R. v. Sawh, 2016 ONSC 7797

CITATION: R. v. Sawh, 2016 ONSC 7797

COURT FILE NO.: 1-642634

DATE: 20161220

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

DEEPU SAWH Applicant/Offender

Chris de Sa & Hafeez Amarshi, for the Crown/respondent

Jennifer Penman, for the applicant/offender

HEARD: October 28, 2016

RULING ON APPLICATION TO DECLARE SECTION 742. 1 (c) OF THE CRIMINAL CODE UNCONSTITUTIONAL AND REASONS FOR SENTENCE

GARTON J.:

introduction

[1] In November 2012, the Safe Streets and Communities Act, S.C. 2012, c. 1 (the “Act”), came into force and effected amendments to s. 742.1 of the Criminal Code, R.S.C. 1985, c. C-46. In particular, s. 742.1(c) eliminated the availability of conditional sentences for offenders convicted of offences for which the maximum term of imprisonment is 14 years or life.

[2] The applicant, Deepu Sawh, age 52, has been found guilty of four counts of trafficking in cocaine, contrary to s. 5(1) of the Controlled Drugs and Substances Act, S.C. 1996, c.19 (“CDSA”). Pursuant to s. 5(3) of the CDSA, the maximum sentence for this offence is life imprisonment. Thus, by virtue of s. 742.1(c), Mr. Sawh is not eligible to receive a conditional sentence.

[3] At Mr. Sawh’s sentencing hearing, defence counsel submitted that but for s. 742.1(c), Mr. Sawh is an ideal candidate for a conditional sentence. It was argued that forcing a custodial term of imprisonment onto Mr. Sawh, or other offenders charged with trafficking in cocaine or possession of cocaine for the purpose of trafficking who do not present a danger to the community, results in a grossly disproportionate sentence, and constitutes cruel and unusual punishment under s. 12 of the Charter of Rights and Freedoms, pursuant to the Constitution Act, 1982, being Sched. B to the Canada Act 1982 (UK), 1982, c. 11. It was also argued that in these cases, s. 742.1(c) does not conform to the principles of fundamental justice under s. 7 of the Charter, as it is overbroad, and captures offenders that it was never intended to capture – that is, offenders who do not pose a threat to public safety or security.

[4] The defence seeks an order declaring that s. 742.1(c) is inconsistent with both s. 7 and s. 12 of the Charter, and that it is of no force and effect pursuant to s. 52(1) of the Constitution Act, 1982.

[5] For the reasons that follow, I would dismiss the application.

BACKGROUND AND HISTORY OF THE PROCEEDINGS

[6] The charges against Mr. Sawh arose from what is colloquially referred to as a “cold call” or “dial-a-dope” investigation.

[7] The investigation commenced after a confidential informant provided the police with information about a male with the nickname “Dickie” who was dealing drugs out of a bar in Scarborough. On January 6, 2013, as a result of this information, an undercover officer, P.C. Lapensee [“Lapensee”], called “Dickie”, who turned out to be Mr. Sawh. After a brief conversation, Mr. Sawh agreed to sell Lapensee a quantity of crack cocaine – a “ball hard” – for $250. Mr. Sawh directed Lapensee to a Shopper’s Drug Mart parking lot in Scarborough. Shortly after Lapensee’s arrival, Mr. Sawh approached his vehicle, got in, and sold him 3.09 grams of crack cocaine for $250.

[8] On February 14, 2013, Lapensee called Mr. Sawh and arranged a second purchase of crack cocaine for the same amount. Mr. Sawh directed him to a designated location and sold him 2.04 grams of crack cocaine for $250.

[9] Mr. Sawh trafficked in cocaine to the undercover officer on two further occasions. On March 11, 2013, he sold Lapensee a quantity of crack cocaine for $250. However, on this occasion, he “shorted” the officer by delivering only 1.69 grams of the drug.

[10] Finally, on June 3, 2013, Mr. Sawh provided Lapensee with 2.8 grams of crack cocaine in exchange for $250. This deal took place near Mr. Sawh’s residence on Midholm Drive. After Lapensee had parked his vehicle, Mr. Sawh advised him that “we’re still good for the deal” but that he had to wait for his supplier. A few minutes later, the co-accused, Lindsy Manoharan, pulled up behind the officer’s vehicle in her Honda. Lapensee gave $250 to Mr. Sawh. Mr. Sawh then entered the Honda but returned to the officer’s vehicle within a couple of minutes and gave him the crack cocaine.

[11] Mr. Sawh and Ms. Manoharan were arrested within minutes of the fourth drug deal. The police seized ten dollars of the police buy-money from the pocket of a pair of Mr. Sawh’s track pants while they were executing a search warrant at his home. Ms. Manoharan was arrested about 700 metres from where the drug deal took place. The police located the balance of the police buy-money – $240 – in her purse.

[12] The total amount of crack cocaine that Mr. Sawh sold to the undercover officer over the five-month period between January 6 and June 3, 2013, is 9.62 grams.

[13] At trial, after the Crown had closed its case, Mr. Sawh acknowledged that the evidence established his guilt on each count beyond a reasonable doubt. He then brought an application to stay the charges, alleging that the police had entrapped him by eliciting a drug sale without reasonable suspicion. On April 29, 2016, I dismissed the application and convicted Mr. Sawh. Mr. Sawh now brings this application in which he challenges the constitutionality of s. 742.1(c) as it applies to the charges for which he has been convicted, and asserts that a conditional sentence is fit and proper in all of the circumstances.

ISSUES

[14] The issues to be addressed are:

1. Does s. 742.1(c), by removing the option of a conditional sentence for trafficking in cocaine or possession of cocaine for the purpose of trafficking, violate s. 12 of the Charter?

2. Does s. 742.1(c), by removing the option of a conditional sentence for trafficking in cocaine or possession of cocaine for the purpose of trafficking, violate s. 7 of the Charter?

RELEVANT LEGISLATIVE PROVISIONS

[15] Cocaine is a substance listed in Schedule I of the CDSA. The sections of the CDSA that are relevant to this application are as follows:

s. 5(1) Trafficking in substance – No person shall traffic in a substance included in Schedule I, II, III or IV or in any substance represented or held out by that person to be such a substance.

(2) Possession for the purpose of trafficking – No person shall, for the purpose of trafficking, possess a substance included in Schedule I, II, III or IV.

(3) Punishment – Every person who contravenes subsection (1) or (2)

(a) subject to paragraph (a.1), if the subject matter of the offence is a substance included in Schedule I or II is guilty of an indictable offence and liable to imprisonment for life …

(a.1) if the subject matter of the offence is a substance included in Schedule II in an amount that is not more than the amount set out for that substance in Schedule VII, is guilty of an indictable offence and liable to imprisonment for a term of not more than five years less a day.

[16] The challenged provision is s. 742.1 (c) of the Criminal Code, which provides:

742.1 If a person is convicted of an offence and the court imposes a sentence of imprisonment of less than two years, the court may, for the purpose of supervising the offender’s behaviour in the community, order that the offender serve the sentence in the community, subject to the conditions imposed under section 742.3, if

(a) the court is satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2;

(b) the offence is not an offence punishable by a minimum term of imprisonment;

(c) the offence is not an offence, prosecuted by way of indictment, for which the maximum term of imprisonment is 14 years or life;

(d) the offence is not a terrorism offence, or a criminal organization offence, prosecuted by way of indictment, for which the maximum term of imprisonment is 10 years or more;

(e) the offence is not an offence, prosecuted by way of indictment, for which the maximum term of imprisonment is 10 years, that

(i) resulted in bodily harm,

(ii) involved the import, export, trafficking or production of drugs, or

(iii) involved the use of a weapon; and

(f) the offence is not an offence, prosecuted by way of indictment, under any of the following provisions:

(i) section 144 (prison breach)

(ii) section 264 (criminal harassment),

(iii) section 271 (sexual assault)

(iv) section 279 (kidnapping)

(v) section 279.02 (trafficking in persons – material benefit),

(vi) section 281 (abduction of person under fourteen),

(vii) section 333.1 (motor vehicle theft),

(viii) paragraph 334(a) (theft over $5000),

(ix) paragraph 348(1)(e) (breaking and entering a place other than a dwelling-house),

(x) section 349 (being unlawfully in a dwelling-house), and

(xi) section 435 (arson for fraudulent purpose).

