, while Mr. West’s Civic was parked at his residence, the police observed the Accused attend that residence in his BMW and then leave in it, taking away from Mr. West’s residence a large white Apple iMac box. Mr. Jaber drove to his own residence located at 1031 D Cummings Avenue where he brought the box inside. He was observed attending at Mr. West’s residence twice more that day on foot via a foot path, each time staying only for a minute. The second time, he was observed leaving Mr. West’s place carrying a tightly wrapped white plastic bag. Police later observed Tanner West to leave his residence.
5. On June 9, 2018, the police observed Mr. West walk from his residence to that of the accused. He stayed there for nine minutes before leaving, walking back towards his own residence and then getting into his vehicle. He then drove to the parking lot of the St. Laurent Complex, where an unknown male got into the Civic for a short time. The male then entered the Complex carrying a yellow elastic tourniquet and then went into the bathroom where police heard the snapping sound of the elastic in the bathroom stall.
6. In June of 2018, police received information from another confidential informant that ‘Flex’ was dealing cocaine in Ottawa at the kilo level. The informant gave ‘Flex’s’ address as 543 Burleigh Private and indicated that ‘Flex’ had a young Middle Eastern runner in his mid-20s named ‘Moussa’ who lived near Cummings Avenue.
7. On June 14, 2018, police observed the Accused walk from his residence to that of Mr. West and enter, remaining there for approximately one hour before returning home.
8. On June 18, 2018, the police observed a camera looking out from the front door of the Accused’s residence. That same day, the Accused and Mr. West exited that residence together and left in Mr. Jaber’s BMW. They drove to a Sail store and then to Mr. West’s residence. After approximately forty minutes, Tanner West exited his residence while the Accused remained inside. Mr. West got into the passenger seat of a pickup truck which then drove northbound on Cummings Avenue and then conducted a U-turn nearby. Mr. West then walked back to his residence and went inside. He had been gone for approximately five minutes. Some twenty minutes later, the Accused left Mr. Tanner’s residence, got into his BMW, and drove to his own residence.
9. On June 19, 2018, the police applied for warrants to search the residences of Mr. West and Mr. Jaber. The warrants were granted and executed on June 20, 2018.
10. Upon execution of the search warrant at the Accused’s residence, the following items were located and seized: a. Empty pill bottles and documents in the name of Jaber; b. Twelve vacuum sealed bags of cannabis marijuana (total 5,497.5 gm.) in a Home Depot box; c. A silver iPhone from the Accused incident to arrest; d. Two handguns (a Smith & Wesson 9mm and a Para 1911 .45 calibre), a magazine and ammunition in a black travel bag inside a white Apple iMac box in the master bedroom walk-in closet; e. A holster and cash in that Apple box; f. C$590 and identification documents in the name of the Accused in a safe in the closet of the north bedroom; g. Two bags of cannabis marijuana (totalling 291.55 gm.) in a clear plastic storage container in that same closet; h. A bag of cash inside the Apple box (I was told that the total amount of cash seized by the police during the execution of the warrant at Mr. Jaber’s house was approximately C$170,000); i. Nine bags of white methamphetamine pills (a total of 9,000 pills) and cash in a brown box in the Apple box; j. Cash and two bags containing fentanyl/heroin (a total of 223.4 gm.) and three torn pieces of plastic containing 1.6 gm. of “fentanyl/fentanyl/ an analogue of fentanyl (cyclopropyl fentanyl)/U-47700 heroin & 1.85 gm. of opium” in a black travel bag in the Apple box; k. A CRA document in the Accused’s name on a desk in the living room; l. Bundles of cash in a duffle bag in a crawl space; m. A Ziplock bag containing 5.4 gm. of crack cocaine, 3.2 gm. of powder cocaine, 0.2 gm. of fentanyl/heroin in that duffle bag (the chemical make-up of this fentanyl/heroin was the same as the 223.4 gm. seized from the walk-in closet); n. One 9mm bullet in the duffle bag; o. Fourteen vacuum sealed bags of cannabis marijuana (totalling 4, 390.4 gm.) in the duffle bag.

[4] Certain points were clarified during submissions. Mr. West was the initial target of the police investigation. It was agreed that there is no evidence before me as to what Mr. Jaber believed the fentanyl/heroin admixture to be nor is there any evidence before me as to the percentage of fentanyl in it. Furthermore, Mr. Greenspon submits that Mr. Jaber was not the owner of the various items seized by the police but was holding them for Mr. West, possessing the items in question in a state of willful blindness as to their nature. The Crown is not able to confirm or deny this submission.

