CITATION: R. v. Caine, 2015 ONSC 2182
COURT FILE NO.: 11-90000445-0000
DATE: 20150408
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Xenia Proestos and Yael Pressman for the Crown
- and -
ANN PATRICE CAINE
Ari Goldkind for Ann Caine
HEARD: March 19, 2015
REASONS FOR SENTENCE
Corrick J. (orally)
[1] On January 23, 2015, following a trial, I found Ann Caine guilty of possession of crack cocaine for the purpose of trafficking, and possession of proceeds of crime.
The Circumstances of the Offences
[2] On June 11, 2009, Ms. Caine was arrested after selling .1 gram of crack cocaine to an undercover police officer for $20 from her car. During a search of her car, the police discovered a digital scale and $255 in the centre console, which included the $20 bill that the undercover officer had given Ms. Caine to purchase the crack cocaine. At the police station, Ms. Caine handed over a small sandwich bag containing 10.5 grams of crack cocaine to the police officer who was assigned to search her.
Positions of the Parties
[3] Ms. Proestos submitted on behalf of the Crown that the appropriate sentence in this case is 15 months in prison. She also seeks a forfeiture order in relation to the cell phone, digital scale and $235 seized from Ms. Caine, and a DNA order.
[4] The Crown’s submission is based on the dangerous nature of crack cocaine, the fact that Ms. Caine was a commercial trafficker rather than an addict trafficker, and the fact that she travelled from Brampton where she lived to sell drugs in a drug-plagued area of Toronto. Furthermore, Ms. Proestos submitted that Ms. Caine’s conduct on June 11, 2009 was reflective of ongoing behaviour, which is relevant to an assessment of whether she is likely to re-offend.
[5] In Ms. Proestos’ submission, deterrence and denunciation are the most important sentencing principles in this case, and they can only be achieved through a period of incarceration.
[6] On behalf of Ms. Caine, Mr. Goldkind did not disagree with the length of the sentence being sought by the Crown, but submitted that the sentence should be served in the community pursuant to a conditional sentence order. In his submission, Ms. Caine meets the criteria set out in R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61 for the imposition of a conditional sentence. She is a first offender and has been on a judicial interim release order for more than five years without incident.
The Circumstances of the Offender
[7] Ms. Caine is 41 years old. She was born in Jamaica, and was sponsored to come to Canada by her ex-husband. She is a Canadian citizen. She presently lives in Brampton by herself. She has a grade 12 education and is trained as a hairdresser. At the time of these offences in 2009, she operated her own hair salon, but it has since closed. She is currently unemployed and unable to work due to ongoing health problems. She suffers from hypertension and renal failure. Exhibit #2 is a letter from Dr. Shan indicating that Ms. Caine is required to attend Brampton Civic Hospital three times each week for hemodialysis.
[8] Ms. Caine has a close family relationship with her mother and sister, who live in Jamaica. She also has a fiancée, who resides in Jamaica. Mr. Goldkind presented letters of support from these people as well as from two close friends in Toronto.
[9] Ms. Caine has no criminal record or any history of involvement with the police. She spent a day in custody prior to being released on June 12, 2009. She has complied fully with the terms of her release.
[10] She indicated to the court, through her counsel, that the last six years have been very stressful for her. To be labelled as a criminal is very disturbing to her, and she is embarrassed and ashamed. She has recently sought psychological counselling because of her depressed mood brought on by her conviction for these offences. A letter from her family physician indicating that he has referred her to someone for counselling is marked as Exhibit #3.
Legal Parameters
[11] Possession of cocaine for the purpose of trafficking is punishable by life in prison: s. 5(3)(a) Controlled Drugs and Substances Act. Possession of proceeds of crime with a value not exceeding $5,000 is punishable by two years in prison when prosecuted by indictment: s. 355(b) Criminal Code.
Principles of Sentencing
[12] In determining a fit sentence, I am guided by the sentencing principles set out in the Criminal Code.
[13] The fundamental purpose of sentencing, as set out in s. 718 of the Criminal Code, is to "contribute to respect for the law and the maintenance of a just, peaceful and safe society" by imposing sentences that have one of six objectives. The objectives include denouncing unlawful conduct, deterring the offender and others from committing crimes, separating offenders from society where necessary, assisting in the rehabilitation of the offender, providing reparations for harm done to the victim or to the community and promoting a sense of responsibility in the offender. Any sentence imposed must be proportionate to the gravity of the offence and the responsibility of the offender: s. 718.1 of the Criminal Code.
