CITATION: R. v. Daniels, 2015 ONSC 2520
COURT FILE NO.: 13/9-704
DATE: 20150417
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
ANDREW STUART DANIELS
Maryse Nassar, for the Crown
Christian Angelini, for the accused
HEARD: January 15 and March 4, 2015
K.L. Campbell J.:
Reasons for Sentence
A. Overview
[1] On November 28, 2014, a jury found the accused, Andrew Daniels, guilty of three criminal offences, namely: (1) the unlawful possession of cocaine; (2) the unlawful possession of ketamine for the purposes of trafficking; and (3) the unlawful possession of MDMA (ecstasy) for the purposes of trafficking. He now appears for sentencing.
[2] On the evening of June 12, 2012, members of the Toronto Police Service (TPS) executed a telewarrant at the accused’s third floor apartment on Maitland Street in Toronto, and discovered and seized 2.2 grams of cocaine powder, 15.55 grams of ketamine powder, and 23.68 grams (73 capsules) of MDMA. The police also seized weigh scales and other drug-trafficking paraphernalia, documents in the accused’s name, a cell phone, $3,105 in Canadian funds, and $93 in American funds. At trial, the accused advanced the position that he was not engaged in the drug-trafficking business, but rather that the drugs and drug-related paraphernalia belonged to another man who had been staying at his apartment while the accused was away on vacation. By their verdict, the jury clearly rejected this position.
[3] The Crown seeks the imposition of reformatory sentence of 12 months incarceration. The accused seeks the imposition of a nine month conditional sentence.
[4] The accused is a 34 year old first offender with serious ongoing health issues. He is HIV positive. He also has Hepatitis C. However, he is an intelligent and well-educated young man and, if well-motivated, he can continue to deal with his health issues while becoming a productive and contributing member of society. Fortunately, the accused continues to enjoy the support of his life-partner. They have been together for some time, and they are now married. Further, the accused has already been subject to the restrictive conditions of a “house arrest” judicial interim release order for nearly two years and ten months, and he has complied fully with the conditions of this order.
[5] The drug offences committed by the accused were certainly serious ones, especially his unlawful possession of significant quantities of ketamine and MDMA for the purposes of trafficking. Nevertheless, for the following reasons, in my view the necessary elements of denunciation and deterrence can be provided in the form of a punitive and restrictive conditional sentence of imprisonment pursuant to s. 742.1 of the Criminal Code, R.S.C. 1985, c. C-46. Moreover, the imposition of a conditional sentence and subsequent period of probation will provide the essential elements of control and supervision over the accused that will help guide him in his rehabilitation. There will also be a number of ancillary sentencing orders.
B. The Governing Sentencing Principles
[6] According to s. 718 of the Criminal Code, the “fundamental purpose” of sentencing is 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 the following objectives: (a) to denounce unlawful conduct; (b) to deter the offender and others from committing offences; (c) to separate offenders from society where necessary; (d) to assist in rehabilitating offenders; (e) to provide reparations for harm done to victims or the community; and (f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and the community.
[7] Without restricting the generality of these Criminal Code provisions, s. 10(1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19, (CDSA) states that the “fundamental purpose” of any sentence for an offence under Part I of the act is to “contribute to the respect for the law and the maintenance of a just, peaceful and safe society” while “encouraging rehabilitation and treatment” of offenders and “acknowledging the harm done to victims and to the community.”
[8] Further, according to s. 718.1 of the Code, the “fundamental principle” of sentencing is that a sentence “must be proportionate to the gravity of the offence and the degree of responsibility of the offender.”
[9] Section 718.2 of the Code also dictates that, in imposing sentence, the court must also take into account a number of principles, including the following:
- A sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender;
- A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;
- Where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;
- An offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and,
- All available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.
C. The Aggravating Circumstances – The Position of the Crown
[10] In advancing her position on behalf of the Crown, Ms. Nassar relied upon a number of aggravating circumstances present in this case. The Crown focused largely upon the gravity of the drug offences committed by the accused.
