CITATION: R. v. Sol, 2016 ONSC 605

COURT FILE NO.: CR-14-131

DATE: 20160202

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Her Majesty the Queen

Elizabeth Barefoot, for the Federal Crown

• and -

Matthew Sol

Deborah Lyons-Batstone for Matthew Sol, Defendant

Defendant

HEARD: October 26

and December 17, 2015

REASONS FOR SENTENCE

Conlan J.

I. Introduction and the Facts

1This is yet another example of a difficult sentencing decision. On the one hand, we have a relatively young, first-time offender who is a family man. On the other hand, we have an offender who committed very serious drug offences.

2On October 26, 2015, Mr. Sol entered guilty pleas to counts 1 (as amended), 2 (as amended), 4, 5 and 6 on the Indictment. Those charges are summarized as follows.

3Count 1, as amended – between November 1, 2012 and May 29, 2013, at the Township of Georgian Bluffs and the surrounding area, Mr. Sol conspired with Ryan Casemore and/or an unnamed individual to traffic cocaine to others in the Port Elgin and/or Owen Sound areas, contrary to subsection 465(1)(c) of the Criminal Code.

4Count 2, as amended - between November 1, 2012 and May 29, 2013, at the Township of Georgian Bluffs and the surrounding area, Mr. Sol conspired with Ryan Casemore and/or an unnamed individual to traffic cannabis to others in the Port Elgin and/or Owen Sound areas, contrary to subsection 465(1)(c) of the Criminal Code.

5Count 4 – on or about May 29, 2013, at the Township of Georgian Bluffs, Mr. Sol possessed cocaine for the purpose of trafficking, contrary to subsection 5(2) of the Controlled Drugs and Substances Act.

6Count 5 - on or about May 29, 2013, at the Township of Georgian Bluffs, Mr. Sol possessed cannabis for the purpose of trafficking, contrary to subsection 5(2) of the Controlled Drugs and Substances Act.

7Count 6 – on or about May 29, 2013, at the Township of Georgian Bluffs, Mr. Sol possessed proceeds of crime, namely, $31,825.00 in Canadian currency, contrary to subsection 354(1)(a) of the Criminal Code.

8A presentence report was ordered. The sentencing hearing was held in Owen Sound on December 17, 2015. Viva voce evidence was adduced by the Defence. Mr. Sol addressed the Court, at length and eloquently. Case law was filed. Submissions were made by counsel. The presentence report was marked Exhibit 1.

9Some police photographs were marked Exhibit 2. A transcript of the guilty pleas and the facts was filed. I reserved my decision until today, February 2, 2016, in Owen Sound.

10The basic facts are that, on May 29, 2013 in Owen Sound, Mr. Sol was arrested by the police, along with another man named Casemore. Upon arrest, Mr. Sol and the motor vehicle that he was operating were searched. The police seized 2.5 ounces of cocaine (worth about $7000.00) and 255 grams of marihuana (worth approximately $1000.00).

11A subsequent search of Mr. Sol’s residence revealed a further 2.5 ounces of cocaine, 17.14 pounds of marihuana (worth about $30-32,000.00), 17 marihuana plants, scales, drug packaging materials, and $31,825.00 in cash.

12Between February and May 2013, Casemore met with Mr. Sol in Owen Sound, weekly. Casemore picked up from Mr. Sol sizeable quantities of cocaine and marihuana. Prior to that period of time, between November 2012 and February 2013, Mr. Sol and another individual met in Tara one to two times per month. They did drug deals involving cocaine and marihuana.

13There were agreements between Mr. Sol and Casemore and between Mr. Sol and the other individual that cocaine and marihuana be trafficked to others in the Port Elgin and Owen Sound areas. Mr. Sol was supplying Casemore and the other individual. Casemore and the other individual, in turn, were trafficking the narcotics to others.

14Casemore has already been sentenced in another Court. Based on what I have been told in terms of Casemore’s serious medical issues, what he pleaded guilty to, the factual admissions that he made, and the timing of his guilty pleas, I am satisfied that the circumstances before that sentencing Court bore very little resemblance to the ones here, and thus, I need not be much concerned with the parity principle of sentencing.

II. The Offender

15Mr. Sol is now 29 years old. He has no prior criminal record.

16He is employed and has three dependants – his partner (the co-accused Ms. Schlosser), a twelve year old step-daughter and a daughter born in February 2015.

17The presentence report is a relatively positive one.

18In her usual thorough fashion, Ms. Lyons, as counsel for Mr. Sol, presented cogent evidence at the sentencing hearing from persons who know the offender and his partner, Ms. Schlosser. Those persons who testified at the sentencing hearing were Joe Schlosser, Jacklyn’s older brother; Ms. Gebhardt, a friend of Ms. Schlosser and Mr. Sol; Peter Sol Jr., the offender’s older brother; and Peter Sol Sr., the offender’s maternal grandfather.

