R. v. CEBALLOS, 2015 ONSC 720

DATE: 20150205

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

ANDRES ALFREDO CEBALLOS

Ian Bell for the Crown

Stacey Nichols for Andres Alfredo Ceballos

SENTENCING SUBMISSIONS HEARD: January 7, 2015

Reasons for Sentence

MacDonnell J.

[1] On April 16, 2014 Andres Ceballos was found guilty of possession of cocaine for the purpose of trafficking. He is before the court today for sentencing.

A. The Offence

[2] On the afternoon of August 3, 2011, a Lexus SUV operated by Mr. Ceballos was pulled over for investigation into whether Mr. Ceballos was driving while his license was suspended. In the course of the subsequent interaction, the police observed a quantity of cocaine in plain view on the floor of the cargo area of the SUV. Mr. Ceballos was placed under arrest, the SUV was searched and the cocaine – weighing 326 grams – was seized. The wholesale value of the cocaine was approximately $10,000. If sold at the gram level, it would be worth between $26,000 and $32,600.

[3] Mr. Ceballos was charged with possession of cocaine for the purpose of trafficking. The matter came on for trial on March 25, 2014. Upon arraignment, Mr. Ceballos pleaded not guilty. At the outset of the trial, he brought an application for an order excluding the evidence of the finding of the cocaine on the basis of infringements of his rights under ss. 8 and 9 of the Canadian Charter of Rights and Freedoms. On April 16, the application was dismissed. It was agreed that the evidence called on the application would be applied to the trial and neither the Crown nor the defence called any further evidence. It was formally conceded that the only reasonable inference from the evidence was that Mr. Ceballos was in possession of the cocaine and that he was in possession of it for the purpose of trafficking.

[4] There was no evidence with respect to how Mr. Ceballos came to be in possession of the cocaine or what, specifically, he intended to do with it. I will return to this later in these reasons.

B. The Offender

[5] Mr. Ceballos is now 40 years of age. At the time of the offence, he was 36 years old and he had no criminal record. He was, however, awaiting trial on a charge of drinking and driving for which he was subsequently convicted and fined.

[6] Mr. Ceballos was born in Ecuador and came to Canada about 20 years ago. He is now a Canadian citizen. He has been married for 21 years and he has three children – two girls, aged 8 and 6, and a son aged 2. Mr. Ceballos and his wife sponsored his mother and his three younger siblings to Canada. He is close to them and sees them at least once a week.

[7] Mr. Ceballos completed his high school credits in Canada and attended community college to train as a chef. He worked in the restaurant business until around 2010 when he and his wife decided to purchase his employer’s restaurant. He went into significant debt to finance the transaction, but the deal fell through and Mr. Ceballos lost both his investment and his employment. The family has been in financial difficulty ever since. His wife works full-time with a bank, but with three young children it has been difficult to make ends meet. In 2011, Mr. Ceballos began working part-time as a caretaker at the University of Toronto. That position is now full-time. Mr. Ceballos is quite concerned that if he is incarcerated for any significant period he will lose his job.

[8] On the sentencing hearing, twelve letters were presented from friends and family of Mr. Ceballos. The consistent theme of those letters is that the offence is completely out of character for Mr. Ceballos, whom the writers describe not only as a dedicated and loving husband and father but also as a caring and generous friend. Further, both before and after he was charged with the offence before the court he was engaged in volunteer work in the community.

[9] Following his arrest, Mr. Ceballos was released on a bail order that included a term of house arrest. After some eight to twelve months, that term was deleted and he was put on a curfew from 9 p.m. to 6 a.m. I accept that both the house arrest and the curfew were restrictions on Mr. Ceballos’s liberty but there is no evidence as to the extent to which they interfered with his lifestyle: see R. v. Downes (2006), 2006 CanLII 3957 (ON CA), 205 C.C.C. (3d) 488, at paragraph 37 (Ont. C.A.)

[10] A presentence report was obtained to assist in the determination of an appropriate sentence. The report was quite positive. The author indicated that Mr. Ceballos was co-operative, that he took full responsibility for the offence, and that he was remorseful. The author further noted that Mr. Ceballos has been a very involved father and that he is extremely anxious about the prospect of separation from his wife and his children.

