Her Majesty The Queen v. Emanuele Tesfai, 2016 ONSC 2712

DATE: 20160427 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN Ryan Wilson, for the Crown

• and -

EMANUELE TESFAI Bella Petrouchinova, for the Defendant

Reasons for Sentence Trafford J.

THIS IS AN OFFICIAL COPY OF THE REASONS FOR SENTENCE THAT MAY BE USED FOR AN APPEAL IF IT IS SIGNED IN ORIGINAL BY TRAFFORD J.

A. Introduction

On December 18, 2015, Emanuele Tesfai was found guilty of two counts of conspiring with Yasin Hassan Hersi to traffic in narcotics in September 2011, marijuana and cocaine, after a trial by judge alone.

This is the sentencing of the defendant.

B. The Circumstances of the Case

Let me begin with the circumstances of the case as found by the court, keeping in mind that aggravating circumstances must be proven beyond a reasonable doubt. See R. v. Gardiner (1982), 68 C.C.C. (2d) 477 (SCC). Any other fact must be proven on a balance of probabilities. See s. 724(3)(d) of the Criminal Code (the “Code”).

Both Hersi and Tesfai were drug dealers, in cocaine and marijuana, who, prior to September 2011, had their own clients and suppliers of the drugs. Aside from what is alleged in this case, their drug enterprises were independent of one another. Both of them knew one another. Both of them knew the other was a drug dealer. Both of them were motivated to buy and sell drugs for themselves. The exact nature and extent of their enterprises has not been proven.

In September 2011, Hersi and Tesfai knowingly and intentionally agreed to service Hersi's customers. The defendant provided, directly or indirectly, some cocaine and some marijuana upon some requests by Hersi. The completion of the intended sales was largely Hersi's task but, at times, Tesfai played a role in the intended sale. On one occasion he agreed to meet a customer and sell cocaine to him. On another occasion, he agreed to deliver some marijuana to Hersi and sort out the problems Hersi had in completing the sales to the customers. Hersi provided a continuing market for some of the cocaine and marijuana provided by or through the defendant, at Hersi's request. Both of them benefitted from this enterprise, financially or otherwise, but the extent of those benefits has not been proven. There is no evidence of what Hersi did in connection with the agreement with the defendant. Aside from the continuation of their common enterprise, there is no evidence that any cocaine or marijuana was actually delivered to Hersi by or through Tesfai. No drugs, drug paraphernalia or proceeds of drug crimes were found by the TPS in the defendant's possession.

These, then, are the circumstances of the case as found by the Court.

C. The Background of Tesfai

The defendant is 40 years old. He was born in Nova Scotia. He was one of five children born out of the relationship between his mother, Atlas Semere, and his father. They were divorced when the defendant was 5 years old. The absence of his father, or a father equivalent, led to a disrupted childhood and, eventually, several convictions under the Code.

The defendant has a criminal record. In the Youth Court in Halifax, between March 1990 and June 1993, he was found guilty of seven crimes, three of which were property oriented crimes, two of which were assaults, of which one involved a weapon, one of attempting to obstruct justice and one of failing to comply with a disposition under the Young Offenders Act (YOA). The sentences for those crimes ranged from probation to incarceration, up to 3 months in open custody. He was on probation from December 1991 to about March 1995. He was prohibited from possessing firearms, ammunition and explosive substances for 20 years in June 1993. From March 1996 to June 1996 he was convicted in Adult Court in Halifax of possession of a narcotic for the purposes of trafficking, living off the avails of prostitution and breach of a recognizance, for which he was sentenced to, respectively, 18 months, 18 months consecutive and 30 days consecutive. Lastly, in February 2015 he was granted a conditional discharge for 12 months upon a plea of guilty to dangerous driving in Toronto. He was on bail for the offences before this court when the alleged dangerous driving occurred in January 2014.

The family moved to Toronto in 1998. Since then, the defendant was employed and volunteered in many organizations set up to help disadvantaged youth. Since 2004 he has been employed by Bell Technical Solutions Inc. as a technician. He has the status of a regular full-time employee who works 80 hours over a 2-week period.

