R. v. Lee, 2015 ONSC 3981
COURT FILE NO.: 13-71
DATE: 201/06/25
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
CHRIS LEE
Defendant
Marc Marcotte, for the Federal Crown
Michael Crystal, for the Defendant
HEARD: December 11, 2014; May 25, 26 and 28, 2015
REASONS ON SENTENCING
LEROY, J.
Introduction
[1] Mr. Lee pled guilty on May 25, 2015 to being part of a conspiracy to traffic cocaine contrary to section 465(1)(c) of the Criminal Code. His involvement was detected in the course of the Cinderford investigation of the Rodney Lalonde cell. Telephone intercepts and surveillance revealed that between March 26 and July 9, 2011 Mr. Lee purchased 15.25 ounces of cocaine from Mr. Lalonde in eighteen transactions.
Position of Counsel
[2] Crown and defence join with the submission that a sentence of eighteen months incarceration, together with the ancillary orders, is a just sentence. The issue is whether the circumstances warrant a conditional sentence and service in the community or real imprisonment. Initially I understood that but for the assertion of unreasonable search in execution of the warrant Mr. Lee joined in the agreement that the purposes and principles of sentencing in the Criminal Code precluded a sentence in the community. As the hearing progressed I sensed a blurring of lines and intimation that there are features in the circumstances that augur for conditional sentence regardless of the search application outcome.
[3] Mr. Lee submits that the conduct of the search of his home on July 13, 2011, beginning at approximately 7:00 a.m., was unreasonable and breached his section 8 Charter right to be secure against unreasonable search and seizure. The argument is that a reduction in sentence, in this case conditional instead of real jail, would be the appropriate remedy either under subsection 24(2) of the Charter or the common law. The Crown position is that the search was reasonable on all criteria and the application to factor in the search events to the sentence calculus should fail.
[4] The allegations of police misconduct, if proved, could constitute one of the factors to consider in the sentencing calculus in accordance with the Criminal Code in accordance with Justice Lebel’s analysis in R. v. Nasogaluak, 2010 SCC 6, 2010 S.C.C. 6.
[5] Having regard to Justice Lebel’s recommended practice, were my findings different, I might have dealt with the search issue at the beginning. As it turns out I decided to deal with the search issue at the end of these reasons.
Sentence Provisions
[6] In July 2011, a Schedule I trafficking conviction was not an excluded offence under s. 742.1 of the Criminal Code. The maximum sentence is imprisonment for life. The minimum sentence was not in force. Ancillary provisions include a mandatory firearms/weapons prohibition – 109(1)(c), forfeiture of identified property on application – 462.37(2.01) and discretionary DNA order on application by the prosecution.
Principles of Sentencing
[7] Mr. Justice LeBel in Nasogaluak summarized the Criminal Code sentencing calculus. The following encapsulates the sentencing judge’s instructions. There is broad discretion having regard to the array of considerations available in the Criminal Code. The citations are omitted.
[8] The objectives and principles of sentencing are codified in ss. 718 to 718.2 of the Criminal Code. Judges are directed in s. 718 to consider the fundamental purpose of sentencing as that of contributing, along with crime prevention measures, to respect for the law and the maintenance of a just, peaceful and safe society. This purpose is met by the imposition of just sanctions that reflect the array of sentencing objectives set out in the same provision: denunciation, general and specific deterrence, separation of offenders, rehabilitation, reparation, the promotion of a sense of responsibility in the offender and acknowledgement of the harm caused to the victim and to the community.
[9] These objectives are given sharper focus in s. 718.1, which mandates that a sentence be proportionate to the gravity of the offence and the degree of responsibility of the offender. Whatever weight a judge may wish to accord to the objectives listed above, the resulting sentence must respect the fundamental principle of proportionality. It has a constitutional dimension, in that s. 12 of the Charter forbids the imposition of a grossly disproportionate sentence that would outrage society’s standards of decency. Proportionality requires that a sentence not exceed what is just and appropriate, given the moral blameworthiness of the offender and the gravity of the offence.
[10] Section 718.2 provides a non-exhaustive list of secondary sentencing principles, including the consideration of aggravating and mitigating circumstances, the principles of parity and totality, and the instruction to consider all available sanctions other than imprisonment that are reasonable in the circumstances.
