CITATION: R. v. Hussein, 2016 ONSC 1421

COURT FILE NO.: CR12900007160000

DATE: 20160303

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Ahmed Hussein

BEFORE: Justice Spies

COUNSEL: Hafeez Amarshi, for the Crown

Andrew Stastny, for Mr. Hussein

HEARD: February 18, 2016

REASONS FOR SENTENCE

Introduction

[1] On September 30, 2015, Ahmed Hussein was found guilty by a jury of possession of crack cocaine for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act (CDSA). He is now before me for sentencing.

The Facts

a) Circumstances of the Offence

[2] The crack cocaine was found during the execution of a search warrant of Mr. Hussein’s apartment on July 21, 2011. Two bags of crack cocaine were found in the side cargo pocket of a pair of pants hung in the closet of the bedroom and three bags of crack cocaine were found hidden in the stove fuse box in the kitchen. The total weight of cocaine found was 62.85 grams or 2.22 ounces.

[3] Detective Margetson was qualified to give opinion evidence as an expert in the areas of: methods of distribution of cocaine including the sale, use, packaging, pricing, street terminology and quantities consistent with personal and commercial use. He testified that the crack cocaine in question could be sold for anywhere between $5,040 and $12,560, depending on whether it was sold at the gram level or at the $20 piece level, and that the quantity was consistent with a street to mid-level dealer.

b) Circumstances of Mr. Hussein

[4] A pre-sentence report (PSR) was prepared. It reveals that Mr. Hussein was born in Somalia in June 1978; he is almost 38. He is the youngest of nine children. Mr. Hussein had a very difficult childhood. His parents were very poor and could not financially support the family and so his maternal grandmother raised him until he was ten and he was then placed with an uncle. In the 1980s, Mr. Hussein, his uncle, aunt and two cousins fled to Ethiopia. They came to Canada in December 1989 save for his uncle who had already passed away. Mr. Hussein would have been about 12 years old at that time. Mr. Hussein’s biological parents and siblings remained behind in Somalia and he was only able to see them again when he returned to Somalia in 2010.

[5] Although Mr. Hussein maintains a close relationship with his cousins and his aunt, he advised the author of the PSR that he has always felt as though he did not belong to that part of the family and that he was “an outsider”. Mr. Hussein’s cousin Omar, however, considers him as his brother. I note that Mr. Hussein’s aunt was not interviewed for the PSR.

[6] Mr. Hussein is single and has no children or dependents. He completed high school in 1998 and he then began a three-year business administration degree at Niagara College but unfortunately did not complete the program. Starting in 2000, he became employed in various jobs including working as a security guard until 2009 when he was laid off. As a result he advised the author of the PSR that he became extremely depressed and began to use alcohol and drugs. Mr. Hussein was still unemployed in 2010. He received employment insurance benefits for one year; I presume starting sometime in 2009 when he was laid off. As Mr. Stastny suggested, it appears that this offence, for which Mr. Hussein was arrested in July 2011, occurred during this period of unemployment and likely after the employment insurance benefits ended.

[7] In 2012, Mr. Hussein undertook further training in construction management but was not able to find employment in that field. He resumed working as a security guard until 2013. Mr. Hussein reported that for the past year he has been receiving social assistance. He recently applied for benefits from the Ontario Disability Support Program due to mental illness but I understand that application is still pending. Mr. Hussein’s family doctor, Dr. Turner, has diagnosed him with post-traumatic stress disorder and paranoid ideation but, according to the author of the PSR, that has not been confirmed by a psychiatrist.

[8] Mr. Hussein attributes his mental illness of depression and anxiety to this legal matter. Mr. Hussein admitted to a history of addiction to alcohol and marijuana. He is amenable to starting treatment to address these issues. Persons who the author of the PSR spoke to about Mr. Hussein described him as a good person who maintains respectful relationships with his peers and family members.

[9] Mr. Hussein denies that he is guilty of this offence and presumably maintains his position at trial that the police planted the drugs. He attributes his arrest to racial profiling and feels that he has been wrongfully convicted.

