CITATION: R. v. Rile, 2016 ONSC 7991
COURT FILE NO.: CR-16-90000428-0000
DATE: 20161222
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
JEFFREY BON RILE
Accused
Peter Campbell, for the Crown
Franklin Lyons, for the Accused
HEARD: November 15, 2016
B.A. ALLEN J.
REASONS FOR DECISION ON SENTENCE
BACKGROUND
[1] Jeffrey Bon Rile was convicted by a jury on November 14, 2016 of possession of methamphetamine for the purpose of trafficking and possession of proceeds obtained from crime. Mr. Rile was in custody at the time of the trial and the sentencing hearing.
[2] Mr. Rile was standing in the bedroom of a hotel suite. The police seized about 554 grams of methamphetamine from a plastic container found in a nightstand where Mr. Rile was standing and $2,000 from a safe in the bedroom. Mr. Rile has been in custody since his arrest on June 18, 2015.
[3] It can be reasonably inferred from the fact that the jury found Mr. Rile in possession of the drugs and money that they accepted that Mr. Rile had rented the suite; that the name “Bon Rile” on the rental receipt refers to Jeffrey Bon Rile.
MR. RILE’S LIFE
[4] Mr. Rile’s mother, Mila Rile, testified on her son’s behalf at the sentencing hearing.
[5] Mr. Rile is currently 32 years of age. His mother testified that as a youth he was a talented basketball player who travelled to various cities playing that sport. She stated that he began dating a girl when he was 16 years old and continued a long-term relationship with her for nine years. During those years he went to school and worked after school. He was able to buy his first car with his earnings. When he finished high school he joined his father as a construction worker with his father’s employer. The mother testified he performed very well on that job.
[6] The mother testified that when he and his girlfriend broke up when he was 25 years old, Mr. Rile’s life began to fall apart. He stopped coming home at night. From 2010 to 2015 he began to come home irregularly. He started not going to work regularly. She began to realize he was doing drugs when her husband showed her drug paraphernalia he found in the house. She testified she has never confronted her son about his addiction.
[7] The mother testified that she has realized for the past five years that he is addicted to methamphetamine. She said she suspected because he no longer had a job that he sold drugs to buy more drugs. She testified that she believed he started using and became addicted to methamphetamine in about 2001 and has been an addict for about 15 years. The mother was aware of the criminal conviction her son received for possession of methamphetamine in September 2011.
[8] The mother is an operation room nurse’s assistant and is familiar with drugs and drug issues. She stated that on one occasion she attempted to talk to her son about his addiction but he never wanted to discuss it. The mother indicated that she would support him and ensure that he goes to treatment if he should receive a sentence that requires this of him. She stated that her son has never sought treatment since his arrest because he has been in custody. The mother testified that when he is released from custody she would be stricter with him and make him comply with court orders.
PRINCIPLES ON SENTENCING
[9] Section 718 of the Criminal Code sets down the objectives for sentencing: denunciation, deterrence and the separation of the offender from society.
[10] The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (a) to denounce unlawful conduct; (b) to deter the offender and other potential future offenders from committing offences; and (c) to separate offenders from society.
[11] Proportionality is also a guiding principle for sentencing. A sentence must be proportionate to the gravity of the offence, determined on the particular facts of the case. The narrow focus of the sentencing process is directed to imposing a sentence that reflects the circumstances of the specific offence and the attributes of the specific offender: [Criminal Code, s. 718.1 and R. v. Hamilton (2004), 2004 CanLII 5549 (ON CA), 186 C.C.C. (3d) 129, 72 O.R. (3d) 1 (Ont. C.A.)].
[12] The parity principle requires a sentence be similar to sentences imposed on similar offenders for similar offences committed under similar circumstances. Sentencing is however an individualized process which necessarily means that sentences imposed for similar offences may not be identical: [R. v. Cox, 2011 ONCA 58 (Ont. C.A.) and R. v. L.M, [2008] 2 S.C.R. 163, 2008 SCC 31 (S.C.C.)].
[13] Section 718.2 addresses the totality principle and provides that where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh. The principle applies with a sentence for multiple offences and requires the court to craft a global sentence of all offences that is not overly excessive.
AGGRAVATING AND MITIGATING FACTORS
[14] Section 718.2(a) provides that “a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender”.
