Court File and Parties

COURT FILE NO.: CR-15-90000034-0000 DATE: 2016-08-31 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN Eric Gilman for the Crown

- and -

JOSEPH ANDREWS Alana Page for Joseph Andrews

HEARD: June 29, 2016

REASONS FOR SENTENCE

CORRICK J.

Introduction

[1] Following a trial, I found Joseph Andrews guilty of two counts of possession of cocaine for the purpose of trafficking, two counts of possession of marijuana for the purpose of trafficking, and one count of possession of psilocybin for the purpose of trafficking.

Circumstances of the Offences

[2] On July 16, 2013, police searched a truck that Mr. Andrews was driving and found a vacuum-sealed bag containing 231grams of marijuana and two Ziploc bags of cocaine; one containing 111.55 grams and the other containing 6.98 grams. Police also searched Mr. Andrews’ storage unit and discovered 582 grams of marijuana, 558 grams of cocaine, 56 grams of psilocybin, more than two kilograms of cutting agents, a vacuum sealer, a digital scale, and a significant amount of drug packaging paraphernalia, both new and used.

[3] In total, I found that Mr. Andrews was in possession of a total of 813 grams of marijuana, 676.5 grams of cocaine and 56 grams of psilocybin.

[4] At trial, I heard the expert opinion evidence of Officer Canepa. He testified that the total value of the drugs seized from the truck and the storage unit was between $32,800 and $39,300. The value of the cocaine alone was between $24,200 and $29,800.

Legal Parameters

[5] Mr. Andrews was found guilty of five offences, the most serious of which are the offences involving cocaine. Possession of cocaine for the purpose of trafficking is punishable by life in prison.

Positions of the Parties

[6] Mr. Gilman, on behalf of the Crown, submits that a total sentence of five years is the fit disposition in this case. He submits that the nature, number and quantity of controlled substances in Mr. Andrews’ possession warrant a significant penitentiary term.

[7] He also seeks a weapons prohibition order, an order forfeiting the items seized from Mr. Andrews, and a DNA order.

[8] Ms. Page, on behalf of Mr. Andrews, seeks the maximum reformatory sentence of two years less a day to allow Mr. Andrews to remain close to his family, which she submits is important for Mr. Andrews’ rehabilitation.

Governing Sentencing Principles

[9] In determining a fit sentence for Mr. Andrews, I am guided by the sentencing principles set out in the Criminal Code.

[10] 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,
6. promoting a sense of responsibility in the offender, and
7. acknowledging the harm done to victims and the community.

[11] 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.

[12] I am also required by s. 718.2 to bear the following principles in mind when imposing sentence:

• the sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender;
• where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;
• 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 may be appropriate; and
• all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders.

Circumstances of the Offender

[13] Mr. Andrews is 35 years old. He resides with his common law spouse and their 2½ year old son. He is currently employed in a management position by Hogtown Smoke BBQ. He began working there on a part-time basis in May 2014 and is now a permanent full-time employee. A letter written by a co-owner of Hogtown Smoke, which has been filed as an exhibit, indicates that Mr. Andrews is a valued employee who is hard-working, dependable and honest.

[14] Mr. Andrews has a dated and unrelated criminal record. In 2003, he was convicted of driving with more than 80 mgs. of alcohol in 100 mls. of blood, and fined $600.

[15] Ms. Page points out that since Mr. Andrews’ arrest in July 2013, he has experienced two significant life events that have profoundly affected him. In September 2013, his son was born. In January 2016, during his trial, Mr. Andrews’ father died unexpectedly. These events have altered his life and made him focus on his family – his widowed mother, who has recently had serious health problems, his spouse and his son. He has become a dedicated father and husband with a strong work ethic.

[16] Numerous letters filed in support of Mr. Andrews speak of this dedication. Letters from his spouse, in-laws, and neighbours describe a man devoted to caring for his mother, providing for his family, and being a role model for his son. I accept these letters as genuine descriptions of the Mr. Andrews these people have known for the past eight or nine years.