[Emphasis added.]

Issue #1: Does s. 742.1(c), by removing the option of a conditional sentence for trafficking in cocaine and possession of cocaine for the purpose of trafficking, violate s. 12 of the Charter?

[17] Section 12 of the Charter states:

12. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.

The Test for Infringement of s. 12

[18] The Supreme Court has set a high bar for what constitutes “cruel and unusual … punishment” under s. 12 of the Charter. In R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773, at para. 39, the court reiterated the test set out in R. v. Smith, 1987 CanLII 64 (SCC), [1987] 1 S.C.R. 1045. A sentence attacked on this ground must be grossly disproportionate to the punishment that is appropriate, having regard to the nature of the offence and the circumstances of the offender. To be “grossly disproportionate” a sentence must be more than merely excessive. It must be “so excessive as to outrage standards of decency” and “abhorrent or intolerable” to society: Smith, at p. 1072, citing Miller v. The Queen, 1976 CanLII 12 (SCC), [1977] 2 S.C.R. 680. The court in Smith cautioned that “[w]e should be careful not to stigmatize every disproportionate or excessive sentence as being a constitutional violation” (at para. 87). A prescribed sentence may be grossly disproportionate as applied to the offender before the court or because it would have a grossly disproportionate impact on others, rendering the law unconstitutional.

Due Deference to be given to Parliament’s Policy Decisions

[19] In Nur and more recently in R. v. Lloyd, 2016 SCC 13, [2013] 1 S.C.R. 130, the court found that certain mandatory minimum sentences violated s. 12 as they were overreaching and thus resulted in cruel and unusual punishment for some offenders. The court found that the violation in each case could not be saved by s. 1 of the Charter. However, in both Nur and Lloyd, the court acknowledged that due deference must be given to policy decisions made by Parliament. In Lloyd, at paras. 45-46, the court stated:

Parliament has the power to make policy choices with respect to the imposition of punishment for criminal activities and the crafting of sentences that it deems appropriate to balance the objectives of deterrence, denunciation, rehabilitation and protection of society. Courts owe Parliament deference in a s. 12 analysis. As Borins Dist. Ct. J. stated in an oft-approved passage:

It is not for the court to pass on the wisdom of Parliament with respect to the gravity of various offences and the range of penalties which may be imposed upon those found guilty of committing the offences. Parliament has broad discretion in proscribing conduct as criminal and in determining proper punishment. While the final judgment as to whether a punishment exceeds constitutional limits set by the Charter is properly a judicial function, the court should be reluctant to interfere with the considered views of Parliament and then only in the clearest of cases where the punishment prescribed is so excessive when compared with the punishment prescribed for other offences as to outrage standards of decency.

(R. v. Guiller (1985) 1985 CanLII 5996 (ON SC), 48 C.R. (3d) 226 (Ont.), at p. 238)

Similarly, in Lyons, at pp. 344-45, La Forest J. stressed the importance of the high threshold of s. 12, explaining that the word “grossly” “reflect[ed] this Court’s concern not to hold Parliament to a standard so exacting … as to require punishments to be perfectly suited to accommodate the moral nuances of every crime and every offender.”

[20] Parliament’s legitimate right to limit the discretion of judges in sentencing matters and, in particular, with respect to s. 742.1, was recognized in R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61. Lamer C.J., in commenting on s. 742.1 as it then read, stated that “Parliament could easily have excluded specific offences in addition to those with a mandatory minimum term of imprisonment but chose not to do so” (at para. 79).

[21] More recently, in R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at para. 45, the court reviewed the limits on judges’ discretion in sentencing offenders, including those imposed by statute:

The discretion of a sentencing judge is also constrained by statute, not only through the general sentencing principles and objectives enshrined in ss. 718 to 718.2 articulated above but also through the restricted availability of certain sanctions in the Code. For instance, s. 732 prohibits a court from ordering that a sentence of imprisonment exceeding 90 days be served intermittently. Similar restrictions exist for sanctions such as discharges (s. 730), fines (s. 734), conditional sentences (s. 742.1) and probationary terms (s. 731). Parliament has also seen fit to reduce the scope of available sanctions for certain offences through the enactment of mandatory minimum sentences. A relatively new phenomenon in Canadian law, the minimum sentence is a forceful expression of governmental policy in the area of criminal law. Certain minimum sentences have been successfully challenged under s. 12 of the Charter on the basis that they constituted grossly disproportionate punishment in the circumstances of the case … . Absent a declaration of unconstitutionality, minimum sentences must be ordered where so provided in the Code. A judge’s discretion does not extend so far as to override this clear statement of legislative intent.

[Emphasis added.]

[22] In R. v. Perry, 2013 QCCA 212, 2013 CarswellQue 10162, the court found that the 2007 amendments to s. 742.1 of the Code, wherein offenders convicted of “serious personal injury offences” were no longer eligible to receive a conditional sentence, did not violate ss. 7, 9 or 12 of the Charter, and that this exclusion constituted “merely one more limitation on the judge’s sentencing power.” The court continued:

One may lament this choice and feel that Parliament is misguided. But that is not sufficient. The choice was a political one, and its appropriateness may not be questioned by judges so long as it does not violate the offender’s constitutional rights, as is the case here.

Analytical Framework to be applied in Determining Whether a Law Infringes s. 12

[23] The framework for determining whether a sentence infringes s. 12 involves two steps. First, the court must determine what constitutes a proportionate sentence for the offence having regard to the objectives and principles of sentencing set out in ss. 718 to 718.2 of the Criminal Code. The court need not fix the sentence or sentencing range at a specific point, but should consider “the rough scale of the appropriate sentence” (Lloyd, at para. 23).

[24] Second, the court must decide whether the impugned sentencing provision requires the judge to impose a sentence that is grossly disproportionate to the offence and its circumstances. A law will violate s. 12 if it imposes a grossly disproportionate sentence on the individual before the court, or if the law’s reasonably foreseeable applications will impose grossly disproportionate sentences on others.

[25] The Supreme Court has described proportionality as the relationship between the sentence to be imposed and the sentence that is fit and proportionate. In Lloyd, where the constitutionality of a mandatory minimum sentence was being considered, the court summarized the issue as follows at para. 23: “[t]he question, put simply, is this: in view of the fit and proportionate sentence, is the mandatory minimum sentence grossly disproportionate to the offence and its circumstances? If so, the provision violates s. 12.”

[26] In the present case, the appropriate question is: in view of the fit and proportionate sentence, is the sentence resulting from the removal of the option to impose a conditional sentence grossly disproportionate to the offence and its circumstances? If so, s. 742.1(c) violates s. 12.

Sentences Imposed for Street-level Cocaine Trafficking

[27] In R. v. Woolcock, [2002] O.J. No. 4927 (C.A.), the court held that the principles of denunciation and deterrence are paramount in cases involving trafficking in cocaine and possession of cocaine for the purpose of trafficking because of the serious nature of the these offences.

[28] In Woolcock, the 53 year-old appellant was found guilty of possession of 5.3 grams of crack cocaine for the purpose of trafficking and possession of the proceeds of crime, which consisted of approximately $1,000 in cash. He was not addicted to drugs, and had two prior convictions for drug-related offences two years prior to his arrest. In imposing a sentence of two years less one day, the trial judge emphasized the serious nature of the offence, the fact that this was not an isolated incident, and the fact that the appellant was selling crack cocaine as part of a business and doing so in a residential community. In these circumstances, he held that a conditional sentence was inappropriate as the focus of the sentence had to be on deterrence and denunciation.

[29] The Court of Appeal agreed that a conditional sentence was not appropriate. In so doing, the court, at para. 8, underlined the serious nature of the crimes:

There is no disputing that crack cocaine is an extremely dangerous and insidious drug with potential to cause a great deal of harm to individuals and to society. Likewise, possession of crack cocaine for the purpose of trafficking is a serious offence warranting emphasis on the principles of deterrence and denunciation.

[30] Although the court found that a conditional sentence was inappropriate, it reduced the length of the sentence on the basis that the trial judge had failed to consider the principle of rehabilitation. In imposing a 15-month jail term, the court, at para. 17, reiterated the serious nature of the offence:

This shorter sentence is not intended, in any way, to minimize the seriousness of the offence or the need for general deterrence and denunciation of this serious offence. Rather, it is to provide the accused with an opportunity to be rehabilitated while simultaneously learning that this type of crime will not be tolerated.