The Position of the Crown on Sentencing

[5] Ms. Liggett for the Crown has submitted that a global sentence of 11 years is appropriate in this case. She breaks it down as follows:

• Possession for the purpose of trafficking of the approximately 225 gm. of fentanyl/heroin admixture: 11 years;
• Possession for the purpose of trafficking of the 9,000 pills of methamphetamine: 3 years concurrent;
• Possession for the purpose of trafficking of the approximately 10kg. of marijuana: 2 years concurrent;
• Possession of the proceeds of crime, the $170,000: 18 months concurrent;
• Possession of the prohibited device, the high capacity magazine: 3 years concurrent;
• Possession of the Smith & Wesson 9mm. handgun: 5 years concurrent;
• Possession of the Para 1911 .45 calibre handgun: 5 years concurrent;
• The breach of probation: 30 days concurrent.

[6] The Crown is also seeking a s. 109 order for life as well as an order that a sample of Mr. Jaber’s DNA be taken: said order would be in the context of secondary designated offences. I note here that the defence takes no position with regards to these ancillary orders.

[7] On the specific facts of this case, the Crown agrees that it is open for the Court to find that Mr. Jaber was holding the items found at his house during the execution of the search warrant for Mr. West. Mr. West was co-accused with Mr. Jaber on all the counts on the information before me with the exception of the breach of probation. During submissions, I was advised that the charges against Mr. West were withdrawn as there were no reasonable prospects for conviction.

[8] It is of no little import that the Crown agrees with the defence that Mr. Jaber has made great strides towards his rehabilitation and that considerations of specific deterrence need not be considered in my analysis. However, the Crown submits that the principle sentencing factors in this case are those of general deterrence and denunciation.

The Position of Mr. Jaber on Sentencing

[9] To say that the Crown and the defence are far apart in their submissions would be an understatement. Mr. Greenspon has submitted that the appropriate sentence here would be a conditional sentence followed by a period of probation, both of the maximum length allowed by law. The availability of a conditional sentence stems from the recent decision of the Ontario Court of Appeal in R. v. Sharma, 2020 ONCA 478 striking down sections 742.1(c) and (e)(ii).

[10] There is no pre-sentence custody to consider nor were the conditions governing Mr. Jaber’s release such that the holding of the Ontario Court of Appeal in R. v. Downes need be considered.

[11] The defence concedes, as it must, that the principle objectives of sentencing in this case are general deterrence and denunciation. However, Mr. Greenspon submits that the rehabilitative steps that Mr. Jaber has taken since his arrest are so exceptional that in these circumstances, the effect of the principles of deterrence and denunciation on the quantum of sentence are significantly reduced. It is by application of these ‘exceptional circumstances’ that Mr. Greenspon comes to his submission for a conditional sentence.

[12] As I have already indicated, the Crown agrees that Mr. Jaber is rehabilitated.

Who is Moussa Jaber?

[13] A Pre-Sentence Report (PSR) dated February 19, 2020 was filed as an exhibit in these proceedings. The Probation Officer contacted and interviewed a number of sources familiar with the accused. It is fair to say that the accused before me is very far from a career criminal and displays significant pro-social attributes.

[14] From that report, I have learned the following about Mr. Jaber:

• He is 28 years of age, having been born in Ottawa;
• He still resides at the address where the search warrant was executed;
• He is single and has no dependents;
• He has a limited but related criminal record. On September 27, 2017 in Ottawa, the passing of sentence was suspended and he was placed on 1 year of probation for one count of possession of a Schedule II substance for the purpose of trafficking and one count of carrying a concealed weapon. During submissions, I was advised that the weapon in question was a penknife.
• The PSR describes him as having had a difficult childhood due to his violent and alcoholic father. However, his parents separated when he was 10 years of age and he, his mother, sister, and grandmother then seemed to function well as a unit. Indeed, his mother worked hard and eventually purchased a home for them all. Then, in 2015, when he would have been approximately 22 years old, his mother was seriously injured in a car accident and the family lost their home and had to move into public housing in May of 2016. Mr. Jaber, to his credit, worked at two full time jobs to assist the family even thereby allowing his sister to attend law school in Montreal. He has also provided personal care for his mother who remains incapacitated to some extent by her injuries.
• Mr. Jaber advised the writer of the PSR that he was a victim of sexual abuse by a neighbour for a period of one year. He was 7-8 years old and the neighbour was three years older. Mr. Jaber never told anyone about this, other than one friend, and has never sought counselling.
• Referring to life in public housing, the probation officer wrote the following: The subject indicates … the home environment was stressful due to the neighbourhood environment, the subject’s mother’s disability needs and poor household finances. The subject notes he began to struggle with depressed moods and turned to consumption of marijuana to cope with his moods. He indicates his situation was compounded when he was not paid by his employer in landscaping the summer of 2016. This worsened his financial situation and fueled the resentment he already felt with his perceived injustice of society. He indicates it was at this time that he decided to become involved in selling marijuana to help with finances. In retrospect, he opines such was a poor decision as he experienced life threatening situations in his dealings and later was arrested in March 2017. He states that he did not realize at the time, the impact his Attention Deficit and Hyperactivity Disorder symptoms had on his historical poor decision making.
• After his arrest in 2017, he enrolled at college in Computer Programming and was dealing with his Attention Deficit and Hyperactivity Disorder (ADHD) by attending physicians and a psychometrist. He was diagnosed in April of 2018 with severe ADHD. As a result, he commenced taking prescribed medication. However, the PSR notes that it took six months as well as a prescription adjustment for the medication to have its salutary effect. “The subject indicates the present offences before the Court took place in June 2018 prior to his medication adjustment. He believes in retrospect, the offences were an example of various ‘stupid decisions’ he has made in his life due to a lack of maturity, insight and rational thinking”.
• He continues to live with his mother. He has been in a romantic relationship since November of 2019. I note that the lady in question has been in attendance at some, if not all, of Mr. Jaber’s appearances before me.
• He is attending college on a full-time basis.
• He had known Mr. Tanner for many years. They became friends when they met in the skateboarding community.
• From the PSR, it is clear that Mr. Jaber has a strong work ethic. While he may in the past have developed a dependency on marijuana, that is no longer the case. No other substance abuse issues were noted in the report.
• It is clear that Mr. Jaber has developed significant insight concerning his anti-social behaviour. The report writer states: The subject describes his past self as a foolish and avoidant young person who couldn’t manage his emotions and was angry at the world and who felt he had been wronged and was tired of being kicked down and wanted to feel empowered and respected. He adds he harboured anger towards the police as his mother’s vehicle he claims was struck by a police officer and caused her permanent injuries. He affirms he justified in his mind selling drugs. It was thrill seeking behaviour for him and skateboarding helped him to manage his pent-up energy and his ADHD symptoms. He emphasizes he sought approval from others and coupled with his lack of assertiveness and lack of guidance from a male role model, he was easily influenced by others.” Mr. Jaber further stated that “he is not oblivious to the impact that these types of offences have on others and they are not victimless crimes and that by association with individuals in sales of narcotics, he feels some responsibility and deserves to be punished. He indicates it all unfolded so quickly and it was impulsive on his part. … He realizes his actions were serious and takes responsibility for his actions.
• The officer in charge of the police investigation that led to the charges before me told the Probation Officer that Mr. Jaber was a “pawn”. The investigator noted that Mr. Jaber was knowingly holding the “product for a high-level trafficker who was his friend and neighbour”.

[15] The assessment in the PSR concludes with these words:

In light of the information provided in this report, the subject appears to be at a low risk to reoffend. Factors related to recidivism would revolve around adherence to treatment for Attention Deficit and Hyperactivity Disorder, the social environment in which he finds himself as well as peer choices and around attitudinal issues related to anger.

[16] I was provided with a Psychological Assessment Report prepared in 2017. It states that “[o]verall, [Mr. Jaber] exhibits Average cognitive abilities and he meets diagnostic criteria for (Severe) Attention-Deficit/Hyperactivity Disorder – Combined Presentation”.

[17] Mr. Greenspon also submitted a compendium of documents as an exhibit. There are letters from employers past and present, his college tutor, one of his professors, friends, and his current girlfriend. There is a letter from the girlfriend’s mother who states explicitly that she is aware of his current legal situation but is still very supportive. There are also documents in this exhibit indicating his current medication regime, his grades at college (heavily weighted towards A’s) as well as a copy of his diploma from the college indicating that he successfully completed the program of Computer Programming on July 14 of this year. As I indicated earlier in this decision, there are no specific deterrence concerns operant in this case.

