ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR/12/900007/180000
DATE: 20150723

B E T W E E N:

HER MAJESTY THE QUEEN

• and -

RICHARD ASH

L. Futerman and K. Gill for the Public Prosecution Service of Canada
D. Connally, for Mr. Ash

Heard: December 8, 2014 and June 5, 2015

M. Forestell J.

reasons for sentencing

Introduction

[1] On December 8, 2014, Mr. Ash entered guilty pleas to four counts of possessing a Schedule I substance for the purpose of trafficking contrary to section 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (the “CDSA”) and one count of possession of proceeds from the commission of an indictable offence.

[2] The sentencing hearing proceeded before me on June 5, 2015.

Circumstances of the Offences

[3] The facts in support of the guilty pleas may be summarized as follows:

On March 30, 2010 police executed a search warrant at Mr. Ash’s residence on Carlton Street. Police found the following drugs: 365 grams of methamphetamine; 210 grams of cocaine; 244 grams or 1,107 tablets of MDMA; 900 ml of GHB and 38 grams of ketamine. The police also seized a money counter and a debt list. Mr. Ash admitted ownership of the drugs and in fact led the police to some of the drugs that were located.

Mr. Ash was arrested and later released on a recognizance with conditions that included the conditions that he reside with his surety at an address on Maitland Place and observe a curfew of 11:00 p.m.

On October 28, 2010 Mr. Ash was observed by police leaving his own residence on Carlton Street at 10:58 p.m. He drove to Maitland Place and arrived at about 11:10 p.m. He was arrested for failing to comply with his bail. He was searched and police found drugs, a debt list, two cellphones, 71 glass vials, digital scales, baggies and CAD $3,195.00 and US $617. The drugs found were: 209.51 grams of methamphetamine; 115.38 grams of Ketamine; 25.59 grams of cocaine; 332.4 grams of GHB; and 44.15 grams or 141 tablets of MDMA.

[4] The expert opinion of Detective Sgt. John Babiar contained in the report filed on sentencing was that Mr. Ash was a mid-level commercial trafficker. The drugs in his possession were valued at between about $36,000 and $140,000.

Circumstances of the Offender

[5] A Pre-sentence Report was prepared that sets out in detail Mr. Ash’s antecedents. Mr. Ash is a 39 year-old first offender. He was 34 at the time of the offences.

[6] He grew up in St. Catharines. He had a difficult childhood with considerable instability in the family home. He was the victim of physical abuse at home and was the victim of sexual abuse outside the home as a teenager. He had learning difficulties that were undiagnosed. He left school after completing grade 10. He also left the family home at age 14. He was working as a babysitter and his employer let him live in her basement.

[7] Mr. Ash worked at various jobs until he obtained employment in Toronto in 2000 at an imaging company. He worked at this employment until 2006 when he was laid off. It was also in 2006 that he found out that he was HIV positive.

[8] Mr. Ash began using drugs in 2006. Methamphetamine became his drug of choice and he reported injecting it up to 15 times a day. Mr. Ash at some point began trafficking in drugs.

[9] After Mr. Ash’s second arrest, he was detained for five months before being released on a strict house arrest bail on March 24, 2011. The strict terms remained in place until January 2014 when the conditions were relaxed somewhat.

[10] During his time on bail since March 2011, Mr. Ash has made significant progress in rehabilitating himself.

[11] He has obtained employment with the Ontario AIDS Network/Gay Men’s Sexual Health Alliance as an Administrative Assistant. He progressed from a volunteer to a part-time position and then to a full-time position. His employer was contacted for the purposes of the preparation of the pre-sentence report. His employer was very supportive. He spoke highly of Mr. Ash’s intelligence and hard work. His employer has funded university courses in operations and fundraising for Mr. Ash.

[12] Mr. Ash reports being abstinent from drug use since 2011. He attended the Drug and Alcohol Awareness Programme while he was in jail and continued counselling in the community upon his release. From March 2011 to January 2013 Mr. Ash attended weekly and then monthly one-on-one substance abuse counselling sessions with a counsellor from the John Howard Society. He also completed relapse prevention group counselling sessions.