[31] Referencing the cases of R. v. Madeiros, [2001] O.J. No. 5664 (S.C.) and R. v. Radassao, 1994 CanLII 779 (ON CA), [1994] O.J. No. 1990 (C.A.), the court in Woolcock held that the range for this type of offence is 6 months to 2 years less a day. The court noted, however, that many of the cases that fall at the higher end of this range involved either larger quantities of narcotics or offences committed while the accused was still on probation for a similar offence.

[32] In R. v. Williams, [2010] O.J. No. 2971, Hill J. reviewed a number of cases, including Woolcock, where courts have made it clear that denunciation and general deterrence are the paramount sentencing principles in instances of drug trafficking, and that conditional sentences are not appropriate.

[33] In Williams, the accused was convicted of trafficking in crack cocaine and possession of 5.5 grams of crack cocaine for the purpose of trafficking. He was sentenced to 9 months’ imprisonment plus one year of probation. Hill J. rejected the possibility of a conditional sentence, which was still available at that time, as he was not satisfied that allowing Mr. Williams to serve his sentence in the community would not endanger the safety of the community. He also found, however, that a conditional sentence would not be consistent with the fundamental purpose and principles of sentencing. At paras. 20-24, he stated:

The offender was engaged in commercial drug-dealing for gain. He is not an addict and, therefore, undeserving of the understanding extended to one suffering from a disease, who trafficks to support such a habit: see R. v. Woolcock, [2000] O.J. No. 4927 (C.A.) at para. 5; R. v. Mandalino, [2001] O.J. No. 289 (C.A.) at para. 1; R. v. Belenky, 2010 ABCA 98, at para. 3; R. v. Lau (2004), 2004 ABCA 408, 193 C.C.C. (3d) 51 (Alta. C.A.) at para. 33; R. v. Nguyen, 2001 BCCA 624, at para. 7.

As a general rule, denunciation and general deterrence are the paramount sentencing principles in instances of commercial trafficking: R. v. Bui, [2004] O.J. No. 3452 (C.A.) at para. 2; Woolcock, at para. 17; Nguyen, at para. 14.

In R. v. Murdock (2003), 2003 CanLII 4306 (ON CA), 176 C.C.C. (3d) 232 (Ont. C.A.) at para. 39, Doherty J.A. observed that:

The harm to society, occasioned by the drug trade cannot be gainsayed.

Also see R. v. Aitkens, 2004 BCCA 411 at para. 7: “Drug trafficking has become a blight in our society”; R. v. Beaudry (2002), 2000 ABCA 243, 37 C.R. (5th) 1 (Alta. C.A.) at para. 158 and 165 per Russell J.A.: “The damage to the community from trafficking in cocaine is substantial, and extends well beyond the offender and his prospective customers … it contributes to a variety of other offences, with the potential for extremely serious health and economic consequences. Drug trafficking remains a serious problem in Canada.”

In sentencing, the courts have differentiated between criminality involving hard and soft drugs: R. v. Tuck, [2007] O.J. No. 2626 (C.A.) at para. 2; R. v. Wellington (1999), 1999 CanLII 3054 (ON CA), 132 C.C.C. (3d) 470 (Ont. C.A.) at 476; R. v. Cunningham (1996), 1996 CanLII 1311 (ON CA), 104 C.C.C. (3d) 542 (Ont. C.A.) at 547 (approved, R. v. C.N.H. (2002), 2002 CanLII 7751 (ON CA), 62 O.R. (3d) 564 (C.A.) at para. 23 and 37.)

[34] After quoting para. 8 in Woolcock with respect to the dangerous nature of crack cocaine, Hill J., at paras. 26-27 and 29-30, continued:

Similarly, in R. v. Johnson, [2010] B.C.J. No. 301 (C.A.), at para. 29, the court noted that the trial judge “correctly took into account the serious effect that cocaine has on fellow citizens and [the offender’s] role in spreading this “disease.”

In Beaudry, at para. 84, Berger J.A., (Chrumka J. (ad hoc) concurring), observed with respect to the sentencing judge’s reasons that:

She appreciated full well that trafficking in cocaine is socially destructive. She understood that the deleterious effects of cocaine trafficking should not be ignored.

In respect of small quantities of cocaine, the following dispositions were brought to the attention of the court: R. v. Malcolm, [2000] O.J. No. 4309 (C.A.) (6 months’ jail upheld for the possession of .9 grams for the purpose of trafficking); Bui (18 months’ jail upheld for possession of 7 grams for the purpose of trafficking); R. v. Meggo, [1998] O.J. No. 3452 (C.A.) (18 months upheld for possession of 7 grams for the purpose of trafficking).

In R. v. Ly (1997), 1997 CanLII 2983 (ON CA), 114 C.C.C. (3d) 279 (Ont. C.A.) at 286, the court stated that conditional sentences “will be looked to only rarely in cases of drug trafficking.” Likewise, in R. v. Sawatsky, 2007 ABCA 353 at para. 4, the court stated: “We agree with the Crown that those who organize and manage “dial-a-dope” schemes to traffic in drugs, such as cocaine … should usually be sentenced to terms of actual incarceration.” At p. 155 of R. v. Brown (1997), 1997 CanLII 10869 (NL CA), 119 C.C.C. (3d) 147 (Nfld. C.A.), Marshall J.A. (Green J.A. concurring) observed that:

It is true that judicial reaction to cocaine trafficking has been stern, rarely failing to result in prison terms.

[35] The Crown’s book of authorities includes other cases where courts have refused to impose a conditional sentence for trafficking in cocaine or possession of cocaine for the purpose of trafficking on the basis that to do so would be inconsistent with the fundamental purposes and principles of sentencing, namely, general and specific deterrence. For example, in R. v. Harrison, 2009 ONCA 386, 2009 CarswellOnt 2376, the appellant, who was a first-time offender, was found in possession of nine grams of crack cocaine for the purpose of trafficking. The Court of Appeal found that the trial judge was correct in rejecting a conditional sentence and upheld the 12-month jail term.

[36] The book of authorities filed by the defence includes cases where conditional sentences have been imposed in a wide variety of circumstances and, in a number of instances, where larger quantities of crack cocaine were involved. The defence authorities included the following: R. v. Burnett, 2013 ONSC 5536, [2013] O.J. No. 4052; R. v. Bustos, 2009 CarswellOnt 7266, [2009] O.J. No 4927; R. v. Capy, 2012 ONSC 3822, [2012] O.J. No. 4981; R v. Hayes, [2001] O.J. No. 684 (C.A.); R. v. Imoro, 2011 ONSC 1445, [2011] O.J. No. 996; R. v. Otchere-Badu, 2010 ONSC 5271, [2010] O.J. No. 4447; R. v. Reid, 2016 ONSC 954, [2016] O.J. No. 2696; R. v. Thompson, 2014 ONSC 1934, [2014] O.J. No. 1458; and R. v. Veljkovic, [2006] O.J. No. 1327 (C.A.).

[37] In R. v. Neary, 2016 SKQB 218, 2016 CarswellSask 428, at para. 19, Smith J. observed that if one were to examine sentences across Canada, it may be argued that there has been a disjointed approach to the imposition of conditional sentences, and that Parliament, in enacting the Safe Streets and Communities Act, intended to bring cohesion to the conditional sentencing regime by ensuring that it was only being used for less serious offences.

Application of s. 742.1(c) to Mr. Sawh

[38] In accordance with the framework set out in Nur and Lloyd, I must determine whether s. 742.1(c) requires the court to impose a sentence that is grossly disproportionate on Mr. Sawh or on the offenders as described in the hypothetical scenarios put forward by the defence.

[39] Woolcock held that the range for this type of offence is 6 months to 2 years less a day. However, cases at the higher end of this range generally involve larger quantities of cocaine or offenders who were on probation for a similar offence at the time of their arrest. Mr. Sawh was not on probation at the time of his arrest, and had no involvement with the criminal justice system during the five-year period leading up to his arrest. Other than a conviction in 2008 for fraudulent use of credit card data, all the entries on his record are between 1996 and 2003, when Mr. Sawh was struggling with a crack cocaine addiction. Mr. Sawh has been on bail for over three-and-a-half years, during which time he has been subject to a curfew. For the first year-and-a-half or so that he was on bail, he reported twice weekly to the police. There have been no breaches of his bail conditions.