The Law

[18] The statutory purpose and principles of sentencing from the CC relevant in the case of Mr. Jaber are:

718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

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

(b) to deter the offender and other persons from committing offences;

(d) to assist in rehabilitating offenders;

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.

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

718.2 A court that imposes a sentence shall also take into consideration the following principles:

(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender,

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

(c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;

(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances;

[19] Furthermore, my sentencing decision in this case must be informed by s. 10 CDSA:

10 (1) Without restricting the generality of the Criminal Code, the fundamental purpose of any sentence for an offence under this Part is to contribute to the respect for the law and the maintenance of a just, peaceful and safe society while encouraging rehabilitation, and treatment in appropriate circumstances, of offenders and acknowledging the harm done to victims and to the community.

(2) If a person is convicted of a designated substance offence for which the court is not required to impose a minimum punishment, the court imposing sentence on the person shall consider any relevant aggravating factors …

(b) was previously convicted of a designated substance offence, as defined in subsection 2(1) of this Act, or a designated offence, as defined in subsection 2(1) of the Cannabis Act;

[20] I am sentencing Mr. Jaber for the illegal possession of two handguns. As stated by the Ontario Court of Appeal in R. v. Ellis, 2016 ONCA 598 at para. 78:

[a]lthough the Supreme Court has found mandatory minimums to be grossly disproportionate in hypothetical gun licensing scenarios, it emphasized that courts should continue to impose weighty sentences for truly criminal behaviour involving guns …

Referencing the decision of the Supreme Court of Canada in R. v. Nur, 2015 SCC 15 at 120; see, too, R. v. Slack, 2015 ONCA 94 at paras. 22-23.

[21] I am sentencing Mr. Jaber for the possession for the purpose of trafficking of 225 gm. of a substance that is made up, to an undetermined extent, of some amount of both fentanyl and heroin. With respect to the former, the Ontario Court of Appeal has stated that “offenders – even first offenders – who traffic significant amounts of fentanyl should expect to receive significant penitentiary sentences” (R. v. Loor, 2017 ONCA 696 at para. 50), the former being considered the more dangerous of two very dangerous drugs. The defence submission that Mr. Jaber’s possession of the fentanyl, etc. was predicated on willful blindness as opposed to specific knowledge, while factually accurate for the purposes of this sentencing, is of little import. The Ontario Court of Appeal in R. v. Sidhu, 2009 ONCA 81 at para. 17 has held that:

[t]he trial judge considered the respondent’s wilful blindness to be a mitigating circumstance. With respect, we disagree. As a matter of principle and policy, we ought not to be sending a message to would-be-couriers that if they wear blinders, they will receive a lower sentence than if they actually learn the nature of and quantity of the substance they are importing. In assessing degrees of moral blameworthiness, we see no meaningful distinction between the two.

And at para. 19

The respondent was wilfully blind to the nature and quantity of the substance he was importing. Having kept himself in the dark, he cannot rely on his lack of knowledge as a mitigating factor.

See, as well, the further analysis of the Court of Appeal in R. v. Giammarco, [2012] O.J. No. 1053.

[22] Obviously, I am sentencing Mr. Jaber for the possession of these illegal firearms in the context of the world of drug trafficking. In R. v. Wong, 2012 ONCA 767, it is stated:

[11] The courts have repeatedly emphasized that the toxic combination of drugs and guns poses a pernicious and persisting threat to public safety and the welfare of the community. The social ills, including associated criminal conduct, fuelled by this combination is now well recognized.

[12] These offences called out for an exemplary sentence to achieve the important sentencing goals of denunciation and deterrence. Indeed, the firearms offences, standing alone, warranted a significant jail term. See R. v. Danvers, [2005] O.J. No. 3532.

[13] The combination of drugs and guns is particularly concerning. This combination is a serious aggravating factor on sentencing.