[15] Courts have made distinctions between levels of gravity of drug offences. Trafficking in drugs for a commercial purpose has attracted greater condemnation. This type of activity has been viewed as an aggravating factor on sentencing.
[16] Lower end trafficking, for instance, to support an addiction attracts less punitive measures on the view that the cause the commission of the offence is to support a drug addiction which is regarded as a type of disease: [R v Bui, 2004 CanLII 7201, at para. 2, (ON CA) and R v. Woolcock, [2002] O.J. No. 4927, at para. 5, (Ont. C.A.)].
[17] Aggravating factors on sentencing must be proven beyond a reasonable doubt: [Criminal Code, s. 724 and R. v. Larche, 2006 SCC 56, [2006] 2 S.C.R. 762, at paras. 43 - 44, (S.C.C.)].
[18] The aggravating factors in this case are:
- the substantial quantity of drugs seized;
- the fact that methamphetamine is a Schedule I drug;
- the evidence of the expert who testified at trial that possession of 554 kilograms of methamphetamine points to Mr. Rile being a mid-level dealer meaning a commercial enterprise was involved;
- the expert’s evidence that it is not uncommon for a mid-level dealer to also be a user and an addict;
- the expert opinion that the drug appeared to be high quality by its shard-like consistency;
- Mr. Rile’s minor criminal record for one methamphetamine possession offence, with a fine of $500;
- he is unemployed and has been for several years;
- there is no evidence that Mr. Rile, or his family, have at any time sought assistance in the community for rehabilitation and treatment for his addiction.
[19] While absence of a guilty plea is not to be considered an aggravating factor, Mr. Rile does not have the benefit of a guilty plea as a mitigating factor.
[20] The mitigating factors are few:
- Mr. Rile has family support;
- he is 32 years of age and has been addicted to methamphetamine for 15 years, almost half of his life;
- he lost his employment due to addiction.
THE PARTIES’ POSITIONS
[21] The Crown seeks a penitentiary sentence of five years. Mr. Rile has been in custody since June 18, 2015. The Crown accepts that Mr. Rile should get credit of 1.5 months to 1 month for pre-trial custody which amounts to 831 days.
[22] The Crown also seeks a mandatory Criminal Code s. 109 firearm prohibition for ten years and the registration of a DNA sample. The Crown also seeks forfeiture of the $2,000 seized.
[23] The defence seeks a lower sentence in view of Mr. Rile’s minor criminal record, the fact he could not seek rehabilitation since he has been in custody. Defence counsel emphasized Mr. Rile’s drug addiction, his family support, the fact his mother has undertaken to ensure he attends any treatment recommended and the fact Mr. Rile lost his employment due to his addiction.
CASE AUTHORITIES
- R. v. Bajada, 2003 CanLII 15687 (ON CA), [2003] O.J. No. 721, (Ont. C.A.) - the offender, age 51, with an extensive criminal record, was arrested in possession of over one-half kilogram of cocaine and $62,500; Court of Appeal reduced the eight-year custodial sentence by the trial judge to six years.
- R. v. Woolcock, [2002] O.J. No. 4927 (Ont. C.A.) - the offender, age 53, with prior drug-related convictions, who was not an addict, possessed 5.3 grams of crack cocaine, one gram of marijuana, and proceeds; was sentenced to two years less a day custody for possession of cocaine for the purpose of trafficking with sentences for other offences to run concurrently. The Court of Appeal reduced sentence to 15 months custody because the strong potential for rehabilitation was overlooked by the trial judge.
- R. v. Tarnowski, [2010] M.J. No. 293 (Man. Q.B.) - offender in possession of 218 grams of methamphetamine of 65 to 68 per cent purity; prior record including narcotics offences, significant rehabilitative efforts; sentence two years less a day conditional sentence.
- R. v. Villeneuve, 2007 CarswellOnt 1394 (Ont. C.J.) – offender, age 22; sold drugs on the street; 1006 grams of methamphetamine and $8,940 cash seized; convicted on four counts; mid-level trafficker; offender remorseful; close family ties; total custodial sentence five years and four months.
- R. v. Loy, 2011 ONCA 340 (Ont. C.A.) - drugs with street value of $200,000; appeal court upheld prison sentence of five years with 8 months’ credit for pre-trial custody.