[11] Mr. Ceballos told the author of the presentence report that the offence occurred when a person he knew from Ecuador offered him $500 to deliver the cocaine. He told the author that he had never done anything like this before but he was desperate for money. The Crown was not prepared to accept that explanation and Mr. Ceballos was given an opportunity to call evidence to support it. No such evidence was called. In the end, there is no evidence, one way or the other, with respect to how Mr. Ceballos came to be in possession of the cocaine, where he was going with it, or to whom he intended to give it.

[12] Given the opportunity to speak, Mr. Ceballos expressed his remorse for his ‘mistake’, and he asked for the forgiveness of the court and of his family.

C. The Positions of the Parties

[13] The position of the Crown is that a sentence of 3½ years in the penitentiary is called for. The position of the defence is that a conditional sentence of 2 years less one day would be fit and appropriate. Alternatively, the defence submits, if a sentence to be served in a custodial facility is required, it should be in the range of 9 to 12 months.

D. Discussion

[14] Section 718 of the Criminal Code provides, in part, that 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 sanctions that have one or more of six objectives. Those objectives include denunciation of the conduct of the offender, deterrence of the offender and others who might to tempted to similar conduct, separation of the offender from society where necessary, rehabilitation, and the promotion of a sense of responsibility in the offender. Section 10(1) of the Controlled Drugs and Substances Act mandates sentencing courts to pursue the fundamental purpose set forth in s. 718 of the Code “while encouraging rehabilitation…and acknowledging the harm done to victims and to the community”. Whatever sanction is imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender.[^1]

[15] As has been noted on countless occasions, the objectives and aims set forth in s. 718 of the Code and s. 10(1) of the CDSA sometimes pull in different directions. The determination of which should be given greatest weight will be a case-specific exercise. With respect to the trafficking of significant amounts of cocaine, however, denunciation and deterrence will almost always be the primary objectives. In R. v. Daya, 2007 ONCA 693, Justice Moldaver stated, at paragraph 18: “This court and the Supreme Court of Canada have time and again elaborated on the perils of cocaine and the immeasurable harm it causes to society.” In R. v. Hamilton (2004), 2004 CanLII 5549 (ON CA), 186 C.C.C. (3d) 129 (Ont. C.A.), at paragraph 104, Justice Doherty stated:

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. [citations omitted]

[16] See also R. v. Pearson, 1992 CanLII 52 (SCC), [1992] 3 S.C.R. 665, at paragraphs 60-61; R. v. Bajada (2003), 2003 CanLII 15687 (ON CA), 173 C.C.C. (3d) 255, at paragraph 13 (Ont. C.A.); R. v. Marton, [1980] O.J. No 868, at paragraph 7 (C.A.); R. v. Migalski, [1999] O.J. No. 1235, at paragraph 4 (C.A.).

[17] In determining what disposition will achieve the paramount objectives of sentencing in any particular case, a sentencing court is required to take into account the principle that "a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances".[^2] This principle requires that consideration be given to sentences imposed in analogous cases, and to that end both the Crown and the defence have referred to precedents that they say support their positions as to the appropriate sentence in this case. While sentencing precedents will almost always contain features that make them distinguishable, taken as a whole they can point to a range to be considered and to the factors that will assist in placing a particular case within that range.

[18] The cases make clear that in relation to trafficking in cocaine or possession of cocaine for the purpose of trafficking the quantity involved will be an important consideration. Drug trafficking is a hierarchical business. Generally speaking, the greater the amount of the drug, the more likely that the offender is at a higher place in the hierarchy; the higher the place in the hierarchy, the greater the potential for profit; the greater the potential for profit, the greater the incentive to offend; and the greater the incentive to offend, the greater the need for deterrence.

[19] However, the amount possessed is not the only relevant consideration in determining the level of an offender’s involvement. It is not uncommon for traffickers to enlist others to transport drugs from place to place. To the extent that the role of an offender was limited to performing that function, the sentence imposed for possession may be lower in the range that would be the case for someone more actively involved: see, e.g., R. v. Manjoon, 2009 ONCA 876, R. v. Bertrand, 2012 ONSC 7519, R. v. Ramos, 2007 MBCA 87, and R. v. Salazar, [2007] O.J No. 4974 (Sup. Ct.). There may be other circumstances, as well, that tend to negate an inference of involvement at the higher levels of a trafficking enterprise notwithstanding the amount involved: see, e.g. R. v. Williamson, 2013 ONCJ 55; R. v. Archibald, [2012] N.J. No. 95 (Supreme Court, Trial Division).