[23] There is no evidence before me that Mr. Jaber was part of a criminal organization. Nonetheless, drug trafficking is inherently hierarchical. As stated by Shreck J., then of the Ontario Court of Justice, in R. v. Gabbidon, 2017 ONCJ 55 at para. 12:

[a]s with any offence, sentences in trafficking cases must reflect the seriousness of the offence and the moral culpability of the offender. In this case, the offence involves profiting from the misfortune of others by selling dangerous drugs to individuals who are addicted to them. It is well known that drug trafficking usually involves a distribution hierarchy. Those at the top of the hierarchy arrange for the importation of large amounts of cocaine which is then distributed through others until it reaches the “street level dealer”, who sells small amounts to individual users. Individuals at the top of the hierarchy are responsible for the distribution of large amounts of cocaine to a large number of people. They cause great harm to many people and their moral culpability is significant. Those at the bottom also cause harm, but to a more limited extent. The sentences imposed should reflect this difference. The weight of the drugs is relevant insofar as it is evidence of an offender’s place in the distribution hierarchy, which in turn is directly related to the seriousness of the offence and the moral culpability of the offender.

However, I note that sole reliance on the weight of the drugs or similar factors can mislead as to an accused’s place in the trafficking hierarchy. The case at bar is illustrative of this.

[24] I turn now to the concept of ‘exceptional circumstances’ in sentencing. The British Columbia Court of Appeal, in R. v. Voong, 2015 BCCA 285, said:

[59] In summary, absent exceptional circumstances, the sentence for a first offence or with a minimal criminal record, dial-a-dope drug seller will be in the range of six to eighteen months imprisonment, depending on the aggravating circumstances. Exceptional circumstances may include a combination of no criminal record, significant and objectively identifiable steps towards rehabilitation for the drug addict, gainful employment, remorse and acknowledgement of the harm done to society as a result of the offences, as opposed to harm done to the offender as a result of being caught. This is a non-exhaustive list, but at the end of the day, there must be circumstances that are above and beyond the norm to justify a non-custodial sentence. There must be something that would lead a sentencing judge to conclude that the offender had truly turned his or her life around, and that the protection of the public was subsequently better served by a non-custodial sentence. However, Parliament, while not removing a non-custodial sentence for this type of offence, has concluded that CSO sentences are not available. Thus, it will be the rare case where the standard of exceptional circumstances is met.

I am required to mention again that conditional sentences are theoretically available at this time.

[25] From Voong, I take the test to determine whether exceptional circumstances are present be the following:

• the evidence before the sentencing judge must lead them to conclude that the accused has turned his or her life around;
• that the gravity of the offences before the court is such that a non-custodial sentence or a conditional sentence, if granted, would indeed satisfy all the principles of sentencing including general deterrence and denunciation.

Inherent in the concept of ‘exceptional circumstances’ are not only the circumstances of the offender’s rehabilitation, but also the factual circumstance of the offence or offences for which he or she is being sentenced. One does not pass sentence in a factual vacuum, ignoring the facts underlying the finding of guilt. That is, after all, the meaning of the words “a sentence must be proportionate to the gravity of the offence”. Put another way, in some factual contexts, rehabilitation, no matter how exceptional, will not offset deterrence and denunciation.

[26] The rehabilitation of an accused who was also an addict is recognized as an exceptional circumstance statutorily. Section 10 (4) CDSA states

(4) A court sentencing a person who is convicted of an offence under this Part may delay sentencing to enable the offender

(a) to participate in a drug treatment court program approved by the Attorney General; or

(b) to attend a treatment program under subsection 720(2) of the Criminal Code.

(5) If the offender successfully completes a program under subsection (4), the court is not required to impose the minimum punishment for the offence for which the person was convicted.

But it is important to note that not every addicted accused is permitted to go through drug treatment court and that ss. (5) is discretionary. This is akin, it seems to me, to the sentencing and diversion regimes also in effect in our mental health courts. Likewise, not every mentally ill accused person goes through mental health court. The charges faced by the accused in either case, if not determinative, are at least of great weight.

[27] What weight is rehabilitation to be given in a case where the primary sentencing factors are general deterrence and denunciation? In R. v. Inksetter, 2018 ONCA 474, the Ontario Court of Appeal stated:

[15] The trial judge justified a reformatory sentence for offences that he described as “among the most serious for circumstances of the offence of possession of child pornography” by the fact that it permitted him to include a period of probation. In his focus on probation, the trial judge gave primary effect to the objective of rehabilitation rather than the objectives of denunciation and general deterrence. The trial judge’s reasons demonstrate that this error in principle resulted in the imposition of a shorter term of imprisonment than would otherwise have been imposed.