[40] Aggravating factors include: the quantity of the drug – 9.62 grams; the fact that it was sold over the course of four transactions during a five-month period; and Mr. Sawh’s profit motivation in trafficking to the undercover officer. However, Mr. Sawh was obviously a very low-level dealer, as is evident from the fact that on the day of his arrest, he was in possession of only $10 of the $250 in police buy-money. The co-accused was in possession of the rest of the funds. No other money or drugs were found on Mr. Sawh’s person or at his residence. Nor did the police find any drug paraphernalia, such as a digital scale, evidence of drug packaging, or a debt list. This distinguishes his case from that of Mr. Woolcock, who was in possession of all of those items, as well as over $900 in Canadian currency, $60 in U.S. funds, and some marijuana.

[41] Mr. Sawh’s drug trafficking appears to have been a very unsophisticated operation, and is consistent with his statement to the author of the pre-sentence report that he only became involved in order to help out a friend.

[42] In my view, there are a number of mitigating factors, including Mr. Sawh’s poor health and the effect that incarceration could have on his health, that put the appropriate sentencing range roughly at the lower end of the range set out in Woolcock, or even below that range. As noted in Nasogaluak, at para. 44, while courts must pay heed to the ranges set down by case law, these ranges are guidelines rather than hard and fast rules. A judge can order a sentence outside that range as long as it is in accordance with the principles and objectives of sentencing. That said, a custodial sentence within the lower end of the Woolcock range would not, in my view, be grossly disproportionate and therefore would not constitute cruel and unusual punishment, having regard to the nature of the offence and the circumstances of Mr. Sawh. It is important to remember that to be grossly disproportionate, a sentence must be “so excessive as to outrage standards of decency” and “abhorrent or intolerable to society.” “Merely excessive” is not enough.

[43] I conclude that s. 742.1(c) does not require the court to impose a sentence on Mr. Sawh that is grossly disproportionate.

Application of s. 742.1(c) to the Reasonable Hypothetical Scenarios

[44] Counsel for Mr. Sawh submits that s. 742.1(c)’s prohibition on conditional sentences for the offences of trafficking in cocaine and possession of cocaine for the purpose of trafficking would result in grossly disproportionate sentences being imposed on the offenders described in the following two hypothetical scenarios.

i) The Aboriginal Offender

An aboriginal offender grew up on a remote reserve in Northern Ontario and battles alcoholism and addiction issues. She suffered both physical and sexual abuse at the hands of relatives throughout her childhood and early adolescence. In the absence of appropriate mental health services in her community, she turned to drugs and alcohol as a means of coping with the lasting trauma caused by this prolonged abuse.

One night, while under the influence of drugs and alcohol, the offender attended a bar in a neighbouring town. While at the bar, she was approached by an unknown male, who asked her if she knew where he could find drugs. The offender sold him 6 grams of crack cocaine for $500. The unknown male was an undercover police officer. The offender was subsequently charged with trafficking in cocaine, contrary to s. 5(1) of the CDSA. There are no defences to the charge.

ii) The Youthful Physically Disabled First Offender

The offender is a youthful first offender who is physically disabled. He has never been charged with an offence. He is a graduate of the Royal Military College.

On his first tour of duty overseas, the offender suffered injuries that resulted in his losing his right leg from the knee down, and suffering from debilitating post-traumatic stress disorder [“PTSD”] and anxiety attacks. As a result of his injuries, he was discharged from the military. He has subsequently struggled to find employment.

Within a year of his discharge from the military, the offender found himself homeless and living in shelters. While at a shelter, he met an individual who offered to pay him money if he assisted in the sale of drugs to two of his known customers. Desperate for money, the offender stood outside the shelter and sold 12 grams of crack cocaine to the two anticipated customers for $1000. Officers conducting surveillance outside the shelter observed the transactions, investigated one of the customers, and subsequently arrested the offender for trafficking in cocaine and possession of the proceeds of crime. The offender was convicted after trial.

The offender’s diagnosed PTSD and anxiety disorder make it difficult for him to remain in small enclosures for prolonged periods of time.

[45] Counsel for Mr. Sawh submits that a conditional sentence is the most appropriate sentence for the Aboriginal offender, particularly in light of s. 718.2(e) of the Code, which mandates that sentencing judges consider all available sanctions other than imprisonment, especially in the case of Aboriginal offenders. In a similar vein, defence counsel submits that a conditional sentence for the youthful physically disabled first offender would be fit and proper, particularly since the principle of restraint applies to him by virtue of his age and status as a first offender. As a result of s. 742.1(c), however, a conditional sentence is not an option in either of these scenarios (although I note that a conditional sentence would be available in the second scenario with respect to the charge of possession of the proceeds of crime). It was submitted that a custodial sentence for these offenders would be grossly disproportionate and thereby violate their right to the constitutional protection against cruel and unusual punishment.

[46] The difficulty with this argument is that it fails to recognize that s. 742.1(c) does not require the imposition of a minimum custodial sentence or mandate a jail sentence in every case. It merely removes a conditional sentence as an available disposition. In exceptional circumstances such as those posited in the above hypotheticals, a court could, in accordance with recognized sentencing principles, suspend the passing of sentence and impose a period of probation with appropriate terms. Crown counsel agreed that a suspended sentence and probation would be a fit and proper disposition in both of the above scenarios. Such a sentence could hardly be described as grossly disproportionate or cruel and unusual. Other sentencing options include a fine or an intermittent sentence.

[47] I note that the British Columbia Court of Appeal recently affirmed the deterrent value of a suspended sentence and probation order in R. v. Voong, 2015 BCCA 285, which involved four Crown appeals from suspended sentences and probation orders imposed by trial judges in “dial-a-dope” operations. At para. 39, Bennett J.A., in speaking for the court, stated:

Because a breach of the probation order can result in a revocation and sentencing on the original offence, it has been referred to as the “Sword of Damocles” hanging over the offender’s head.

[48] Bennett J.A. also noted that in R. v. Shoker, 2006 SCC 44, [2006] 2 S.C.R. 399, the court concluded that supervised probation is a restraint on the probationer’s freedom. At para. 42, she referred to other decisions that have confirmed the deterrent effect of a suspended sentence and a probation order in certain circumstances; for example, R. v. George (1992), 112 N.S.R. (2d) 83 (C.A.), at p.187 (and a number of cases following, including R. v. Martin, 1996 NSCA 207, 154 N.S.R. (2d) 268 (C.A.), and R. v. R.T.M., 1996 NSCA 156, 151 N.S.R. (2d) 235 (C.A.)).

[49] In the end, the court in Voong affirmed the suspended sentences imposed on three of the four respondents. Two of these three were drug addicts who had trafficked to support their addictions and who had taken positive steps towards their rehabilitation after their arrest. The third was a youthful first offender. The court substituted a six-month sentence for the suspended sentence imposed on the fourth respondent, who had not “demonstrated the degree of ‘exceptional circumstances’ in terms of rehabilitation that would justify a non-custodial sentence” (at para. 102).

[50] In Lloyd, at para. 27, the court, quoting Nur, observed that the problem with the mandatory minimum sentence in that case was that it was overbroad or “[cast] its net over a wide range of potential conduct.” As a result, it caught not only the serious drug trafficking that was its proper aim, but conduct that was much less blameworthy. The effect was to subject less blameworthy offenders to grossly disproportionate sentences. This rendered it constitutionally vulnerable. The court suggested that if Parliament hoped to sustain mandatory minimum penalties for offences that cast a wide net, it should consider narrowing their reach so that they only catch offenders that merit the mandatory minimum sentences (at para. 35). Another solution would be for Parliament to build a safety valve that would allow judges to exempt outliers for whom the mandatory minimum would constitute cruel and unusual punishment. The court went on to observed that residual judicial discretion for exceptional cases is a technique widely used to avoid injustice and constitutional infirmity in other countries (at para. 36).