[14] Keeping in mind the purposes of sentencing, I am also required by section 718.2 to bear the following principles in mind when imposing sentence.
▪ the sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender;
▪ the sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;
▪ offenders should not be deprived of liberty if less restrictive sanctions are appropriate; and
▪ all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders.
[15] I am required to consider sentences imposed on similar offenders for similar offences committed in similar circumstances. In that regard, I have carefully reviewed the decisions to which Ms. Proestos has referred me in support of her position that a prison sentence of 15 months is the appropriate sentence and that a conditional sentence is not a fit disposition. A review of the cases demonstrates that sentencing is not an exact science. It is instead a profoundly individualized process driven by the unique facts of every offence and the unique characteristics of every offender. The circumstances of any case, including this one, can be readily distinguished from any other case. It is always necessary to consider and apply all of the sentencing principles in the Criminal Code, having regard to the unique circumstances of the case.
Aggravating and Mitigating Factors
[16] I turn now to the aggravating and mitigating factors of this case. First, the following are the aggravating factors.
Ms. Caine has been found guilty of possession of cocaine for the purpose of trafficking. Crack cocaine is a dangerous drug that wreaks havoc on the lives of addicts, their families and the community at large.
Ms. Caine was not a drug addict supporting a crack cocaine habit. She was engaged in the drug trade for financial gain.
Ms. Caine has not accepted responsibility for the offence.
[17] I do not accept Ms. Proestos’ submission that Ms. Caine travelled to this neighbourhood from Brampton, where she lived, to traffic in drugs, or that she planned to meet Mike Sepe to sell drugs. There is no evidence about why she was meeting Mike Sepe in the first place, and there is evidence that she owned a hair salon in the neighbourhood.
[18] I must also consider the following mitigating factors.
Ms. Caine is a 41-year-old first offender. She has had no prior involvement with the police.
She has not had any further conflicts with the law since being released on bail in June 2009, almost six years ago.
She has the support of her family and friends in the community.
Prior to her current health difficulties with hypertension and kidney failure, she was gainfully employed. Her illness has prevented her from working. She is required to attend a hospital three times each week for kidney dialysis.
Determination of a Fit Sentence
[19] With the principles I have just outlined in mind, I turn to what is a fit sentence in this case. I accept Ms. Proestos’ submission that the range of sentence for these offences as set out by the Court of Appeal in R. v. Woolcock, [2002] O.J. No. 4927 is between six months and two years less a day. I also accept her submission that denunciation and general deterrence are important sentencing objectives in this case. They are not, however, the exclusive ones. I must also consider rehabilitation and specific deterrence, particularly since Ms. Caine is a first offender.
[20] The Ontario Court of Appeal in R. v. Batisse, [2009] ONCA 114 dealt with the sentencing of first offenders and the principle of restraint at paras. 32 – 35 as follows.
[32] The principle of restraint operates in three ways in the present case. First, it is an important consideration because the appellant was a first offender. As such, the restraint principle requires that the sentencing judge consider all sanctions apart from incarceration and where, as here, incarceration must be imposed, the term should be as short as possible and tailored to the individual circumstances of the accused [citation omitted].
[33] Second, the principle of restraint requires the sentencing judge to consider rehabilitation in determining the appropriate length of the sentence … .
[34] In serious cases and cases involving violence, rehabilitation alone is not the determinative factor – general deterrence and denunciation are also significant factors to be considered. However, as this court ruled in R. v. Dubinsky, 2005 CanLII 5668, at para. 1, it is an error to focus almost exclusively on general deterrence and fail to consider individual deterrence and rehabilitation, especially when sentencing a first offender.
[35] Third, Parliament has codified the principle of restraint to limit the use of incarceration as a sentencing alternative … . Subsection 718.2(d) of the Criminal Code provides that “an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances” … .
[21] In addition, both the Supreme Court of Canada and the Ontario Court of Appeal have commented that the deterrent effect of imprisonment is uncertain: R. v. Wismayer (1997), 1997 CanLII 3294 (ON CA), 115 C.C.C. (3d) 18 (Ont. C.A.) and R. v. Proulx.
