SUPERIOR COURT OF JUSTICE
HMQ v. CHIBANI, Charbel
FRIDAY, NOVEMBER 28, 2014
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R E A S O N S F O R S E N T E N C E
PATTERSON, J
(Orally):
On October the 8th, 2014, I found Mr. Chibani
guilty of conspiracy to export ecstasy pills on
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October 28th, 2009 contrary to s.6(1) of the
Controlled Drugs and Substances Act and
s.465(1) (c) of the Criminal Code.
There were three people involved, the accused
Chibani, whom I found to be the mastermind of the
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conspiracy agreement; Amid, last name unknown, who
may also be one and the same person as a person
named Ali Ghosn who provided the vehicle and
perhaps the drugs, and Mary Ann Habib who drove
the vehicle containing the drugs across the border
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to the United States.
Mr. Chibani stands before the court awaiting
sentence. Mr. Amid, who may also be known as Ali
Ghosn, has disappeared and perhaps is in Lebanon,
and Mary Ann Habib was sentenced by the U.S.
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authorities pursuant to a guilty plea and is
serving a 32-month sentence in a U.S. federal
penitentiary.
A pre-sentence report was provided. Mr. Chibani
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is 35 years of age and appears before the court as
a repeat offender.
AG 0087 (rev.07-01)
Reasons for Sentence -Patterson, J
On December 4th, 2007, he was fined $300 for
failure to comply with an undertaking and $500 for
failure to appear. On December 15th, 2013, he
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pled guilty to possessing a Schedule I substance
and possessing a Schedule I substance for the
purpose of trafficking for which he was sentenced
to 34 days in addition to 146 days of pre-sentence
custody on the possession charge, and 34 days
concurrent on the charge of possession for the
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purpose of trafficking.
On February 16th, 2011, he pled guilty to
possession for the purpose of trafficking, two
counts. He was sentenced to 227 concurrent on
each count with him already having served 45 days
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in pre-trial custody.
On November 18th, 2011, he pled guilty to failure
to comply with a recognizance for which he was
sentenced to nine days in custody after having
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served one day of pre-sentence custody.
At the age of eight, Mr. Chibani moved with his
family to Canada. His mother died when he was 15
years old and he continues to have regular contact
with his father who lives in the Windsor area. He
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has a close relationship with his four sisters and
one brother who are supportive of him. He has
been in a common law relationship for
approximately four years with Nicole Leggett. She
describes their relationship as healthy,
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supportive, and free of violence or abuse and that
he is a good father to her two sons from a
previous relationship and their 18-month-old
AG 0087 (rev.07-01)
Reasons for Sentence -Patterson, J
daughter.
He completed his grade 12 and after playing professional basketball in Europe for approximately eight years, he opened a pizza franchise with a partner in the Windsor area which subsequently was closed. He became addicted to prescription and illicit drugs after he was prescribed pain medication for a sports-related back injury. Also, during this time period, he developed a gambling problem. Approximately three years ago, he, with the support of his family and wife, tried to wean himself off pills and drugs and he continues with the methadone treatment.
Mr. Chibani admitted that he still uses illicit drugs once or twice a year and consequently, he has had negative urine tests resulting in him having to earn his right to continue to be part of the methadone program, which, apparently, I understand he has done so.
Mr. Chibani feels that he was “played” or used by an acquaintance, also known as Amid or Ghosn, but he appears to accept responsibility for his actions and has expressed remorse for the impact on Mary Ann Habib and his family.
Mr. Chibani is employed by his brother, George, who is in the home restoration business in the Hamilton area. George is supportive of his brother and believes that he is finally on the right track. Ms. Leggett describes the offender in a positive way as being supportive and a good
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father. Mr. Chibani has expressed some remorse for his actions and has indicated a willingness to comply with conditions.
Section 718 of the Criminal Code describes,
“The fundamental purpose of sentencing is 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...”
There are six objectives set out: denunciation, deterrence, separation of the offender, rehabilitation, reparation, promotion of responsibility and acknowledgement of harm.
Regarding general deterrence, Justice Hill in R. v. Hoang, [2002] O. J. No. 1355, noted general deterrence is usually the main sentencing consideration in drug importation and I might add, drug exportation cases, and noted at paragraph 71, that,
“Those who contribute to the availability of unlawful drugs on our streets and in our schools are engaged in a commercial enterprise often inextricably linked to consequential criminality and other social evils.”
As noted by Justice Hill at paragraph 31,
“...ecstasy is described as a party drug with the target market being for the consumption of young persons, teenagers, to those in their early 20s”
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and noted that that it is a very dangerous drug particularly in the hands of young people.