[10] Mr. Hussein has a criminal record. In May 2000 he was convicted of theft under $5,000 and received a $200 fine and three days pre-sentence custody plus one year of probation. In April 2012 and again in February 2013, Mr. Hussein was convicted of failure to comply with recognizance with respect to his release on recognizance for the charge before the court. On the first occasion he received a suspended sentence and six months’ probation and for the second conviction he received a one-day sentence plus six days pre-sentence custody. The author of the PSR states that Mr. Hussein’s two terms of community service supervision while on probation were completed satisfactorily.

[11] The synopses with respect to the charges of breach of recognizance were filed. With respect to the offence alleged to have been committed on March 31, 2012, officers attended on that date at about 4 a.m. at an apartment in relation to a stabbing incident. After further investigation of Mr. Hussein, who was present, it was learned that he was on recognizance and was to be residing with his surety at a different unit in the same building and was out without his surety and past his curfew. With respect to the breach of recognizance committed on February 21, 2013, Mr. Hussein was pulled over while he was driving a motor vehicle at approximately 11:57 p.m. He was in breach of his recognizance in that he was found to be out without a lawful excuse past his curfew and not with his surety.

[12] Mr. Hussein provided me with a written statement, which I have considered. He states that since July 2011 his life has been put on hold because of this case and he has not been able to progress in his employment, education, personal and family life. He states that he has tried to stay positive notwithstanding this and that once this case is over he plans to improve his education, increase his employment qualifications and continue to contribute more to society and to be a positive role model.

c) Impact on the Community

[13] In R. v. Woolcock, [2002] O.J. No. 4927, the Court of Appeal stated: “[t]here is no disputing that crack cocaine is an extremely dangerous and insidious drug with potential to cause a great deal of harm to individuals and to society” (at para. 15). Many cases speak to the fact that crack cocaine is a hard and highly addictive drug commonly associated with consequential criminality in our community.

Positions of Counsel

[14] The position of Mr. Amarshi is that I should impose a sentence of two and a half years’ incarceration. He opposes the imposition of a conditional sentence although he acknowledges that given the timing of this offence, such a sentence would be an available option. Mr. Amarshi also requested a mandatory weapons prohibition order for ten years pursuant to s. 109 of the Criminal Code.

[15] It is Mr. Stastny’s position that the appropriate sentence in this case is a conditional sentence of two years less a day with a portion of that period to be on strict house arrest with the balance to be on a curfew.

Legal Parameters

[16] Pursuant to s. 5(3)(a) of the CDSA, as it stood at the time of this offence, the conviction for possession of cocaine for the purpose of trafficking carries a maximum sentence of life imprisonment. There is no minimum sentence.

The Case Law

[17] In Woolcock, supra, the Court of Appeal held that:

The range of sentence for this type of offence [possession of crack cocaine for the purpose of trafficking] appears to be six months to two years less a day… [Citations omitted]. However, many of the cases that fall at the higher end of this range involve either larger quantities of narcotics or offences committed while the accused was still on probation for a similar offence. Those circumstances do not exist here. (at para. 15)

[18] In Woolcock the Court was dealing with a case where the offender was found to have 5.3 grams of crack cocaine in his possession for the purpose of trafficking with an additional gram of a substance that appeared to be crack cocaine and a small quantity of marijuana. The Court found that the trial judge had erred in certain respects although the Court agreed that a conditional sentence was not suitable. The offender was 53 years old, he was selling crack cocaine as part of a business in a residential community, and he was not addicted to drugs. The offender had two prior convictions for drug related offences two years prior for which he was sentenced to 30 days imprisonment. The Court found that there was still a possibility of rehabilitation and imposed a sentence of two years less a day incarceration.

[19] The Court in Woolcock did not comment as to what quantity of crack cocaine, if any, would result in a sentence outside this range but in support of this range the Court referred to R. v. Madeiros, [2001] O.J. No. 5664 (S.C.J.) where the quantity was about 35 grams and R. v. Radassao, 1994 779 (ON CA), [1994] O.J. No. 1990 (C.A.) leave to appeal to SCC refused, [1995] S.C.C.A. No. 122) where the quantity was 14 grams.

[20] Mr. Amarshi relied primarily on the decision of R. v. Carelse-Brown, 2013 ONSC 7042 where Goldstein J. imposed a 21-month sentence of incarceration plus three years of probation for an offender who was found guilty of having 25.3 grams of crack cocaine in his possession for the purpose of trafficking. Justice Goldstein found the offender to be a commercial drug trafficker.