[11] The jury found the accused guilty of being in unlawful possession of 15.55 grams of ketamine powder for the purpose of trafficking. The Crown noted that ketamine (a Schedule I drug under the CDSA) is a dangerous “dissociative anaesthetic” drug that is chemically and pharmacologically similar to phencyclidine (PCP), and that is used as a pain-killing sedative. The ingestion of ketamine can produce vivid dreams or hallucinations and create a feeling of dissociation, or an “out-of-body experience.” Sedation and amnesia are also potential effects of ketamine. Users can become psychologically addicted to the drug, which takes effect quickly, but which is also eliminated from the body after a relatively short time, sometimes leading users to engage in the binge intake of the drug. With regular usage, a user becomes more tolerant to the effects of the drug, leading to the need for increased doses to achieve the same effect. In advancing this position as to the dangerousness of ketamine, the Crown relied upon R. v. Dang, [2010] O.J. No. 1419 (C.J.), at paras. 10-11; R. v. Paper, 2010 ONCJ 88, [2010] O.J. No. 1131, at paras. 40-42, affirmed, 2011 ONCA 56, [2011] O.J. No. 261; R. v. Moxley-Peters, 2013 ABPC 249, 90 Alta.L.R. (5th) 379, at paras. 14-18, 49.
[12] The jury also found the accused guilty of being in unlawful possession of 23.68 grams (73 capsules) of MDMA for the purpose of trafficking. While MDMA is now a Schedule I drug under the CDSA, at the time of the commission of this offence, MDMA was a Schedule III drug. The Crown noted that MDMA, or “ecstasy,” is a central nervous system stimulant that produces mild hallucinatory effects and creates an increased sense of energy, endurance and confidence. Exaggeration of these effects, however, produces symptoms such as tension, anxiety, paranoia, confusion, delirium, depression, panic attacks and even acute toxic psychosis. MDMA may cause long-term damage to those parts of the brain critical to thought and memory. In advancing its position as to the dangerousness of MDMA, the Crown relied upon R. v. Paper, at paras. 45-53; R. v. Hoang, [2002] O.J. No. 1355, [2002] O.T.C. 229 (S.C.J.), at para. 36; R. v. Akers, [2001] O.J. No. 773 (C.J.), at paras. 16-23.
[13] In short, as the Court of Appeal for Ontario observed in R. v. Ling, 2014 ONCA 808, [2014] O.J. No. 5485, at para. 12, MDMA and ketamine, while less addictive than other drugs such as methamphetamine, “are still dangerous to human health.”
[14] The jury also found the accused guilty of the unlawful possession of 2.2 grams of cocaine powder. The Crown relied upon the decision in R. v. Woolcock, [2002] O.J. No. 4927 (C.A.), at para. 8, in advancing the position that cocaine, a Schedule I drug under the CDSA, is an “extremely dangerous and insidious drug with potential to cause a great deal of harm to individuals and to society.” See also R. v. Daya, 2007 ONCA 693, 227 C.C.C. (3d) 367, at para. 18.
[15] The Crown argued that since there was no evidence the accused was personally addicted to any of these drugs, it was apparent that he was in possession of these drugs for purposes of financial gain. According to Ms. Nassar, as the accused was trafficking drugs for monetary profit while living comfortably on social assistance, the sentencing principles of denunciation and deterrence were of primary application, and required the imposition of a 12 month term of actual imprisonment. The Crown stressed the dangers posed to society by drug trafficking and the need to impose deterrent custodial sentences. More particularly, the Crown relied upon the following comments of Lamer J., as he then was, in R. v. Smith, 1987 64 (SCC), [1987] 1 S.C.R. 1045, at p. 1053:
Those who import and market hard drugs for lucre are responsible for the gradual but inexorable degeneration of many of their fellow human beings as a result of their becoming drug addicts. The direct cause of the hardship cast upon their victims and their families, these importers must also be made to bear their fair share of the guilt for the innumerable serious crimes of all sorts committed by addicts in order to feed their demand for drugs. Such persons, with few exceptions (as an example, the guilt of addicts who import not only to meet but also to finance their needs is not necessarily the same in degree as that of cold-blooded non-users), should, upon conviction, in my respectful view, be sentenced to and actually serve long periods of penal servitude.
[16] The Crown argued that imposing a conditional sentence would not adequately reflect the importance of denunciation and deterrence in the circumstances of the present case.