In 2011 the defendant's relationship with his wife ended. It was a devastating experience for him. He found her in bed with another man. The consequential feelings of betrayal, shame and anger overwhelmed him. He responded irrationally by immersing himself into a life of partying and irresponsible spending of his limited financial resources. This lifestyle led to associating with some of his brother's friends from jail, and others such as Hersi and Mukhtar Jama in the crimes before this court. By the end of 2012 the emotional turmoil caused by the divorce had subsided to a more manageable level.

However, in August 2013 the defendant experienced another crisis. His brother committed suicide, by jumping from the balcony of the defendant's condominium. His brother suffered from a mental illness, apparently depression and bipolar disorder, which disrupted him and others close to him throughout his life. That disruption included several periods of incarceration and relationships with people immersed in the criminal subculture. The defendant felt guilty about his brother's death and what he believed was an unsatisfactory response on his part to his brother's life-long crises. He was diagnosed with a severe psychological disorder in December 2013 by Dr. Lee. Thus, he completed an 8 week course at the Toronto Distress Center, one-on-one counselling, followed by further 8 weeks of related therapy. He also receives therapy from a psychiatrist, every 6 to 8 weeks. All of this therapy has helped him.

There were several letters filed with the court that described the defendant's relationship with his immediate relatives. Let me quote parts of them.

The defendant's letter said, in part:

First and foremost, I am a proud father of my two sons. They are my life. I have watched one grow into a man and am raising a 6 year old as well. In addition to raising my sons, I am responsible for helping my disabled mother with her daily activities, such as grocery shopping, taking her to doctors appointments and also assist her with raising my nephew and niece. I am very involved with all my nieces and nephews in all aspects of their lives, especially for those whom do not have a father figure in their lives. I understand firsthand how it is to be raised without a father and would not want a child to have to go through the same, the yearning of an absent dad. Therefore I make sure to be involved in their education, careers, activities and everything else for my siblings, my nieces, nephews and especially my sons.

Getting charged has caused me to live with an anxiety, depression and uncertainty for the past 4 years and 4 months not knowing if I will be taken away from my kids and all (those) who need me to provide for them, whether I'm going to lose my career of 12 years with Bell Canada, what is going to happen to my property (condo) how will the mortgages and condo fees be pay. Just the thought of losing it all is depressing, the thought of not being here for my mom and supporting in her time of need is heartbreaking (I lost a brother which shuttered me, she has lost a son and I can only imagine the pain she suffering as a parent).

This was complemented by his mother's letter. Atlas Semere said, in part:

I am deeply sadden that this day has arrived and fearful of what may be the outcome, the possibility of my only living son being locked-up and the havocs will cause our whole family starting with me which I heavily depend on him for the day to day care of me and support he provides my grandkids with all aspect of their lives (i.e. education help, moral, general life support). His two kids would be devastated as he been there all their life and sole provider, care giver for the past five years ever since he endured the harsh break-up with his wife Stephanie (2011) that crushed his life, sending him down to a spiral reckless behaviour of binge drinking, purchasing a motor bike and driving it which was clearly not his character as he was a big advocate of its danger and how he forbid his son, brother, and sisters never to ride one or be ridden in one as to not put their lives at risk.

The defendant's older son, Emanuele Tesfai II, who is 20 years old, said:

In my nearly (20) twenty years of existence my father has been the centre of my gravity, he has thought me all I know and still learn from his wisdom of good morality, one that believes in respecting all people, guide those that can't see, be the voice of those that can't speak, stand up for the sick and weak, feed those that can't feed them self. He is down to earth caring and nurturing person, the type of person that puts other before himself, which I witness this first hand every day.

In a similar spirit, his sister, Hirti Tesfai, said:

I would like to tell you about my brother, Emanuele, he is a caring brother, son, uncle and father. My brother has been there when I need him whether it is emotional support or physically helping where he shows up within minutes when I need him to help me or my daughter. I am a single mother and he has been a great support to my daughter and myself. We are in contact daily. All my sisters do call on him for any support they need. Emanuele is everything to me and to my daughter and I hope he would be given community service because we rely on him daily.