[21] Goldstein J. had very little information about the offender save that he was 24 years old, had no criminal record but was on bail on outstanding charges. There was no evidence of the offender ever having a lawful job and only a vague plan to take business courses at some point in the future and, as a result, Goldstein J. found it was difficult to discern how the offender intended to become a productive member of society.

[22] Goldstein J. found that a conditional sentence was not appropriate because there was a sufficient risk that the offender would commit further offences as there was no evidence before him of any attempts at productive employment or education and there would be an obvious temptation for the offender to return to the ways of commercial drug trafficking. Goldstein J. was also satisfied that a conditional sentence would be inconsistent with the fundamental purpose and principles of sentencing and in particular, general and specific deterrence. He held that the need to deter the offender was obvious “which is why a short term of incarceration should not be seen as merely the cost of doing business” (at para. 36). As for rehabilitation, Justice Goldstein held that it was better met by a lengthy term of probation rather than taking off time from what would otherwise be an appropriate sentence. In the end he imposed a sentence of 21 months less pre-sentence credit and a term of three years of probation.

[23] I note that in the Carelse-Brown decision, Goldstein J. referred to R. v. Velkovic, [2006] O.J. No. 1327, a decision of the Court of Appeal where the offender was being sentenced following an early guilty plea to possession for the purpose of trafficking of 89.3 grams of crack cocaine; significantly more than the quantity in this case. The trial judge had rejected a joint submission for a conditional sentence of two years less a day and had imposed instead a $5,000 fine. That sentence was found to be manifestly unfit on appeal and as the fine had been paid the sentence was varied to a conditional sentence of 18 months. Although this case can be distinguished because of the early plea and joint submission, it suggests that even larger amounts of crack cocaine can attract a sentence in the range of sentence set out in Woolcock.

[24] Mr. Amarshi also relied on the decision of D.M. Brown J. (as he then was) in R. v. Kenyon, [2008] O.J. No. 2486. He argued that based on paras. 26 and 27 of that decision, it appears that Justice Brown accepted the Crown’s submission that an appropriate range of sentence, where the offender was found in possession of 26 grams of crack cocaine for the purpose of trafficking, would be incarceration for between two to two and a half years. No specific decisions were referred to. Brown J. imposed a term of imprisonment of 19 months less pre-sentence custody.

[25] Justice Brown listed a number of other cases that he had been referred to including R. v. Goulet (1995), 1995 1198 (ON CA), 22 O.R. (3d) 118 where the Court of Appeal upheld a sentence of three years imprisonment where the offender had pleaded guilty to possession of 54 grams of cocaine for the purpose of trafficking. On appeal the Court only stated that this aspect of the sentence was “fit and proper” and then went on to deal with the order the trial judge had made pursuant to s. 741.2 of the Criminal Code. Given the lack of information as to what led the trial judge to impose a three-year sentence this decision does not provide much guidance. It was not referred to in Woolcock.

[26] Mr. Stastny referred me to R. v. Browne, 2013 ONSC 7208, a decision of Justice Hainey. The offender was found in possession of over 69 grams of crack cocaine along with drug paraphernalia. The offender had a criminal record for prior narcotics offences including a prior conviction for possession of crack cocaine for the purpose of trafficking along with two convictions for failure to comply with recognizance. Hainey J. found that two things tipped the balance in favour of a conditional sentence: (1) the principle of restraint; and (2) the fact that the offender had demonstrated that he had started on the path to rehabilitation by not breaching any of the terms of his recognizance during the four year period that he had been under house arrest.

[27] In R. v. Wade, 2008 CarswellOnt 9425, the offender was found guilty of possession of 34.8 grams of crack cocaine and 14 grams of powdered cocaine for the purpose of trafficking. In that case counsel agreed that the appropriate range of sentence would be something less than two years. There was a positive PSR and a number of mitigating factors favouring the prospect of rehabilitation in that the offender had been steadily employed, had the support of his mother, was enrolled in college and intended to enroll in university to study for a degree in business administration. Like Mr. Hussein, the offender had two failures to comply with a recognizance and there was a lack of remorse. Mr. Wade was considered to be a small street level dealer in the business for commercial profit or gain. Gates J. held it was a very close call but decided that a conditional sentence was appropriate along with the use of electronic surveillance and an extensive set of conditions. He imposed a conditional sentence of 18 months, noting there is neither statutory remission nor time off for good behaviour.