[20] Mr. Ceballos told the author of the presentence report that he was merely a courier, and that this was the only occasion on which he had performed that role. If true, that would be an important consideration in determining sentence. However, the Crown disputed whether it was true. Section 724(3) of the Criminal Code provides that where there is a dispute with respect to a fact that is relevant to the determination of sentence, “including a fact contained in a presentence report”, the party wishing the rely on the fact has the burden of proving it. Where the party relying on it is the offender, the court must be satisfied of the existence of the fact on a balance of probabilities. As I indicated earlier, Mr. Ceballos was given an opportunity to call evidence to support what he told the author of the presentence report but he declined to do so. In the end, there is no evidence that that his involvement was merely as a courier or that it was a ‘one off’. Nor has any other explanation been offered that would mitigate the gravity of possessing one-third of a kilogram of cocaine for the purpose of trafficking. Although there is no direct evidence of Mr. Ceballos’s place in the trafficking scheme, the amount that he had in his possession was significantly higher than amounts associated with street level involvement.

[21] The greatest number of cases to which counsel for Mr. Ceballos referred in support of her submission for a sentence substantially lower than that sought by the Crown were cases in which guilty pleas were entered: R. v. Bertrand, supra; R. v. Fillatre, [2011] N.J. No. 119 (S.C.T.D.); R. v. Williamson, supra; R. v. Ramos, supra; R. v. Salazar, supra; R. v. Archibald, supra; R. v. Byrne, 2009 NUCJ 7, [2009] N.J. No. 6 (C.A.); R. v. Reis, [2012] O.J. No. 2623 (C.J.); R. v. Rebello, [2010] O.J. No. 650 (Sup. Ct.). A guilty plea is a significant mitigating consideration on sentencing: R. v. R. W. E., 2007 ONCA 461, at paragraph 40; R. v. Drabinsky, 2011 ONCA 582, at paragraph 166. However, Mr. Ceballos did not plead guilty. As was his right, he elected to be tried in the Superior Court and had a full preliminary inquiry. While he conceded the case against him once he lost the application to exclude the evidence surrounding the finding of the cocaine, the application was effectively a full trial on the merits. To be clear, the fact that Mr. Ceballos elected to plead not guilty and to follow that course is not an aggravating circumstance. However, the situation here is much like that presented to the Court of Appeal in R. v. Peltier, 2013 ONCA 141. In that case, Justice MacPherson stated, at paragraphs 12-13:

[The] appellant contends that the trial judge failed to consider the mitigating fact that the appellant kept his trial limited to the Charter application and, through counsel, invited the trial judge to enter convictions once the application was dismissed.

I would reject this submission. The appellant did not plead guilty to the charges. The voir dire on the Charter application involved 11 witnesses testifying over four days. This was not a mitigating factor. Moreover, when the Charter application was dismissed, the convictions that followed were inevitable, as defence counsel properly recognized.

E. Conclusions

[22] Mr. Ceballos is a first offender. The evidence shows that he is a devoted husband, father, brother and son and a loyal and generous friend. I accept that the offence is out of character and that there is no reason to fear that he will again become involved in drug trafficking. His prospects for rehabilitation are excellent. However, the offence he committed was very serious: he was found in possession, for the purpose of trafficking, of 326 grams of cocaine with a value, depending on how it was sold, between $10,000 and $32,600. The authorities binding on me have repeatedly emphasized that offences such as this cause “immeasurable harm” to society. With respect to the offence itself, there are no mitigating circumstances. In my opinion, the paramount objectives of sentencing in this case must be denunciation and deterrence.

[23] While the sentence of 3½ years sought by the Crown is not outside of the range for the offence, it does not give sufficient weight to Mr. Ceballos’s prior good character and his rehabilitative prospects. After giving the matter my best consideration I conclude that the sentence that would be proportionate to the gravity of the offence and Mr. Ceballos’s degree of responsibility would be a period of imprisonment of 2½ years.

[24] That sentence is outside of the range for which a conditional sentence is available. However, even if I had been persuaded that a sentence of less than two years would be appropriate, I would not have been satisfied that serving the sentence in the community would be consistent with the fundamental purpose and principles of sentencing in this case.

MacDonnell J.

Delivered: February 5, 2015

[^1]: s. 718.1 of the Code

[^2]: s. 718.2(b) of the Code