[11] The determination of a “fit” sentence is an individualized process that requires the judge to weigh the objectives of sentencing in a manner that best reflects the circumstances of the case. No one sentencing objective trumps others and it falls to the sentencing judge to determine which objective or objectives merit the greatest weight, given the particulars of the case. The relative importance of any mitigating or aggravating factors will then push the sentence up or down the scale of appropriate sentences for similar offences. The judge’s discretion to decide on the particular blend of sentencing goals and the relevant aggravating or mitigating factors ensures that each case is decided on its facts, subject to the overarching guidelines and principles in the Code and in the case law.
[12] When the sentence of imprisonment is less than two years, the Court may order the offender to serve the sentence in the community when the court is satisfied that service in the community would not endanger the safety of the community and would be consistent with the fundamental purposes and principles of sentencing set out in sections 718 – 718.2.
The Offender
[13] Mr. Lee’s PSR is positive. He cooperated and said he took full responsibility for this offence and is remorseful. Before this, he was a law-abiding family man. After this process finishes, he will be law-abiding. He and his partner Amanda have two children who are at the center of their lives. They are engaged with their extended families.
[14] Mr. Lee’s foray into the world of cocaine trafficking was apparently driven by the exigencies of family finances. To a casual observer, he and partner Amanda were an industrious family- focused couple working to make ends meet and raise their two children. He was twenty-six years of age at the time, now thirty. Mr. Lee was an outdoorsman who liked to fish and hunt. He did not have a criminal record. He was licensed to own a long gun. His shotgun was registered and it and the ammunition were legally stored.
[15] He completed high school. He was raised to honour middle class values. He was and is committed to family. He remains in a long-term common law relationship of ten years. He maintained entry-level gainful employment over the seven or eight years after secondary school working for fast food outlets, performing dry-walling and handyman work, operating a forklift in a warehouse and a skateboard business venture.
[16] Mr. Lee resigned from employment outside of the home following July 2011 ostensibly to focus on the welfare of their special needs daughter. His partner returned to school and now operates an esthetician business from their home. There is mention in the pre-sentence report of lessening demand for attention now that the child qualifies for dedicated day care. Given his concentrated role, the parents concurred with the premise that the child is more responsive to Dad than to Mom.
[17] Their evidence is that their special needs daughter starts school in September and Mr. Lee hopes to facilitate integration. They expressed concern that a separation will be difficult for the children, particularly the youngest.
[18] Mr. Lee does not consume drugs or alcohol. He aspires to a return to school for training in a vocation that will put him in a position to secure gainful employment, enabling him to contribute to the support of the family.
[19] Mr. Lee expressed remorse and regret for his actions to the author of the PSR.
[20] Mr. Lee grew tired of the grind. For all the dedication to family and work, they were in debt, lived in a squalid small home, drove an older vehicle and prospects for improvement seemed evanescent. He accepted the offer to engage in the cell for purely financial reasons to ameliorate the money stress. The sale of drugs is a for-profit crime. The lure of easy cash and his decision to engage failed to factor in the risk of sanction.
Aggravating and Mitigating Factors
[21] The absence of a factor that might be viewed as aggravating or mitigating is neutral.
[22] Normally, a plea is seen as mitigating. In this case, the evidence was strong for conviction and Mr. Lee postponed the plea for four years. Before this, Mr. Lee did not have a criminal record. He is a first time offender. I agree with the Crown to the point that the plea and first offence status are factored into the joinder at eighteen months. Here, Mr. Lee engaged solely for commercial gain. He is not a user/trafficker. He moved nearly one pound of cocaine into the city and agreed he was unconcerned for the damage this wreaks on the lives of the consumer, their families and community victims.
[23] He is a family man. He regrets this behaviour and is unlikely to re-offend. He has pro-social propensity and support moving forward.
[24] The Supreme Court in R. v. Nasogaluak ruled that proven state misconduct can be factored into the Criminal Code’s sentencing calculus. I will return to this later in these reasons.
Jurisprudence and Discussion
[25] The jurisprudence insists that the objectives of denunciation and deterrence carry heavy weight and will almost always be the primary objectives in the sentence calculus when the offence involves trafficking in quantities of cocaine.