[28] I do not propose to review any of the other decisions relied upon by counsel in these Reasons although I have taken all of them into considered. Mr. Amarshi submitted that the cases demonstrate that the nature of the drug in this case - crack cocaine - is aggravating, that trafficking is associated with consequential criminality and that even trafficking in small amounts of crack cocaine attracts a jail sentence.

[29] I do not agree with the last submission as the Court of Appeal has made clear in R. v. Hayes, [2001] O.J. No. 684 and R. v. Kerr, 2001 21142 (ON CA), [2001] O.J. No. 5085, the fact that Mr. Hussein has been convicted of trafficking in crack cocaine does not mean that a conditional sentence cannot be imposed. I must not begin my deliberations with a rule that the circumstances of the case itself must be rare or unusual before imposing a conditional sentence. I recognize that there have been legislative changes, which now prevent a conditional sentence from being imposed in the circumstances of this case, but as these changes do not apply here, I will only consider the guidelines in R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61. The law is also clear that the circumstances of each individual offender and the offence matter and that any range of sentence suggested by the Court of Appeal is to be considered only as a guideline.

Principles of Sentencing

[30] The principles of sentencing are set out in ss. 718, 718.1 and 718.2 of the Criminal Code and s. 10(1) of the CDSA and I am guided by those principles. The specific aggravating factors set out in s. 10(2)(b) of the CDSA have no application as this is Mr. Hussein’s first narcotics conviction.

Determination of a Fit Sentence

[31] I turn then to what is an appropriate sentence in this case. Clearly denunciation and deterrence, both general and specific, are paramount considerations given the nature of the offence. The importance of rehabilitation must also be considered.

[32] There are two aggravating factors as follows:

a) The quantity of crack cocaine; 62.85 grams, is very significant and suggests Mr. Hussein was a street to mid-level dealer.

b) Mr. Hussein is not addicted to crack cocaine and so his purpose in trafficking was for profit. It may be that he was not working and trying to support himself but that, of course, is not a justifiable reason for committing this offence.

[33] Mr. Stastny advised me that Mr. Hussein had received a pardon for his conviction for theft, which was interrupted when he was charged with failure to comply with recognizance. He submitted that, arguably, Mr. Hussein had no record at the time he committed the offence in question. Mr. Amarshi did not challenge the existence of a pardon. In my view, given that the prior offence is not a narcotics offence and is dated, it is not a factor in determining the sentence I ought to impose for the current offence before the court in any event. I will treat Mr. Hussein as a first offender.

[34] Mr. Hussein cannot be penalized for insisting on his right to a trial and raising his defence of lack of knowledge, but he does not get the benefit of a reduced sentence because of a guilty plea. Similarly, since he does not admit this conduct, Mr. Hussein has not expressed any remorse. These are both neutral factors.

[35] The fact that Mr. Hussein has a problem with alcohol and marijuana is not an aggravating factor and Mr. Hussein recognizes that he needs treatment for these addictions. Mr. Stastny submitted that Mr. Hussein’s problems with alcohol and marijuana appear to correspond to his offence dates and might explain his conduct. If that is the case then these addictions must clearly be considered in crafting a sentence for Mr. Hussein that will reduce the risk of his re-offending.

[36] In terms of mitigating factors and the prospect of rehabilitation, the evidence is less clear. Mr. Hussein has some family support, and in particular the support of his cousin Omar, but Mr. Hussein himself feels like an outsider. The support of family will hopefully remain but I would not characterize it as strong, especially as he does not have a close relationship or any relationship with his parents and siblings.

[37] I recognize that in the past it appears that Mr. Hussein has, for the most part, been steadily employed. However, the evidence is not clear now as to how he will support himself. I am concerned that he may remain vulnerable to re-offending if he is not back on track with reliable work. I accept that education and employment will be his goal but whether those goals can be achieved given his current diagnosis is not clear.