[51] In my view, there is already a “safety valve” in place with respect to s. 742.1(c) in the sense that a sentencing judge, as discussed above, retains full discretion to determine the sentence in accordance with recognized sentencing principles contained in ss. 718 to 718.2 of the Code and, in the event of a jail sentence, its length. Section 742.1(c) does not require a minimum custodial term. A judge’s discretion is limited by case law, which sets down general ranges of sentences for particular offences; for example, Woolcock, which set the range for street-level cocaine trafficking. However, ranges are guidelines, not mandatory minimum sentences. Furthermore, in exceptional circumstances, such as the hypotheticals relied on by the defence in this case, the sentencing judge has the discretion to “exempt outliers” and impose a suspended sentence and probation.

Conclusion re Section 12 of the Charter

[52] In conclusion, I find that s. 742.1(c) does not result in a grossly disproportionate sentence with respect to either Mr. Sawh or the offenders in the two hypothetical scenarios. Consequently, there is no violation of the guarantee against cruel and unusual punishment in s.12 of the Charter.

Issue #2: Does s. 742.1(c), by removing the option of a conditional sentence for trafficking in cocaine and possession of cocaine for the purpose of trafficking, violate s. 7 of the Charter?

[53] Section 7 of the Charter states:

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

[54] The position of the defence is that s. 742.1(c) violates s. 7 because it is overbroad in the sense that it captures individuals whom it was never intended to capture; namely, offenders who fall within the Woolcock range of six months to two years less a day for street-level cocaine trafficking, but who do not pose a threat to public safety or security. As a result of s. 742.1(c), a judge has no discretion in these cases but to impose a jail sentence as opposed to a conditional sentence, where there is less of a constraint on the offender’s liberty or, as Lamer C.J. put it in Proulx, offenders are only partially deprived of their freedom. Thus, s. 7 is engaged by s. 742.1(c) not by virtue of the fact that a sentence of imprisonment is imposed but by virtue of the manner in which that sentence must be served – that is, in a custodial facility as opposed to in the community.

[55] Defence counsel submits that the issue of overbreadth is more appropriately addressed under s. 7 rather than under s. 12. Section 7 provides that one’s liberty can only be denied “in accordance with the principles of fundamental justice”, which include overbreadth, arbitrariness, and gross disproportionality: R. v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101, at para. 97. It was submitted that s. 12’s primary concern is gross disproportionality, and that it only concerns overbreadth in a peripheral way. Thus, s. 7 is the appropriate framework within which to examine this claim.

[56] Crown counsel took the position that the overbreadth argument is subsumed in the s. 12 argument. He referred in this regard to Neary, where defence counsel, who initially took the position that s. 742.1(c) violated both ss. 7 and 12, ultimately conceded that the argument fell squarely within s. 12. In dealing with this issue, Smith J., at para. 11, observed that,

Supreme Court authorities have been consistent in opining that where an applicant’s Charter claim falls squarely into one of the enumerated rights in ss. 8 to 14, such claim should be analyzed under that provision and not under the more or less catchall of s. 7. See R. v. Jackpine, 2006 SCC 15, [2006] 1 SCR 554 (sub nom R. v. Rodgers); R. v. Malmo-Levine; R. v. Caine, 2003 SCC 74, [2003] 3SCR 571; R. v. Pearson, 1992 CanLII 52 (SCC), [1992] 3 SCR 665; and R. v. Généreux, 1992 CanLII 117 (SCC), [1992] 1 SCR 259 (S.C.C.).

[57] The conclusion that a Charter claim falling squarely within one of the enumerated rights in ss. 8 to 14 should be analyzed under that provision rather than under s. 7 reflects the fact that ss. 8 to 14 are “specific illustrations of the principles of fundamental justice.” See: R. v. Malmo-Levine, 2003 SCC 74, [2003] 3 S.C.R. 571 at para. 158; Reference re s. 94(2) of Motor Vehicle Act (British Columbia), 1985 CanLII 81 (SCC), [1985] 2 S.C.R. 486.

[58] In Lloyd, at paras. 41-42, the court emphasized that s. 7 must be read in a way that is consistent with s. 12:

I turn first to coherence within the Charter. It is necessary to read s. 7 in a way that is consistent with s. 12. Mr. Lloyd’s proposal would set a new constitutional standard for sentencing laws – a standard that is lower than the cruel and unusual punishment standard prescribed by s. 12. As McIntyre J. (dissenting on another issue) stated in Smith, at p. 1107:

While section 7 sets out broad and general rights which often extend over the same ground as other rights set out in the Charter, it cannot be read so broadly as to render other rights nugatory. If section 7 were found to impose greater restrictions on punishment than s. 12 – for example by prohibiting punishments which were merely excessive – it would entirely subsume s. 12 and render it otiose. For this reason, I cannot find that s. 7 raises any rights or issues not already considered under s. 12.

This court again held that ss. 7 and 12 could not impose a different standard with respect to the proportionality of punishment in R. v. Malmo-Levine, 2003 SCC 74, [2003] 3 S.C.R. 571, at para. 160, per Gonthier and Binnie JJ.

Is there then a principle of fundamental justice embedded in s. 7 that would give rise to a constitutional remedy against a punishment that does not infringe s. 12? We do not think so. To find that gross and excessive disproportionality of punishment is required under s. 12 but a lesser degree of proportionality suffices under s. 7 would render incoherent the scheme of interconnected “legal rights” set out in ss. 7 to 14 of the Charter by attributing contradictory standards to ss. 12 and 7 in relation to the same subject matter. Such a result, in our view, would be unacceptable.

[59] Consequently, when ss. 8 to 14 and s. 7 directly overlap, a s. 7 analysis is redundant, as s. 7 can offer a claimant no greater rights: See Lloyd, at paras. 38-47; Perry, at para. 142; Malmo-Levine, at para. 160; R. v. Rodgers, 2006 SCC 15, [2006] 1 S.C.R. 554, at para. 23; and R. v. Généreux, 1992 CanLII 117 (SCC), [1992] 1 S.C.R. 259, at p. 310.

[60] However, this is not to say that the content of s. 7 is exhausted by ss. 8 to 14. To the contrary, s. 7 incorporates a host of rights not specifically guaranteed in ss. 8 to 14 (Malmo-Levine, at para. 169). It is precisely when the claimed right is not explicitly contained in ss. 8 to 14 that s. 7 is engaged.

[61] Given the relationship between s. 7 and ss. 8 to 14, it is sometimes difficult to isolate or disentangle the issues from one another: Perry, at para. 72. Overbreadth under s. 12 of the Charter is engaged to the extent that in some instances, applying the same punishment to offences that can be committed by a wide range of people in a variety of ways and circumstances results in a grossly disproportionate sentence. Overbreadth under s. 7 is concerned with whether the law’s purpose corresponds to all the subject matter that it captures. In any event, having conducted a s. 7 analysis in the present case, I have determined that s. 742.1(c) is not overbroad and that it does not violate Mr. Sawh’s s. 7 constitutional rights. The s. 7 analysis is set out below.

[62] The substance of the principle against overbreadth was explained in Bedford, at paras. 112-13, as follows:

Overbreadth deals with a law that is so broad in scope that it includes some conduct that bears no relation to its purpose. In this sense, the law is arbitrary in part. At its core, overbreadth addresses the situation where there is no rational connection between the purposes of the law and some, but not all, of its impacts. …

Overbreadth allows courts to recognize that the law is rational in some cases, but that it overreaches in its effect in others. Despite this recognition of the scope of the law as a whole, the focus remains on the individual and whether the effect on the individual is rationally connected to the law’s purpose.

[63] In R. v. Safarzadeh-Markali, 2016 SCC 14, [2016] 1 S.C.R. 180, at para. 24, the court articulated the approach to be taken when analyzing whether a law is overbroad within the meaning of s. 7:

Whether a law is overbroad within the meaning of s. 7 turns on the relationship between the law’s purpose and its effect. … It is critically important, therefore, to identify the purpose of the challenged law at the outset of the s. 7 inquiry.

[64] Counsel for Mr. Sawh takes the position that the purpose of s. 742.1(c) is public safety and security. In my view, this does not fully express the purpose of the legislation. For the reasons that follow, I find that the purpose of s. 742.1(c) is to promote public safety and security by emphasizing the objectives of denunciation and deterrence for serious crimes.

