SUPERIOR COURT OF JUSTICE

TUESDAY, SEPTEMBER 22, 2015

THE COURT: Good morning.

MR. MARCOTTE: Good morning, Your Honour.

MR. LANGEVIN: Good morning.

THE COURT: My understanding was that this was set for 9:00 a.m. gentlemen?

MR. MARCOTTE: That’s what I understood.

MR. LANGEVIN: That’s what I think you told us, Your Honour.

THE COURT: At 9:00 a.m., yes, but it’s 9:15, right?

MR. LANGEVIN: We were here, Your Honour.

THE COURT: I was advised that you were not.

MR. MARCOTTE: My apologies, Your Honour. I walked by the courtroom and didn’t see anybody. We were here.

THE COURT: That’s fine. I’m ready to deliver the sentence for Mr. Cowan.

R E A S O N S F O R S E N T E N C E

LALIBERTÉ, S.C.J.: (Orally)

On November 24th, 2014, Darran Cowan pled guilty to the following three counts: s. 216 of the Excise Act, 2001, which relates to the sale of tobacco products not stamped in accordance with the provisions of this Act; secondly, s. 5(3)(a) of the Controlled Drugs and Substances Act, specifically having trafficked in over three kilograms of marijuana; and finally, s. 355 of The Criminal Code, which is having in his possession money

in excess of $5,000 which was obtained through trafficking in marijuana and the sale of unstamped tobacco.

The offences occurred between the period of April 2011 to July 2011 in the City of Cornwall and elsewhere within the United Counties of Stormont, Dundas and Glengarry. Mr. Cowan’s illegal activities came to light in the context of a major under cover police investigation known as “Cynderford”. This police operation focused on tobacco contraband, trafficking of illegal substances and firearms. The court was advised that a number of distinct cells were identified by the authorities.

The evidence which led to the charges against Mr. Cowan come from the lawful interception of communications, the introduction of police agents and under cover police officers, surveillance and seizures. The court was told that the accused’s activities revolved around tobacco and marijuana.

Exhibit seven, which was filed by Crown counsel provides a comprehensive account of Mr. Cowan’s illegal activities. The summary forms part of the record and I’ve reviewed same in preparation for this sentencing hearing. Briefly, Mr. Cowan was found to be connected to two groups, one involved in marijuana trafficking and the second, contraband tobacco trafficking. In the end, it is said in the summary that during the period of the investigation, from April to July 2011, the accused conducted four ten pound marijuana transactions and four large contraband tobacco transactions.

Briefly, dealing first with the tobacco transactions, the first transaction took place on April 20th, 2011. A police agent had set up this transaction with the accused person. The first meeting was on April 7th, 2011. Ultimately the contraband tobacco was picked up at a pre-determined location. Following this, the police agent attended the accused’s home and gave him $16,500 as payment for the 50 cases of tobacco.

The next tobacco transaction was on May 5th, 2011. Again, this transaction was orchestrated by the accused person with the police agent. A price was agreed upon. A pre-determined location for the pick-up was identified. The agent later attend the accused’s home and pays him $17,250 for the 50 cases of contraband tobacco.

The third transaction, same scenario in essence on May 19th, 2011. The agent meets with the accused. He is told that the price is $345 per box. A pre-determined location for pick-up is identified. Later that night, the police agent attends the accused’s home and pays him for the tobacco. The amount was $17,250 for 50 cases.

The last transaction was on July 11, 2011. The agent attended the accused’s home. He is told that he could supply him with 100 cases of contraband tobacco. The agent attended a pre-determined location for the pick-up and picked up 100 cases. The agreement was that the agent would attend the accused’s home the following day, which was July 12th, 2011, for payment. On July 12th, 2011, the police executed a search warrant at the accused’s residence so that in the end the total amount received by the accused for the tobacco transactions is $50,750.

Now, in regards to the marijuana, the evidence is that the accused’s dealings with this drug was intertwined with the tobacco transactions. It involved the same police agent and under cover police officer. Exhibit seven reveals that the accused raised the question of marijuana with the police agent on May 5th, 2011. Mr. Cowan asked the agent if the under cover police officer, which had participated in picking up the cigarettes, was involved in the movement of weed. The agent told him he would speak to him.

The accused is ultimately shown to be involved in the following marijuana transactions: on May 18th, 2011, Mr. Cowan provides the police agent with half a pound of marijuana as a sample. On May 19th, 2011, he meets the accused to arrange the purchase of 9.5 pounds of marijuana. Later that same day, the accused provides 9.5 pounds to the agent and under cover officer. He is paid $11,000 which includes money for the sample given the day prior.