[38] Based on the PSR, it does appear that Mr. Hussein is suffering from a mental illness. To the extent the sentence imposed can assist in treating this illness, this is an important consideration. Although Mr. Hussein’s mental illness may be as a result of these charges and the delay in getting to trial, to best reduce the risk that Mr. Hussein might re-offend his mental illness must be addressed.

[39] In my view Mr. Amarshi has taken a reasonable position in advocating for a sentence in this case that is above the range set out in Woolcock. The amount of crack cocaine in this case of 62.85 grams is almost 12 times the amount in Woolcock where a sentence of two years less a day was imposed. It is almost double the amount in Madeiros, a case relied upon by the Court of Appeal in determining the range set out in Woolcock, although I note in that case even though the quantity of crack cocaine was considerably higher than the quantity in Woolcock the sentence imposed was 14 months.

[40] I expect that the Court of Appeal did not intend to suggest, in setting out this range, that at some point the sheer quantity of crack cocaine in an offender’s possession would not push a just sentence beyond two years less a day and into a penitentiary term. That said, there does not appear to be a direct correlation between the quantity of crack cocaine found and the length of the sentence. There is some logic to that as the offence is possession for the purpose of trafficking and that intended purpose is arguably more important than the quantity, at least when dealing with street to mid-level dealers.

[41] Furthermore, it seems that although denunciation and specific and general deterrence warrant emphasis in sentencing for this type of offence, rehabilitation is also an important; see Woolcock at paras. 8 and 19. As the Court in Woolcock stated at:

…shorter sentence is not intended, in any way, to minimize the seriousness of the offence or the need for general deterrence and denunciation of this serious offence. Rather, it is to provide the accused with an opportunity to be rehabilitated while simultaneously learning that this type of crime will not be tolerated. Both the community and the appellant would be better served if the appellant were given the opportunity to re-enter society, deal with his drug use problems and attempt to re-establish himself as a productive member of his community. (at para. 17)

[42] Since this is Mr. Hussein’s first and only narcotics offence and given that his other offence was theft under $5,000 and occurred almost 16 years ago, he comes to this Court essentially as a first offender. Clearly rehabilitation is important in this case. Despite difficult life circumstances Mr. Hussein has largely led a productive life. He completed a high school education, has attempted to further his education and skills and has largely been gainfully employed for a number of years. He did breach his recognizance on two occasions which is a very serious matter but that is somewhat redeemed by the fact that in both cases he completed the term of probation, imposed as part of the sentence, successfully.

[43] I have concluded, primarily given the quantity of the crack cocaine in this case and the absence of strong mitigating factors, that a fit sentence is between two and two and one-half years. However, there are two possible reductions to be considered.

[44] First of all, I must consider whether or not, as a result of Mr. Hussein’s bail conditions and the fact that he has been on bail for over four and one half years, he should get a credit in accordance with the principles in R. v. Downes, 2006 3957 (ON CA), [2006] O.J. No. 555 (Ont. C.A.) at para. 37. The terms of Mr. Hussein’s bail initially were that he reside with his surety and obey a curfew between 11 p.m. and 6 a.m. This was varied in September 2013 when the Crown consented to removal of the curfew condition but he was still required to reside with his surety. Since Mr. Hussein was never under house arrest and there is no evidence that his curfew caused particular hardship, I find the credit should be only a modest one.

[45] Mr. Stastny also referred to R. v. Bosley, 1992 2838 (ON CA), [1992] O.J. No. 2656, a decision of our Court of Appeal where, at p. 10, Doherty J.A. found that excessive delay which causes prolonged uncertainty for an offender but does not reach constitutional limits can be taken into consideration as a factor in mitigation of sentence, referring to R. v. Cooper (No. 2) (1977), 1977 2103 (ON CA), 35 C.C.C. (2d) 35 (Ont. C.A.).

[46] In this case a s. 11(b) Charter application was brought on behalf of Mr. Hussein before Justice McWatt; see R. v. Hussein, [2014] O.J. No. 3093. At that point, June 2014, the total delay was about 31 months and McWatt J. found that 19 months of that delay was due to unjustifiable institutional and Crown delay, which she found was excessive. A trial date had been set for September 2013 but the matter could not be reached, presumably because no judge was available. Prior to the next trial date of February 4, 2014, the s. 11(b) Charter application was brought and so the trial date was rescheduled; I presume for September 21, 2015, when the trial proceeded before me; a further delay of 15 months following the hearing of the application.