[65] To determine a law’s purpose for a s. 7 overbreadth analysis, courts look to: (1) statements of purpose in the legislation, if any; (2) the text, context, and scheme of the legislation; and (3) extrinsic evidence such as legislative history and evolution (at para. 31).

[66] In undertaking this analysis, courts must take note of several principles. First, the law’s purpose is distinct from the means used to achieve that purpose (at para. 26). Second, the law’s purpose should be characterized at the appropriate level of generality, which lies somewhere between the statement of an “animating social value – which is too general – and a narrow articulation” that amounts to a repetition of the provision (at para. 27). Third, the statement of purpose should be both precise and succinct (at para. 28). Finally, the analysis is not concerned with the appropriateness of the legislative purpose. The court must take the legislative objective “at face value” and assume that it is appropriate and lawful (at par. 29).

[67] I bear these principles in mind in examining the purpose of s. 742.1(c).

Statement of Purpose

[68] The Safe Streets and Communities Act was an omnibus piece of legislation with no explicit statement of purpose. Although little weight can be afforded to the Act’s title, it appears to indicate that the paramount objective was to increase public safety and security.

The Text, Context and Scheme of the Legislation

[69] The text of the Act may, to use a popular turn of phrase, be described as “tough on crime.” As noted in the summary of the statute, the Act amends the Criminal Code to:

(a) increase or impose mandatory minimum penalties, and increase maximum penalties, for certain sexual offences with respect to children; and

(b) restrict the availability of conditional sentences for all offences for which the maximum term of imprisonment is 14 years or life, and for specified offences, prosecuted by way of indictment, for which the maximum term of imprisonment is 10 years. [Under s. 742.1 (e), these include, among other offences, the importing, exporting, trafficking and production of drugs. Section 742.1(f) lists 11 specific offences for which a conditional sentence is not available.]

[70] The Act also amends the CDSA “to provide for minimum penalties for serious drug offences, to increase the maximum penalty for cannabis (marijuana) production and to reschedule certain substances from Schedule III of that Act to Schedule I.”

[71] Finally, the Act “amends the Criminal Record Act to substitute the term ‘record suspension’ for the term ‘pardon.’ It extends the ineligibility periods for applications of a record suspension and makes certain offences ineligible for a record suspension.”

Extrinsic Evidence, including legislative history and evolution

Introduction of Conditional Sentences

[72] Conditional sentences were introduced into the Criminal Code through Bill C-41, which came into force in September 1996. The legislation constituted a significant reform to the Canadian sentencing regime. In Proulx, the court found that Bill C-41 in general, and the conditional sentence in particular, were enacted to reduce reliance on incarceration as a sanction and to increase the use of principles of restorative justice in sentencing.

[73] Pursuant to Bill C-41, there were only three prerequisites that had to be satisfied before a judge could impose a conditional sentence:

(1) The offence was not punishable by a mandatory minimum term of imprisonment;

(2) The court was imposing a sentence of less than two years; and

(3) The fact that the offender would be serving the sentence in the community would not endanger the safety of the community.

[74] A year after the introduction of conditional sentences, Parliament enacted Bill C-17, which amended s. 742.1 by requiring that a conditional sentence be consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2 of the Criminal Code.

[75] In Proulx, at paras. 79-83, the court rejected the argument that the fundamental purpose and principles of sentencing supported a presumption against conditional sentences for certain offences. The court held that it would be both unwise and unnecessary to establish judicially created presumptions that conditional sentences are inappropriate for specific offences, particularly when Parliament, had it so chosen, could have excluded specific offences in addition to those with a mandatory minimum term of imprisonment. At para. 79, Lamer C.J. stated:

Section 742.1 does not exclude any offences from the conditional sentencing regime except those with a minimum term of imprisonment. Parliament could have easily excluded specific offences in addition to those with a mandatory minimum term of imprisonment but chose not to.

[Emphasis added.]

[76] Although conditional sentences are “jail” sentences served in the community, they are clearly less denunciatory than a conventional jail sentence, as they impose much less of a constraint on an offender’s liberty. In this sense, a conditional sentence is necessarily a more lenient sentence, and is not appropriate where there is a pressing need for denunciation and deterrence. I refer in this regard to the following passages in Proulx:

The conditional sentence is a meaningful alternative to incarceration for less serious and non-dangerous offenders: (para. 21);

The amount of denunciation provided by a conditional sentence will be heavily dependent on the circumstances of the offender, the nature of the conditions imposed, and the community in which the sentence is to be served. As a general matter, the more serious the offence and the greater the need for denunciation, the longer and more onerous the conditional sentence should be. However, there may be certain circumstances in which the need for denunciation is so pressing that incarceration will be the only suitable way in which to express society’s condemnation of the offender’s conduct: (para. 106);

Where punitive objectives such as denunciation and deterrence are particularly pressing, such as cases in which there are aggravating circumstances, incarceration will generally be the preferable sanction. This may be so notwithstanding the fact that restorative goals might be achieved by a conditional sentence: (para. 114).

[Emphasis added]

[77] That conditional sentences are to be reserved for less serious offences was underscored in R. v. Fice, 2005 SCC 32, 2005 CarswellOnt 1983. There was no issue in that case that a penitentiary sentence was warranted. It was also clear, however, that when the offender’s time in pre-trial custody was taken into account, the appropriate sentence was less than two years. The offender argued that in these circumstances, she was eligible for a conditional sentence. The trial judge agreed and imposed a 14-month conditional sentence, which was upheld by the Court of Appeal. In allowing the Crown’s appeal, the Supreme Court held that a conditional sentence is not available to an offender who otherwise deserves a penitentiary term solely because of the time the offender has spent in pre-sentence custody. In particular, the conditional sentence regime was not designed for those offenders for whom a penitentiary term is appropriate. Thus, according to Fice, even if such an offender receives a sentence of less than two years as a result of time spent in pre-trial custody, and even if service of that sentence in the community would not endanger the community, a conditional sentence is not available because it would be inconsistent with the fundamental purpose and principles of sentencing – that is, it would not adequately address the principles of denunciation and deterrence. At para. 17, the court stated that Parliament, in enacting s. 742.1, intended to cast a small net and only capture conduct serious enough to attract a sentence of incarceration but not so severe as to warrant a penitentiary term.

Bill C-9

[78] With the enactment of Bill C-9 in November 2007, Parliament chose to exclude a number of offences from the conditional sentencing regime. Bill C-9 amended s. 742.1 such that in addition to the limits created by Bill C-41, persons convicted of a “serious personal injury offence” as defined in s. 752, a terrorism offence or a criminal organization offence prosecuted by way of indictment for which the maximum term of imprisonment is ten years or more, were no longer eligible to receive a conditional sentence.

Bill C-10

[79] Section 742.1, in its current form, resulted from the passage in November 2012 of the Safe Streets and Communities Act. Parliament, through this Act, removed specific reference to a “serious personal injury offence”, but added other offences to the list of offences for which a conditional sentence could not be imposed. These included: offences prosecuted by indictment for which the maximum sentence is 14 years or life; offences prosecuted by indictment for which the maximum sentence is ten years that resulted in bodily harm, involved the import, export, trafficking or production of drugs, or involved the use of a weapon; and the 11 specific offences listed under s. 742.1(f).

[80] Defence counsel filed statements of various Cabinet Ministers involved in the enactment of s. 742.1(c), and comments made in the Senate comprising the legislative record and a government order. As noted in Safarzadeh-Markhali, at para. 36, “[s]tatements of purpose in the legislative record may be rhetorical and imprecise. Yet providing information and explanations of proposed legislation is an important ministerial responsibility, and courts rightly look to it in determining the purpose of a challenged provision.” I will briefly review the statements submitted, and also refer to the comments made in Neary and R. v. Scott, 2013 NSCA 28, 327 N.S.R. (2d) 256, regarding the purpose of the Act.

[81] In Neary, Smith J., at para. 19, relied on statements made in the House of Commons by the Parliamentary Secretary to the Minister of Finance, Shelly Glover, to support his finding that one of the purposes of s. 742.1(c) was to bring cohesion to the conditional sentencing regime by ensuring that it was only being used for less serious offences [See House of Commons Debates, 41st Parl, 1st Sess No. 18 (22 September 2011) at 1305-1320].