D. The Mitigating Circumstances – The Position of the Accused
[17] In advancing his position on behalf of the accused, Mr. Angelini relied upon the various mitigating circumstances in this case, placing particular stress upon the background and personal circumstances of the accused, and the reality that the accused has already been living under the restrictive conditions of a “house arrest” bail order for nearly two years and ten months.
[18] In his evidence before the jury, the accused testified as to his background and personal circumstances. More particularly, the accused testified that he is 34 years of age. He has been involved in a relationship with his husband since January of 2012. They are now married. At the time of the offences, the accused was living in a third floor apartment on Maitland Street in Toronto. While he had lived in this apartment since 2007, the accused had to stop living there following his arrest as the terms of his judicial interim release order prevented him from returning to the apartment.
[19] As to his education, the accused testified that he has three degrees, namely (1) an Honours Bachelor of Arts from the University of Toronto in history; (2) a Bachelor of Education from the University of Windsor; and (3) a Masters degree from the University of Toronto in information studies with a specialty in libraries. The accused explained that he had wanted to be a librarian, but he was simply never able to secure a job in that field. The accused appreciates that, given his convictions for these drug offences, he is now unlikely to ever find employment as a librarian or teacher.
[20] As to his health issues, the accused testified that, in May of 2011, he was diagnosed as being both “HIV positive” and “Hepatitis C positive” and he became understandably concerned about his health. As a result, the accused went on social assistance and joined the Ontario Disability Support Program (ODSP), which paid him $1,306 each month. This covered his monthly living expenses. He also had drug and dental coverage provided by the Ontario Government. The accused testified that, later in 2011, his health deteriorated and his medications made him nauseous and lethargic. His Hepatitis C medication was especially intense and made him light sensitive. But, over time, starting in the spring of 2012, his health began to improve, and his immune system bounced back.
[21] A medical report prepared for the purpose of sentencing confirmed that the accused has been diagnosed with (1) chronic HIV infection; (2) chronic Hepatitis C infection; and (3) a history of depression. The report also confirmed that he is taking a number of prescribed medications to combat these serious medical conditions.
[22] The accused testified that during this time period he was unemployed, but he worked on a history book about “Nuclear Power and Radiation.” The book is not yet published, but it is completed. He has also completed a second book, this one in the field of history. The accused now wants to pursue writing as a career path.
[23] The accused testified that, prior to being arrested and charged with these offences, he had never been in trouble with the police. He has no prior criminal record. Mr. Angelini suggested that the psychological shock and trauma of being diagnosed as HIV-positive and having Hepatitis C may have led the accused to the commission of the present drug offences.
[24] The accused admitted that he smokes marihuana for medicinal purposes, and for no other reason, as it helps him with some of his symptoms, such as nausea. As confirmation, the accused produced a document from Health Canada establishing that, starting in mid-July of 2013, he was authorized to possess dry marihuana for medicinal purposes.
[25] As defence counsel submitted, the accused is an intelligent young man, who has never before had any trouble with the law, and who is certainly capable of rehabilitation and ultimately becoming a productive member of society.
[26] According to Mr. Angelini, the accused continues to suffer, however, from his ongoing health issues. Currently, his worst physical symptoms include nausea, fatigue, muscle pain and diarrhea. He also periodically suffers from apparent neurological disturbances. The accused continues to use marihuana legally to treat some of these symptoms. Moreover, his immune system remains fragile and the accused requires daily prescribed medications and regular access to an HIV specialist. At present, the accused lives in a specially designed cooperative housing project together with other similarly HIV-positive individuals. This appears to be an excellent physical setting given his ongoing health problems.
[27] In addition to the mitigating personal circumstances of the accused, defence counsel also placed reliance upon the fact that, since his arrest on June 23, 2012, the accused has been subject to the liberty-restricting conditions of a “house arrest” bail order. As I have indicated, the accused has now fully complied with this strict judicial interim release order for nearly two years and ten months. Relying upon the decision in R. v. Downes (2006), 2006 3957 (ON CA), 79 O.R. (3d) 321, [2006] O.J. No. 555 (C.A.), defence counsel argues that the accused must be given appropriate credit for, in effect, already having successfully served a lengthy “conditional sentence.” During this time period, the accused has been unable to travel to visit his family, work, or maintain relationships with friends other than his surety.