The maximum punishment for the charge before the court is ten years imprisonment.
That being said, I am to separate Mr. Chibani from society only where necessary and to consider rehabilitation depending on the facts before the court. The appropriate sentence in any particular case involves the weighing of various principles and factors, according to the nature of the offence, the circumstances under which they are committed and the circumstances of the particular offender, and further, the sentence must be proportionate to the gravity of the offence and the degree of the responsibility of the offender. Disparity of sentences should be avoided and like cases should be treated alike. Motive may be a mitigating or aggravating factor, depending on the circumstances. Less restrictive sanctions may be appropriate and I am to consider all available sanctions other than imprisonment that are reasonable it the circumstances.
I note that Mr. Chibani is not a youthful offender or a first time offender. Mr. Chibani has a criminal record similar to the case before the court that is recent. This is an aggravating factor.
I’m satisfied that the conspiracy agreement to export the ecstasy was planned and controlled by Mr. Chibani. This is an aggravating factor. A
Reasons for Sentence -Patterson, J
further aggravating factor is the magnitude and consequence of the crime. The amount of ecstasy, approximately 50 pounds, or approximately 22.7 kilograms or 57,000 pills, even using a low price per tablet of three to six dollars, this would result in the value being between $171,000 and $342,000 or 1,140,000 to 2,280,000 if $20 to $40 a pill is used. This is a large amount and the target for the pills were young people.
As noted by Justice Hill in Hoang at paragraph 73,
“Canada has a legal duty to honour its international obligations respecting elimination of global movement of ecstasy. Meaningful sanctions contribute to the defeat of transnational criminal organizations.”
It is noted by Justice Hill that the sentence for a typical courier without a criminal record having between 5,000 and 20,000 pills with 100 milligram strength, is three to four years imprisonment. A longer or shorter period of incarceration would be appropriate in cases depending on the role played by the individual, a lesser or greater amount of drugs and other mitigating or aggravating factors.
Justice Hill in R. v. Pinch, 2012 ONSC 7549, found Mr. Pinch guilty of conspiracy to export ecstasy in the amount of 85 to 87 pounds of pills or approximately 90,000 ecstasy pills. Justice Hill used an approximate street value of $20 to $40 a pill as compared to three to six dollars used by Justice Wilson in R. v. Tran, 2014 ONCA 40 386.
Reasons for Sentence -Patterson, J
Mr. Pinch had no criminal record and Justice Hill found aggravating factors namely that ecstasy is a hard drug capable of having dangerous consequences, that the scheme involved dealing with tens of thousands of ecstasy pills and that the object of the unlawful agreement was exporting of the illicit substance across an international border.
He took into consideration also an aggravating factor, Mr. Pinch’s involvement in the success of a large commercial operation capable of yielding significant profits.
Mitigating factors involving Mr. Pinch were that he was a first-time offender, he was in a stable relationship with two children, and he had not breached during his judicial interim release.
As noted by Justice Hill at paragraph 43,
“Mr. Pinch is not a one-off courier employed at a low level role in the ecstasy distribution scheme. His participation in the unlawful agreement to export ecstasy involving tens of thousands of MDMA pills and his possession of the ecstasy for the purpose of trafficking was at the level of a principal. As such, the degree of moral blameworthiness is significant. Only complete deprivation of liberty would be proportionate to his involvement, the gravity of the offence, and the need for general deterrence.”
Reasons for Sentence -Patterson, J
As a result, Mr. Pinch was sentenced to six years’ incarceration with a s.109 order for ten years and a DNA order.
In R. v. Duncan, [2012 OJ 2966], involved Mr. Pinch’s co-accused, Mr. Duncan. Justice Fragomeni also sentenced him to six years’ incarceration. In
R. v. Tran 2014 ONSC 4386, Justice Wilson sentenced Mr. Lao, who was the more blameworthy individual between himself and Mr. Tran on exporting ecstasy to ten years, six months on a joint submission, and Mr. Tran to five years, 6 months for his involvement in exporting the ecstasy. That involved 200,000 ecstasy pills being exported to the United States. At paragraph
33, Justice Wilson agreed with the Crown’s submission that the appropriate range of sentence for Mr. Lao was in the range of six to nine years but the fact that the drugs were exported to the United States was an aggravating factor, reflecting a need for a substantial sentence, resulting in a sentence of ten years, six months.
In regard to Mr. Tran, Justice Wilson determined Mr. Tran though not as low on the scale as a simple mule, he was much closer to a mule than a mid or a high level dealer as Mr. Lao was and this resulted in a lower sentence of five years, six months.