On June 9th, 2011, the police agent and under cover police officer attend the accused’s residence. They are provided with marijuana and pay him $11,000. This transaction had been pre-arranged. The inference is that Michael Brunet had delivered the drugs to the accused’s residence prior to the agent and under cover’s arrival.

On June 22, 2011, the agent attended the accused’s home and obtained a sample of marijuana from the accused. The sample was inside a freezer bag which was inside a garbage bag. The agent was told that the drugs came from Montreal and that there were 19 pounds in Cornwall waiting to be sold. The price was $1,900 per pound. On June 23rd, 2011, the under cover police officer calls the accused wanting to purchase marijuana, a sample of which had been given to the agent. They later had met and discussed future purchases. The accused is later observed with Michael Brunet, placing two garbage bags in his truck. The accused then calls the under cover. This is followed by a transaction for marijuana which took place at the accused’s residence in a garage. The purchase is for ten pounds of marijuana for which the accused is then paid again $11,000.

On July 11, 2011, the agent attends the accused’s home and is told that he could provide him with ten pounds of marijuana. This is to be picked up on July 12, 2011. As already indicated, the police executed a search warrant at the accused’s residence on July 12, 2011. So that in the end, the total amount of money received by the accused for the marijuana is $33,000.

There are a number of items that were seized during the search, including cell phones, Canadian and American money. There is a debt list, and there were 20 clear bags of marijuana weighing half a pound each. So that ultimately, the court’s task is to decide what is a fit and proper sentence for this individual.

Briefly looking at Crown counsel’s position, he is of the view that a fit and proper sentence is in the range of 18 to 24 months jail, coupled with probation and a number of ancillary orders which are, as I understand it, not opposed by counsel for the accused, save and except for the length of time to pay the forfeiture under s. 462.37.

Mr. Marcotte, Crown counsel, raised a number of aggravating factors, including that the offence was committed for commercial gain; that the accused’s only concern was his own interests and that he disregarded the community’s interests. He has shown a lack of insight. He suggests that there are no real mitigating factors. The guilty plea was at the eve of trial. He had provided an inculpatory statement so that the case was a strong one. He rejects the notion that the accused’s medical condition justifies a conditional sentence, since the risk can be managed by the authorities. Crown counsel makes the point that the primary objectives of sentencing in this matter is deterrence and protection of the public. Rehabilitation is a secondary consideration.

Counsel on behalf Mr. Cowan argues for a conditional sentence of two years less one day, to be followed by lengthy probation. Reference is made by Mr. Langevin to a number of mitigating factors including the lack of a criminal record; the guilty plea; he’s remorseful; there is family support; that he is supported by the author of the pre-sentence report; that Mr. Cowan has been on strict bail conditions for the last four years with no breaches; that he is quite ill and jail is a significant risk for him; that there is little, if any, risk of reoffending; that his criminal conduct was tied to a $250,000 gambling debt; that the principles of sentencing, more specifically denunciation and deterrence can, so argues Mr. Langevin, be achieved through a conditional sentence.

Counsel relies on other cases in this project which resulted in conditional sentences and reference is made to a decision of Justice Lafrance-Cardinal in the matter of R. v. Archaumbault, which I understand the sentence to have been on November 6th, 2013, and it was a joint position for a two-year less one day conditional sentence.

Mr. Langevin relies on the decision from the Ontario Court of Justice, Justice Green, in R. v. Azeez, [2014] O.J. No. 30, 91. Justice Green imposed a conditional sentence in the context of an individual having pled guilty to four counts of trafficking in heroine. Justice Green based his decision on the following considerations: the accused was 33, had a minor related record; that he had begun to consume drugs in the context of a severe depression; there were mental health issues; he became a heroine addict and sold drugs to finance his addiction; Mr. Azeez had since participated in counselling and treatment programs; that he had been bound by strict bail conditions, house arrest for 16 months; that he had completed community work; and that there were seven days of pre-trial custody.

Dealing now with the relevant legal principles, in determining what is a fit and proper sentence, the court must be guided by the principles which are set out in both the relevant statutes which are The Criminal Code and the Controlled Drugs and Substances Act, and the jurisprudence. Section 10 of the Controlled Drugs and Substances Act identifies the fundamental purpose of sentencing as follows:

“The fundamental purpose of any sentence for an offence under this part is to contribute to the respect for the law and the maintenance of a just, peaceful and safe society while encouraging rehabilitation and treatment in appropriate circumstances of offenders and acknowledging the harm done to victims and to the community.”