[28] While acknowledging the gravity of the offences committed by the accused, defence counsel contends that, in all of the circumstances of the present case, the necessary elements of deterrence and denunciation can be provided by means of a conditional sentence of imprisonment. In advancing this position, defence counsel relied heavily upon R. v. Choi, 2013 ONSC 5082, [2013] O.J. No. 3586, where MacDonnell J. sentenced the accused to a maximum term conditional sentence for the commission of drug offences of greater gravity than those committed by the accused in the present case.
E. Analysis
1. Credit for Stringent Bail Conditions (House Arrest)
[29] In R. v. Downes, the Court of Appeal for Ontario held that, where an accused is the subject of “stringent pre-trial bail conditions” including time spent effectively under “house arrest,” this mitigating circumstance must be given some weight in the sentencing of the accused. Rosenberg J.A., for the Court, held more specifically that, in the circumstances, the accused was entitled to five months credit in relation to the 18 months he was on bail and subject to a condition of “house arrest” requiring him to remain in his residence “except in the company of his surety.” In summarizing the proper approach to the consideration of this issue, Rosenberg J.A. stated, at para. 37:
In summary, credit for pre-trial bail conditions should be approached in the following manner:
- Time spent on stringent pre-sentence bail conditions, especially house arrest, is a relevant mitigating factor.
- As such, the trial judge must consider the time spent on bail under house arrest in determining the length of sentence.
- The failure of the trial judge to explain why time spent on bail under house arrest has not been taken into account is an error in principle.
- The amount of credit to be given for time spent on bail under house arrest is within the discretion of the trial judge and there is no formula that the judge is required to apply.
- The amount of credit will depend upon a number of factors including, the length of time spent on bail under house arrest; the stringency of the conditions; the impact on the offender’s liberty; the ability of the offender to carry on normal relationships, employment and activity.
- Where the offender asks the trial judge to take pre-sentence bail conditions into account, the offender should supply the judge with information as to the impact of the conditions. If there is a dispute as to the impact of the conditions, the onus is on the offender to establish those facts on a balance of probabilities in accordance with s. 724(3) of the Criminal Code.
[30] In R. v. Ijam, 2007 ONCA 597, 87 O.R. (3d) 81, a five-judge panel of the Court of Appeal for Ontario re-visited the sentencing significance of restrictive pre-trial bail conditions. In concluding that the trial judge had not erred in failing to expressly consider the accused’s pre-trial bail conditions in mitigation of sentence in the circumstances, MacPherson J.A., delivering the judgment of the majority of the court on this issue, drew the following conclusions, at paras. 36-37:
… I do not accept the proposition that bail, even with stringent conditions, and pre-trial custody are to be regarded as equivalents in every case. Put bluntly, bail is not jail. Bail is what an accused person desires to stay out of jail. That is because, at a practical, common sense level known to all accused persons, the pith and substance of bail is liberty, whereas the essence of jail is a profound loss of liberty.
The import of the above reasoning is this: Pre-trial bail and pre-trial custody are very different concepts. Their foundations are different because their realities for accused persons are different. That said, there will be cases – Downes, with long-term house arrest bail conditions, is one – where a sentencing judge should give mitigation effect to pre-trial bail. However, there will be many other cases – Lawes and Hunjan are examples – where this factor should attract little, if any, weight.
[31] The present case is, in many ways, very similar to the factual circumstances presented in R. v. Downes. According to the strict terms of his judicial interim release order, the accused was: (1) required to reside with his surety (who was not his partner); (2) to remain under “house arrest” in his residence “at all times seven days a week” except when in the “direct continuous company” of his surety, or in the case of medical emergencies or court appearances; (3) not permitted to associate or communicate with anyone known to have a criminal record or youth record; (4) not permitted to reside in his former apartment or be within 100 meters of the apartment building; and (5) not permitted to leave Ontario. This judicial interim release order placed significant restrictions on the liberty of the accused. Most significantly, for nearly two years and ten months this order effectively required him to remain under strict “house arrest” unless he was in the physical presence of his surety.