[47] In the course of her reasons, Justice McWatt did not accept that Mr. Hussein’s stress was as a result of the delay in the case but found that it was due to the fact he had been charged. McWatt J. found that there was no medical evidence that Mr. Hussein had suffered physically or otherwise as a result of the delay or as a result of his bail conditions and that the delay by that point was not long enough to give rise to inferred prejudice.

[48] I do not know all of the reasons for the further delay of 15 months in this matter coming to trial but I expect that it had a lot to do with this Court’s busy schedule. In any event, I accept that Mr. Hussein is now suffering from a mental illness that may have been caused by being charged in the first place, but presumably has been exacerbated by the four and a half year wait from arrest to conviction. In my view a reasonable reduction in sentence is appropriate.

[49] Given these modest reductions, I have concluded that a fit sentence would be in the range of two years less a day, which means that a conditional sentence is an option that I should consider. In determining whether Mr. Hussein’s sentence should be served in prison, the reformatory or in the community under strict terms including house arrest, the remaining issues then are whether permitting Mr. Hussein to serve his sentence in the community would not endanger the safety of the community; and, that a conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in s.718 to s.718.2 of the Criminal Code.

[50] The Supreme Court of Canada in Proulx confirmed that conditional sentences were introduced by Parliament to reduce reliance on incarceration and to increase the use of restorative justice principles in sentencing (at para. 20).

[51] With respect to determining whether permitting Mr. Hussein to serve his sentence in the community would endanger the safety of the community, the Court in Proulx noted at para. 69:

…two factors should be taken into account: (1) the risk of the offender re-offending; and (2) the gravity of the damage that could ensue in the event of re-offence. If the judge finds that there is a real risk of re-offence, incarceration should be imposed. Of course, there is always some risk that an offender may re-offend. If the judge thinks this is minimal, the gravity of the damage that could follow were the offender to re-offend should also be taken into consideration. In certain cases, the minimal risk of re-offending will be offset by the possibility of a great prejudice, thereby precluding a conditional sentence. (Emphasis added)

[52] Mr. Amarshi submitted that a conditional sentence is not appropriate in this case as although Mr. Hussein has been on bail for a long period of time he has breached his recognizance twice. This would suggest he would have difficulty complying with the terms of a conditional sentence.

[53] I have carefully considered the decision of Justice Hainey in Browne where the quantity of crack cocaine was comparable and Hainey J. concluded that a fit sentence was two years less a day and that a conditional sentence was appropriate. Although the aggravating circumstances in that case are considerably greater in that the offender had a related criminal record, the mitigating factors of family support and opportunity for rehabilitation were more compelling.

[54] One of the two factors that tipped the scale for Hainey J. was that the offender had demonstrated that he had started on the path to rehabilitation by remaining law-abiding for the prior four years. That, unfortunately, is not present in this case although, as Mr. Stastny has submitted, save for those two breaches of his recognizance Mr. Hussein has spent almost five years waiting for trial which is unusual in itself. He has also successfully served 18 months of probation.

[55] This is Mr. Hussein’s first narcotics offence and his two breaches of recognizance were essentially curfew breaches and there is no suggestion that Mr. Hussein was involved in any drug activity on either occasion. In my view, if properly supervised, there is no real risk of re-offence.

[56] Turning to the gravity of the harm that would occur should Mr. Hussein re-offend, trafficking in crack cocaine is a very serious offence that can cause serious harm to the community. The gravity of harm in Mr. Hussein re-offending would be great.

[57] In terms of rehabilitation, there is no doubt in my mind that a conditional sentence would permit me to better address Mr. Hussein’s current mental health difficulties and addictions which in the long run would mean, as the court found in Woolcock, better serve the community and Mr. Hussein and assist him in his efforts to re-establish himself as a productive member of his community.