This fundamental purpose can be achieved through the various means which are set out under sub-paragraphs 718 (a) to (f) of The Criminal Code, namely denunciation of unlawful conduct; personal and general deterrence; when necessary, to separate offenders from the rest of society; assisting the offender through rehabilitation; to try and instil a sense of responsibility so that the offender appreciates the harm caused to the community by his actions.

There must also be some proportionality or balance between the crime and the sanction. Section 718.1 of The Criminal Code states the following:

“A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.”

The court must also remind itself that an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances, and that is provided under s. 718.2 of The Criminal Code.

The concept of parity in sentencing is also a significant consideration for the court. It is articulated under s. 718.2(b) of The Code, which says:

“A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.”

However, the court must keep in mind the words of Chief Justice Lamer as he then was, in R. v. M.C.A., 1996 230 (SCC), [1996] 105 CCC (3d) 327:

“Sentencing is an inherently individualized process and the search for a single appropriate sentence for a similar offender and similar crime will frequently be a fruitless exercise of academic abstraction. As well, sentences for a particular offence should be expected to vary to some degree across various communities and regions in the country, as a just and appropriate mix of sentencing goals will depend on the needs and current conditions of and in the particular community where the crime occurred.”

As well, sentencing involves a balancing of aggravating and mitigating circumstances. Simply stated, some factors militate in favour of a more lenient sentence, while others favour a harsher sanction. The court notes paragraph 10(2) of the Controlled Drugs and Substances Act, which identifies a number of statutory aggravating factors that the court must consider, and none would appear to apply in this case.

Now, the issue of an accused’s medical condition was raised in the context of this sentencing hearing, specifically, in regards to the risk associated with jail. It was raised on February 20th, when this sentencing hearing was started, and was more fully explored on August 31st last by the calling of evidence and submissions from counsel. In simple terms, the question for the court is, how an accused’s medical condition and the risk associated with jail impacts on the sentencing?

I have found two cases which are of assistance to the court. The first case I wish to refer to is the Ontario Court of Justice decision in R. v. Mesgarha, 2014 ONCJ 238, [2014] O.J. No. 2415. The relevant paragraphs which I will read portions from are 34 to 37. Paragraph 34:

“The law with respect to how a defendant’s medical condition factors into the appropriate sentence can be summarized as follows: significant medical concerns can take a defendant towards the lower end of the appropriate range of sentence. In order to obtain a result that is fundamentally different from the generally appropriate range of sentence, the medical circumstances have to be of a different order or magnitude. Thus, in R. v. C.D., the defendant otherwise facing a sentence of real jail was a quadriplegic in severe pain with a colostomy, requiring therapy four days a week and requiring nursing assistance to perform even basic bodily functions, and taking many medications including opiates several times daily. He faced a high risk of complications, using language such as extraordinary, and these totally unique facts, the Court of Appeal for Ontario decided that a conditional sentence would be appropriate in lieu of the sentence of real jail imposed at the trial. In R. v. McCrystal, the Court of Appeal, on a record that addressed the health impacts of incarceration on a very ill 72-year old man, very directly substituted a non-custodial sentence for a 12-month jail sentence, noting ‘our concern is that to require the appellant to serve a custodial term could well amount to the imposition of a death sentence.’

The law is also clear that unless the record shows that the impact of incarceration would be virtually catastrophic, the appropriate outcome is to treat medical conditions that can be handled in prison as potentially placing the defendant lower in the range than he might otherwise have been. That is precisely what the trial judge did in R. v. J.G.R., an approach endorsed by the Court of Appeal of Ontario which noted, ‘No doubt it would be better for the appellant’s medical treatment is he were not incarcerated, that is however no justification for interfering with an entirely appropriate sentence that takes into account the added difficulties the appellant will face in custody’.”

The other case that I found to be of interest is a decision from Justice Hill, the Superior Court of Ontario, in R. v. M.E., 2012 ONSC 1078, [2012] OJ No. 1627. Briefly at paragraphs 58 and 59:

“The ill health of an offender is a factor worthy of some consideration in sentencing.

However, the federal correctional authorities are obliged under the Corrections and Conditional Release Act to provide inmates with essential healthcare. While the increased hardship of suffering significant health problems is a factor to be considered in sentencing, it does not amount to an exceptional circumstance in the absence of evidence that the health concerns cannot be addressed in the correctional environment.”

