ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-12-6718

DATE: 20150928

BETWEEN:

HER MAJESTY THE QUEEN

– and –

BRUCE CANARY

Defendant

A. Ghosh, for the Crown

S. Pennypacker, for the Defendant

HEARD: July 17, 2015

REASONS FOR SENTENCE

J.R. McCARTHY J.

[1] Bruce Canary, the Defendant, appears before me today for sentencing. I received submissions on sentencing on July 17, 2015. At that time, the Defendant was afforded an opportunity to address the court.

[2] On April 8, 2015, the Defendant invited a finding of guilt by the court on an agreed set of facts pertaining to charges under section 5(1) of the Controlled Drugs and Substances Act (CDSA) and section 355.2 of the Criminal Code. On June 11, 2012, the Defendant was observed by police officers transferring plastic tubs between his vehicle and another vehicle in the back parking lot of a Holiday Inn located at Highway 27 and Highway 7 in Vaughan, Central East region. Police discovered that the tubs contained 220,000 pills which were ultimately determined to be steroids, a controlled substance under the CDSA. In addition, the Defendant was found in possession of an envelope containing $14,000 in Canadian currency

[3] The Crown seeks a custodial sentence of 18 months for trafficking in a controlled substance, together with a concurrent custodial sentence of 18 months for possession of the proceeds of crime. The Crown emphasizes that the Defendant was involved in a serious commercial drug transaction, a crime of calculated risk that was motivated by profit. Although a qualitative analysis of the pills could not be done, the sheer number of pills seized, together with the sizeable amount of money found on his person, indicates that Bruce Canary was no small time operator. Moreover, the Defendant was the owner and sole proprietor of a business dealing with heavily regulated nutritional supplements. He must be taken to have had knowledge of the harm that could come to users of the product. The Defendant was no blind courier or mule. There was an element of a breach of trust in his conduct. The bottom line is that the Defendant was a sophisticated offender who took a business risk and got caught. The Crown also seeks forfeiture of both the proceeds of crime and the steroids themselves.

[4] The Defendant suggests that a 12 month conditional sentence to be served in the community is appropriate. The Defendant is a first time offender; he has no outstanding charges against him. He comes from a solid background. He runs a business of five employees which requires him to travel throughout the country. There is no evidence of any breach of trust: the Crown has not proven that the Defendant used his business contacts or organization to commit the offence. He has the support and respect of both his family and members of the business community as evidenced by the letters filed as Exhibit “1” on sentencing. The Defendant also points to the mitigating factor that, having first exercised his right to challenge the search and seizure by police under section 8 of the Charter, the Defendant saved the court the time and expense of a trial by inviting a finding of guilt without a trial. Finally, the Defendant points to the nine month conditional sentence imposed on his co-offender Oleksandra Luchkin.

[5] The principles and purpose of sentencing are set out in ss. 718, 718.1 and 718.2 of the Criminal Code. In controlled substance cases, the court is required to consider the purpose of sentencing and to consider the factors enumerated in ss. 10(1) and (2) of the CDSA. I have read the pre-sentence report prepared by the Ministry of Community and Social Services, dated April 1, 2015 and made Exhibit “2” to the sentencing hearing. I have considered the compilation of letters filed on behalf of the Defendant. I have considered the principles of denunciation and deterrence. I have considered the range of sentences and the analyses found in the cases put before me by counsel.

[6] I note that none of the aggravating factors set in s. 10(2) of the CDSA are present here.

[7] I am drawn to the approach taken by MacPherson J. (as he then was) in the case of R. v. Paul [1997] O.J. No. 5848 (ONSC). He considered the sentencing principles of denunciation, deterrence and rehabilitation while taking into account both the commercial nature of the transactions and the very large quantity of steroids involved in the case before him. Yet, at para. 22 of the decision, the sentencing judge adhered to the principles applicable to sentencing of most first offenders as elucidated by Rosenberg J.A. in R. v. Priest, (1996) 1996 1381 (ON CA), 30 O.R. (3d) 538 (OCA): simply stated, in first offender cases, except for very serious offences and offences involving violence, the sentencing court should explore other dispositions which are open to it other than a custodial sentence. This is consistent as well with the sentencing principle set out in ss. 718.2(d) of the Criminal Code.