[32] In my view, this constitutes a substantial mitigating circumstance in this case. Indeed, if this mitigating circumstance was being credited against the imposition of a further sentence of actual incarceration, it would have to effectively reduce the sentence that would otherwise be imposed by approximately six or seven months. See R. v. Peterkin, 2013 ONSC 2116, [2013] O.J. No. 1614, at paras. 36-43; R. v. Ellis, 2013 ONSC 3092, [2013] O.J. No. 2409, at paras. 38-43; R. v. Hatimy, 2014 ONSC 1586, [2014] O.J. No. 1154, at paras. 52-54; R. v. Ijam, at paras. 23-38. In other words, the duration and terms of the “house arrest” bail order that has governed the conduct of the accused to-date is tantamount to a jail term of approximately six or seven months duration.
2. The Availability of a Conditional Sentence of Imprisonment
[33] According to s. 742.1 of the Criminal Code, as it was at the time of the commission of these offences,[^1] the court may impose a conditional offence where:
- an accused was convicted of an offence, other than a “serious personal injury offence,” a terrorism or criminal organization offence where the accused was subject, on prosecution by indictment, to the maximum term of imprisonment of ten years or more, or an offence punishable by a “minimum term of imprisonment;”
- the court imposes a sentence of imprisonment of “less than two years;” and
- the court is satisfied that “service of the sentence in the community would not endanger the safety of the community” and would be “consistent with the fundamental purpose and principles of sentencing.”
[34] In my view, the statutory preconditions of s. 742.1 of the Criminal Code are met in the factual circumstances of the present case. First, the particular drug offences committed by the accused are not excluded from the scope of the statutory provision. Second, none of the offences committed by the accused are punishable by a “minimum term of imprisonment.” Third, neither of the parties has even suggested that the accused should be sentenced to any term of imprisonment greater than two years. I have no hesitation in concluding that a reformatory-range sentence is appropriate in all of the circumstances of the present case. The Crown has only sought the imposition of a one year term of actual imprisonment. See R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at paras. 58-61. Fourth, and perhaps most importantly, I am satisfied that permitting the accused to serve his sentence of imprisonment in the community would in no way “endanger the safety of the community,” and would be “consistent with the fundamental purpose and principles of sentencing.”
[35] More particularly, in light of the background and personal circumstances of the accused, especially the absence of any previous criminal record, I am satisfied that permitting him to serve his sentence in the community would not in any way compromise the safety of the community. I consider that there is little risk that the accused will reoffend.
[36] Further, I am also satisfied that a punitive and restrictive conditional sentence will provide the necessary elements of denunciation and deterrence in the circumstances. It is important to recall in this regard that, as Lamer C.J.C. emphasized, in delivering the unanimous judgment in R. v. Proulx, at para. 22, a conditional sentence is “a punitive sanction capable of achieving the objectives of denunciation and deterrence.” Indeed, at para. 41, Lamer C.J.C. stated that a conditional sentence may be “even more onerous” than a “jail term” in circumstances where “the offender is forced to take responsibility for his or her actions” and “make reparations” to the victim and the community, “all the while living in the community under tight controls.” See also R. v. Proulx, at paras. 102-107; R. v. Kutsukake (2006), 2006 32593 (ON CA), 216 O.A.C. 317, 213 C.C.C. (3d) 80, at paras. 14-17; R. v. Ijam, at paras. 58-60.
[37] Of course, as conditional sentence orders permit the accused to serve their sentence in the community, it will generally speaking be more effective than incarceration in achieving the restorative sentencing objectives of rehabilitation, reparations to the victim and community, and the promotion of a sense of responsibility in the offender.
[38] Accordingly, I am satisfied that the imposition of a conditional sentence would be consistent with the fundamental purpose and principles of sentencing.
3. The Conditional Sentence Decision in R. v. Choi
[39] It is not always helpful to review other trial-level sentencing decisions, as sentencing is such an individualized process, and the factual circumstances of each case are often distinguishable for one reason or another. However, in concluding that a conditional sentence is an appropriate disposition in the circumstances of the present case, I place some reliance upon the decision in R. v. Choi, where MacDonnell J. reached this same conclusion, imposing a conditional sentence of two years less a day, in factual circumstances where an accused with similar rehabilitative prospects committed drug offences even more serious than the crimes committed by the accused in the present case. See also R. v. Nault (2002), 2002 44945 (ON CA), 59 O.R. (3d) 388, [2002] O. J. No. 2017 (C.A.); R. v. Mundle, [2003] O.J. No. 4392 (S.C.J.); R. v. Andrews, [2005] O.J. No. 5708 (S.C.J.); R. v. Coombs, 2005 NSSC 90, 233 N.S.R. (3d) 215; R. v. Richards, [2007] O.J. No. 3209 (S.C.J.); R. v. Veneman, 2009 ONCJ 26, [2009] O.J. No. 498; R. v. Dormevil, 2011 ONCJ 323, [2011] O.J. No. 2930; R. v. Imoro, 2011 ONSC 1445, [2011] O.J. No. 996, some of which decisions involve the imposition of a conditional sentence for the very serious offence of trafficking in cocaine.