[13] From September 2014 to the present, Mr. Ash has met with a psychotherapist, Dr. Cullen, to address addiction issues. Dr. Cullen, reports that Mr. Ash has underlying mental health issues, including depression and ADHD.

[14] Mr. Ash has also seen a psychologist, Dr. Ahmed, who has diagnosed Mr. Ash with post-traumatic stress disorder. Dr. Ahmed reported to the probation officer who prepared the pre-sentence report that Mr. Ash requires an externally imposed structured environment to deal with his addictions and mental health issues because Mr. Ash tends to engage in avoidance behavior, particularly when he needs to take responsibility for his actions.

[15] Mr. Ash continues to volunteer at the Ontario AIDS Network. He has spoken openly and publicly about his addictions and about his charges.

[16] Mr. Ash has also become involved in a committed relationship with a supportive partner who attended court with him and who provided a letter of support.

[17] Mr. Ash spent 157 days in pre-trial custody. He is entitled to credit on a 1.5:1 basis for the pre-trial custody or 236 days.

[18] He also spent 4 ½ years on house arrest.

The positions of the Parties

[19] The position of the Crown is that a global sentence of 7 years’ imprisonment should be imposed in light of the seriousness of the charges against Mr. Ash, the quantity and variety of drugs, Mr. Ash’s position in the trafficking hierarchy and the fact that Mr. Ash continued to possess drugs for the purpose of trafficking while on bail. Counsel for Mr. Ash submits that because of Mr. Ash’s rehabilitation, a conditional sentence should be imposed. Such a sentence, it is submitted, would protect the public by allowing Mr. Ash to continue the rehabilitative progress he has made. Counsel argues that strict terms could also satisfy the goals of specific and general deterrence.

Analysis

[20] The Criminal Code, at the time of the commission of these offences, authorized a court to make an order for a conditional sentence of imprisonment. A conditional sentence would not be available to Mr. Ash had the offences been committed after the amendments to the Criminal Code.

[21] A conditional sentence is only available if I conclude, after taking into account all of the relevant sentencing principles, that a fit and appropriate sentence is one of imprisonment for less than two years.

[22] In this case, for the reasons that I will now set out, I have concluded that a sentence of under two years would not be a fit and appropriate sentence. As a result, I cannot impose a conditional sentence. The seriousness of these offences and the principles of denunciation and deterrence call for a penitentiary sentence.

[23] The purpose and objectives of sentencing are set out in s. 718 of the Criminal Code R.S.C., 1985, c. C-46. Generally speaking, the fundamental purpose of sentencing is to foster respect for the law and to maintain a just, peaceful and safe society. Section 718.1 of the Code requires that the sentence be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[24] The objectives of sentencing include denunciation, specific and general deterrence, rehabilitation, reparation to the community and the promotion of a sense of responsibility in the offender.

[25] The Criminal Code also requires that courts take into account other principles, including that a sentence may be increased or decreased depending on the presence of relevant aggravating or mitigating circumstances, that similar sentences should be imposed on similar offenders for similar offences and that where consecutive sentences are imposed, the total sentence should not be unduly harsh or long.

[26] The Court of Appeal in R. v. Priest[^1] said that when sentencing first offenders “…. the sentence should constitute the minimum necessary intervention that is adequate in the particular circumstances.”

[27] In R. v. Woolcock[^2] the Court of Appeal pointed out the importance of rehabilitation in the protection of the public and warned of the danger of imposing a lengthy term of imprisonment. Such a term may impair the rehabilitation of the offender or prevent his reintegration into the community.

[28] In commercial trafficking of Schedule I substances, general deterrence and denunciation are the paramount sentencing objectives.

[29] The devastating effects of cocaine, methamphetamine and ketamine have been well articulated in the case law. Each of these drugs has a destructive effect on the physical and mental well-being of those who use them and each negatively impacts society as a whole. The possession of MDMA and GHB in conjunction with the Schedule I substances in this case is an aggravating factor.