[17] The courts have very few options other than imprisonment to achieve the objectives of denunciation and general deterrence: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 6.

[18] Probation has traditionally been viewed as a rehabilitative sentencing tool. It does not seek to serve the need for denunciation or general deterrence: R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at p. 87.

The passage from Lacasse referred to by the Court of Appeal reads:

[w]hile it is normal for trial judges to consider sentences other than imprisonment in appropriate cases, in the instant case, as in all cases in which general or specific deterrence and denunciation must be emphasized, the courts have very few options other than imprisonment for meeting these objectives, which are essential to the maintenance of a just, peaceful and law‑abiding society.

[28] A more recent decision by the Ontario Court of Appeal furthers the analysis. The case in question is R. v. Disher, 2020 ONCA 710. It was released on November 9, 2020, i.e., the same day that submissions in Mr. Jaber’s matter were completed. Mr. Disher had pleaded guilty to offences covering the possession of roughly 45 gm. of powder that included heroin, fentanyl, and fentanyl derivatives including carfentanil. Also seized were 47.5 gm. of marijuana, $250, brass knuckles, and two illegal knives. He was subject to a weapons prohibition at the time of his arrest. As well, he had been on a recognizance of bail for but two weeks at the time of his arrest due to other drug charges. The Crown sought a sentence of 12 years; the defence position was in the range of 5 to 7 years. It is noted that Mr. Disher had “a serious criminal record – which included numerous drug trafficking convictions”. The sentence was 12 years. He appealed and asked that a sentence of 8 years be substituted.

[29] Released with Disher was R. v. Weaver (same citation). Ms. Weaver had pleaded guilty to possession of methamphetamine but went to trial on the counts also faced by Mr. Disher; she was found guilty of those as well. Her criminal record was minimal: a conditional discharge in 2016 for drug offences. The Crown sought 8 years, the defence suggesting that 2 years was appropriate. The sentence brought down was one of 7 years. She appealed and asked that a sentence of 4 years be substituted.

[30] The Court of Appeal allowed both of the appeals.

[31] Gillese J.A. held (at para. 16 for the unanimous panel) “I accept that the sentencing judge erred by failing to consider Mr. Disher’s rehabilitative prospects. As that error necessarily impacted on the length of the sentence imposed, I would allow his appeal on that basis”. She explained:

Section 718 of the Criminal Code states that, “The fundamental purpose of sentencing is to protect society and to contribute … to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more” of six specified objectives. Deterring the offender and assisting in rehabilitating offenders are two of those objectives – and both must be addressed when crafting a “just sanction” that meets the fundamental purpose enunciated in s. 718.

And then at para. 27:

Lacasse is clear: an error in sentencing justifies appellate intervention only when it appears that the error had an impact on the sentence (at para. 44). While I agree with the sentencing judge that deterrence and denunciation were the primary sentencing objectives, it was nonetheless an error to fail to consider Mr. Disher’s rehabilitative potential. In my view, it appears that the error had an impact on the length of sentence imposed. As this court said in R. v. Johnson, 2012 ONCA 339, 291 O.A.C. 350, at para. 18, albeit in the context of consecutive sentences and the totality principle, “where the ultimate effect of the combined sentences is to deprive the offender of any hope of release or rehabilitation, the functional value of these sentencing principles meets the point of diminishing returns”. Mr. Disher was 34 years old at the time of sentencing and had not before spent time in the penitentiary. While his prospects for rehabilitation may not have been strong, it was important that the sentencing judge consider them and what effect the combined sentences would have on his prospects for rehabilitation. Accordingly, appellate intervention is justified and it falls to this court to determine a fit sentence in all the circumstances.

As noted earlier, Mr. Disher’s sentence was then reduced from 12 to 8 years incarceration.

[32] The analysis was similar in the case of Ms. Weaver with the exception of the presence of Gladue factors. On the point that I am discussing in Mr. Jaber’s case, Gillese J.A. found at para. 60 that:

[n]or did the sentencing judge address Ms. Weaver’s rehabilitative prospects. He stated that deterrence was the paramount sentencing consideration, given the seriousness of the substances being trafficked. While I agree that general deterrence and denunciation are important factors to be considered in a case such as this, it is an error to fail to consider individual deterrence and rehabilitation, especially when sentencing a first offender: Batisse, at para. 34; R. v. Thurairajah, 2008 ONCA 91, at para. 41; and R. v. Mohenu, 2019 ONCA 291, [2019] O.J. No. 2003, at paras. 12-13.