[40] In Choi, the accused, after his Charter motion seeking to exclude the drugs found by the police was dismissed, pled guilty to three counts of possession of controlled substances for the purpose of trafficking (MDMA, ketamine and marihuana) and one count of possession of property obtained by crime. In the execution of the search warrant at the Choi residence, in the bedroom belonging to the accused, the police discovered 1.7 kilograms of MDMA, 80.4 grams of ketamine, and 418.3 grams of marihuana. The police also found digital scales, clear unused baggies, empty plastic vials, a debt list, $3,260 in Canadian funds and $570 in United States currency. The accused conceded that he was in possession of the drugs for the purpose of trafficking and that the money in his bedroom was the proceeds of earlier drug dealing activity. It was common ground between the parties that the accused was a mid-level drug dealer.
[41] The accused was 25 years of age at the time of the offences and 29 years of age at the time of sentencing. He had no prior criminal record. While born in Hong Kong, his family came to Canada when he was a teenager. He had the benefit of a supportive family, with two hardworking, somewhat strict but always caring parents. His parents were shocked and disappointed when they learned of his participation in the drug trade. The accused had a high school education and a steady, long-term girlfriend. After pursuing some college programs unsuccessfully, and engaging in some full-time restaurant employment, the accused seemed to find his calling in the field of art, design and fashion and he excelled in the college programs in which he enrolled, demonstrating a very real talent and great potential in the fashion design industry. It appears that he became involved in the illicit drug business during a time period when his initial education plans had floundered and he came under the influence of some associates who introduced him to the drug subculture.
[42] The Crown sought the imposition of a penitentiary sentence of 4½ years imprisonment. The accused agreed that a term of imprisonment was required, but sought the imposition of a restrictive conditional sentence for two years less one day, to be followed by a three year term of probation. MacDonnell J. concluded, at paras. 29-32, that notwithstanding the “serious risk” to the safety of individuals who use MDMA and ketamine, and the general harm to the well-being of their community by the presence of such drugs, the mitigating circumstances of the case and the rehabilitative steps taken by the accused called for a sentence at the upper end of the reformatory range.
[43] Moreover, MacDonnell J. concluded that a restrictive and punitive conditional sentence would be consistent with the fundamental purpose and principles of sentencing. Recognizing that imprisonment in a custodial institution still remains “the most formidable denunciatory weapon in the sentencing arsenal” MacDonnell J. accurately observed that such a sentence was “not the only means by which denunciation and deterrence can be achieved.” See R. v. Killam (1999), 1999 2489 (ON CA), 126 O.A.C. 281, [1999] O.J. No. 4289, at p. 284; R. v. Proulx, at paras. 102, 107. MacDonnell J. also noted, citing R. v. Wellington (1999), 1999 3054 (ON CA), 43 O.R. (3d) 534, 132 C.C.C. (3d) 470 (Ont.C.A.), at p. 475, that according to the terms of s. 742.1 of the Code at the time of the offences, it was “well-established that there was no presumption against conditional sentences for serious offences involving drug dealing.”
[44] Ultimately, after balancing the gravity of the drug offences committed by the accused, the involvement of the accused in the offences for no better reason than “financial gain,” the mitigating personal circumstances of the accused, his “significant strides toward rehabilitation” and his genuine remorse, MacDonnell J. concluded that the balance was tipped by the important principle of restraint that underlies s. 742.1 of the Code. See R. v. Wismayer (1997), 1997 3294 (ON CA), 33 O.R. (3d) 225, 115 C.C.C. (3d) 18 (C.A.), at paras. 67-68.
