Court File and Parties

COURT FILE NO.: CR-14-0065 DATE: 2016-06-10

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

Her Majesty The Queen, Ronald Poirier, for the Crown

- and -

Ryan Wilson Christiansen, Accused Steven M. Hinkson, for the Accused

HEARD: June 10, 2016, at Thunder Bay, Ontario

Regional Senior Justice D. C. Shaw

Reasons On Sentencing

[1] On December 1, 2015, Mr. Christiansen was found guilty by a jury of the following offences:

(1) possession of cocaine for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act;

(2) possession of oxycodone for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act; and

(3) possession of proceeds of crime, in the amount of $21,250, contrary to s. 354(1)(a) and s. 355(a) of the Criminal Code.

Circumstances of the Offences

[2] On April 9, 2013, police officers, acting under warrants, found 2.69 kilograms of cocaine, 249 - 80 milligram oxycodone pills and 249 – 40 milligram oxycodone pills in a room in a commercial building at 212 East Miles Street, Thunder Bay.

[3] Police later searched the Thunder Bay home of Mr. Christiansen and his spouse and found a total of $21,250 in various locations of the house.

Circumstances of Mr. Christiansen

[4] The circumstances of Mr. Christiansen are summarized in a pre-sentence report dated April 4, 2016.

[5] Mr. Christiansen is 31 years of age. He was raised in Thunder Bay by his parents in what is described in the report as a stable and loving home. He was active in sports, made friends easily and had the support of his immediate and extended family.

[6] Although he completed his public and high school years as scheduled, he had a learning disability that led to significant frustration and to anger issues. Notwithstanding his graduation from Grade 12, his reading and writing skills remained very poor.

[7] At age 14, Mr. Christiansen started to use marijuana. It quickly developed into a daily habit which lasted during the next 15 years. In his late teenage years and early twenties, Mr. Christiansen also abused alcohol, cocaine and ecstasy. The author of the pre-sentence report states that this lifestyle brought Mr. Christiansen into contact with high risk people, places and situations. His family, however, did not see signs of his developing addictions nor of his anti-social behaviour.

[8] During his mid-twenties, Mr. Christiansen worked at a variety of jobs and ran some minor businesses. His parents remained highly supportive and assisted him financially.

[9] In 2005, Mr. Christiansen was convicted of possession for the purpose of trafficking. He was sentenced to nine months imprisonment, plus one month concurrent for possession of a scheduled substance. He was supervised under Provincial Parole for six months and complied with all conditions.

[10] In 2012, Mr. Christiansen established a relationship with Nadia Keshk who was eight years younger. Within three months they were married. The marriage was marked by conflicts, arguments and temporary separations. Ms. Keshk struggled with bipolar disorder. She often abused cocaine and oxycodone.

[11] In May 2015, approximately two years after these charges arose, Ms. Keshk committed suicide. Mr. Christiansen discovered her body in the garage of their home. In the aftermath, Mr. Christiansen has been troubled with depression, anxiety, panic and grief. The recent death of his grandparents has compounded his grief. He maintained close contact with his family but initially increased his alcohol abuse in response to those strains.

[12] In recent months, Mr. Christiansen has concentrated on running a “photo booth” company while attending upgrading at the Adult Education Centre. The author of the pre-sentence report states that those distractions have assisted Mr. Christiansen in gaining better control of his drinking and drug use. Mr. Christiansen advised that he gave up marijuana a few months ago and subsequently has felt more vibrant.

[13] In the opinion of the author of the pre-sentence report, Mr. Christiansen has benefited from a stable upbringing and has many personal strengths. He remains supported by a stable network of family and friends. However, he is easily influenced and prone to poor judgment. These weaknesses are amplified by his substance abuse and association with other drug users. Through proximity to a drug oriented subculture, Mr. Christiansen has made poor choices in high risk circumstances, under anti-social influences, leading to irresponsible actions and negative consequences. The pre-sentence report indicates that Mr. Christiansen has made encouraging changes in this area, but minimization remains a concern.

Pre-Sentence Custody and Bail

[14] Mr. Christiansen was arrested on the within charges on April 10, 2013. He was released on strict bail conditions on May 1, 2013.