[33] The factual context within which I am sentencing Mr. Jaber is different than that of Disher and Weaver. The amounts of drugs and money as well as the presence of firearms render Mr. Jaber’s offences graver than those of Mr. Disher. Yet Mr. Jaber’s degree of responsibility, his moral blameworthiness, is less than that of Mr. Disher. It is true that Mr. Disher has a drug addiction, however, he has a serious, continuous, and long-term criminal record including numerous drug trafficking convictions. He was prohibited from possessing a weapon. He had been released on a recognizance two weeks earlier with respect to other fentanyl, etc. trafficking charges. It would seem that around the time of his arrest, he was actively involved in the trafficking of fentanyl/heroin and, importantly, was found to be “the principal actor”. He pleaded guilty on the first day of trial. No trial was ever set in Mr. Jaber’s case. He was not trafficking the drugs that were in his possession nor using the firearms. The Crown is not able to confirm or deny that Mr. Jaber was holding the drugs, guns, and money for someone else being wilfully blind as to their nature but agrees that he was a pawn in Mr. Tanner’s endeavours. I find that there is a significant difference in the moral blameworthiness as between Mr. Jaber and Mr. Disher.

[34] In Ms. Weaver’s case, she was found guilty of the same offences as Mr. Weaver but after a trial. She was thus convicted of being an active trafficker in fentanyl albeit not as the main player. Thus, her moral blameworthiness was found to be less than that of Mr. Disher despite her probation condition prohibiting her from associating with him and her minor record for possession of drugs and weapons. An important element in the Court of Appeal’s analysis of the appropriate sentence in her case was the fact that she is Metis.

[35] Elsewhere, the Ontario Court of Appeal has held that “it is a well-established principle of sentencing laid down by this court that a first sentence of imprisonment should be as short as possible and tailored to the individual circumstances of the accused rather than solely for the purpose of general deterrence” (R. v. Priest, 1996 CarswellOnt 3588 at para. 23).

[36] Mr. Jaber has pleaded guilty to these matters. Thus, the sentence that I impose should be substantially and meaningfully different than if I were sentencing on these charges after a trial (see, for example, R. v. Doucette, 2015 PECA 5, R. v. Rosenberg, [1993] O.J. No. 3260 (Gen. Div.), R. v. Berquas, 2018 ONCJ 623).

[37] While the news of late has been optimistic concerning efforts to contain COVID-19, I must keep in mind the fact that this sentencing is taking place during a pandemic.

[38] All that being said, the Supreme Court of Canada in the seminal decision of R. v. Lacasse, 2015 SCC 64 at para. 58 has provided the following instruction:

[t]here will always be situations that call for a sentence outside a particular range: although ensuring parity in sentencing is in itself a desirable objective, the fact that each crime is committed in unique circumstances by an offender with a unique profile cannot be disregarded. The determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purely mathematical calculation. It involves a variety of factors that are difficult to define with precision. This is why it may happen that a sentence that, on its face, falls outside a particular range, and that may never have been imposed in the past for a similar crime, is not demonstrably unfit. Once again, everything depends on the gravity of the offence, the offender’s degree of responsibility and the specific circumstances of each case.

Analysis

[39] I will commence with the issue of the presence of exceptional circumstances in this case. Can I conclude, on the basis of the evidence before me, that Mr. Jaber has turned his life around? With all due respect, I find that I cannot. This is not to denigrate the efforts that he has made towards dealing with the issues in his life nor do I doubt that the factor of specific deterrence is not in play here. I think it unlikely that Mr. Jaber will ever offend again.

[40] But Mr. Jaber was not addicted to drugs when he committed these offences nor was there any other factor operant in his life at the time that would have had an equivalent effect. Smoking a lot of marijuana is not the same as being addicted, for example, to an opiate. While his life circumstances at the time of these offences were far from ideal, I note that he had demonstrated a strong work ethic, had been seeking to better himself through post-secondary education, and was coming to grips with his mental health issues (ADHD). It is clear that he was close to members of his family. The absence of a need for specific deterrence does not necessarily mean presence of exceptional circumstances. I cannot find here the presence of “circumstances that are above and beyond the norm to justify a non-custodial sentence” (as per Voong). Put another way, Mr. Jaber’s life circumstances at the time of these offences were not such that his efforts since his arrest represent efforts that were ‘“exceptional”, “rare”, “unusual” or “extraordinary”’ (R. v. McGill, 2016 ONCJ 138 at para. 69) or “dramatic and sustained” (R. v. Hassan, 2017 ONSC 4570 at para. 64).