[26] The context was poignantly depicted by Justice Doherty in R. v. Hamilton (2004) 2004 CanLII 5549 (ON CA), 186 C.C.C. (3d) 129 (Ont. C.A.) at paragraph 104 when he wrote:
The immense direct and indirect social and economic harm done throughout the Canadian community by cocaine is well known. The use and sale of cocaine kills and harms both directly and indirectly. The direct adverse health effects on those who use the drug are enormous and disastrous. Cocaine sale and use is closely and strongly associated with violent crime…
[27] That was a cocaine importation case exploiting vulnerable young women; however,the premise remains the same – Even though Mr. Lee’s conduct did not involve degradation and violence in the strict sense, it cannot be dissociated from the inevitable consequences.
[28] In the Hamilton ruling, the Court of Appeal concluded that a conditional sentence tended to encourage recruitment of those least able to resist the temptation inherent in the tilted cost benefit analysis and to impede the possibility of gaining cooperation with authorities pursuing the higher ups in the drug distribution organization.
[29] Although there is no presumption against availability of conditional sentence in cocaine trafficking cases, in most cases a conditional sentence will not adequately address the proportionality principle in the context of reflecting the gravity of the offence or sending the requisite denunciatory and deterrent message.
[30] In Hamilton, as the case at bar, the offenders chose not to offer any explanation for, or description of, their involvement in the crimes, apart from Mr. Lee’s indication that he acted out of financial need.
[31] Quantity is a factor. Mr. Lee moved just less than one pound of cocaine in one-half and one ounce denominations. He did not disclose to the Court what he did with what he purchased from Lalonde. The home search did not uncover any typical trafficking paraphernalia. The only evidence is that he moved 15.75 ounces of cocaine in a period of 3.5 months.
[32] In Hamilton, there was no evidence before the trial judge concerning the care of children if the offender went to jail. In the case at bar, Mr. Lee and partner emphasized the significant role Mr. Lee has in the wellbeing of their autistic daughter, how she requires security and consistency in her life. Both made the point that Mr. Lee is the point person in her life. He advocates on her behalf and they say he is the face she trusts.
[33] This symbiosis developed after the arrest. In July 2011, their youngest daughter was an infant and the symptoms had not manifested. I do not doubt their sincerity in their concern for their daughter’s well-being and her connection with her father. Sincerity is but one aspect. As it was with their evidence in relation to the search review application, their evidence lacked nuance and substance.
[34] There is a transition any time a parent departs the home. If there was to be distressing disadvantage to the best interest of this child from a separation, there would have been reliable third party expert evidence adduced on that issue. I take Mr. Marcotte’s point to the fact that Mr. Lee’s partner attended court for three days while this sentence hearing ran its course. There are viable care options. Further, I do not accept that the mom is unresponsive to the daughter and the daughter to her.
[35] While I conclude that Mr. Lee as a first time offender, otherwise law abiding, family man and provider, given the chance and a person who has complied with release conditions for almost four years, is unlikely to re-offend, that service in the community would not endanger the safety of the community and barring relief arising from the effects of the impugned search, I cannot conclude that a conditional sentence satisfies the principles and purposes of sentencing in s 718. The risk reward analysis for the prospective dealer requires substance for effect.
[36] The joinder at eighteen months real jail for this offence in this quantity over this period of time reflects Mr. Lee’s plea, his good character and rehabilitative prospects and proportionality.
Charter – State Misconduct
[37] Proven state misconduct can be a factor in the sentence calculus and could tip the scale to service of sentence in the community.
[38] The defence grievances are that:
i. Procedure – The state officers failed to comply with paragraph 4.01 of the Cornwall Community Police Service General Order – Search of Premises FOB041;
ii. The state officers abandoned the Knock and Announce entry procedure in favour of a dynamic entry without adverting to all the circumstances;
iii. The state officers used excessive force when they arrested and handcuffed Mr. Lee; and
iv. The state officers gratuitously vandalized Mr. Lee’s home in the course of the search and entry by emptying their fridge and freezer, by dumping a box or boxes of collector cards and by rifling through Mr. Lee’s partner’s clothing drawers and hanging her underwear garments on the bedroom television.