Aggravating and Mitigating Factors

[17] I turn now to the aggravating and mitigating factors of this case, which I am required to consider.

[18] The aggravating features of this case are clear. Mr. Andrews has been found guilty of extremely serious offences, the most serious of which is punishable by life in prison. I found him to be in possession of large quantities of three different controlled substances – cocaine, marijuana and psilocybin. The cocaine alone had a street value of between $24,200 and $29,800 depending on how it was sold. The total value of all of the drugs seized was between $32,800 and $39,300.

[19] Canadian courts have recognized on numerous occasions the immeasurable harm cocaine does to the fabric of our society. See for example R. v. Cunningham, 104 C.C.C. (3d) 542; R. v. Hamilton, 186 C.C.C. (3d) 129; R. v. Woolcock [2002], O.J. No. 4927 (C.A.). It is a poison that wreaks havoc on the lives of addicts, their families and the community at large.

[20] Mr. Andrews was not a drug addict trafficking in drugs to support a habit. He was engaged in the business of selling drugs for financial gain.

[21] Mr. Gilman and Ms. Page disputed Mr. Andrews’ position in the hierarchy of a drug trafficking operation. Mr. Gilman referred to the five levels of drug dealing set out in the decision of R. v. Barkow, 2008 ONCJ 84 at para. 26, and submitted that Mr. Andrews fell between a street level supplier and a supplier to a street level supplier. Ms. Page submitted that there is no evidence upon which I can infer Mr. Andrews’ position in a drug trafficking operation. I disagree.

[22] Mr. Andrews was arrested driving a truck in which police found half a pound of marijuana in a vacuum sealed bag, one baggie containing a quarter ounce of cocaine and a second baggie containing a quarter pound of cocaine. In addition, I found that he had knowledge and control of the contents of a storage locker that contained more than a pound of cocaine, more than a pound of marijuana, 56 grams of psilocybin and assorted drug trafficking paraphernalia. The sheer quantity of controlled substances over which Mr. Andrews had control, together with his possession of the necessary tools of the drug trade, satisfies me beyond a reasonable doubt that Mr. Andrews was more than a courier or a street level drug dealer. He was dealing drugs at the multi-ounce level.

[23] In mitigation, the character letters filed on behalf of Mr. Andrews show that he has the support of his family and community. The letters speak of someone who has been generous with his time to assist others and who has been working hard to be a good role model for his son. Since the birth of his son in September 2013, he has dedicated himself to his family. He has been the primary caregiver to his recently widowed mother, who has recently undergone surgery.

[24] Although Mr. Andrews is not a first offender, his record is quite dated and is unrelated to the offences before the court.

[25] He has been on judicial interim release since July 17, 2013 without further criminal charges. For the first four months he was subject to onerous house arrest conditions that required him to be in his residence at all times except when in the direct company of one of his sureties. On November 26, 2013, the house arrest condition was amended, with the consent of the Crown, to permit Mr. Andrews to be away from his residence with the written permission of one of his sureties.

Sentences Imposed in Other Cases

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

[27] I have carefully reviewed the decisions to which Mr. Gilman and Ms. Page have referred 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 an exact science. It is instead 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.

[28] What is clear from these decisions is that people who possess substantial quantities of cocaine for the purpose of trafficking can expect to receive lengthy prison sentences. This is to achieve the sentencing objectives of denunciation and deterrence, which are paramount in this case.

[29] The Ontario Court of Appeal in R. v. Bajada, 173 C.C.C. (3d) 255 at para. 13 noted that sentences of five to 5½ years were ordinarily imposed in cases involving possession of substantial amounts of cocaine for the purpose of trafficking even in cases where the offender pleaded guilty or had no prior criminal record. Similarly, in R. v. Bryan, 2011 ONCA 273 the Ontario Court of Appeal noted that the normal range of sentence for a first offender convicted of possession of slightly more than a pound of cocaine for the purpose of trafficking is between five and eight years.