[15] The Crown and defence agree that Mr. Christiansen should receive credit for his pre-sentence custody of 21 days, calculated on a 1.5 to 1 basis, for a total credit of 31.5 days.

[16] On his release from custody, Mr. Christiansen’s bail conditions amounted to house arrest. He was required to be in the residence of his surety at all times, except when he was in the company of his surety or attending work, court or meetings with his lawyer. Mr. Christiansen was on these bail conditions from May 1, 2013, until January 8, 2014. On that latter date he was charged with failing to comply with the conditions.

[17] Counsel for Mr. Christiansen submits that the eight months on strict bail conditions until January 8, 2014, should be regarded as the equivalent of two months of pre-trial custody. The defence does not submit that any consideration be given to the bail conditions after January 8, 2014. The Crown does not take issue with credit of two months for the stringent bail conditions between May 1, 2013, and January 8, 2014, if I determine that the bail conditions should be taken into account.

Legal Parameters

[18] Cocaine and oxycodone each are substances included in Schedule I of the Controlled Drugs and Substances Act. Possession of those substances for the purpose of trafficking is punishable by imprisonment for life, pursuant to s. 5(3) of that Act.

[19] Possession of proceeds of crime exceeding $5,000 carries a maximum of ten years imprisonment under s. 355 of the Criminal Code.

Position of the Crown

[20] The Crown submits that Mr. Christiansen should receive a sentence of eight years imprisonment for the charge of possession of cocaine for the purpose of trafficking, with concurrent sentences of two to three years for the charge of possession of oxycodone for the purpose of trafficking and one year for possession of proceeds of crime. The Crown submits that the range of sentence for possession of cocaine at the multi kilo level is five to thirteen years.

[21] The Crown submits that the circumstances of this case indicate a level of sophistication. The Crown describes the room where the drugs were found as a “stash house”, rented in the name of a third party. The Crown points to the use of rental cars to avoid detection. The Crown refers to the fact that a number of shipping boxes similar to the one in which the two bricks of cocaine were located were also located in the room.

Position of the Defence

[22] The defence submits that the range of sentence for the quantity of cocaine involved in this case is between five and eight years.

[23] The defence submits that in view of Mr. Christiansen’s age and dated record that an appropriate sentence would be six years, less one month credit for pre-sentence custody and two months credit for the stringent bail conditions that Mr. Christiansen was under between May 1, 2013, and January 8, 2014.

Principles of Sentencing

[24] The fundamental purpose of the criminal law is the protection of society. This principle has been codified in s. 718 of the Criminal Code which emphasizes that the fundamental purpose of sentencing is to encourage respect for the law and the maintenance of a “just, peaceful and safe society” by imposing just sanctions. These sanctions must have one or more of the following objectives:

• to denounce unlawful conduct;
• to deter the offender and other persons from committing crimes;
• to separate offenders from society, where necessary;
• to assist in rehabilitating offenders;
• to provide reparations for harm done to victims or to the community; and
• to promote a sense of responsibility in offenders and an acknowledgement of harm done to victims and to the community.

[25] The principle of denunciation focuses on the conduct of the offender, not on the personal characteristics of the offender. It is a public expression of society’s attitude towards an offence committed, an expression of society’s disapproval of an act that encroaches on our society’s basic code of values. The principle of deterrence seeks to provide a threat or an example to the offender (individual deterrence) or to others (general deterrence) in order to discourage crime, by making it clear that criminal behaviour will result in punishment. Rehabilitation mandates punishment to fit the offender. It is aimed at the renunciation by the offender of his wrongdoing and his re-establishment as an honourable, law-abiding citizen. Section 718.1 provides that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Every sentence must meet this fundamental and overarching principle of proportionality. The punishment must fit the crime.

[26] Section 718.2 directs that a court must take into consideration the principle that a sentence should be increased or reduced for any relevant aggravating or mitigating circumstances relating to the offence or the offender. Section 718.2 also requires the sentencing court to take into consideration, among others, these principles:

• a sentence should be similar to sentences imposed on similar offenders for similar offences, committed in similar circumstances;
• an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances;
• all available sanctions, other than imprisonment, that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.