His niece, Christiana Tesfai, made some similar observations, as follows:

My uncle has been there for my entire twenty-one years of life, he is the only grown male figure in the family since the passing of my other uncle, his older brother. He takes us to parks, movies and shopping. We have fun with my uncle. The entire family looks to him as our back bone someone there to talk to when you need him and always being there showing his support and look out for everyone.

Clearly, the defendant is loved and respected by those people are closest to him. He is regarded as a vital, integral part of their lives, respected, admired and appreciated. At the same time, the defendant presently regards those same people as the most important aspect of his life, and has so regarded them for years. The relationships with them are the core of his life, his hopes, his sense of worth, his purpose in life. He loves them, and does what he can to help all of them in whatever way he can.

The defendant has not spent any time in pretrial custody on these charges. There were no onerous terms and conditions to his bail.

D. The Principles of Sentencing

Under s. 718 of the Code, 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 a just sanction. Any such sanction must, looking at the case as a whole, be the result of a fair and balanced consideration of the need to:

• denounce the unlawful conduct;
• deter the offender, and others, from committing such an offence;
• separate the offender from society, where necessary;
• assist in the rehabilitation of the offender;
• provide reparation for harm done to "victims", or the community; and
• provide a sense of responsibility in the offender, while acknowledging the harm done to the "victims" and the community.

Section 718.1 of the Code requires the sentence to be proportionate to the offence and the degree of the offender's responsibility. An offender is not to be deprived of his liberty if less restrictive sanctions may be appropriate in the circumstances of the case. All available sanctions other than imprisonment that are reasonable in the circumstances must be considered for all offenders.

E. The Analysis of the Case

E.1 Introduction

What, then, is a fit sentence in the circumstances of the case?

E.2 The Position of the Crown

The position of the Crown is that a period of 18 months incarceration is a fit sentence in the circumstances of the case, when complemented by a period of two years probation and the ancillary orders under s. 109(2) of the Code for 10 years and s. 487.051 of the Code. In taking this position, the Crown emphasized several aspects of the case. The defendant is a lower to mid-level dealer of cocaine and marijuana. He was motivated by financial gain. Cocaine is a dangerous drug. The defendant is not addicted to any illicit drugs. He has a significant criminal record. The stressors in his life, including the divorce and the suicide by his brother, do not, in themselves, cause such drug enterprises as were proven in this trial. Principles of general and specific deterrence cannot be satisfactorily emphasized through the conditional sentencing regime advocated by the defence. Reference was made to R. v. Woolcock, R. v. Hamilton, 2004 ONCA 5549, R. v. Schreinert, 2002 ONCA 44932, R. v. Giroux, 2006 ONCA 10736, R. v. Tahal, 1999 ONCA 2517 and several cases in this court that rejected conditional sentencing orders in their circumstances, such as R. v. Murray, R. v. Nicol, R. v. Lee, 2015 ONSC 3430 and R. v. Nguyen. Those cases should lead the court to sentence the defendant to 18 months in jail, especially having regard for the sentences of some other people involved in the same series of events, in the submission of the Crown.

E.3 The Position of the Defence

On the other hand, the defence takes the position that in all of the circumstances of the case a conditional sentence order under s. 742.1 of the Code is a fit sentence, because its terms and conditions will provide a significant measure of general and specific deterrence. Such a measure can be achieved through conditions like those relied upon by the court in R. v. Burnett, 2013 ONSC 5536 (Spies J.), R. v. Luu, 2015 ONSC 4616 (Forestell J.) and R. v. Holmes, 2014 ONSC 2986 (Hill J.). The deterrent value of house arrest, for example, was recognized by R. v. Proulx, 2000 SCC 5 and R. v. Jacko, 2010 ONCA 452. The defendant's criminal record is a very dated one. He has lived a normal, law-abiding life since 1996 until he experienced the crises related to his divorce and his brother's suicide. The circumstances of this case and the dangerous driving in January 2014 are in the nature of an out-of-character series of events. The emotional scars of the defendant's early years in Nova Scotia cannot be completely cured through any course of therapy. Much like a drug addict lives with the addiction for the rest of his life, a person with such emotional scars lives with that vulnerability. To incarcerate the defendant now, even for a serious case like this one, creates a serious risk of undoing what he has achieved since 1996 and sending him into another phase of conflict with the law. He is not a danger to the community. A fit sentence will permit him to serve the incarceral period in the community, especially where it is complemented by a 2 year period of probation and the ancillary orders advocated by the Crown, in the submission of the defence.