[30] On the other hand, shorter sentences have been imposed in a number of cases. For example, in R. v. Lecompte, 2012 ONSC 2179, Justice Warkentin imposed a sentence of three years on a first offender who pleaded guilty to possession of cocaine for the purpose of trafficking. The offender had been found in possession of 133 grams of crack cocaine. In R. v. Ceballos, 2015 ONSC 720, Justice MacDonnell sentenced a first offender found guilty of possessing 326 grams of cocaine to 2½ years. Justice Dunn sentenced a first offender found guilty of possessing 431 grams of cocaine for the purpose of trafficking to 23 months after giving the offender one month credit for pre-trial custody. See R. v. Thomas [2008] O.J. No. 3650 (S.C.J.).

[31] The two decisions referred to by Ms. Page in which the offender received maximum reformatory sentences are distinguishable from this case. The Court of Appeal in R. v. Nault, 59 O.R. (3d) 388 (C.A.) dealt with a 68-year-old offender who pleaded guilty to possessing 24 ounces of cocaine for the purpose of trafficking. It was not disputed that the offender was a courier. A joint submission was made to the sentencing judge for a conditional sentence of two years less a day. The sentencing judge rejected it in error, according to the Court of Appeal, who imposed the joint submission. There is no joint submission before me, and as I have already indicated I have found that Mr. Andrews was more than a courier.

[32] Justice Woollcombe imposed the maximum reformatory sentence on an offender found guilty of possession of 182 grams of crack cocaine and 424 grams of marijuana for the purpose of trafficking in R. v. Nguyen, 2016 ONSC 1286. Mr. Nguyen was also found guilty of trafficking in 28 grams of crack cocaine and 200 grams of marijuana. The quantity of cocaine in that case is substantially less than the quantity Mr. Andrews possessed.

What is the Fit Sentence?

[33] I accept that Mr. Andrews has good prospects for rehabilitation and that he is unlikely to be involved in drug trafficking in the future. Of course, rehabilitation is not to be overlooked. The evidence shows that he is a devoted family man dedicated to the well-being of his spouse, his son, his mother and members of his extended family. However, he has committed very serious crimes; crimes that our Court of Appeal has repeatedly said cause “immeasurable harm” to society.

[34] In my view, a reformatory sentence in this case is not a fit sentence. It does not adequately address the paramount objectives of general deterrence and denunciation.

[35] In considering all of the circumstances of this case, including the amount of time Mr. Andrews was under house arrest conditions, and the relevant sentencing principles, I conclude that a fit sentence is four years in prison. This sentence is proportionate to the gravity of the crimes committed by Mr. Andrews and his degree of responsibility. It also recognizes his potential for rehabilitation.

Ancillary Orders

[36] In addition, I make the following orders.

[37] First, pursuant to s. 109(1)(c) of the Criminal Code, I order that Mr. Andrews be prohibited from possessing any weapon described in that section for ten years.

[38] Second, pursuant to s. 16(1)(b)(ii) of the Controlled Drugs and Substances Act, I order that all of the drugs and drug paraphernalia (i.e. scales, baggies, etc.) seized and detained in this case, be forfeited and disposed of in accordance with the law.

[39] Third, pursuant to s. 462.37 of the Criminal Code, I order that the $500 in Canadian funds seized from Mr. Andrews, which I find as a fact to be the proceeds of crime, be forfeited and disposed of according to the law.

[40] Finally, given that Mr. Andrews has been convicted of a secondary designated offence, I make a DNA order pursuant to s. 487.051(3) authorizing the taking of a DNA sample. Given all of the circumstances of this offence, including the quantity and number of controlled substances in Mr. Andrews’ possession for the purpose of trafficking, and the relatively minimal impact that such an order would have on his privacy and security of his person, I am satisfied that this order is in the best interests of the administration of justice.

Corrick J. Released: August 31, 2016