4. Conclusions
[45] While the decision in Choi was, as MacDonnell J. stated, a “close call,” it provides a compelling analytical roadmap that, in my view, is also applicable in the circumstances of the present case. As I have mentioned, sentencing is a very fact-specific process and most cases are apt to prove unique in some way. Nevertheless, there many helpful points of comparison between Choi and the present case.
[46] Most significantly, the quantities of drugs found in the possession of the accused for purposes of trafficking in Choi were far in excess of the quantities of the drugs in the possession of the accused in the present case. Moreover, in Choi the accused admitted being a mid-level drug trafficker. The accused in the present case makes no such an admission – nor did the accused in the present case plead guilty. However, like the accused in Choi, the accused in the present case is a young man with no prior criminal record and truly excellent prospects for rehabilitation.
[47] In the result, like MacDonnell J. in Choi, I have concluded that, in all of the circumstances of the present case, the imposition of a restrictive and punitive conditional sentence can provide the necessary elements of deterrence and denunciation, while at the same time promoting the continued rehabilitation of the accused. Further, a conditional sentence gives due and proper credit to the accused for the lengthy period of time he has already served under the restrictive terms of his “house arrest” judicial interim release order.
F. The Conditional Sentence Imposed
[48] In the result, the accused is sentenced to a 16 month term of imprisonment. Pursuant to s. 742.1 of the Criminal Code, for the purpose of supervising the behaviour of the accused in the community, I order that the accused shall serve that sentence in the community, subject to his compliance with all of the following conditions. This sentence is imposed, and shall run concurrently, on all three counts of the indictment.
[49] The accused shall be subject to all of the following statutory conditions prescribed by s. 742.3(1) of the Code, namely, that the accused shall (a) keep the peace and be of good behaviour; (b) appear before the court when required to do so by the court; (c) report to a supervisor within two working days, or such longer period as the court directs, after the making of the conditional sentence order, and thereafter, when required by the supervisor and in the manner directed by the supervisor; (d) remain within the jurisdiction of the court unless written permission to go outside that jurisdiction is obtained from the court or the supervisor; and (e) notify the court or the supervisor in advance of any change of name or address, and promptly notify the court or the supervisor of any change of employment or occupation.
[50] In addition, the accused shall also be subject to all of the following additional conditions pursuant to s. 742.3(2) of the Code, namely, that the accused shall: (a) abstain from the possession and consumption of drugs except in accordance with a medical prescription or legal authorization; (b) abstain from owning, possessing or carrying any firearm or other weapon; (c) perform 160 hours of community service, at a rate of not less than 10 hours per month; (d) refrain from attending at the apartment building located at 110 Maitland Street in Toronto and (e) remain under “house arrest” within the confines of his residence, 24 hours a day and seven days a week, but for the following limited exceptions:
- Pre-arranged medical or dental appointments, meetings with his supervisor, required court appearances, and the performance of his hours of community service as authorized by his supervisor;
- Any medical emergencies and religious observance;
- Four hours each Saturday between 9:00 a.m. and 1:00 p.m. for the purpose of attending to lawful personal matters.
[51] The 16-month duration of this conditional sentence is clearly longer that the 12-month term of actual imprisonment sought by the Crown and the nine-month conditional sentence sought by the accused. In my view, neither term proposed by the parties, when considered as a conditional sentence, was of sufficient duration to provide the necessary components of deterrence and denunciation. Further, as the Supreme Court of Canada observed in R. v. Proulx, at paras. 104 and 127(5), a conditional sentence “need not be of equivalent duration to the sentence of incarceration that would otherwise have been imposed.” Rather, the “sole requirement is that the duration and conditions of a conditional sentence make for a just and appropriate sentence.” This contemplates, of course, that a conditional sentence may have to be longer than a sentence of actual incarceration in order to be consistent with the fundamental purpose and principles of sentencing. As I have indicated, I consider that a somewhat longer conditional sentence, namely, a sentence of 16 months duration, is necessary to properly reflect the fundamental purpose and principles of sentencing. At the same time, the duration of this conditional sentence still provides the accused with the appropriate credit for the time he has already spent subject to the restrictive “house arrest” bail conditions.
G. The Probation Order
[52] At the conclusion of his conditional sentence, the accused will be subject to the terms of a probation order for a period of two years. In my view, such an order is in the best rehabilitative interests of the accused as it will provide him with continued guidance and supervision following the conclusion of his conditional sentence.
