R. v Lenhardt, 2017 ONSC 1290

COURT FILE NO.: CR-14-90000307-0000 DATE: 20170224 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – JOSHUA LENHARDT Accused

COUNSEL: Kester Yeh, for the Crown Katey Scott, for the Accused

HEARD: January 12, 2017

B.A. ALLEN J.

REASONS FOR DECISION ON SENTENCING

BACKGROUND

1On April 20, 2016, I convicted Joshua Lenhardt of possession of cocaine for the purpose of trafficking (count 1), possession of marijuana for the purpose of trafficking (count 3), and possession of proceeds of crime (count 4). He was also charged with possession of MDMA (ecstasy) for the purpose of trafficking (count 2). A drug analysis did not confirm the substance seized to be MDMA and count 2 was withdrawn. Mr. Lenhardt is 37 years of age and of aboriginal background.

2The brief facts are as follows:

3Mr. Lenhardt was parked in a laneway in the entertainment district at around midnight on August 3, 2012. There were four female passengers in the vehicle. He had just parked there when police officers on bikes drove up to the driver’s side window. The police saw a backpack containing marijuana and a Ziploc baggie which gave them grounds to detain and search Mr. Lenhardt. They seized 11.17 grams of cocaine, 30.93 grams of marijuana and currency in the amount of $245.19 (CDN) and $91.25 (USD).

4Mr. Lenhardt admitted to being a drug dealer and that on the evening he was arrested he was in the process of doing drug transactions.

PRINCIPLES OF SENTENCING

Basic Principles

5The general principles on sentencing are found at s. 718 of the Criminal Code: to denounce unlawful conduct; to deter the offender and other potential future offenders from committing offences; and to separate offenders from society.

6Proportionality 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), 186 C.C.C. (3d) 129, 72 O.R. (3d) 1 (Ont. C.A.).

7Parity, another governing 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.).

8Under the Controlled Drugs and Substances Act, cocaine is a Schedule II controlled substance. Under legislation enacted in November 2012, section 742.1 of the Criminal Code made conditional sentences unavailable for convictions for certain offences which include trafficking in a controlled substance. Mr. Lenhardt was charged on August 3, 2012 and is therefore entitled to be considered for a conditional sentence.

9The law encourages the sentencing judge to consider less restrictive sentences such as non-custodial sentences in the appropriate circumstances.

10Pursuant to s. 718.2(d), “an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances”. Section 718.2(e) allows for particular consideration to be given to aboriginal offenders. Section 718.2(e) provides that “all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders”.

11The Supreme Court of Canada in R. v. Gladue provides guidance on the application of s 718.2(e) of the Criminal Code. The Court held that the purpose of this provision is to address the historical over-representation of aboriginals in the criminal justice system. This applies to aboriginals regardless of place of residence or lifestyle. In defining the relevant “aboriginal community” for the purpose of crafting an effective sentence, the Court stipulated that the term “community” must be looked at broadly. This permits consideration of available networks of support and interaction including those in urban centres. The court cautioned that the residence of the aboriginal offender in an urban centre that lacks any network of support does not relieve the sentencing judge of the obligation to attempt to find an alternative to imprisonment: R. v. Gladue, [1999] 1 S.C.R. 688 (S.C.C.).

MR. LENHARDT’S BACKGROUND AND CURRENT CIRCUMSTANCES

12The Aboriginal Legal Services prepared a Gladue Report dated November 4, 2016.

13Mr. Lenhardt is 37 years of age. He was born in Toronto. His father and paternal grandmother and paternal great-grandparents are registered members of the Georgina Island Nation located north of Toronto on Lake Simcoe. Mr. Lenhardt did not grow up with knowledge of his aboriginal culture. His grandmother moved away from Georgina Island to earn a livelihood for her family and never returned. His grandmother speaks Ojibway fluently but never spoke to her children in the ancestral language.

14Mr. Lenhardt is an only child. His parents separated when he was young and he went into the care of CAS. He moved with his father and grandmother at age 7. He did not know his mother. He sought her out at age 22. He reported that he was sexually abused by a teenage male foster child. He was in a special education program in school and left high school without graduating. He has been employed in factories and, currently and for many years, he has worked in construction.

15Mr. Lenhardt bought his first home in 2012. He met his girlfriend, who is now his wife, around the same time and she moved in with him. They plan to start a family. Mr. Lenhardt obtained power of attorney over his father’s affairs after he had three stokes in December 2012. He handles all of his legal and medical matters.