In the case before the court, Mr. Chibani has a criminal record involving trafficking in illegal substances. He was the mastermind behind the exporting of ecstasy which involved a significant
Reasons for Sentence -Patterson, J
amount of drugs being 57,000 pills. A sentence reflecting general deterrence is appropriate.
I have already that there was no Charter breach regarding the disclosure issue, but defence counsel has raised the question in sentencing Mr. Chibani, that the late disclosure by the prosecutor is a relevant factor in determining a fit sentence. In the case of R. v. Nasogaluak, 2010 SCC 6, the sentencing regime provides some scope for sentencing judges to consider not only the actions of the offender but also those of the state actors. If the state misconduct in question relates to circumstances of the offence or the offender, the sentencing judge may properly take the relevant facts into account in crafting a fit sentence without having resort to s.24(1) of the Charter. Indeed, state misconduct which does not amount to a Charter breach but which impacts the offender may also be a relevant factor in crafting a fit sentence.
That case involved a reduction below a statutory minimum by a judge because of excessive force by the police that constituted a breach of the accused’s Charter rights. It was held there may be some exceptional circumstances where a statutory reduction outside statutory minimums may be an effective remedy for particularly egregious form of conduct by state agents in relation to the offender and the offence.
In my opinion, although this is not an exceptional case and s.24(1) is not to be used, delay in
Reasons for Sentence -Patterson, J
disclosure by the Crown is a relevant factor in determining a fit sentence. In the case at hand, we are not dealing with a statutory breach or egregious conduct by a state agent concerning the sentencing of Mr. Chibani and as indicated in my ruling on the disclosure stay application, Mr. Chibani was able, through his counsel, to make full answer in defence. The disclosure issues were remedied by the appropriate adjournments and the right of defence counsel to have certain witness recalled for additional cross-examination. Therefore, in my opinion, it is not appropriate to grant Mr. Chibani a reduction in sentence based on the delay in disclosure by the Crown.
Defence counsel has requested a reduction in sentence based on Mr. Chibani being on bail for in excess of four years. As noted in R. v. Downes 2006 3957 (ON CA), 79 O.R. (3d) 321 paragraph 31,
“In deciding whether any delay in the completion of the process should mitigate sentence, it is appropriate to consider an offender’s bail terms.
The more stringent those terms, the more likely it will be that any delay in the completion of the process will have a mitigating effect on the sentence. Indeed, even absent delay, particularly stringent bail conditions can have a mitigating effect on sentence.”
And at paragraph 33,
“However, like any potential mitigating circumstance, there will be variations in its
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potential impact on the sentence and the circumstances may dictate that little or no credit should be given for pre-sentence house arrest...
it is incumbent on the sentencing judge to explain why he or she has decided not to take pre-sentence house arrest into account.”
As noted, the length of time spent on bail, the stringency of the conditions, the impact on the offender’s liberty and the ability of the offender to carry out normal relationships, employment and activity will have an impact on the amount of credit, if any. There is an obligation on the offender to supply the judge with information as to the impact of the conditions with the onus being on the offender to establish those facts on a balance of probability.
Ms. Joy has submitted that the Downes decision her request for a reduction in any sentence that I may give based on the strict bail conditions that Mr.
Chibani had to comply with from May of 2010 to the present day.
I note that the initial bail also involved other charges before the court to which he pled guilty and for which he has served his time.
The bail conditions have been amended six times. Initially, he was to remain in his residence but was permitted to work and except for other valid medical and dental needs or court appearances or in the company of his surety. It appears his period of incarceration on the other offences took
Reasons for Sentence -Patterson, J
place during 2010 and 2011. In June of 2012, his obligation to stay in his residence 24 hours a day was removed but a reporting requirement on the first and third Sunday of each month to the Windsor Police was required.
A further amendment in March of 2014 permitted him to work with his brother in Hamilton from Monday to Friday with reporting in Windsor on his return. While in Windsor, his address was changed to 1411 Windermere and he was to reside with his surety.
The various amendments and changes during the course of the bail which also include a significant period of time of incarceration on other offences, I believe should not result in a sentence reduction. I am further of the opinion that no reduction be allowed because even when he had strict requirements to be in his residence, he was permitted to work and even if he was unable to work he was in custody on other charges during part of this time period.
He has an 18-month-old child and therefore, the child was born some time during the spring, I believe, of 2012. His wife is a nurse and according to defence counsel, Mr. Chibani was able to provide babysitting functions for their young child and thereby assist the family.
