COURT FILE NO.: CR-13-90000562-0000 DATE: 20160602 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN Elizabeth Bellerose for the Crown

• and -

JUSTIN YOUNG Gregory Lafontaine for Mr. Young

HEARD: March 18, 2016.

REASONS FOR SENTENCE CORRICK J. (orally)

Introduction

[1] Following a trial, I found Mr. Young guilty of possession of cocaine for the purpose of trafficking and possession of proceeds of crime. On October 30, 2012, police observed Mr. Young engage in a hand to hand drug transaction. They arrested him and found him in possession of 56 grams of crack cocaine.

[2] Mr. Young appears before me today for sentencing. Ms. Bellerose, on behalf of the Crown, seeks a custodial sentence of three years less the time Mr. Young spent in pre-trial custody. She also seeks a weapons prohibition order pursuant to s. 109(1)(a) of the Criminal Code for life, a DNA order pursuant to s. 487.05(1) authorizing the taking of a DNA sample, and a forfeiture order for $5.00.

[3] Mr. Lafontaine, on behalf of Mr. Young, submits that a conditional sentence, or a conditional sentence for the cocaine charge followed by a brief custodial sentence for the possession of proceeds charge, is appropriate.

Legal Parameters

[4] On October 30, 2012, the day that these offences were committed, possession of cocaine for the purpose of trafficking was punishable by a maximum of life in prison: s. 5(3)(a) Controlled Drugs and Substances Act. Possession of proceeds of crime with a value not exceeding $5,000 was punishable by a maximum of two years in prison when prosecuted by indictment: s. 355(b) Criminal Code.

Circumstances of the Offender

[5] Mr. Young is 34 years old. He has been in a common-law relationship with Courtney Gagne for the past seven years. Together they have a five-year-old daughter. Ms. Gagne has three other children from a previous relationship, who live with her and Mr. Young. Mr. Young also has a 14-year-old son from a previous relationship. It is clear from the letters written by Courtney, Gabrielle and Alanna Gagne, Mr. Young’s spouse, mother and sister-in-law, that he has developed a close and strong relationship with this family.

[6] Since Mr. Young’s release from custody on November 8, 2012, he has been subject to very strict house arrest bail conditions. For all but six months of that time, he was prohibited from leaving his residence for employment. He has spent the last 40 months or so being the primary caregiver of his children, as Ms. Gagne is employed full time.

[7] Mr. Young has a grade 11 education. He has previously worked in the construction industry as a labourer. In September 2014, he purchased a truck and started a trucking company with his father, known as Young & Son’s Logistics. He has hired a driver, who hauls dry cement across the eastern seaboard. He hopes to expand this business in the future. He also enrolled in an on-line real estate investment course while he has been on bail.

[8] Mr. Young has a lengthy and serious criminal record that begins in 1996, when he was fourteen years old. He has been convicted on fourteen occasions for a total of 29 offences. His record includes convictions for theft, break and enter, armed robbery, forcible confinement, possession of firearms, failure to comply with a recognizance and drug offences. In 2012, he was convicted of possession of marijuana and cocaine for the purpose of trafficking. In 2001, he was sentenced to five years in the penitentiary for armed robbery, disguise with intent and forcible confinement. He has twice been recommitted for violating the conditions of his statutory release, and he has been convicted of three counts of failing to comply with a recognizance.

[9] On March 5, 2012, he was convicted of possession of marijuana and cocaine for the purpose of trafficking and given a ten-month prison sentence. These offences were committed seven months later.

Principles of Sentencing

[10] In determining a fit sentence, I am bound to consider the sentencing principles set out in the Criminal Code.

[11] The fundamental purpose of sentencing, as set out in s. 718 of the Criminal Code, is to "contribute, along with crime prevention measures, to respect for the law and the maintenance of a just, peaceful and safe society" by imposing sentences that have one of the following six objectives:

1. denouncing unlawful conduct;
2. deterring the offender and others from committing crimes;
3. separating offenders from society where necessary;
4. assisting in the rehabilitation of the offender;
5. providing reparations for harm done to the victim or to the community and promoting a sense of responsibility in the offender; and
6. acknowledgement of the harm done to victims and the community.