[58] Although one can never rule out the possibility of re-offending, in all of the circumstances, I am satisfied that Mr. Hussein does not pose any danger to the safety of the community that would preclude him from being a candidate to serve his sentence in the community if this court’s supervision continues and strict supervisory terms are imposed on Mr. Hussein. I trust that Mr. Hussein will appreciate, if a conditional sentence is imposed now, that he will have exhausted his chances for a conditional sentence should he ever re-offend and that if he were to do so while serving a conditional sentence I would likely decide to order that he spend the rest of the time in jail.

[59] The remaining question then is whether a conditional sentence would be consistent with the fundamental purpose and principles of sentencing. Dealing first with general and specific deterrence, which as I already stated warrant emphasis given the nature of these offences, as Chief Justice Lamer in Proulx stated:

The stigma of a conditional sentence with house arrest should not be underestimated. Living in the community under strict conditions where fellow residents are well aware of the offender's criminal misconduct can provide ample denunciation in many cases. In certain circumstances, the shame of encountering members of the community may make it even more difficult for the offender to serve his or her sentence in the community than in prison.

Incarceration, which is ordinarily a harsher sanction, may provide more deterrence than a conditional sentence. Judges should be wary, however, of placing too much weight on deterrence when choosing between a conditional sentence and incarceration. The empirical evidence suggests that the deterrent effect of incarceration is uncertain. Moreover, a conditional sentence can provide significant deterrence if sufficiently punitive. (at paras. 105-107)

[60] Watt J.A. reiterated this in R. v. Jacko, 2010 ONCA 452, [2010] O.J. No. 2583 (Ont. C.A.) at para. 71, where he referred to this passage from Proulx and stated that depending on the severity of the conditions imposed, a conditional sentence can achieve both punitive and restorative sentencing objectives.

[61] This is a difficult and close case. I have concluded that the most compelling factor in favour of a conditional sentence is the fact that Mr. Hussein’s mental health difficulties and his addiction problems could be better addressed by a lengthy conditional sentence and a term of probation and that by having him under this court's supervision for another three years or so, it does not seem likely that he would re-offend.

[62] For these reasons, on balance, in all of the circumstances, I have decided to impose a conditional sentence of two years less a day with a lengthy period of house arrest in addition to a term of probation for one year having obtained Mr. Hussein’s consent, before imposing sentence, to the terms of the conditional sentence order that require him to continue with treatment for his mental illness and his addictions (see paragraph 66 (7) and 66(8) below). I hope that by permitting Mr. Hussein to remain out of custody he will not risk his freedom by breaching any of the terms of my order or by falling back on this illegal activity in order to make money.

[63] By imposing a conditional sentence, I in no way intend to minimize the seriousness of this offence. The fact Mr. Hussein will remain under court supervision for another three years will reduce any risk to the community of his re-offending. Although a conditional sentence may be considered a more lenient sentence than an equivalent jail term, Mr. Hussein must appreciate that incarceration will likely result if any of the conditions are breached. I am confident that the lengthy period of court supervision and the stringent conditions I have decided to impose will deter not only Mr. Hussein but also others from committing this type of offence.

Final Disposition

[64] Mr. Hussein would you please stand.

[65] With respect to Count #1, the conviction for possession of crack cocaine for the purpose of trafficking, I impose a sentence of two years less one day to be served in the community subject to your complying with the following mandatory and optional conditions pursuant to s. 742.3 of the Criminal Code:

1. keep the peace and be of good behaviour;

2. appear before the court when required to do so;

3. report to a supervisor by Monday, March 7, 2016 and thereafter when required by the supervisor and in the manner directed by the supervisor;

4. remain within Ontario unless written permission to go outside of Ontario is obtained from the court or the supervisor;

5. notify the court or the supervisor in advance of any change of name or address and promptly notify the court or the supervisor of any change of employment or occupation;

6. for the first 18 months of this order, you shall reside at an address approved of in writing by the supervisor or the court, under house arrest 24 hours per day, seven days per week, and not leave your home at any time except for the following reasons:

a) court attendances and reporting to your supervisor;

b) attendance at medical or therapy appointments for treatment of your mental illness as directed by your family physician and psychiatrist;

c) attendance at any treatment program(s) for drug or alcohol addiction as recommended by Dr. Turner or the supervisor;

d) attendance at a place of employment and/or school or for employment purposes provided Dr. Turner approves of your employment/school as specified in 9) below;

e) attendance at other scheduled medical or dental appointments;

f) dealing with any medical emergency affecting you;

attendance at a religious institution for the purpose of worship every Friday;

g) a four hour period weekly, the precise time to be agreed upon by your supervisor during which time you may attend to personal matters such as banking, purchase of groceries and running household errands;

h) travel directly to or from any of these activities; and

i) at any other time with the prior written permission of the supervisor.