16In February 2016, Mr. Lenhardt enrolled in ground school at Toronto Island Airport to acquire his pilot’s license. His plan is to open his own business in the transport and charter sector.

17Mr. Lenhardt has little knowledge of his Ojibway heritage and has expressed an interest in learning about the cultural traditions. A Gladue After-Care Worker has been assigned to him to discuss and access cultural programming and services for Mr. Lenhardt.

AGGRAVATING AND MITIGATING FACTORS

18Section 718.2(a) of the Criminal Code 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”.

19Courts 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. Lower end trafficking, for instance, to support an addiction attracts less punitive measures on the view that the cause of the commission of the offence is to support a drug addiction which is regarded as a type of disease: R. v. Bui, at para. 2 and R. v. Woolcock, [2002] O.J. No. 4927 (Ont. C.A.), at para. 5.

[20] The aggravating factors in the case at hand are as follows:

• Mr. Lenhardt had in his possession a highly addictive drug, cocaine, which he was in the process of trafficking when he was arrested;
• He was in possession of the drug in a public, high traffic entertainment area of Toronto;
• There is no evidence he sold the drug to satisfy an addiction;
• He had the drug in his possession for a commercial purpose, for profit, and admitted he sold drugs to supplement his income from his construction job;

[21] The mitigating factors are:

• Mr. Lenhardt, age 37, has no criminal record;
• He had a difficult childhood being a ward of the CAS as a young child where he was sexually abused. He did not know his mother until later in life;
• His aboriginal background calls for consideration of the Gladue principles;
• He has shown an interest in and is capable of rehabilitation;
• He has shown an interest in acquainting himself with his Ojibway heritage and has made positive steps in that direction;
• He is waiting to attend an aboriginal centre and has a contact with an Aboriginal After-Care Worker from whom he receives direction for access to services and programming;
• He has had a stable relationship with his girlfriend whom he has recently married and they have a home in Brighton;
• He has a concrete plan for his future in that he is currently in ground school and seeking a pilot’s license with a plan to start his own transport and charter business;
• He has had stable employment in construction for the last 20 years;
• He has responsibly taken on the medical and financial management for his ill father’s life.

CASE AUTHORITIES

• 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, 1 gram of marijuana, and proceeds; was sentenced to 2 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 of the strong potential for rehabilitation was overlooked by the trial judge.
• R. v. Meggo, [1998] O.J. No. 3452 (Ont. C.A.) - offender, a street level dealer engaged in a commercial enterprise; convicted of possession of 7 gr. of cocaine; on appeal sentence of 18 months’ imprisonment and two years’ probation upheld.
• R. v. Harrison, 2009 ONCA 386 (Ont. C.A.) - offender, age 35, no criminal record; found in possession of 8.95 gr. of crack cocaine; committed a breach while on bail; appeal upheld 12 months less a day jail sentence.
• R. v. Kabbouchi, 2010 ONCJ 155 (Ont. C.J.) - offender, age 24, pleaded guilty; crack addict; unemployed; no criminal record; in possession of 5.2 gr. of crack cocaine and 17.82 gr. of marijuana; sentence 7 months’ incarceration, 2 years’ probation.
• R. v. Williams, [2010] O.J. No. 2971 (Ont. S.C.J.) - offender, no criminal record; not an addict; charged with possession of 5.5 gr. of crack cocaine for purpose of trafficking; no criminal record; three violations while on bail; sentenced to 9 months’ incarceration and 1 year probation.
• R. v. Hussein, 2016 ONSC 1421 (Ont. S.C.J.) - offender, age 38 found in possession 62.85 gr. of cocaine; not addicted to cocaine; prior non-drug related criminal record; unemployed; suffering from mental illness; on bail 4 1⁄2 years with no house arrest; conditional sentence of 2 years less a day with 1 year probation.
• R. v. Imoro, 2011 ONSC 1445 (Ont. S.C.J.) – offender, age 38; has criminal record with previous charges for drugs; 550.05 grams of marijuana, 6.41 grams of cocaine seized; no character information filed; steady seasonal employment over 10 years; sentence of 2 years less one day on 2 counts to be served concurrently and in the community.

THE PARTIES’ POSITIONS

22The Crown seeks a conditional sentence of two years less a day: 12 months house arrest and a curfew of 12 months less a day. The defence seeks a 12-month sentence: six months house arrest and a curfew of six months. The accused served 30 days pre-trial custody. The defence seeks 1.5 to 1 credit for the period of pre-trial custody.