[27] It is essential that the sentencing court consider and blend all the relevant sentencing principles.

Mitigating and Aggravating Factors

[28] The mitigating factors on this sentence are:

• Mr. Christiansen is relatively young – 31 years of age;
• he has the support of his immediate and extended family;
• the author of the pre-sentence report notes that Mr. Christiansen has many personal strengths, including an amicable disposition, personal resilience and a robust work ethic;
• he has a history of employment and since his arrest has operated his own photo booth and landscaping businesses;
• he has struggled from a young age with a learning disability, but has learned to navigate through school, work and social situations;
• he has suffered the loss of his young wife with ensuing grief, anxiety and depression;
• his only previous imprisonment was in 2005, a gap of 8 years leading up to his arrest on the present charges;
• Mr. Christiansen has admitted to his own substance abuse and has made encouraging changes.

[29] The aggravating factors are:

• possession of cocaine and oxycodone for the purpose of trafficking are serious offences as witness the fact that they are punishable by life imprisonment;
• Mr. Christiansen is not a first offender, having been convicted in 2005 of possession for the purpose of trafficking, albeit his only conviction in the 8 years since then, prior to these offences, was for driving while impaired and refusing to provide a breath sample;
• the amounts of cocaine – 2.69 kilograms, and of oxycodone – 488 pills, are significant;
• the circumstances surrounding these offences – a rented room, rental vehicles, the presence of packing boxes similar to the one in which the bricks of cocaine were found, indicate a level of sophistication;
• cocaine and oxycodone abuse, which Mr. Christiansen’s conduct facilitated, are well recognized scourges of Northwestern Ontario communities;
• although Mr. Christiansen has been dealing with his own substance abuse issues, his minimization on this area remains a concern to the author of the pre-sentence report.

Discussion

[30] As Parfett J. observed in R. v. Battista 2011 ONSC 6394, general and specific deterrence are the primary sentencing principles in convictions related to drug trafficking. Possession for the purpose of trafficking is motivated by profit, profit which is achieved largely at the expense of the most vulnerable members of society. Drug addiction is a serious problem in Northwestern Ontario. The sentence to be imposed in this case must proportionally reflect the gravity of these offences, denounce their commission and deter others from similar activity. See R. v. Ovid 2016 ONSC 2974, a decision of K.L. Campbell J., at para. 21.

[31] Mr. Christiansen has previously been convicted of possession for the purpose of trafficking and sentenced to a period of imprisonment of nine months. Although I take into account the gap in his criminal record, nevertheless it is apparent that the conviction and the sentence were not sufficient to deter Mr. Christiansen from continued involvement in Thunder Bay’s illicit drug culture.

[32] This is not to say that the principle of rehabilitation should be given little weight in Mr. Christiansen’s sentence. He is relatively young. He has positive character traits. He has a supportive family. He has recognized his own addictions and taken steps to deal with them. Rehabilitation is an attainable outcome for Mr. Christiansen. I agree with the submission of defence counsel that Mr. Christiansen’s potential for rehabilitation should not be crushed by a sentence at the upper end of the range.

[33] Both the Crown and defence refer to the decision of the Court of Appeal in R. v. Bajada, [2003] O.J. No. 721. In Bajada, Weiler J.A., delivering the judgment of the court, observed at para. 13 that “… sentences of five to five and one-half years are not uncommon for possession of a substantial amount of cocaine for the purposes of trafficking following an accused’s plea of guilty or where the accused has no prior record.”

[34] In R. v. Bryan, 2011 ONCA 273, at para. 1, the Court of Appeal stated: “Normally, in cases of this nature, sentences of 5 to 8 years would reflect the proper range for someone, without a record, convicted of possession for the purpose of trafficking in slightly more than a pound of cocaine.”

[35] The Bajada case was tried in Thunder Bay. Mr. Bajada had over a half kilogram of cocaine. At the time of arrest, he fled police, ignored demands to surrender and was arrested at gunpoint only after being forcibly subdued. At the time of sentencing, he was 51 years of age. He had been convicted in Australia of robbery, sentenced to seven years, escaped and had an additional term of imprisonment imposed. He also had a ten year record of convictions including conspiracy to traffic in a narcotic, extortion (related to drug trafficking), trafficking in a narcotic in 1988 and again in 1991, assault causing bodily harm and failing to declare income for tax purposes.