[8] In addition, MacPherson J went on to consider the fact that the offender had been involved in trafficking steroids, a very different substance from heroin or cocaine, where first time trafficking offences normally attract custodial sentences. In addressing the co-accused towards the end of his reasons, the sentencing judge set out in plain language the reasons for his imposition of the non-custodial sentence (at para. 30):

If you had been in front of me on a second offence along the lines of what you have been convicted on the first offence, I would have no hesitation in sentencing you to a very substantial period of time in jail. So take that as a warning. If you ever sit in that box again, either of you, for any criminal offence, you most certainly will go to prison for a very substantial period of time.

[9] Like the court in Paul, I have arrived at the conclusion that the Defendant is entitled to some leniency from the court: this is the Defendant’s first offence; the controlled substance in question was steroids; the Defendant has previously lived a good life and appears to be both a contributing member of society and a family man. I agree with counsel for the Defendant that there is insufficient evidence upon which to ground a finding that Defendant took advantage of business contacts to commit the offence or that a pattern of conduct can be discerned merely from the calculated commercial nature of the transaction in question. To this I would add what I found to be a genuine and heart felt expression of remorse and shame expressed to the court by the Defendant following sentencing submissions. I accept that the arrest, prosecution and conviction have amounted to life changing events that have changed the way the Defendant now behaves. Finally, as noted above, none of the aggravating factors for consideration under ss. 10(2) of the CDSA are present here: there were no weapons, violence or minors involved in the offence.

[10] In my view, and having regard to all of the circumstances, a non-custodial sentence would achieve the objectives of specific deterrence and denunciation. I find as well that a non-custodial sentence would advance the respect for the law and the maintenance of a just, peaceful and safe society. However, I am the view that a conditional sentence of 18 months is more appropriate than the 12 month period suggested by the Defendant’s counsel. The principle of general denunciation requires that a lengthier period of sentence be imposed in light of the sheer volume of steroid pills involved and the bold manner in which the transaction took place: in unmarked tubs, in broad daylight, on private property and within the potential view of hotel and restaurant patrons. In terms of specific deterrence, I am satisfied, given that the conditional sentence will carry with it a record under the CDSA, that the Defendant will no doubt understand how any further offences might attract a significant term of incarceration. That alone, I find, will act as a specific deterrent for the Defendant.

[11] Mr. Canary, would you please stand. Bruce Canary, I sentence you to 18 months to be served in the community. In light of your ongoing business activities and the fact that you have not re-offended, I am not going to impose any kind of house arrest or curfew.

[12] The foregoing sentence shall be on the following conditions:

(1) That you keep the peace and be of good behaviour;

(2) That you report to a conditional sentence supervisor “supervisor” within five business days and thereafter when required by the supervisor and in the manner directed by the supervisor;

(3) That you reside at an address approved by your supervisor and notify the court or your supervisor in advance of any change in your address;

(4) That you maintain full-time employment or self-employment. You shall notify your supervisor promptly of any change in your employment;

(5) That you refrain from possession of any CDSA Schedule IV substance unless the possession of such substance is permitted under government regulations and licences and is necessary and reasonable for legitimate and legal commercial purposes;

(6) That you shall not associate with or engage in any communication with the person of Oleksander Luchkin; and,

(7) That you shall complete fifty hours of community service as directed by your supervisor.

[13] There shall be a forfeiture order in respect of the 220,000 pills seized and the $14,000 cash seized on June 11, 2012.

[14] Order to go accordingly.

J.R. McCARTHY, J.

Released: September 28, 2015

NOTE: As noted in court, on the record, this written ruling is to be considered the official version and takes precedent over the oral reasons read into the record. Any discrepancies between the oral and written versions, it is the official written ruling that is to be relied upon.