[39] There are appeal court decisions on topic.
[40] The Ontario Court of Appeal in R. v. Glykis, 1995 CanLII 1277 (ON CA), 1995 CarswellOnt 128 set the bar to a high level when it concluded that the breach of Charter guarantee should not be considered in imposing sentence unless it mitigated the seriousness of the offence or constituted a form of punishment or undue hardship. Sentencing proceedings should not be an avenue for sending a message to law enforcement agencies. Sentences have been reduced when the breach resulted in a form of punishment or added hardship such as arbitrary detention, unreasonable search, and excessive delay in commencing a trial or in situations where the state misconduct created or encouraged the offence.
[41] Mr. Justice LeBel of The Supreme Court of Canada in R. v. Nasogaluak agreed that a reduction in sentence is an available remedy under s. 24(1) of the Charter in some circumstances, but one to be used sparingly and as last resort in extraordinary cases where there is some connection between the breaches suffered by the offender and it could be said the offender suffered hardship as the result.
[42] The concept of recognizing harm or prejudice caused to the offender by state misconduct as a mitigating circumstance upon sentencing predates the Charter.
[43] He wrote that Section 718 of the Criminal Code describes the fundamental purpose of sentencing as that of contributing to respect for the law and the maintenance of a just, peaceful and safe society. This provides scope for sentencing judges to consider not only the actions of the offender, but also those of state actors. Provided that the impugned conduct relates to the individual offender and the circumstances of his or her offence, the sentencing process includes consideration of society’s collective interest in ensuring that law enforcement agents respect the rule of law and the shared values of our society.
[44] Where the state misconduct relates to the circumstances of the offence or the offender, the sentence judge may consider the relevant facts in crafting a fit sentence without resort to s. 24(1) of the Charter. State misconduct that does not amount to a Charter breach and impacts on the offender may be a relevant mitigating factor in crafting a fit sentence.
[45] Incidents alleged to constitute a Charter violation could be considered in sentencing, provided that they bear the necessary connection to the sentencing exercise. As mitigating factors, the circumstances of the breach would have to align with the circumstances of the offence or the offender, as required by s. 718.2 of the Code. The more egregious the state misconduct, the more attention the Court will pay to it in determining a fit sentence.
[46] Factors unrelated to the offence and to the offender will remain irrelevant to the sentencing process and will have to be addressed elsewhere. The discretion of the sentencing judge has to be exercised within the parameters of the Criminal Code .
State Expectations in execution of a search warrant
[47] The conduct of the search in this case does not factor into the sentencing calculus.
[48] The Supreme Court reviewed state expectations in the exercise of a valid search warrant in R. v. Cornell, 2010 SCC 31, [2010] 2 S.C.R. 142.
[49] Justice Cromwell writing for the majority described the attributes of a reasonable search and when it is appropriate to stray from the knock and announce entry practice. (Citations omitted)
[50] He began with first principles.
[16] To be reasonable under s. 8 of the Charter, a search must be authorized by law, the authorizing law must itself be reasonable, and the search must be conducted in a reasonable manner. There is no dispute that the first two of these conditions are met; the only issue is whether the lawfully authorized search was conducted reasonably.
The onus is on the applicant, as the party alleging a breach of his Charter rights, to prove the search contravened s. 8 of the Charter.
Knock and Announce
[18] Except in exigent circumstances, police officers must make an announcement before forcing entry into a dwelling house. In the ordinary case, they should give: (i) notice of presence by knocking or ringing the door bell, (ii) notice of authority, by identifying themselves as law enforcement officers and (iii) notice of purpose, by stating a lawful reason for entry.
[19] Experience has shown that it not only protects the dignity and privacy interests of the occupants of dwellings, but it may also enhance the safety of the police and the public. The principle is not absolute.
[20] Where the police depart from this approach, there is an onus on them to explain why they thought it necessary to do so. If challenged, the Crown must lay an evidentiary framework to support the conclusion that the police had reasonable grounds to be concerned about the possibility of harm to themselves or occupants, or about the destruction of evidence. The greater the departure from the principles of announced entry, the heavier the onus on the police to justify their approach. The evidence to justify such behaviour must be apparent in the record and available to the police at the time they acted. Section 8 of the Charter does not require the police to put their lives or safety on the line if there is even a low risk of weapons being present.