[36] The Court of Appeal reduced Mr. Bajada’s sentence from eight years, imposed by the trial judge, to six years. In her decision, Weiler J.A. referred to R. v. Gibson (1996), 87 O.A.C. 393, where a sentence of eight years was upheld for trafficking in cocaine with respect to a repeat narcotics offender with a serious criminal record apart from any drug convictions.

[37] Mr. Christiansen’s background does not approach the level of criminality of the backgrounds referred to in Bajada and Gibson.

[38] In my view, a sentence of six years imprisonment for possession of cocaine for the purpose of trafficking, on the facts of this particular case, for this particular offender, addresses the aggravating and mitigating circumstances, the principles of denunciation, deterrence, rehabilitation, harm to the community and proportionality. It falls within the range of sentences proposed by the Court of Appeal in the above noted cases.

[39] With respect to the remaining two offences, I agree with the position of the Crown that it is appropriate that there be a sentence of three years imprisonment for the conviction of possession of oxycodone for the purpose of trafficking, and a sentence of one year imprisonment for the conviction of possession of proceeds of crime, both those sentences to run concurrent with the sentence of six years for possession of cocaine for the purpose of trafficking.

Credit for Pre-Trial Custody and Restrictive Bail Conditions

[40] Mr. Christiansen should receive enhanced credit of 1.5 days for each of the 21 days spent in pre-sentence custody between April 10 and May 1, 2013, for a total of 31.5 days, in accordance with R. v. Summers 2014 SCC 26, 2014 S.C.C. 26.

[41] Time spent under stringent bail conditions, especially under house arrest, must be taken into account as a relevant mitigating circumstance in determining the length of an appropriate sentence. See R. v. Downes, [2006] O.J. No. 555 (C.A.), at para. 83. The amount of credit to be given for time spent on bail under house arrest is within the discretion of the trial judge and there is no formula that the judge is required to apply. The offender who seeks to have pre-sentence bail conditions taken into account should provide information as to the impact of those conditions. See Downes, at para. 37.

[42] In this case, defence counsel requests credit of two months for the eight months of strict bail conditions between May 1, 2013, and January 8, 2014. The Crown acknowledges that if I am satisfied that the house arrest should be taken into consideration, it does not take issue with credit of two months.

[43] Although I was not given information as to the impact on Mr. Christiansen of the bail conditions, I am prepared to take judicial notice that eight months of house arrest represented an infringement on Mr. Christiansen’s liberty and was similar in character to house arrest imposed as a term of a conditional sentence. The credit of two months proposed by defence counsel is not unreasonable for eight months of house arrest, and, as I have noted, the calculation of the credit is not opposed by the Crown.

[44] Therefore, a credit of one month for pre-sentence custody, on a 1.5 to 1 basis, and a credit of two months for pre-sentence bail conditions shall be applied to the six years imprisonment for possession of cocaine for the purpose of trafficking, resulting in an effective sentence of a penitentiary term of five years and nine months.

Ancillary Sentencing Orders

[45] An order shall go that the sum of $21,250 seized by police as proceeds of crime shall be forfeited pursuant to s. 462.37(1) of the Criminal Code.

[46] An order shall go that all drugs and related paraphernalia seized by the police in connection with the charges of possession of cocaine and oxycodone for the purpose of trafficking shall be forfeited pursuant to s. 16(1)(b) of the Controlled Drugs and Substances Act.

[47] An order is made under s. 109(3) of the Criminal Code, prohibiting Mr. Christiansen from possessing any firearm, cross-bow, restricted weapon, ammunition and explosive substance for life.

[48] An order is made under s. 487.051 of the Criminal Code authorizing the taking of a sample of a bodily substance from Mr. Christiansen as reasonably required for the purpose of forensic DNA analysis.

The Hon. Mr. Justice D. C. Shaw Released: June 10, 2016