E.4 The Availability of a Conditional Sentence

E.4.1 Introduction

Under s. 742.1 of the Code, where the sentence of imprisonment is less than 2 years, the court may order that the defendant serve the sentence in the community if the court is satisfied, first, that such service of the sentence would not endanger the safety of the community and, second, that such service of the sentence would be consistent with the fundamental purpose and principles of sentencing in s. 718 to 718.2 of the Code. Some conditions to such an order are mandatory under s. 742.3(1). Other conditions are within the discretion of the court under the rest of 742.3.

In Proulx, Lamer CJC observed that a conditional sentence can provide general and specific deterrence. At paras. 105 and 107 the court said:

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: see Wismayer, supra, at p. 36. The empirical evidence suggests that the deterrent effect of incarceration is uncertain: see generally Sentencing Reform: A Canadian Approach, supra, at pp. 136-37. Moreover, a conditional sentence can provide significant deterrence if sufficiently punitive conditions are imposed and the public is made aware of the severity of these sentences. There is also the possibility of deterrence through the use of community service orders, including those in which the offender may be obliged to speak to members of the community about the evils of the particular criminal conduct in which he or she engaged, assuming the offender were amenable to such a condition. Nevertheless, there may be circumstances in which the need for deterrence will warrant incarceration. This will depend in part on whether the offence is one in which the effects of incarceration are likely to have a real deterrent effect, as well as on the circumstances of the community in which the offences were committed.

The amount of deterrence provided by a conditional sentence is dependent upon the defendant's circumstances, the substance of the conditions and the nature of the community he lives in. An increase in the severity of the offence and the need for deterrence may lead to a longer sentence with more onerous conditions. However, in some cases actual incarceration will be required to meet the principles of sentencing prescribed by the Code. See also Jacko at para. 71 where Watt J.A. said that "…depending upon the severity of the conditions imposed, a conditional sentence may nonetheless be reasonable even where denunciation and deterrence are the predominant sentencing objectives…".

In September 2011, a conspiracy to traffic in marijuana or cocaine was not an excluded offence under subsection (e). The maximum sentence for such conspiracies was life imprisonment. There were no minimum sentences for such crimes then.

E.4.2 The Imprisonment in this Case

Trafficking in narcotics, such as cocaine, is a serious crime, especially where it is undertaken for commercial purposes. See Woolcock at para. 17. The severity of such criminal activity will vary with the nature of the defendant's involvement in such trafficking, the quantity of the cocaine, the amount of profit gained through the business and all of the other circumstances pertinent to the determination of a fit sentence. A conspiracy to traffic in cocaine may be a more serious crime depending upon the level of the commercial system occupied by the defendant, such as its manufacture, distribution or sale at the retail level.

Having regard for the circumstances of this case and the defendant's background, a significant sentence in the reformatory is required to protect the public interest and otherwise give effect to the principles of sentencing. The amount of cocaine and marijuana in the defendant's conspiracy have not been proven. But, the defendant created a continuing enterprise that showed no signs of ending but for the arrests in this and some related cases. That same enterprise was conducted without any regard for the significant risks cocaine creates in the lives of the users of cocaine, and the communities those people live in. In my view, a fit sentence is in the range of 18 months to 2 years less a day.

E.4.3 The Danger of Tesfai in the Community

However, in all the circumstances of this case, the service of that sentence in the community will not endanger the safety of the community, if it is governed by strict terms and conditions of a punitive and rehabilitative nature.