[82] In her statement, Ms. Glover spoke of a loss of public confidence in the appropriateness of conditional sentence orders because of their use in a wide array of offences, including offences punishable by life. She stated that “greater clarity and consistency is needed to limit the availability of conditional sentences and to protect Canadians from serious and violent offenders.” The Bill would make it “crystal clear” which offences are ineligible. Ms. Glover referred to offences punishable by 14 years or life, as well as offences punishable by a maximum of 10 years if they involved importing, exporting, trafficking in or production of drugs. It was the government’s opinion that “where these circumstances are present, there is a need to emphasize the sentencing objectives of denunciation and deterrence and therefore eliminate the possibility of a conditional sentence.” The government was “committed to ensuring that conditional sentences are used the way they were originally intended to be used”, which is for less serious offences.

[83] In introducing the Act in the Senate, the Deputy Leader of the Government, Claude Carignan, stated that, “Canadians gave us a clear mandate by electing a strong majority government last May because they believe that we are committed to ensuring their safety. … Let us keep our promise to make Canada a safer and fairer place”, Debates of the Senate, 41st Parliament, 1st Sess. No 56 (1 March 2012 at p. 1350).

[84] In the government order, the Minister of Justice and Attorney General of Canada, MP Rob Nicholson, also referred to the goal of public safety, House of Commons Debates, 41st Parliament, 1st Sess. No 17 (21 September 2011 at p. 1520):

As Minister of Justice and Attorney General of Canada, it is my responsibility to maintain the integrity of the justice system. We need legislation that is responsive to what is happening on our streets and meets the expectations of Canadians in the 21st century. The proliferation of drugs and violent crime is, unfortunately, a reality in this day and age and it is our job as parliamentarians to deal with criminals, to protect society, and do whatever we can to deter crime.

[85] The Minister of Justice’s statements make it clear that one category of offences that the government was targeting in the Act was drug trafficking. He stated that Canadians are “concerned about the illicit drug trade”, and that “drug use costs Canadian society an estimated 8.2 billion a year.” Consequently, the “government wants to prevent further victimization and make sure that Canada’s most serious violent criminals are kept off our streets.” The Act was to play a large part in this scheme by introducing “tougher penalties which specifically target the source of the illicit drug trade, the drug traffickers. The bill does not target substance abuse victims or experimenting teenagers. … The kinds of offenders that we are targeting are those involved in exploiting the addictions of others.” In regards to conditional sentences in particular, the Minister of Justice commented that the legislation “would ensure that serious crimes … would not result in house arrest.”

[86] In Scott, the respondent was charged with possession of cocaine for the purpose of trafficking prior to the Act coming into force. The purpose of the Act was therefore not in issue. The sole issue was whether, in light of the jurisprudence, “a sentence of under two years [could] be imposed for anyone convicted of trafficking or possession for the purpose of trafficking in cocaine, absent a sustainable finding that exceptional circumstances exist” (at para. 3). The majority held that while the “need to emphasize deterrence and denunciation for those that traffic in cocaine … may well mean that a sentence of federal incarceration is called for”, it cannot be said that such a sentence is mandatory unless “an offender can demonstrate ‘exceptional circumstances’”. Saunders J.A. disagreed. Although the purpose of the Act was not in issue, he referred to it in order to emphasize that the courts and Parliament clearly recognize the need for deterrence and denunciation where hard drugs are involved. He found that by removing the option of a conditional sentence, Parliament has clearly communicated to those involved in drug trafficking that “once they are caught, arrested and convicted, the consequences will be swift and harsh.” (at paras. 123-124).

Conclusion on the Purpose of the Legislation

[87] What can be gleaned from the public record and the case law is that the Act reflects three broad purposes: (1) public safety and security; (2) deterrence and denunciation; and (3) coherence and consistency. The purpose of the legislation for the purpose of a s. 7 analysis may be articulated as follows: the legislative purpose in removing the availability of conditional sentences for persons convicted of offences for which the maximum term of imprisonment is 14 years or life is to promote and enhance public safety and security by emphasizing the objectives of denunciation and deterrence for serious crimes, including drug trafficking. Other legislative purposes include increasing consistency and transparency in the use of conditional sentences, but these are peripheral concerns.

Is Section 742.1(c) overbroad?

[88] As stated in Safarzadeh-Markhali, at para. 50, it is a principle of fundamental justice that a law that deprives a person of life, liberty or security of the person must not do so in a way that is overbroad. In other words, that law must not go further than reasonably necessary to achieve its legislative goals.

[89] Defence counsel submits that s. 742.1(c) is overbroad in its application to the offences of trafficking in cocaine and possession of cocaine for the purpose of trafficking because it captures individuals whom it was not intended to capture: offenders such as Mr. Sawh, who are not a danger to the community.

[90] The difficulty with this argument is the assumption that it makes in terms of Parliament’s intention – that is, that Parliament did not intend through s. 742.1(c) to capture offenders who do not pose a threat to the community. In fact, Parliament’s demonstrated intention was to broaden the categories of offences that are inappropriate for conditional sentences so that they include serious crimes – crimes such as trafficking in Schedule I substances, which are punishable by a maximum term of life imprisonment – regardless of whether the offender could serve his or her sentence in the community without endangering it. Parliament’s intent was to prioritize the principles of denunciation and deterrence for serious offences that endanger the lives and safety of members of the Canadian public. These include the offences committed by Mr. Sawh.

[91] In this respect, Parliament has done little more than to codify the common law. As Woolcock and other cases referred to in these reasons demonstrate, courts have routinely recognized that trafficking in cocaine and other hard drugs calls for a jail sentence as opposed to a conditional sentence. The principles of denunciation and deterrence are paramount in these kinds of cases because of the serious nature of the offences.

[92] In Proulx, the court made it clear that “[w]here punitive objectives such as denunciation and deterrence are particularly pressing … incarceration will generally be the preferable sanction. This may be so notwithstanding the fact that restorative goals might be achieved by a conditional sentence” (at para. 114).

[93] Similarly, the court in Fice underscored the premise that conditional sentences should be reserved for less serious offences. Thus, when an individual is convicted of an offence that warrants a penitentiary term, but as a result of time spent in pre-trial custody receives a sentence of less than two years, that offender is not eligible to receive a conditional sentence, even if service of that sentence in the community would not endanger the community. A conditional sentence is not available in these circumstances because it would be inconsistent with the fundamental purpose and principles of sentencing – that is, it would not adequately address the principles of denunciation and deterrence.

[94] Fice illustrates the principle that the appropriateness of a conditional sentence turns on more than the fact that the sentence to be imposed is less than two years and that the offender would not endanger the safety of the community if allowed to serve the sentence in the community. The serious nature of the offence in Fice dictated that a conditional sentence ought not to be imposed. This is in accord with Proulx. Parliament, in enacting s. 742.1(c) is, in essence, mirroring this principle: conditional sentences ought not to be available for serious offences, that is, offences punishable by a maximum of 14 years, or offences such as trafficking in Schedule I substances, which are punishable by a maximum term of life imprisonment.

[95] As earlier reviewed in these reasons, Parliament’s ability to limit a judge’s sentencing discretion is well-established in the case law: See Nasogaluak, at para. 45 and quoted in these reasons at para. 21. In Proulx, the court recognized that Parliament “could easily have excluded specific offences” from the conditional sentencing regime. That is all that Parliament has done here.

[96] Even though Mr. Sawh’s drug dealing activity was at a lower level, his crime of trafficking in a hard drug nonetheless constitutes a serious offence. Mr. Sawh’s subjection to s. 742.1(c) does not demonstrate the legislation’s overbreadth, but rather exemplifies Parliament’s view that drug crimes present a serious danger to Canadian society.

[97] To echo the comments in Perry at para. 152, the exclusion of offences that carry a maximum sentence of life from the conditional sentencing regime

Constitutes merely one more limitation on the judge’s sentencing power. One may lament this choice and feel that Parliament is misguided. But that is not sufficient. The choice was a political one, and its appropriateness may not be questioned by judges so long as it does not violate the offender’s constitutional rights, as is the case here.

[98] As noted earlier, although s. 742.1(c) removes the availability of a conditional sentence for offences punishable by a maximum of 14 years or life imprisonment, it does not require the imposition of a minimum custodial sentence. The sentencing judge retains full discretion to determine the sentence in accordance with recognized sentencing principles and, in the event of a jail sentence, its length. As stated by Smith J. in Neary, all that s. 742.1(c) has done is to “remove from the judicial quiver the arrow of a conditional sentence order” (at para. 26).