As previously noted, from March 2014 up to and including my finding Mr. Chibani guilty on October 8th, 2014, he was living in Hamilton during the week, Monday to Friday with no strict bail
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conditions while he was working with his brother.
Further, as noted, reduction should not be allowed because during the period of time as noted, he pled guilty to similar offences and was incarcerated.
For all of the above reasons, I do not believe it is appropriate that Mr. Chibani receive a reduction in his sentence based on the bail conditions.
The case of R. v. Bosley 1992 2838 (ON CA) was provided on the basis that Mr. Chibani’s 11(b) rights were infringed because of the delay of disclosure which necessitated various adjournments that infringed upon his right to a trial within a reasonable time period. Justice Doherty indicated,
“I would add that excessive delay which causes prolonged uncertainty for the appellant but does not reach constitutional limits can be taken into consideration as a factor in mitigation of sentence.” Quoting the case of R. v. Cooper, (No. 2) (1977), 1977 2103 (ON CA), 35 C.C.C. (2d) 35.
There was delay which caused adjournments and late disclosure necessitating the re-attendance of Ms. Habib and Detective Nadeau to complete cross-examination after further disclosure was made, but may I note that significant period of time was taken as to availability of defence counsel and that Mr. Chibani on one occasion failed to attend
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court necessitating having to set a new date.
Further, I am not satisfied that the delay reached the point where it infringed upon Mr. Chibani’s right to a trial within a reasonable time period.
Defence counsel admits that Mr. Chibani should be considered for a conditional sentence under s.742.1 of the Criminal Code and that Mr. Chibani should be permitted any sentence or imprisonment order in the community. Two of the four requirements for considering the sentence to be served in the community are relevant in the case at hand being whether a term of imprisonment of less than two years is within the appropriate range of sentence for Mr. Chibani and would a community-based sentence be consistent with the fundamental purposes and principles set out in s.718 to s.718.2 of the Code?
Subsequent to the commission of the offence, MDMA was classified as a Schedule I substance and although I accept the re-classification of MDMA reflects Parliament’s concern with respect to the serious harm that MDMA can cause, a sentence of community service is available to Mr. Chibani.
In R. v. Chor-Yin Choi 2013 ONSC 5082, Mr. Choi pled guilty to four of five counts, namely, counts of possession of a controlled substance for the purpose of trafficking MDMA, ketamine and marijuana, and one count of possession of property obtained by crime, Canadian and U.S. currency. The amount of MDMA was enough to make 6,900 pills
Reasons for Sentence -Patterson, J
and that the price ranged between three to $20 depending on where and how they were sold. Therefore, the MDMA had a value somewhere between $21,000 and $138,000. Mr. Choi was 25 years old, first-time offender and he had a very positive pre-sentence report. Justice MacDonnell reviewed various cases and acknowledged that Justice Hill in Hoang held the starting point for importing ecstasy was a term of imprisonment of three to four years, but which could be adjusted up or down to reflect the presence of mitigating or aggravating factors, but that sentencing precedents are by nature, highly fact-specific.
He was of the opinion that the Crown submissions for a four and a half year sentence was too long and that Mr. Choi fell within the range somewhere being upper reformatory and lower penitentiary.
This was appropriate even though Mr. Choi’s motives were purely commercial, he was in the business for approximately a year as a mid-level dealer and his operation, and his operation was sophisticated. Mr. Choi pled guilty. He had no prior record and no subsequent involvement of any kind with criminal activity. He was on bail for more than three years without incident and continued to work in his field of fashion design and he reached out to young designers as a mentor and contributed his talents to charitable causes. The judge in all the circumstances, that Mr. Choi had already been substantially rehabilitated and was unlikely to ever be involved in criminal activity again.
Reasons for Sentence -Patterson, J
Justice MacDonnell noted for those who are involved in trafficking and drugs that general deterrence is appropriate and would send a message to others and a sentence would normally include a period of incarceration. Therefore, conditional sentences would be less frequent in this type of case which involves drug trafficking, importing and exporting, but that each case must be approached on its particular facts taking into account the nature of the offence, circumstances surrounding the commission of the offence as well as the personal circumstances of the offender. Because of the mitigating factors, Mr. Choi was permitted to serve a conditional sentence in the community for two years less a day with a period of two years’ probation.
Concerning whether or not Mr. Chibani qualifies for a conditional sentence or house arrest, Ms. Joy submits the range for Mr. Chibani is 18 months to three years and as such, he would qualify as one of the pre-requisites of conditional sentence though the potential sentence would be two years less a day and that the fundamental purpose of the sentence requirements in the Criminal Code, s.718 to s.718.2 and their fundamental purpose and principles would be satisfied.