[51] Did the police have reasonable grounds for concern to justify use of an unannounced, forced entry in this case? Justice Cromwell identified two factors:
[23] Firstly, the decision by the police must be judged by what was or should reasonably have been known to them at the time, not in light of how things turned out to be. Just as the Crown cannot rely on after-the-fact justifications for the search, the decision about how to conduct it cannot be attacked on the basis of circumstances that were not reasonably known to the police at the time. Whether there existed reasonable grounds for concern about safety or destruction of evidence must not be viewed “through the ‘lens of hindsight’”.
[24] Secondly, the police must be allowed a certain amount of latitude in the manner in which they decide to enter premises. They cannot be expected to measure in advance with nuanced precision the amount of force the situation will require. It is often said of security measures that, if something happens, the measures were inadequate, but that if nothing happens, they were excessive. These sorts of after-the-fact assessments are unfair and inappropriate when applied to situations like this where the officers must exercise discretion and judgment in difficult and fluid circumstances. The role of the Court in assessing the manner in which a search has been conducted is to appropriately balance the rights of suspects with the requirements of safe and effective law enforcement, not to become a Monday-morning quarterback.
[52] The police grounds for abandoning the knock and announce entry in favour of the dynamic entry in this case were based on collateral searches, establishing that Mr. Lee was licensed to own a firearm and owned one registered gun. The context for the search lay in known cocaine trafficking, where violent response is always a concern. The police had no other information as to Mr. Lee’s circumstances. He and his partner were never involved with the police or CAS. Mr. Lee candidly acknowledged that the possibility of armed response to a standard knock and announce entry was not out of the realm of possibilities.
[53] The grievance directed at the state failure to comply with paragraph 4.01 of the Cornwall Community Police Service General Order – Search of Premises FOB041 lacks merit. The order provides that the lead investigator is required to conduct a risk assessment before undertaking the method of entry analysis.
[54] This warrant was part of a joint initiative involving the OPP, RCMP and Cornwall city police. That the premises were within City limits, the lead investigator for the raid was a city policeman and the stack was led by two members of the Cornwall Emergency Response Team does not in the context of this operation inform the issue.
[55] A further risk assessment to achieve formal compliance with the Cornwall city manual would have amounted to empty redundant formality. The risk assessment and entry decisions for this operation were undertaken under the auspices of the OPP SMEACS (Situation, Mission, Execution, Administration and Logistics, Command, control and communication and Safety) safety module. The risk assessment was valid. There is no evidence to suggest that the OPP access to collateral background information about Mr. Lee and his family was less thorough than what the City force had access to.
[56] The defence further asserts that anyone who approached the Lee home would realize there were children within. The vehicle in the driveway had a “Baby on Board” sign in the back window and there were children’s play things in abundance in the east and south side yards. The inference is that had the state officers made that observation and included it in their assessment they might have proceeded differently.
[57] As Justice Cromwell wrote, the decision by the police must be judged by what was or should reasonably have been known to them at the time, not in light of how things turned out to be. The problem with this submission is that the police could not know for certain what was behind the door until they achieved entry. The address was once a single family home converted into a triple. The entrance closest to the east/south side yard is Unit C. The Lee middle unit was designated as Unit A. Police evidence is that they approached the residence from the westerly side. They did not notice the playthings or the Baby on Board notice in the vehicle window. If they had, little would have turned on it. There was no way to connect the toys or vehicle to a particular unit. The police were unaware of Mr. Lee’s marital status and a tag search showing ownership by his partner would not help.
[58] The invasion of privacy inherent in the search warrant process is one few would relish. Unfortunately Ms. Dupuis and her baby were within feet of the front door when it blew open followed by the CERT officers armed and in full tactical uniform. To the uninitiated, this had to be traumatic. This was an experience they could have done without.
[59] The genesis lies with Mr. Lee. The evidence is that Ms. Dupuis was unaware or her partner’s nefarious criminal ventures. Indignation is a perfectly legitimate response. The thoughts running through Ms. Dupuis’ mind when the entry began were such that she wasn’t internalizing events with any degree of reliability.