[12] Any sentence I impose must be proportionate to the gravity of the offence and the responsibility of the offender: s. 718.1 of the Criminal Code.

[13] Keeping in mind the purposes of sentencing, I am also required by s. 718.2 to consider the following principles when imposing a sentence in this case:

• the sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender;
• the sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;
• offenders should not be deprived of liberty if less restrictive sanctions are appropriate; and
• all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders.

[14] I agree with Ms. Bellerose that the predominate sentencing principles that I must consider in this case are denunciation and deterrence.

[15] I turn now to the aggravating and mitigating factors of this case. The following are the aggravating features of this case.

1. Mr. Young has been found guilty of possession of cocaine for the purpose of trafficking. Crack cocaine is a highly addictive, insidious drug that wreaks havoc on the lives of addicts, their families and the larger community.
2. Mr. Young is not a drug addict selling crack to support a crack habit. He was engaged in the drug trade for financial gain.
3. The amount of crack Mr. Young possessed was significant – 56 grams or two ounces. Its value was between $2,000 and $11,000, depending on how it was sold. This is not a case of a street-level dealer. I am unable to infer from the evidence, as Mr. Lafontaine suggested, that Mr. Young was simply a courier.
4. Mr. Young is a mature man with a lengthy and serious criminal record, which includes crimes of violence and a conviction in 2012 for the same offence. His sentence for that offence had not expired when he committed these offences.

[16] I have also considered the following mitigating factors:

1. Mr. Young enjoys the support of a close and loving family. His spouse has attended court with him every day. She and his mother and sister-in-law have submitted letters evidencing their support for him.
2. Aside from the 63 days Mr. Young spent in custody as a result of breaching his recognizance, he has been subject to onerous house arrest conditions of bail since November 8, 2012. For most of that time, Mr. Young has not been permitted to work, or even be at home without his surety present unless he was caring for his children. I will have more to say about this shortly.
3. There have been some positive developments in Mr. Young’s life since his arrest in 2012. The letters from his family speak of the positive changes in Mr. Young’s attitude and life over the past 3½ years. As a result of his bail conditions, he has been forced to focus on his family and the care of his children. He has distanced himself from negative peers. He has started a business and begun making plans for the future.

[17] I am also required to consider sentences imposed on similar offenders for similar offences committed in similar circumstances. I turn to that now.

[18] I have carefully reviewed the decisions to which Mr. Lafontaine and Ms. Bellerose have referred me in support of their positions. Although the cases assist me in determining the governing principles that must guide my decision, a careful review of them demonstrates that sentencing is not a precise science. Instead, it is a profoundly individualized process driven by the unique facts of every offence and the unique characteristics of every offender. The circumstances of any case, including this one, can be readily distinguished from any other case.

[19] The cases relied upon by Ms. Bellerose to support her submission that three years imprisonment is the appropriate disposition involve similar quantities of cocaine. However, there is no indication that any of the offenders in those cases had demonstrated significant prospects for rehabilitation as Mr. Young has.

[20] Similarly, the cases relied on by Mr. Lafontaine in support of his submission that a conditional sentence is the appropriate disposition have significant features that distinguish them from this case. Apart from the case of R. v. Imoro, 2011 ONSC 1445, none of the offenders had breached the terms of their release pending trial, and none of them had a criminal record as lengthy or significant as Mr. Young’s.

[21] Mr. Lafontaine submitted that the facts in the case of R. v. Browne, 2013 ONSC 7208 most closely resemble Mr. Young’s case. Mr. Browne received a conditional sentence after being convicted following a trial of possession of 69 grams of crack cocaine for the purpose of trafficking. However, Mr. Browne’s criminal record consisted of seven offences, and he had not breached any of the terms of his recognizance, which required him to be under house arrest for four years. In my view, these are significant differences from Mr. Young’s situation.

