ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 09-G19689
DATE: 2012/06/28
BETWEEN:
HER MAJESTY THE QUEEN Respondent – and – CHRISTOPHER JAMES CAPY Applicant
Brigid Luke, for the Crown
Robert J. McGowan, for the Applicant
HEARD: By Oral Submissions on June 19, 2012 (Ottawa)
REASONS FOR SENTENCE
BEAUDOIN J. (Orally)
[ 1 ] On January 17, 2012, Christopher James Capy was found guilty by a jury of the following offences:
COUNT # 1 -- THAT HE THE SAID Christopher James CAPY on or about the 14 th day of July in the year 2009 at the City of Ottawa in the said region, unlawfully did, traffic a substance included in Schedule 1 of the Controlled Drugs and Substances Act , to wit: COCAINE , contrary to Section 5, subsection 1 of the said Act , thereby committing an indictable offence under Section 5, subsection 3, paragraph A of the said Act.
COUNT # 2 -- AND FURTHER THAT HE THE SAID Christopher James CAPY on or about the 14 th day of July in the year 2009 at the City of Ottawa in the said region, unlawfully did, for the purpose of trafficking possess a substance included in Schedule 1 of the Controlled Drugs and Substances Act , to wit: COCAINE , contrary to Section 5, subsection 2 of the said Act , thereby committing an indictable offence under Section 5, subsection 3, paragraph A of the said Act.
[ 2 ] A Pre‑Sentence Report prepared by Mary Ann Calzonetti has been provided to the Court. On June 19, 2012, counsel provided me with their oral submissions on sentence.
A Summary of the Positions of the Crown and of the Defence
[ 3 ] In summary, the Defence suggests that I impose a conditional sentence of 6 to 12 months followed by 12 months probation, including a possibility of a Community Service Order.
[ 4 ] The Crown seeks a sentence of 12 months incarceration followed by 12 months probation as well as a Section 109 Firearms Prohibition Order for a period of 10 years, a DNA order and forfeiture of the property seized.
[ 5 ] The defence did not object to the Section 109 Prohibition Order or to the request for forfeiture but submits that there is no basis for the DNA order.
The Facts and Circumstances of the Offences
[ 6 ] Detective Corzato testified that he was operating as an undercover officer in the Street Crimes Unit in 2009. He had made three prior drug purchases of powder cocaine from someone by the name of David Scott. These were for small amounts; each time for about $100.00. It was ultimately decided that the investigation of Mr. Scott would be brought to a close with a final “buy – bust” to take place on July 14, 2009. Detective Corzato asked Mr. Scott to supply him with a much larger quantity; namely, an ounce of cocaine which would be sold to him for $1600.00.
[ 7 ] There was evidence from Sgt. Campbell and Sgt. Lowry that Mr. Scott first arrived with Mr. Capy on the appointed date in the Merivale Mall parking lot at 4:56 p.m. Mr. Capy was driving. It was admitted that the vehicle was his. Upon their arrival, Mr. Capy and Mr. Scott both got out of the vehicle at which point Mr. Scott introduced Mr. Capy to Det. Corzato. It is clear from all of the evidence the mood was light.
[ 8 ] At that time, Mr. Capy was directed by Mr. Scott to get “it” from the trunk of the vehicle. When he went to look for it, he could not find it. Detective Corzato testified as to the exchange he heard between Mr. Capy and Mr. Scott, which became heated.
[ 9 ] After the drugs are not found, the evidence is clear that Mr. Capy and Mr. Scott re‑entered the vehicle and went to Mr. Scott’s residence at 160 Viewmount, which is very near the entrance/exit to the Merivale Mall and within view of Det. Corzato’s undercover vehicle. Detective Corzato says he saw both of them enter the house and exit. Constable Serge Fortin made the same observation.
[ 10 ] At that point, Mr. Capy said he was satisfied that Mr. Scott had the drugs. And once again, Mr. Capy drove both of them to the parking lot and he stopped his car next to Det. Corzato. At that point, Detective Corzato testified that he asked Mr. Capy: “We good?” Mr. Capy’s response was: “That was close. It’d be kind of hard to explain how I lost 10 grand of dope.” Detective Corzato said Mr. Capy was laughing.
[ 11 ] Mr. Capy agreed that he might have used those words but that he pulled that figure from the air.
[ 12 ] The Court also heard evidence that after Mr. Scott exited Mr. Capy’s car, Mr. Capy did not immediately drive off, but he remained there for a time. At some point in time, Mr. Capy’s car moved, not quickly, a short distance. This is at or about the time of the “take down” and both men were arrested.
The Circumstances of the Offender
[ 13 ] The accused is 30 years of age, the offences having been committed just before his 28 th birthday. He is an only child raised by his mother who worked two jobs and completed university His father is unknown to him. His maternal grandparents were very involved in his upbringing; indeed his grandmother attended every day in court for his trial and for his sentencing.
[ 14 ] As a youth, he was very involved in a number of sports and apparently there were no problems until the age of 14. At the age of 13, he was prescribed Concerta for ADHD. When his sport activities concluded at or about the age of 14, the offender got involved in a negative peer group, alcohol and substance abuse.
[ 15 ] Since the time of his arrest, Mr. Capy completed high school in January 2010. He has maintained employment and is substance‑free. He currently lives with his fiancée who is a supportive and positive influence. None of his family members are known to the criminal justice system.
[ 16 ] He worked for his uncle at Snappy Relocation Services for 18 months as of the date of the Pre‑Sentence Report but I am advised that he is now setting up business as a roofer with a friend. This is a job he has done in the past.
[ 17 ] The offender admitted to a lengthy period of daily cocaine use but reported being substance‑free for the past three years. He occasionally uses alcohol.
[ 18 ] Ms. Calzonetti described Mr. Capy as being open and forthright in answering all questions directed to him. She concluded that he appeared to “have moved away from a pro criminal peer group and has developed a lifestyle that supports both anti‑criminal thinking, pro‑social behaviour.”
[ 19 ] Mr. Capy’s only record consists of a conviction from November 23, 2009 where he was placed on probation for a period of nine months for Failure to Comply with an Undertaking, contrary to section 145(5.1) of the Criminal Code of Canada . That undertaking was related to the present charges and convictions. I am advised that the undertaking was to not associate with anyone having a criminal record. Response to probation supervision was assessed as being satisfactory and future community supervision was deemed appropriate.
[ 20 ] The assessment concludes that Mr. Capy “has shown remorse and appears to have insight into the seriousness of his actions” and recommends a consideration of a community sentence on the following conditions:
- Report to and remain under the supervision of a Probation Officer/Conditional Sentence Supervisor;
- Not associate with anyone known to have a criminal record;
- Maintain employment; and
- Abstain absolutely form the purchase, possession and consumption of non‑prescription drugs.
[ 21 ] Mr. Capy addressed the Court and claims he has learned from his mistake and that he has turned his life around. He says that the three days he spent in jail were enough for him to realize the serious mistake he had made and that he never wants to get involved in anything like this again.
(Decision text continues exactly as provided.)
Mr. Justice Robert N. Beaudoin
Released: June 28, 2012
COURT FILE NO.: 09-G19689
DATE: 2012/06/28
ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN Respondent – and – CHRISTOPHER JAMES CAPY Applicant REASONS FOR SENTENCE Beaudoin J.
Released: June 28, 2012