[60] Ms. Dupuis testified she did not hear any of the intruders announce the basis for their intrusion. Police evidence is that it is standard procedure to clearly state that this was a police force search.
[61] The police evidence is they did everything they could to ameliorate the trauma for Ms. Dupuis and the two girls. They were clear and unambiguous in their communications and instructions. I accept their version.
[62] The search did not reveal evidence of cocaine possession or trafficking.
[63] The evidence is that the family was cooperative. Mr. Lee told the officers where the gun and crossbow were stored as well as the ammunition. He told them where to find his small stash of marijuana. Ms. Dupuis assisted with finding the key to the ammunition container.
[64] The complaint is that in light of demonstrated cooperation, the officers did not need to pursue the search with the usual alacrity. The fact is that Ms. Dupuis was unaware of the cocaine trafficking and was not sufficiently informed to provide meaningful assistance in the search. The officers are not required to accept anything the suspect says about their search parameters.
[65] I can understand that Ms. Dupuis would view this whole process as an affront to her privacy and integrity. None of us would embrace the intrusion that is a criminal search.
[66] A search warrant is not license to vandalize. The Lee/Dupuis contingent asserts that the search amounted to vandalism. They point to removal of foodstuff from the freezer and refrigerator, complaint that someone rifled through Ms. Dupuis’ underwear drawer and someone dumped a container of trading cards in the bedroom. They complain that it took three days to complete a proper cleanup and some of the cards were damaged.
[67] It is inconceivable they would not have documented the vandalism pictorially, if such was the case. Mr. Lee and Ms. Dupuis did not photograph the vandalism asserted, nor did they offer an explanation for why not. The police did not seize Ms. Dupuis’ cell phone.
[68] The police photographs taken before, during and after the search belie their assertions. The cards appeared intact after the search.
[69] Ms. Dupuis overstated the damage to the front door. She recalls that the battering ram was manned by two or three men when there was one. The damage was no more than that inherent in a dynamic entry – the door jamb is split where the latch breaks free of the frame holder.
[70] Lastly, the evidence does not point to use of excessive force by the police when they apprehended Mr. Lee. The laceration averred in the affidavit to the Application is gross overstatement. Mr. Lee agreed he may have disturbed a facial pimple when he was faced to the bedroom wall for handcuffing. In any event there is no indication of any trauma marks on his face on the photograph taken outside minutes after the arrest.
[71] In conclusion, while the legal proposition advanced by the defense pursuing sentence reduction either in the context of an unreasonable search (s. 8 Charter) and relief under subsection 24(1) or police misconduct that goes to mitigating the seriousness of the offence or constituting a form of punishment or undue hardship was intriguing, the evidence fails to bear out. The evidence does not make out police misconduct in the search or arrest. The perspective that drives review of search and arrest warrant implementation factors the panoptic context for the search and arrest and is not limited to the experience of the uninitiated resident.
[72] Accordingly, the police conduct in effecting the search and arrest are not factors in the sentencing calculus in this case.
[73] The only factor that gives me pause is the impact that incarceration and withdrawal of dedicated one-to-one child-care may have on the interests of their special needs child. In the end analysis in the absence of reliable third party input, my assessment can only be speculative.
Conclusion
[74] The sentence is eighteen months imprisonment. In all the circumstances, that serves the principles of denunciation, deterrence, individual and general, parity and proportionality. A conditional sentence doesn’t serve the need to address the gravity of the offence and Mr. Lee’s blameworthiness, parity in sentence, nor would it disseminate the message that in the cost-benefit analysis the potential costs are punitive.
[75] There will be a period of probation for two years to include the statutory terms.
[76] Ancillary orders to include the ten-year s. 109 weapons prohibition and forfeiture of the rifle, ammunition and crossbow.
Justice Rick Leroy
Released: June 25, 2015
CITATION: R. v. Lee, 2015 ONSC 3981
COURT FILE NO.: 13-71
DATE: 201/06/25
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
CHRIS LEE
Defendant
REASONS on sentencing
Justice Rick Leroy
Released: June 25, 2015