[22] There is no doubt, to quote the words of Justice Doherty in R. v. Killam, [1999] O.J. No. 4829 that, "imprisonment remains the most formidable denunciatory weapon in the sentencing arsenal." However, as Justice Rosenberg noted in Wismayer, it is not the sole means by which deterrence and denunciation can be achieved. Indeed, Chief Justice Lamer made it clear in R. v. Proulx that conditional sentences can provide a significant degree of deterrence and denunciation when onerous conditions are imposed: paras. 102 and 107.
[23] At the time of the commission of these offences, s. 742.1 of the Criminal Code permitted the imposition of a conditional sentence for the offences of possession of cocaine for the purpose of trafficking, and possession of proceeds of crime if the following three conditions were met. First, the sentence of imprisonment imposed must be less than two years. Second, service of the sentence in the community would not endanger the safety of the community and third, permitting the offender to serve the sentence in the community would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2 of the Criminal Code.
[24] There is no dispute that an appropriate sentence is one that is less than two years. The dispute is whether a conditional sentence would be consistent with the fundamental purpose and principles of sentencing and whether such a sentence would endanger the safety of the community.
[25] In my view there is very little risk of Ms. Caine re-offending given her lack of criminal antecedents and the lengthy period of time she has been on bail without further criminal behaviour. Ms. Proestos submitted that Ms. Caine’s lack of remorse and continued refusal to accept responsibility for the offences make it more likely that she will re-offend. However, I consider the fact that Ms. Caine has been crime-free for almost six years while on bail to be a better indicator of her future behaviour and the likelihood of her re-offending. For these reasons, I am satisfied that permitting Ms. Caine to serve her sentence in the community would not endanger the safety of the community.
[26] A conditional sentence is also consistent with the fundamental purpose and principles of sentencing. It will adequately achieve deterrence, both general and specific, and denunciation, while at the same time assist Ms. Caine in her rehabilitation.
[27] In considering all of the circumstances of this case, and the relevant sentencing principles, I conclude that a conditional sentence of 15 months to be followed by a term of probation for one year is the appropriate disposition.
Disposition
[28] Ms. Caine, on the charges of possession of cocaine for the purpose of trafficking and possession of the proceeds of crime, I sentence you to 15 months, to be served in the community, on the following conditions:
a. keep the peace and be of good behaviour;
b. appear before the court when you are required to do so;
c. report within two business days from today in person to a supervisor and thereafter when required and in the manner directed by the supervisor;
d. remain within Ontario unless you obtain written permission to go outside the province from the court or your supervisor;
e. reside at an address approved by your supervisor, and notify your supervisor in advance of any change of name or address;
f. notify your supervisor promptly of any change in employment or occupation;
g. abstain from the possession and consumption of drugs except in accordance with a medical prescription;
h. not be in the company of anyone known to have a criminal record or who is facing criminal charges, except members of your family;
i. participate in counselling or treatment to address emotional issues, as directed by your supervisor; and
j. for the entirety of this sentence you shall be confined to your residence under house arrest twenty-four hours per day, seven days per week except for the following:
i. being at work, including the time necessary to travel directly to and from work;
ii. attending counselling or treatment directed by your supervisor, including the time necessary to travel directly to and from the appointments;
iii. reporting to your supervisor, including the time necessary to travel directly to and from the appointments;
iv. attending medical appointments, including the time necessary to travel directly to and from such appointments;
v. dealing with your own medical emergency; and
vi. once a week for a period including travel time, not exceeding five hours for personal or household errands, provided that the period is agreed upon in advance with your supervisor.
[29] The sentences are concurrent on both counts.
[30] At the completion of your conditional sentence, you will be placed on probation for a period of one year on the same terms that govern your conditional sentence, except for the substitution of a probation officer for your supervisor, to whom you must report within two business days of the end of your conditional sentence. In addition, you will no longer be under house arrest.
[31] Furthermore, there will be a firearms prohibition order under s. 109 of the Criminal Code for ten years. The $235, the cell phone and digital scale seized at the time of Ms. Caine’s arrest will be forfeited. Finally, there will be a DNA order pursuant to section 487.051(2).
[32] That is my disposition.
Corrick J.
Released: April 8, 2015
CITATION: R. v. Caine, 2015 ONSC 2182
COURT FILE NO.: 11-90000445-0000
DATE: 20150408
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
ANN PATRICE CAINE
REASONS FOR SENTENCE
Corrick J.
Released: April 8, 2015