Now, applying all of these legal principles to the circumstances of Mr. Cowan, I make the following analysis. Dealing first with Mr. Cowan’s personal circumstances, the court notes the following information which is found in the pre-sentence report: Mr. Cowan is 41 years of age. He was born in Northern Ireland and came to Canada with his family when he was eight. He describes having a good relationship with his parents. He has been married for 25 years and has two children aged 11 and 15. The children, as of the date of the pre-sentence report, had not been made aware of the charges faced by their father. His wife is supportive and describes the accused in very positive terms. She states not having known of the illegal activities. He is a licensed mechanic and appears to have been an otherwise productive member of the community. He earns approximately $50,000 per year. He has health issues, namely colitis. His wife identifies gambling as a concern and mental health issues.

I will pause briefly to review the evidence in regards to the accused’s health. Exhibit number ten is a letter dated December 18th, 2014, signed by Dr. Ingram-Crooks, who has been Mr. Cowan’s family doctor since 2008. She also testified on August 31st, last. In essence, her view is that Mr. Cowan would be at risk if placed in a jail setting. In her letter she states: “I feel that he would not be able to manage/survive in prison due to his multiple medical issues”. She notes that he has been diagnosed with ulcerative colitis, which requires medication which impacts on his immune system, so that exposure to others in a communal setting such as the jail would put him at risk. She indicates that there is a yet to be diagnosed condition which is painful for this individual and brings him to the emergency ward on a frequent basis.

The court also notes that Mr. Cowan does not have a criminal record. He is described as remorseful. He rejects the notion that he was a mid- to high-level smuggler. He states that he committed the offences because of financial problems linked to his gambling debt. He is described by the author of the pre-sentence report as having been very cooperative in the preparation of the report and is seen as being at low risk over all to reoffend. I also note through exhibit number nine, that he finds support from friends and members of the community as evidenced by a number of letters which were collectively filed as exhibit number nine. He is described in very glowing terms.

Now, there are certainly a number of mitigating factors which weigh in favour of a more lenient sentence: his age; the absence of a criminal record; the guilty plea; family support; he appears to have been otherwise a productive member of the community; it is said that he is remorseful.

Now, on the aggravating side of the equation, the following considerations would favour a harsher sentence: firstly, the accused dismisses the notion that he should be seen as a mid- to high-level smuggler. Whatever qualification one puts on his involvement in the tobacco and drug trade in this community, in the end, his involvement is seen by the court as significant for the following reasons:

Firstly, he’s a very active participant. Secondly, the Crown had used the concept of “broker” to describe his role, and that certainly seems to be fitting. Next, he was involved with a considerable amount of marijuana and tobacco. There were 40 pounds of marijuana which amounts to $44,000. In tobacco, there were 250 boxes, which means $87,500. This means that in a period of perhaps three months, he participated in generating $131,000 of money linked to the illegal sales of drugs and tobacco. I am very mindful that the last transaction did not crystallize.

Next, now I haven’t named all of the individuals involved in these ventures with Mr. Cowan, but the number of individuals, the structure and the organization also make it significant. The number of transactions is of concern, and the ease with which they were set up.

Next aggravating feature, there is a high degree of responsibility attached to the actions of this accused person. He has chosen to do so and he his solely responsible for his actions. The suggestion is that he did this because of gambling debts. There is no evidence of an addiction to gambling. Financial issues are not seen as a mitigating factor by the court. There are many people in this community who go through hard financial problems. If anything, the ease to make money from tobacco and drugs should serve to reinforce the need for general deterrence and denunciation. Getting involved in drugs and contraband tobacco for gain is a very attractive proposition. It is certainly capable of generating a significant amount of money. The fact that an otherwise law-abiding individual like Mr. Cowan chooses to do so speaks to this proposition. It is through appropriate sanctions that the court must make this a much less attractive proposition.

Superior Court Justice Pelletier in a case which is unreported; which is R. v. Keomany, is a decision from this jurisdiction from May 2007; this case dealt with an individual who had entered a guilty plea to having participated in a transaction of 78 pounds of marijuana. His role was to bring the money to purchase the drugs. That was the extent of his participation. He actually pled to conspiracy. Defence in the Keomany case was seeking a conditional sentence. The accused had a dated, unrelated conviction. He was employed. He was supported by his family. The pre-sentence report was positive, and described him as having pro-social values. The Crown sought a two-year jail term in the Federal penitentiary.