Conclusion re s. 7 of the Charter

[99] In conclusion, I find that s. 742.1(c) is not unconstitutionally overbroad and that any interference with the s. 7 liberty interest is consistent with the principles of fundamental justice.

CONCLUSION RE CONSTITUTIONALITY OF S. 742.1(c)

[100] For the reasons given, the application is dismissed.

THE APPROPRIATE SENTENCE IN THIS CASE

[101] The appropriate sentence remains to be determined.

Circumstances of the offender

[102] Mr. Sawh, age 52, was born in Guyana, where he completed high school. He arrived in Canada with his parents and four older siblings in 1981, when he was 17 years old. As a young man, he worked in the family’s convenience store and, later on, in their grocery store. When those businesses were sold, he became a courier driver and worked for his brother’s employment agency making deliveries. He then began experiencing health problems that have made it difficult for him to maintain consistent employment. He was supported by Social Assistance for ten years. Two years ago, he was accepted into the Ontario Disability Support Program. Mr. Sawh now works occasionally for an HVAC company and a glass company. In their letters filed with the court, both employers speak highly of Mr. Sawh.

[103] Mr. Sawh lived in a common-law relationship for ten years. He and his partner had a son, who is now 24 years old. When the common-law relationship ended, Mr. Sawh moved into his mother’s home, where he has resided for the past ten years. He is currently single. His mother, who is 79 years old and in frail health, depends on Mr. Sawh to take care of her. He does the grocery shopping and laundry, and helps maintain the house. Mr. Sawh’s father lives in a nursing home.

[104] Mr. Sawh has been a volunteer worker at a local food bank for the last three years. He also volunteers at the community-based organization, “Voice of the Vedes Cultural Sabha Inc.”, which includes a seniors’ residence.

[105] As discussed earlier, Mr. Sawh has a somewhat dated criminal record. All his convictions, with one exception, occurred between 1996 and 2003, when he was struggling with a crack cocaine addiction. Most of the convictions during that period were related to his addiction and his need to finance his drug use. Two of the convictions – one in 2002, and another in 2003 – were for simple possession of a Schedule I substance.

[106] Mr. Sawh advised the author of the pre-sentence report that his addiction problems began in the mid-1980’s. In the early 1990’s, he attended the Addiction Research Foundation for treatment but experienced only intermittent periods of sobriety. Mr. Sawh attributes his lack of success in the program to his immaturity and the fact that he continued to associate with people who were criminally involved. In 2003, he stopped using crack cocaine without any therapeutic intervention because he decided that he “had had enough.” He also made changes to his lifestyle and avoided friends who were part of the drug culture.

[107] In 2008, Mr. Sawh was convicted of fraudulent use of credit card data, for which he received a suspended sentence and 18 months’ probation. He completed the probationary term without incident, as well as 75 hours of community service.

[108] Since he was charged with the current offences, Mr. Sawh has cut off contact with all of his remaining drug associates. He explained his involvement in these offences as an error in judgment because he was trying to help out a friend. He expressed remorse for having committed these offences, and disappointment in himself for his behaviour. He regrets having interrupted the five-year period during which he had no contact with the criminal justice system. He also regrets disappointing his family members, none of whom has a criminal record, and all of whom remain supportive of him.

[109] The stress of the outstanding charges has exacerbated Mr. Sawh’s health problems. He just recently recovered from pneumonia.

[110] In a letter filed with the court, Mr. Sawh’s physician, Dr. Rajendra Beharry, describes Mr. Sawh’s multiple medical issues as moderately severe and prolonged in nature. Mr. Sawh is currently on medication for hypertension and diabetes. He is morbidly obese and suffers from shortness of breath. He also suffers from sleep apnea, for which a C-PAP machine has been recommended. Mr. Sawh has chronic back pain and mobility problems during flare-ups. He is also being treated for depression due to his chronic pain. Dr. Beharry expressed concern that incarceration will cause further deterioration in his condition.

[111] During the approximately three-and-a-half years that he has been on bail, Mr. Sawh has been subject to a curfew from 10:00 p.m. to 6:00 a.m. For the first year-and-a-half or two years that he was on bail, he reported twice weekly to the police. There have been no breaches of the conditions of his bail.

[112] The pre-sentence report is very positive. Its author states that Mr. Sawh appears to be motivated to change and is a suitable candidate for community supervision, should that be a component of the disposition.

The sentence imposed

[113] Sentencing is a highly individualized process that requires the assessment of many factors in order to determine the most appropriate sentence.

[114] The aggravating factors in this case include the serious nature of the drug, the quantity involved, the number of transactions, and the fact that although Mr. Sawh had a history of drug addiction, his motivation in trafficking to the undercover officer was for profit. However, Mr. Sawh was clearly a very low-level dealer, as is evident from the fact that his “profit” in the last transaction was only $10. No other drugs or money were found on his person or in his home. Nor was Mr. Sawh in possession of any drug paraphernalia, such as scales, packaging material or debt lists. As noted earlier, Mr. Sawh’s drug trafficking appears to have been a very unsophisticated operation, and is consistent with his statement to the author of the pre-sentence report, Kathy Hoffman, that he only became involved to help out a friend.

[115] Mr. Sawh has a criminal record, but it is dated. Most of the convictions reflect or are a result of Mr. Sawh’s crack cocaine addiction, which began in the eighties and which he managed to finally overcome in 2003.

[116] Mitigating factors include Mr. Sawh’s remorse and the fact that he takes full responsibility for his actions. Mr. Sawh was very forthright in speaking to Ms. Hoffman, and appears to have some insight into the root causes of his criminal behaviour. Ms. Hoffman was of the view that Mr. Sawh is motivated to change. She noted that while on bail, he has taken steps to avoid any future involvement with the criminal justice system by cutting all ties with anyone involved in the drug culture. Mr. Sawh is involved in a positive way in his community, and has the support of his family.

[117] Mr. Sawh has been on bail for over three-and-a-half years, during which time he has been subject to a curfew from 10:00 p.m. to 6:00 a.m. There have been no breaches of his bail conditions. During a substantial portion of the time that he has been on bail, Mr. Sawh was reporting twice weekly to the police. He has served four days in pre-trial custody which, based on a 1.5:1 ratio, is the equivalent of a six-day sentence.

[118] Mr. Sawh’s physician reports that the stress of the outstanding charges has taken a toll on Mr. Sawh’s health. There is also a real concern about the negative impact that incarceration may have on Mr. Sawh’s multiple medical issues. Any period of incarceration, of course, will also have an impact on Mr. Sawh’s elderly mother. Mr. Sawh assists in her care and in maintaining the household.

[119] Having considered and weighed the principles of sentencing set out in ss. 718 to 718.2 of the Code, and the submissions of counsel, I am of the view that this is a case where the mitigating factors justify a sentence that is below the range set out in Woolcock. I find that a fit and proper sentence in all of the circumstances is 90 days imprisonment, to be served intermittently on weekends, from Friday at 8:00 p.m. until Monday morning, at 6:00 a.m. The intermittent sentence will be followed by a two-year term of probation. This sentence is imposed on Counts 1, 2, 3 and 4 in the indictment, to be served concurrently.

[120] The terms of the probation are as follows:

1. Keep the peace and be of good behaviour;

2. Have no communication with the co-accused, Lindsy Manoharan;

3. Appear before the court when required to do so;

4. Notify the court or your probation officer in advance of any change of name, address, employment or occupation;

5. Report to a probation officer within two working days, and thereafter when required by the probation officer and in the manner directed by the probation officer;

6. Not be in possession of any drug/medication without a valid prescription in your own name;

7. Have no association with anyone known by you to have a Youth Court or criminal record;

8. Attend for counselling as may be directed by the probation officer.

ANCILLARY ORDERS

[121] Pursuant to s. 109(1)(c) of the Criminal Code, Mr. Sawh is subject to a 10-year weapons prohibition order under s. 109(2)(a), and a lifelong weapons prohibition order under s. 109(2)(b). There will also be a forfeiture order with respect to the $10.00 of police buy-money seized during the execution of the search warrant.

GARTON J.

Released: 20161220