[41] Even were I to have found exceptional circumstances in this case, I would not be able to find that that the gravity of the offences before the court was such that a non-custodial sentence or a conditional sentence would satisfy all the principles of sentencing including general deterrence and denunciation. None of the cases to which I have been referred or which I have otherwise reviewed and where there was an application of the doctrine of exceptional circumstances, was dealing with a fact scenario as serious as that faced by Mr. Jaber. Circumstances, exceptional or otherwise, exist in the context of the facts underlying the offences. At some point, the exceptional circumstances of a particular case will not outweigh the gravity of the facts to which the accused has pleaded guilty such that a non-custodial or conditional sentence would be appropriate. That would be the situation here.

[42] The aggravating factors in Mr. Jaber’s case: the nature and quantity of the drugs, the presence of the firearms with the drugs, the amount of cash, and the criminal record for drug related offences. Usually, the possession of these amounts of drugs, firearms, and proceeds of crime money would be clearly indicative of someone fairly high up in the drug trafficking hierarchy. Yet, I am unable to find so in Mr. Jaber’s case. The manner in which the items were stored, the observations of the investigative team as to the respective activities of Mr. Jaber and Mr. West, and the investigating officer’s comment that the accused was a ‘pawn’ of Mr. West, his friend and neighbour, suggest that Mr. Jaber was a lesser player in Mr. West’s illegal enterprise. However, on the evidentiary record before me, I cannot locate Mr. Jaber’s place in this scheme with any greater certainty. I note that he was highly trusted by Mr. West; that is obvious from the fact that this latter allowed Mr. Jaber to hold the guns, drugs, and large amount of cash. However, there is no evidence before me as to what Mr. Jaber’s motivation or motivations were for doing so: greed, friendship, feelings of an anti-social nature?

[43] There is much to say in mitigation for Mr. Jaber’s actions of June 20, 2018. The conclusion in the PSR is that he at a low risk to reoffend. He has a good work ethic, social stability, and is obviously taking steps to plan for his future (e.g., his studies). He has entered an early guilty plea: no trial date was ever set in this matter.

[44] Some of the moral blameworthiness that accrues to his actions is lessened somewhat by the fact that Mr. Jaber, at the time of these offences, was suffering from a severe form of ADHD and while he had commenced treatment, the proper dosage had not yet been determined. I have no doubt that the ADHD effected the manner in which he was thinking at the material time.

[45] While not, strictly speaking, a factor in mitigation, the current pandemic will have some similar effect on my calculation of the quantum of sentence.

[46] In the circumstances of this case, where Mr. Jaber was holding the drugs and the guns for someone else, where there is no evidence that he was any more involved than that, I see no need that the sentences on the gun counts be consecutive to those for the drugs (R. v. Delchev, 2014 ONCA 448 at para. 34).

Conclusion

[47] The sentence based on the above factors shall be as follows:

• Count 2: possession for the purpose of trafficking of fentanyl and heroin: 4 years,
• Count 6: possession for the purpose of trafficking of methamphetamine: 2 years, concurrent
• Count 7: possession of more than 3 kilograms of cannabis marijuana: 8 months, concurrent
• Count 8: possession of proceeds of crime: 1 year, concurrent
• Count 15: possession without lawful excuse of a high capacity magazine without being the holder of a licence permitting such possession: 2 years, concurrent
• Count 21: possession without lawful excuse of a loaded restricted firearm, namely a Smith and Wesson 9mm handgun together with readily accessible ammunition capable: 3 years, concurrent
• Count 22: possession without lawful excuse a loaded restricted firearm, namely a Para 1911 .45 Calibre handgun together with readily accessible ammunition: 3 years, concurrent
• Count 23: fail to comply with a condition of that order: 30 days, concurrent

[48] Ancillary orders: there will be a section 109 order for life. I will order that a sample of Mr. Jaber’s DNA be taken for entry into the database. There will also be the order for forfeiture that was discussed on an earlier date.

Released: January 19, 2021 Signed: Justice Berg