7. Continue to see your family doctor, Dr. Suzanne Turner, as often as required by her, and attend for any other treatment for your mental illnesses and/or addictions as directed by Dr. Turner, including attending for appointments with a psychiatrist that she has referred you to. Take all medication(s) as prescribed by Dr. Turner or any psychiatrist or anyone else who is treating you at her request, including for the treatment of your post-traumatic stress disorder and paranoid ideation, and sign consents to release such information as may be required to monitor your compliance with this condition when requested by the supervisor;

8. Attend and actively participate in any treatment program(s) for drug or alcohol addiction as recommended by Dr. Turner or the supervisor and sign consents to release such information as may be required to monitor your compliance with this condition when requested by the supervisor;

9. Make reasonable efforts to seek and maintain suitable part time or full time employment unless you are enrolled as a part time or full time student in school or in an apprenticeship program to learn a skilled trade. The amount of time spent working or in school depends upon the time needed for treatment and the advice of Dr. Turner;

10. Abstain from the purchase, possession or consumption of any drugs or drug paraphernalia or other substances prohibited by law except in accordance with a medical prescription;

11. Abstain from owning, possessing or carrying any weapon including any offensive weapon, ammunition, explosive substance or weapon as defined in the Criminal Code;

12. Do not have any contact with, or be in the company of, or associate with, anyone known to have a criminal record or who is the subject of criminal charges unless a family member;

13. Permit Peace Officers or your supervisor or designate, to knock at the door of your residence at any time between 6 a.m. and 12 midnight of any day throughout your sentence for the purpose of ensuring your compliance with the conditions of this sentence;

14. When you are absent from your residence carry with you a copy of your conditional sentence or probation order and produce it on demand to any Peace Officer.

[66] For the remainder of your conditional sentence, you shall obey a curfew and be in your place of residence each and every night between the hours of 10:00 p.m. and 6:00 a.m., subject to any special variation granted in writing by your supervisor, subject to a medical emergency affecting you.

[67] After your conditional sentence of two years less a day, there will be a term of probation of 12 months on the same terms that govern your conditional sentence save for the substitution of a probation officer for a supervisor, to whom you must report within two business days of the end of your conditional sentence order, and you will no longer be under house arrest and you will have no curfew.

[68] In addition, there will be a mandatory weapons prohibition order pursuant to s. 109(1)(c) of the Criminal Code for ten years.

[69] Finally there will be an order forfeiting the cocaine seized at the time of your arrest pursuant to s. 491(1) of the Criminal Code.

[70] I ask that Mr. Stastny provide a copy of this decision to Dr. Turner and draw her attention to the terms of Mr. Hussein’s conditional sentence order where I have asked for her assistance.

[71] Mr. Hussein, a copy of this conditional sentence order will be given to you by the court officials and it will be interpreted for you. Along with your counsel, they will ensure that the substance of the relevant sections of the Criminal Code, which deal with the procedure for amending the non-statutory conditions and the procedure on any breach of condition, are explained to you regarding the conditional sentence. They will also give you a copy of the probation order and ensure that the relevant sections of the Criminal Code are explained to you. Please pay very careful attention to all of these conditions and this information.

[72] Mr. Hussein, I must tell you that breach of any of these conditions will be taken very seriously by this Court. Our courts have said that if there is a breach of a conditional sentence order, the judge should start with the presumption that you serve the rest of the time in jail. You must, therefore, appreciate that incarceration will likely result if any of the conditions of your conditional sentence are breached. I hope that the conditions that I have imposed will bring home to you the seriousness of your conduct, and assist you in dealing with your mental illness and continuing as a productive and law-abiding member of our community.

SPIES J.

Date: March 3, 2016

Edited Decision Released March 4, 2016