[22] Mr. Lafontaine seeks a conditional sentence for Mr. Young. At the time of the commission of these offences, s. 742.1 of the Criminal Code permitted the imposition of a conditional sentence for these offences if four requirements were met:

• First, there must be no minimum term of imprisonment;
• Second, the sentence of imprisonment imposed must be less than two years;
• Third, service of the sentence in the community must not endanger the safety of the community; and
• Fourth, permitting the offender to serve the sentence in the community would be consistent with the fundamental purpose and principles of sentencing.

[23] Mr. Young’s history of violating his statutory release conditions and his three convictions for failing to comply with the conditions of a recognizance raise doubts about whether he will abide by the conditions of a conditional sentence. But more importantly, given the predominance of deterrence and denunciation in the sentencing of offenders dealing in crack cocaine, and the aggravating factors in this case to which I have already referred, a conditional sentence would not be consistent with the fundamental purpose and principles of sentencing.

[24] It falls then to determine the appropriate length of sentence for Mr. Young. The bail conditions to which Mr. Young has been subject are a relevant consideration: R. v. Downes, [2006] O.J. No. 555 (C.A.). After spending ten days in custody, Mr. Young was released on November 8, 2012 on a recognizance with a condition that he be in the direct company of one of his sureties at all times (including while at home) except while babysitting his sureties’ children. There were no exceptions. Mr. Young could not be employed outside of his home or be outside the presence of one of his sureties.

[25] On February 20, 2014, he was arrested for breaching his recognizance. His recognizance was not cancelled. He was released on April 24, 2014 with conditions of house arrest subject to being permitted to leave his residence in the company of a surety if he wore an ankle bracelet. In January 2015, that condition was varied to permit Mr. Young to be employed.

[26] On July 13, 2015, Mr. Young pleaded guilty to the breach of recognizance charges and he once again was subject to the condition of his original recognizance that required him to be in the presence of one of his sureties even when at home. He remains subject to that condition to this day.

[27] Once I exclude the 63 days Mr. Young spent in custody, I calculate that he has spent nearly 41 months subject to restrictive bail conditions. He could not be employed for 35 of those months. He could not even be by himself in his own home for 27 of those months. I am satisfied that these conditions have had a substantial impact on Mr. Young’s life and this must be reflected in the sentence I impose. As Rosenberg J. A. wrote in R. v. Downes (2006), 205 C.C.C. (3d) 488 at para. 29, “Stringent bail conditions, especially house arrest, represent an infringement on liberty and are, to that extent, inconsistent with the fundamental principle of the presumption of innocence. House arrest is a form of punishment, albeit of a different character than actual incarceration.”

[28] Although the predominant objectives of sentencing in this case are specific and general deterrence and denunciation, I cannot overlook rehabilitation. I accept that Mr. Young’s efforts to change his lifestyle over the past 3½ years are genuine, and the sentence imposed must reflect that. Despite his criminal record, I do not believe that Mr. Young is beyond rehabilitation, and the sentence I impose should not crush any chance he has of that.

[29] In considering all of the circumstances of this case, and the relevant sentencing principles, I conclude that a fit sentence before credit for pre-trial custody and restrictive bail conditions is 30 months.

[30] Mr. Young spent 10 days in pre-trial custody, and almost 41 months subject to restrictive bail conditions. He should be credited with 10 months for this. In the end result, Mr. Young must serve 20 months. On the possession of cocaine for the purpose of trafficking charge, Mr. Young will be sentenced to 30 months less 15 days for 10 days of pre-trial custody on a 1.5:1 basis, and less 9.5 months for 41 months spent on strict terms of release, for a net sentence of 20 months. On count #2, the possession of proceeds of crime charge, Mr. Young will be sentenced to 60 days concurrent.

[31] Finally, Mr. Young will be subject to a weapons prohibition order for life pursuant to s. 109 of the Criminal Code, and will be required to provide such samples of his bodily substances as may be required for forensic analysis pursuant to s. 487.051(b) of the Criminal Code. I will sign the forfeiture order for $5.00 requested by Ms. Bellerose.

Corrick J. Released: June 2, 2016

COURT FILE NO.: CR-13-90000562-0000 DATE: 20160602 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – JUSTIN YOUNG REASONS FOR SENTENCE Corrick J. Released: June 2, 2016