The defendant's criminal record in the 1990's shows significant departures from the norms of the community, on the one hand, and, on the other hand, the tragic consequences that may follow a broken marriage. Assaults, with or without a weapon, possession of a narcotic for commercial purposes, the exploitation of women through prostitution and the failure to comply with court orders or otherwise interfere with the administration of justice, some of which led to a sentence served in the penitentiary, show the defendant's disregard for other people and the need for paternal or some other guidance in his life. His father left when he was 5 years old. His mother, to her credit, apparently did her best to raise 5 children. One of those children had a serious mental illness at some stage not proven in this trial. However, as observed by the Crown Attorney, such familial hardship does not necessarily lead to any crimes, let alone the serious crimes committed by the defendant. But for the gap in the defendant's criminal record, a period of almost 20 years, and the defendant's good conduct during that gap, his criminal antecedents and the circumstances of this case would lead me to conclude the service of the sentence in the community would endanger the safety of the community.

However, as I mentioned in my review of the defendant's background, his life has turned around since 1998 when his mother brought her children to Toronto. He has been gainfully employed by Bell Technical Services Inc. since 2004. He has volunteered with several organizations set up to help disadvantaged people. He loves his family, and is loved by his extended family. He is the cornerstone of its stability in many important respects. But for the emotional devastation he experienced through his divorce in 2011 and his brother's suicide in 2013, he likely would have continued such a lifestyle. As a person who experienced a difficult upbringing, he is emotionally vulnerable. The scars of yesterday can become the wounds of today. As a drug addict must be on guard against relapse every moment of every working day, people who have experienced serious emotional trauma, psychological disorders or mental illness may be similarly vulnerable. The defendant is one such person. To his credit, he has recognized that vulnerability through the counselling and other forms of therapy that have helped him. He recognized the need for such therapy. He has participated in the prescribed therapy. He has succeeded, in part, by re-establishing the core of his affected health. The crimes before this court were the result of the defendant's emotional disintegration that came upon him when he discovered his wife's disloyalty to him. He sought out what he regarded, incorrectly and without adequate thought, as a substitute for the emotional comfort of a loving marital relationship. This led to, amongst other misbehaviour, relationships with some criminals he knew through his mentally ill brother. The defendant now appreciates these errors in judgement, and his vulnerability. To incarcerate him now would be to undo all that he has achieved since 1996 and lead to further crises in his life. Incarceration would likely lead to more relationships with people in the criminal subculture, the loss of his job, the loss of his residence and some emotional turmoil caused by the absence of the relationships he presently enjoys with his extended family. See Woolcock at para. 13.

For those reasons I am satisfied that the service of the defendant's sentence in the community will not endanger the community and is otherwise compatible with the principles of sentencing in the Code. With appropriate terms and conditions, the CSO will provide the specific and general deterrence and denunciation required in such drug enterprises. It will be proportionate to the gravity of the offences and the degree of the defendant's responsibility for them, legal and moral. It will provide a sense of responsibility to the defendant, and engender in him a sense of worth, a belief in his ability to get his life back on its rails. This approach, in this case, will engender public confidence in the administration of justice, amongst those reasonable people who know the governing legal principles and assess this case objectively.

E.4.4 Conclusion

Thus, the defendant's sentence is 2 years less a day, on each count, concurrent, to be served in the community, on conditions that I will describe shortly, followed by a period of probation for 2 years. Ancillary orders will also be issued under s. 109 of the Code and s. 487.051 of the Code.

E.5 The Terms and Conditions to the Order

The terms and conditions of the CSO will be as follows:

• the mandatory conditions prescribed by s. 742.3(1), which in this case will be to:
  • keep the peace and be of good behaviour;
  • appear before the court when required to do so by the court;
  • report to a supervisor within 2 days of this order, and thereafter when required, and in the manner directed, by the supervisor;
  • remain within Ontario unless written permission to leave Ontario is obtained from the court or the supervisor before any such departure; and
  • notify the court or the supervisor in advance of any change of name, address, employment or occupation;
• the optional conditions under s. 742.3(2) are as follows:
  • remain within your residence at all times, 24 hours per day, 7 days per week for one year except for the following reasons:
    • attendances at court and to your supervisor, and any related consultations with counsel;
    • attendance at your place of employment;
    • attendance at any scheduled medical appointments for yourself;
    • dealing with any medical emergency for yourself;
    • dealing with any necessities of life, such as banking, purchase of groceries or other household tasks, as agreed upon with your supervisor, but for a total period of no more than 5 hours per week;
    • visiting, socializing with or otherwise helping Atlas Semere, Emmanuele Tesfai II, Emanuele Tesfai III, Hirti Tesfai, Christina Tesfai and any other relative approved by the supervisor, at times and locations and in circumstances otherwise acceptable to the supervisor, as approved by the supervisor in writing in advance;
• refrain from the use of any drug except as prescribed by a medical doctor;
• refrain from the consumption of any alcoholic beverage, or other intoxicating substance, except where such consumption is in accordance with the written directions of the supervisor;
• refrain from the "possession" of any "weapon", as those terms are defined under the Code;
• refrain from communicating or otherwise associating, directly or indirectly, with Yasin Hassan Hersi and Mukhtar Jama, and any person known to have a criminal record, known to be facing a criminal charge before the courts or known to be involved in any circumstances that may be a criminal offence;
• participate, in good faith and with reasonable diligence, in any counselling or therapeutic sessions, as directed by the supervisor in consultation with a medical doctor acceptable to you;
• have in your custody a copy of this CSO at all times when you are outside of your residence and produce it to a police officer for inspection upon any good faith request by the police officer;
• present yourself at the door of your residence at any time between 6 a.m. and 12 midnight when a police officer knocks on the door, identifies himself as a police officer and announces his purpose as checking for compliance with this order; and
• sign any consents required by the supervisor in order to ensure compliance with the counselling and therapy conditions of this order.

There will not be any curfew for the remainder of the CSO after the first 12 months. Aside from the house-arrest condition, all of the other conditions will be in effect until the CSO expires.

However, thereafter, the defendant will be on probation for two additional years. All of the mandatory conditions of the CSO will be included in the probation order, except that the word "supervisor" will be deleted and the words "probation officer" will be substituted for it. There will be no house arrest or curfew under the probation order. All of the other conditions of the CSO will be conditions to the probation order, again with the substitution of the term "probation officer" for the term "supervisor", because they are intended to, and likely will, have a rehabilitative effect on the defendant.

An order will be made under s. 109 of the Code prohibiting the defendant from possessing any firearms, ammunition, explosive substances or other items referred to in that section for 10 years.

An order is also made under s. 487.051(4) of the Code authorizing the taking of bodily samples from your suitable for a DNA analysis.

E.6 Conclusion

In conclusion, the combined result of the CSO and the probation order is that the defendant will be supervised and otherwise under the control of the court for about 4 years. This regime will care for the public interest in this sentence, including the defendant's compliance with its conditions and the ability of the court to enforce these conditions, if the defendant breaches any of them.

F. Conclusion

This sentence in my view gives a practical and measured effect to the sentencing principles of the Code, having regard for the circumstances of the case as found by the court. The conditions to the CSO are punitive yet consistent with the rehabilitative interests of the defendant. The duration of the CSO recognizes the severity of the defendant's crimes. The sentence promotes a sense of responsibility in the defendant, while acknowledging his vulnerability and supporting him in the transformation of his life since 1996. It acknowledges the harm such drug enterprises do to the community, the devastation incidental to the use of cocaine. It is proportional to the gravity of the crime and the moral and legal responsibility of the defendant, as proven in this court under Gardiner. Objectively viewed, this sentence is in the public interest and the tradition of sentencing in Canada.

A copy of the CSO and the probation order are to be given to the defendant, together with an explanation of the procedure to change their conditions. Any breach of any condition of the CSO may lead to the arrest of the defendant and another hearing about this sentence.

Similarly, any breach of the probation order may lead to a conviction for breach of probation and, if appropriate, a jail sentence.

April 27, 2016 Trafford J.

THIS IS AN OFFICIAL COPY OF THE REASONS FOR SENTENCE THAT MAY BE USED FOR AN APPEAL IF IT IS SIGNED IN ORIGINAL BY TRAFFORD J.