[30] Sentences for first offender commercial traffickers of methamphetamine range from 2 years less a day to 6 years.[^3] There is a similar range for a first offender commercial trafficker of cocaine.[^4] Ketamine is also a Schedule I substance. In R. v. Paper, the Court of Appeal upheld a sentence of 2 years for a first offender who possessed a variety of drugs, including 36 grams of ketamine.

[31] I recognize that, as Watt J.A wrote in R. v. Jacko, “Sentencing ‘ranges’…are not immovable or immutable. They are and represent guidelines, of greater or lesser utility depending upon the breadth of the range. Individual cases may fall within or outside the range.”[^5]

[32] In this case, Mr. Ash was in possession of a variety of drugs in significant quantities on two separate occasions. He also possessed drug paraphernalia, a debt list and money from drug sales.

[33] The aggravating circumstances in this case are:

(1) the nature of the substances,

(2) the large amounts involved;

(3) the commercial nature of the enterprise;

(4) the variety of drugs; and,

(5) the fact that Mr. Ash reoffended while on bail.

The mitigating factors are:

(1) Mr. Ash’s good conduct while on his second release;

(2) his addiction and his treatment for it;

(3) his employment and educational success while on bail;

(4) his strong community support;

(5) the fact that he is a first offender; and

(6) the remorse evidenced by his guilty plea and by his community service.

[34] I am impressed by the steps taken by Mr. Ash to rehabilitate himself and to make reparation to the community. He has sought treatment for his substance abuse and remained abstinent. While he cannot be categorized as an ‘addict-trafficker’ I find that his drug dealing was related to his addiction. His addiction in combination with the other challenges he faced in his personal life were causative factors in his choice to engage in anti-social conduct. The progress that he has recently made in his employment, education and personal life has followed his treatment for substance abuse.

[35] I am aware of the dangers of a sentence of imprisonment that could impair the rehabilitation of Mr. Ash. However, a sentence of less than two years would be insufficient to deter others. It would not adequately denounce the conduct underlying the offences or the aggravating factor of offending while on bail.

[36] The rehabilitative efforts made by Mr. Ash, while not serving to bring the sentence into the reformatory range, deserve recognition. Those efforts serve to bring the sentence down to the lower end of the range. Balancing the objectives of denunciation, deterrence and rehabilitation in the circumstances of this case I have concluded that a global sentence of five years imprisonment before credit for pretrial custody and strict bail is the appropriate sentence. This sentence is at the low end of the range for these offences, particularly in light of the offences committed while on bail. A sentence at the low end of the range is fit in this case because of the importance of rehabilitation for the ultimate protection of the public. Mr. Ash is a first offender who has identified the factors that contributed to his criminal conduct and has taken concrete and difficult steps to address them.

[37] Mr. Ash was subject to house arrest for 4 ½ years. There is no mathematical formula governing the credit to be given on sentence for the time spent on strict bail conditions. Mr. Ash was able to work, go to school, volunteer and socialize. However, his ability to do all of these things was constrained. The time period on house arrest was lengthy. In all of the circumstances he is entitled to sixteen months’ credit for the time spent on bail.

Conclusion

[38] Mr. Ash spent 157 days in pre-trial custody which is credited on a 1.5:1 basis as 236 days. For the four and a half years of strict bail he is entitled to a further credit of 16 months or 489 days.

[39] The global sentence without credit for pre-trial custody or strict bail would have been five years’ imprisonment. With credit of 725 days for pre-trial custody and bail there will remain a sentence of 3 years and 5 days’ imprisonment for Mr. Ash to serve.

[40] I therefore impose the following sentences on each of the counts:

On the March 30, 2010 indictment:

Count 1, possession of cocaine for the purpose of trafficking, the sentence is 2 years imprisonment; and,

Count 2, possession of methamphetamine for the purpose of trafficking, the sentence is 2 years, concurrent.

On the October 28, 2010 indictment:

Count 2, possession of methamphetamine for the purpose of t