Justice Pelletier at paragraph 35 of his decision states the following:

“It is not disputed that while rehabilitation and restorative objectives be considered, particularly in the case of a first offender, denunciation and deterrence remain significant objectives, particularly in connection with the large-scale movement of narcotics. In my view, a very important element in sentencing, particularly with regards to the objectives of deterrence and denunciation is that the accused in this case represents a typical courier who would be enlisted by those engaged in the large-scale movement of marijuana and other drugs. I’m of the view that a sentence that is insufficiently deterrent in nature could serve to encourage rather than to discourage the recruitment practice in relation to couriers, which has large-scale drug operators seeking out persons not unlike Mr. Keomany to do their dirty work. This principle has been cited in such cases as R. v. Hamilton. While I’m mindful that these cases dealt with cocaine rather than marijuana, I consider that the principle of attempting to discourage perspective couriers in the large-scale movement of drugs or money by means of a significantly deterrent sentence remains constant.

I’m equally influenced by the prevalence of cases involving the importation and exportation of contraband, including narcotics, in this community, Cornwall and Cornwall Island’s geographic location has rendered itself an area of significant traffic in cigarettes, alcohol and notably, illegal drugs. The prevalence of these offences is far from being in decline. As Cornwall’s economic outlook has suffered recently from the loss of a significant employer, the attraction to relatively easy money for little work must be confronted and addressed by the court engaged in cases of this nature. The unusual amount of a certain type of activity has been confirmed by the Ontario Court of Appeal to represent, among other factors, an appropriate consideration in sentencing.

I’m of the view that a period of actual incarceration is required in order to satisfy the principles of general and specific deterrence, as well as denunciation, and ultimately impose a jail term of 18 months.”

The next aggravating feature is the following. This is not seen by the court as a victimless crime. I, as a judge who regularly sits in Cornwall, see the consequences of marijuana consumption on a daily basis in these courtrooms. I see it in family court. I see it in child protection court. I see it in criminal court. There is nothing soft about the consequences of this drug on this community. This under cover police operation has shown the significance of the contraband and drug problem in this community. It is aggravating, sir, that you were an active participant in this problem.

Now parity is obviously a significant consideration in this sentencing. I’ve already referred to Justice Pelletier’s decision in Keomany. Crown counsel referred to Justice Lafrance-Cardinal’s decision on sentence in R. v. Michael Brunet, which is dated October 23, 2014. The evidence is that Mr. Brunet was closely connected to Mr. Cowan. Mr. Brunet delivered ten pounds of marijuana to Mr. Cowan. So, they were certainly parties to the same transactions. I understand that Mr. Brunet pled guilty to supplying 20 pounds of marijuana. There were two transactions each for ten pounds. There was a joint position for 15-months jail, which was accepted by the court.

This leaves the court with the question of how does one deal with Mr. Cowan’s medical condition and the risk associated with jail? Now, in response to the concerns raised by defence, Crown counsel called two witnesses, Lucy Poliquin, she testified. She is a registered nurse employed with Corrections Canada since 1993. She’s a senior policy advisor. She has never worked in the general population with inmates. She provides information which is relevant to the Federal incarceration, the penitentiary. Since the Crown is not seeking a Federal term, and I agree that more than two years would be excessive, then her evidence is of little assistance.

The second witness is Sgt. Christian Richer, who has been a security manager at the Ottawa Carleton Detention Centre, for the last 13 years. He described the intake process on how inmates are initially seen by a nurse. The only test is to detect T.B.. They rely on disclosure made by the inmates. There is a health facility in each jail in the province. Inmates will remain in hospitals if needed for medical reasons. Inmates will, as a general rule, share cells, two or perhaps three. He did indicate that there was a cell in Ottawa which he describes in terms of a “free air cell”, which provides air from outside the facility. He identified this cell as being available to individuals who may have immune deficiencies, but there is no question that as a general rule, inmates live in a communal setting.

Now, having considered all of the circumstances, the court is of the view that allowing Mr. Cowan to serve a jail term in the community as a conditional sentence is not a fit and proper sentence. While I am satisfied that he does not, at this point, represent a risk of harm to the community, allowing him to serve a jail term in the community would offend the purpose and principles of sentencing.

This conclusion is based on the following consideration. Firstly, the principle of parity in sentencing. I’ve already referred to Justice Pelletier’s decision. I also referred to Mr. Brunet. I do not find that the circumstances in the case of R. v. Azeez to be similar to this matter. I do not find a connection between the commission of the offence and an underlying mental health issue, which was the case in Azeez. It is linked to gambling, a gambling debt which may or may not stem from a dependency. There is no indication of counselling. There is no indication of community work. The accused in Azeez had been subject to house arrest. I’ve reviewed the recognizance signed by Mr. Cowan, a