- R. v. Copeland, 2007 CarswellOnt 5598 (Ont. S.C.J.) offender, age 23; 280 grams methamphetamine; at least a low-level commercial enterprise; criminal record for violent and theft offences; sentence three years’ imprisonment.
- R. v. Zaryski, [2011] O.J. No. 799 (Ont. C.J.) police found 461.81 grams of methamphetamine; offender drug addict; had taken treatment; was employed; rehabilitated himself; remorseful; close family ties; sentence two years less a day in the community and three years’ probation.
CONCLUSION ON SENTENCING
[24] Most important to my decision is the fact that Mr. Rile had in his possession a large amount of a very addictive drug in a quantity consistent with a mid-level commercial drug dealer. Although the fact he has an uncontrolled addiction to the drug is a mitigating factor, this is overwhelmed by the commercial nature of his crime. Having this type of drug in one’s possession for the purpose of propagating it to others deserves strong censure. The further fact that over the 15 years of his addiction he has not sought treatment cannot be overlooked.
[25] After considering the authorities, I sentence Mr. Rile as follows:
[26] I sentence him to 30 months (911 days) imprisonment in a federal penitentiary. Mr. Rile shall get 1.5 months to 1 month credit for pre-trial custody. He has served 18 months and four days (554 days) of pre-trial custody calculated from the date of his arrest on June 18, 2015 to the date of sentencing on December 22, 2016.
[27] Mr. Rile shall therefore receive 27 months and twenty-one days’ (831 days) credit for pre-trial custody. He shall therefore serve two months and twenty days (80 days) in the penitentiary and serve six months concurrent for possession of proceeds of crime. I also impose a period of probation of two years after release.
[28] I find the sentence imposed to be a fit sentence that amply serves the objectives of denunciation and deterrence.
SENTENCE
[29] I will now pronounce sentence. Jeffrey Bon Rile, will you please stand?
[30] You have been convicted for possession of methamphetamine for the purpose of trafficking. You stand to be sentenced for that offence.
[31] I sentence you to 30 months imprisonment in a federal penitentiary for possession of methamphetamine for the purpose of trafficking with credit for 27 months and twenty-one days for pre-trial custody.
[32] Therefore, your total time in prison will be two months and twenty days for possession of methamphetamine for the purpose of trafficking.
[33] You have also been convicted of possession of proceeds of crime. You stand to be sentenced for that offence.
[34] I sentence you to six months for possession of proceeds of crime to run concurrently with the sentence for possession of methamphetamine for the purpose of trafficking.
[35] Therefore, your total sentence in prison shall be two months and twenty days for both counts.
[36] I also sentence you to a probationary period of two years following release on the following conditions:
(a) You will keep the peace and be of good behaviour.
(b) You will appear before the court when required to do so by the court.
(c) You will notify the court or the probation officer in advance of any change of name or address, and promptly notify the court or the probation officer of any change of employment or occupation.
(d) You will report to a probation officer when and in the manner directed by the probation officer.
(e) You will attend for and actively participate in, and to the satisfaction of your probation officer, any assessment, treatment or counselling as required by your probation officer, including for drug treatment, and you will sign whatever consents or releases as may be required by your probation officer in order to monitor and verify compliance with said assessment, treatment or counselling and you will provide written proof of completion of said assessment, treatment or counselling to your probation officer.
(f) You will not own, possess or carry any weapons as defined by the Criminal Code.
[37] I make the following ancillary orders:
(a) There will be an order made under s. 109 of the Criminal Code which will prohibit you for ten years, commencing after release from custody, from owning, possessing or carrying any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance.
(b) There will be an order authorizing the taking of such bodily substances as are necessary for the purposes of a forensic DNA analysis.
[38] There will be an order of forfeiture for the $2,000 seized.
[39] You shall have one (1) year to pay the victim surcharge pursuant to s. 737 of the Criminal Code.
B.A. ALLEN J.
Released: December 22, 2016
CITATION: R. v. Rile, 2016 ONSC 7991
COURT FILE NO.: CR-16-90000428-0000
DATE: 20161222
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
JEFFREY BON RILE
REASONS FOR DECISION on sentencing
B.A. ALLEN J.
Released: December 22, 2016