The prosecutor submits that the range of sentence for Mr. Chibani is five to six years. Mr. Chibani has been found to be the mastermind of the conspiracy and there was a significant amount of ecstasy involved, namely 50 pounds, 22.7 kilograms, resulting in 57,000 ecstasy pills.
Reasons for Sentence -Patterson, J
This is a significant amount of pills and that with Mr. Chibani’s conviction on similar offences that the appropriate range is well in excess of the two years less a day required for a conditional sentence.
Mr. Chibani was not a low-end courier or mule. He was the mastermind of the conspiracy. Further, the fact that it involved exporting is an aggravating factor. The prosecutor submits that six years is the appropriate range for incarceration but that if there is to be a reduction for bail conditions, it would be five years, but the prosecutor indicates he does not believe any reduction is appropriate.
Further, the prosecutor believes that a conditional sentence is not appropriate not only because the appropriate sentence is in excess of two years less a day but that the fundamental principles of s.718 to s.718.2 of the Code cannot satisfy a community-based sentence that would be consistent with those fundamental principles.
Specifically, the prosecutor says that the case law is clear that on the offence of this type and on the facts of this case, that general deterrence is paramount, requiring a period of incarceration. The prosecutor also submits that because of the similar offences committed by Mr. Chibani that resulted in periods of incarceration as well as his breaches of undertaking, failure to appear and breach of recognizance, he does not qualify for consideration of a conditional sentence.
Reasons for Sentence -Patterson, J
Mr. Chibani has criminal convictions of similar offences. The amount of ecstasy namely 50 pounds, 22.7 kilograms or 57,000 with a potential value of $171,000 to $1.1 million or higher, being exported and with young people as being the target are significant aggravating factors.
Mr. Chibani’s pre-sentence report, although he has the support of his brother and his common law wife and his family, it was not overly positive. He appeared to be blaming one of his co-conspirators even though he does accept some responsibility.
He has remorse for what he has done to his family and what he did to Ms. Habib.
In my opinion, the amount of ecstasy and the exporting of the ecstasy, the known dangers of ecstasy to young people, takes the potential sentence for Mr. Chibani in the penitentiary range as compared to two years less a day. Further, I’m satisfied it would not be appropriate for Mr. Chibani to serve his sentence in the community that would be consistent of the fundamental principles of sentencing principles as set out in s.718 to s.718.2 of the Code having specific regard to general deterrence. Therefore, a conditional sentence is not appropriate.
As noted, Mr. Chibani had previous breaches of recognizance, undertaking, and failure to appear and served a period of incarceration for similar offences.
Reasons for Sentence -Patterson, J
In my opinion, a period of incarceration for Mr. Chibani is six years with no reduction. I therefore sentence Mr. Chibani to a period of six years’ incarceration. He is to provide a DNA sample and is subject to a ten-year weapon prohibition under s.109 of the Criminal Code. Thank you.
- Certificate
FORM 2
Certificate of Transcript (Subsection 5(2))
Evidence Act
I, Laura Nantau, certify that this document is a true and accurate transcript of the recording of HMQ v. CHIBANI, Charbel in the Superior Court of Justice held at 245 Windsor Avenue, Windsor, ON taken from Recording No. 0899-245-CRTRM3-20141128-123113-10-PATTERTER which has been certified in Form 1.
Original signed “Laura Nantau”
December 10, 2014 _________________________________
Laura Nantau, Court Reporter
SUPERIOR COURT OF JUSTICE
T A B L E O F C O N T E N T S
ENTERED ON PAGE
REASONS FOR JUDGMENT 1
L E G E N D
[sic] - Indicates preceding word has been reproduced verbatim and is not a transcription order.
(ph) - Indicates preceding word has been spelled phonetically.
DATE TRANSCRIPT ORDERED: December 8, 2014
DATE TRANSCRIPT COMPLETED: December 16, 2014 (judicially released)
ORDERING PARTY NOTIFIED:
Court of Appeal No. C59781
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
v.
CHARBEL CHIBANI
R E A S O N S F O R S E N T E N C E
BEFORE THE HONOURABLE JUSTICE T. PATTERSON on November 28, 2014 at WINDSOR, Ontario
CHARGE: s. 6(1) CDSA – Conspiracy
APPEARANCES:
E. Posliff
Counsel for the Federal Crown
L. Joy
Counsel for the accused Charbel Chibani