[53] As part of this probation order, the accused shall be subject to all of the following statutory conditions prescribed by s. 732.1(2) of the Code, namely, that the accused shall (a) keep the peace and be of good behaviour; (b) appear before the court when required to do so by the court; and (c) notify the court or the probation officer in advance of any change of name or address, and promptly notify the court or the probation officer of any change of employment or occupation.
[54] As part of this probation order, the accused shall also be subject to all of the following additional conditions pursuant to s. 732.1(3) of the Code, namely, that the accused shall: (a) report to a probation officer within two working days of the conclusion of the conditional sentence order, and thereafter when required by the probation officer and in the manner directed by the probation officer; (b) remain within the jurisdiction of the court unless written permission to go outside that jurisdiction is obtained from the court or the probation officer; (c) abstain from the possession and consumption of drugs except in accordance with a medical prescription; (d) abstain from owning, possessing or carrying a weapon; (e) perform 240 hours of community service over a period not exceeding eighteen months; and (f) refrain from attending at the apartment building located at 110 Maitland Street in Toronto.
H. Ancillary Sentencing Orders
[55] In addition, I make all of the following ancillary sentencing orders.
[56] First, pursuant to s. 16(1)(a) of the CDSA, I order that all of the drugs seized and detained in this case be forfeited to Her Majesty in right of Canada and thereafter disposed of as directed by the Minister of Health.
[57] Second, pursuant to s. 462.37 of the Criminal Code, I order that the proceeds of crime, namely, the $3,105 in Canadian funds and $93 in American funds, which I find as a fact to be drug money, be forfeited to her Majesty in right of Canada to be disposed of as directed by the Attorney General or otherwise dealt with according to the law.
[58] Third, pursuant to ss. 109(1)(c) and 109(2) of the Criminal Code, I order that the accused: (a) be prohibited from the possession of any prohibited firearm, restricted firearm, prohibited weapon, prohibited device, and prohibited ammunition for life; and (b) be prohibited from the possession of any firearm (other than a prohibited firearm or restricted firearm), cross-bow, restricted weapon, ammunition and explosive substance for a period of ten years after the accused’s release from his imprisonment in connection with the present offences.
[59] Fourth, I order that the accused pay a victim surcharge in the amount of $100 pursuant to s. 737(2)(b)(ii) of the Criminal Code. This was the amount of the surcharge at the time the accused committed these offences.
[60] The accused has been found guilty of two “secondary designated offences,” namely, possession of ketamine and MDMA for the purposes of trafficking, pursuant to s. 487.051(3) of the Criminal Code. Frequently, this would call for an order requiring the taking of bodily substances from the accused for forensic DNA analysis. However, in the circumstances of the present case I am not satisfied that such an order is in the best interests of the administration of justice. In reaching this conclusion I have considered the fact that the accused has no prior criminal record, the nature of the drug offences committed by the accused, all of the various circumstances surrounding their commission, and the impact such an order would have on the accused’s privacy and security of the person. It strikes me that in all of the circumstances, and especially given the still precarious medical condition of the accused, that the best interests of the administration of justice do not justify the making of such an order in this case.
I. Conclusion
[61] In summary, on each count of the indictment, the accused is sentenced to a 16 month term of imprisonment (concurrent), which he shall serve in the community on the terms that have been prescribed. Thereafter, the accused shall be subject to the prescribed terms of a probation order for period of two years. The accused is also subject to the various ancillary sentencing orders that have been made.
Kenneth L. Campbell J.
Released: April 17, 2015
CITATION: R. v. Daniels, 2015 ONSC 2520
COURT FILE NO.: 13/9-704
DATE: 20150417
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
- and -
ANDREW STUART DANIELS
REASONS FOR SENTENCE
K.L. Campbell J.
Released: April 17, 2015
[^1]: Subsequently, s. 742.1 of the Code was amended in a manner that would legally preclude the imposition of a conditional sentence for the offences of possession of Ketamine and MDMA for the purpose of trafficking. Of course, according to s. 11(i) of the Charter of Rights and Freedoms, the accused is entitled to be sentenced in accordance with the language used in s. 742.1 of the Code at the time of his offences, as it would potentially provide the “benefit of the lesser punishment.” See Safe Streets and Communities Act, S.C. 2012, c. 1, s. 34.