19Overall, the portrait of Mr. Sol that emerges from the evidence of these witnesses is one of a devoted family man, a person who has been a good partner to Ms. Schlosser and a dedicated father to her older daughter, a man who loves dearly and wants to support his newborn daughter, and an industrious person who has a decent employment history and who worked hard in school to get to where he is today.

20There is no question that Ms. Schlosser, her older daughter, the couple’s newborn daughter and the offender’s maternal grandfather all depend and rely on the assistance of Mr. Sol.

21There is also no question that Mr. Sol accepts full responsibility for his criminal actions and has a great deal of remorse and regret for what he has done, genuinely so in my opinion. He spoke to the Court sincerely and in a mature manner (the typed version of his remarks is Exhibit 3 on the sentencing). He explained that he got in to this mess for money to try to pay for his college education but now realizes that he put himself and his family in serious jeopardy.

III. The Positions of the Parties

22The parties agree that there is no presentence custody to deal with.

23The parties agree that a conditional sentence order is not available for all but one of the convictions – count 6 (possession of proceeds of crime).

24The parties agree that none of the convictions attract a minimum penalty.

25There is no dispute that Mr. Sol has been on relatively strict bail conditions, without any incident, since his arrest in late May 2013.

26The Crown requests the following sentence of imprisonment: a global one of 4.5 years in the penitentiary.

27The ancillary Orders requested by the Crown are to be issued without opposition by the Defence and are therefore addressed below in succinct fashion.

28The Defence requests the following sentence: a conditional sentence order on count 6 (the proceeds of crime conviction) for a duration of two years less one day, plus probation for three years on the other counts.

29The Defence takes no issue with any of the ancillary Orders sought by the prosecution. In fact, a forfeiture Order for items seized by the police has already been issued.

IV. Analysis

The Basic Legal Principles on Sentencing

30Sentencing is a highly discretionary and individualized process.

31I must have regard to the principles of sentencing outlined in section 718 of the Criminal Code of Canada – denunciation, specific and general deterrence, the need to separate certain offenders from society, rehabilitation, restorative justice and the promotion of responsibility in offenders.

32Because of the nature of these offences and the personal circumstances of this offender, the predominant sentencing principles at play here are (i) denunciation, (ii) specific and, more important, general deterrence, and (iii) rehabilitation.

33Any sentence imposed must be proportionate to the gravity of the offences and the degree of responsibility of the offender – section 718.1.

34These are very serious offences. Although there are no minimum penalties in play, the maximum penalties for these offences range from ten years to life imprisonment.

The Aggravating and Mitigating Factors

35The seriousness of the charges themselves is not accompanied by any other specific aggravating factors on sentence. Cocaine is a dangerous substance. We all know that. Conspiracies to traffic narcotics to others, especially over several months, must be strongly condemned by the Courts.

36The mitigating factors include the guilty pleas, the lack of any prior criminal record of any sort, and Mr. Sol’s familial and employment circumstances.

The Jurisprudence Filed by Counsel

37Although I have read all of the decisions filed by both sides, I find the cases dealt with below to be the most helpful to my decision.

38For the Crown, the most instructive case is the decision of the Court of Appeal for Ontario in R. v. Morey, [2003] O.J. No. 1562.

39First, the charges that the accused in Morey, supra was found guilty of are strikingly similar to the charges that are before this Court, including conspiracy to traffic in cocaine, possession of cocaine for the purpose of trafficking, and possession of marihuana for the purpose of trafficking.

40Second, both the circumstances of the offences and the circumstances of the offender in Morey, supra are remarkably similar to those before me. Both offenders are to be treated as first-timers. Both offenders ran drug operations. Both offenders are relatively young. Both offenders are in common law relationships. Both offenders are devoted fathers. Both offenders are employed. Both offenders stayed out of trouble for a lengthy period of time while on release after arrest. Both offenders are persons of more than modest skill and ability.

41In Morey, supra, the lower Court imposed a cumulative sentence of seven years imprisonment. The accused in that case did not plead guilty to anything. The seven-year custodial sentence was upheld by the Court of Appeal.

42For the Defence, besides the decisions filed which emphasize that rehabilitation for a first-time offender is an important sentencing principle, the most instructive case is the decision of Justice Harris of the Ontario Court of Justice in R. v. Rebello, 2010 ONCJ 43.

43First, the charges that the accused in Rebello, supra was found guilty of are similar to the charges that are before this Court, although less similar than in Morey, supra. Mr. Rebello was found guilty of cocaine charges (trafficking and possession for the purpose of trafficking) and possession of proceeds of crime, however, nothing regarding any conspiracy.

44Second, both the circumstances of the offences and the circumstances of the offender in Rebello, supra are similar to those before me, although, again, less similar than in Morey, supra. Both offenders pleaded guilty, although Mr. Rebello long before Mr. Sol. Both are devoted family men. Both expressed heartfelt remorse. Both are considered first-time offenders. Both were dealing in fairly significant amounts of cocaine, although there were certainly fewer trafficking incidents in the Rebello, supra case. Both have positive presentence reports, strong family support and solid employment. Both offenders stayed out of trouble while on bail. Both men suffered some consequences besides any custodial sentence that might be imposed, although more so in the case of Mr. Rebello as he was about to lose his home through forfeiture. Neither offender is a drug addict, and both committed the offences for financial gain.

45In Rebello, supra, the Court imposed a blended sentence of fifteen months in jail to be followed by a conditional sentence order for a term of nine months less one day.

What is a fit Sentence for Mr. Sol?

46In my view, Mr. Sol must go to jail for what he has done. A community-based sentence would simply not adequately recognize the seriousness of the charges and the need for denunciation and deterrence, particularly general deterrence.

47The question is for how long.

48I have determined that the duration of imprisonment for this offender must be longer than it was for Mr. Rebello but shorter than the sentence that was imposed on Mr. Morey.

49Every case is different and must be decided on its own facts, however, this case is more similar to Morey, supra than it is to Rebello, supra. I say that for the primary reason that Mr. Morey was found guilty of conspiracy charges, while Mr. Rebello was not. The lack of any conspiracy in Rebello, supra was a major factor in Justice Harris’ decision to not impose a much longer period of imprisonment – subparagraph 17(1) on page 5 of the Court’s decision.

50The significance of a conspiracy is two-fold. First, in the cases of Mr. Morey and Mr. Sol, it means that the trafficking in narcotics persisted over a period of time, as opposed to the discrete incidents of trafficking that occurred in Rebello, supra. Second, it adds to the sophistication of the criminal enterprise. Mr. Sol did not simply sell narcotics a few times to an undercover police officer, as Mr. Rebello did, but he met with Casemore and met with the other individual multiple times each over several months, all with the knowledge and agreement that Casemore and the other person were trafficking the substances to others.

51Those who contribute to the dissemination of dangerous substances throughout our community, motivated purely by greed and not influenced by any addiction, must have that conduct strongly denounced by the Courts.

52Mr. Sol is not a lost cause, however. He is not the type of thug that we often see in similar circumstances.

53Because of the otherwise exemplary circumstances of Mr. Sol and the significant mitigating factor that Mr. Sol entered guilty pleas, which factor was not present in the Morey, supra case, the length of the custodial sentence for Mr. Sol ought to be significantly lower than the seven years imprisonment that was imposed on Mr. Morey.

54The difficult reality for Mr. Sol, however, is that the Crown’s position, 4.5 years imprisonment, is already significantly lower than the sentence that Mr. Morey received.

55The Crown’s position is a reasonable one, but I have decided to temper it even further. I am convinced that Mr. Morey would not have received a seven-year custodial sentence but for the fact that he was found by the trial judge to be at the “virtual apex” of a high-level and sophisticated drug trafficking operation. I am not sure that quite the same thing can be said for Mr. Sol.

56In all of the circumstances, I have determined that a fit sentence for this offender for these crimes is a global one of four (4) years in the penitentiary.

57Although I was not specifically asked to do this by the Defence, I think that it would be fair to reduce that global sentence by six months to give Mr. Sol some credit for having abided by strict bail conditions for more than 2.5 years. R. v. Downes, 2006 3957 (ON CA), [2006] O.J. No. 555 (C.A.).

58The resulting global sentence is, therefore, 42 months imprisonment.

59That sentence is apportioned as follows: 48 months in custody on count 1, as amended (conspiracy to traffic cocaine), less six months’ credit for time served due to the bail conditions, for a balance of 42 months in custody from today; 36 months in custody on count 2, as amended (conspiracy to traffic marihuana), concurrent; 36 months in custody on count 4 (possession of cocaine for the purpose of trafficking), concurrent; 24 months in custody on count 5 (possession of marihuana for the purpose of trafficking), concurrent; and 12 months in custody on count 6 (possession of proceeds of crime), concurrent.

V. Conclusion

60In addition to the consent forfeiture Order already made, the sentence of the Court is as follows.

61First, convictions are registered against Mr. Sol on the five counts, as amended, that he entered guilty pleas to.

62Next, a secondary DNA Order is issued on each of the five counts except the possession of proceeds of crime conviction.

63Third, a section 109 Criminal Code firearms and weapons prohibition Order, for ten years and life under the two subsections, is issued on each of the five counts except the possession of proceeds of crime conviction.

64Fourth, the normal victim fine surcharges are imposed for all convictions. Mr. Sol shall have twelve months to pay those surcharges upon his release from custody.

65Finally, as apportioned above, the global sentence of the Court from today is 42 months imprisonment.

66I will hear any submissions from the Defence as to a recommendation for where Mr. Sol will serve his penitentiary sentence, if such a recommendation is desired.

67It may be impossible for Mr. Sol to understand this, but I wish only good things for him and for his entire family.

Conlan J.