23The Crown seeks the following ancillary orders: a mandatory s. 109 firearm prohibition; a discretionary DNA order; and a forfeiture order for the $475.19 (CDN) and $91.25 (USD), two digital scales and two cell phones seized.

CONCLUSION ON SENTENCING

24The parties agree that a conditional sentence is appropriate in the circumstances. While Mr. Lenhardt is entitled to be considered for a conditional sentence, I am obliged to consider if such a sentence is appropriate in the circumstances keeping in mind the sentencing principles set out under sections 718 to 718.2 and s. 742.1 of the Criminal Code. Given Mr. Lenhardt’s cultural heritage the Gladue principles must be considered.

[25] Section 742.1 provides:

742.1 Where a person is convicted of an offence, except an offence that is punishable by a minimum term of imprisonment, and the court (a) imposes a sentence of imprisonment of less than two years, and (b) is satisfied that serving 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,

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 offender’s complying with the conditions of a conditional sentence order made under section.

26To decide whether an offender should serve their sentence in a federal prison, a reformatory, or in the community under strict terms including house arrest, consideration must be given to whether permitting the offender to serve their sentence in the community will endanger the safety of the community.

[27] The Supreme Court of Canada in R. v. Proulx endorsed the principle that conditional sentences were introduced by Parliament to reduce reliance on incarceration and to increase the use of restorative justice principles in sentencing: R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at para. 20 (S.C.C.). The Court presented factors to consider:

… [T]wo factors should be taken into account: (1) the risk of the offender re-offending; and (2) the gravity of the damage that could ensue in the event of re-offence. If the judge finds that there is a real risk of re-offence, incarceration should be imposed. Of course, there is always some risk that an offender may re-offend. If the judge thinks this is minimal, the gravity of the damage that could follow were the offender to re-offend should also be taken into consideration. In certain cases, the minimal risk of re-offending will be offset by the possibility of a great prejudice, thereby precluding a conditional sentence.

R. v. Proulx, at para. 69

28I find the mitigating factors substantially outweigh the aggravating factors in this case. Mr. Lenhardt is a first-offender. He has had steady employment in construction for over 20 years. He has set a positive goal to be trained as a pilot and has commenced training to that end.

29Mr. Lenhardt has a stable relationship with his newlywed wife who he has been involved with for a number of years. They plan to start a family. Although, due to unfortunate circumstances in his life, he was never raised in the Ojibway tradition or acquainted with aboriginal culture, Mr. Lenhardt has shown an interest in being introduced to his cultural background through involvement with an aboriginal After-Care Worker at an aboriginal cultural centre. His interest in training as a pilot and seeking contact and involvement with the aboriginal community have clear rehabilitative qualities for which I find he should be credited.

30I have not ignored the fact that Mr. Lenhardt was convicted of possession of cocaine for the purpose of trafficking. Cocaine is among the most pernicious and addictive drugs which attracts other crimes and dangers to communities. It cannot be minimized that he had the drugs in his possession in a vehicle parked in a busy downtown area and was about to traffick when the police arrested him. However, it is to Mr. Lenhardt’s credit that he openly admitted he was a drug dealer in the process of making contact with a customer when the police arrived. He did not try to deny this.

31I take into account that his arrest was four-and-a-half years ago. Since that time, Mr. Lenhardt has made considerable strides towards rehabilitation and changing his lifestyle. He has the capacity to support himself financially with his wages from his construction job. He described the money earned through drug sales as supplementary to his employment wages.

32I conclude that the risk of Mr. Lenhardt re-offending is minimal given Mr. Lenhardt’s rehabilitative efforts and his deliberate moves to change the direction of his life.

DISPOSITION

33I considered the authorities cited and the mitigating and aggravating factors. I impose a conditional sentence of 12 months on count 1 (possession for the purpose of trafficking cocaine); a conditional sentence of six months on count 3 (possession of marijuana for the purpose of trafficking) and a conditional sentence of six months on count 4 (possession of proceeds of crime). The sentences for the three counts shall be served concurrently.

34I will not give him credit for his period of bail. He was not required to serve any portion of his bail under the stringent terms house arrest.

35I find the sentence imposed to be a fit sentence that appropriately addresses the principles of deterrence and denunciation and takes into account the Gladue principles.

SENTENCE

36I will now pass sentence. Joshua Lenhardt, will you please stand?

37You have been convicted on count 1 for possession of cocaine for the purpose of trafficking. You stand to be sentenced on that offence.

38I sentence you to a conditional sentence in the community of 12 months on count 1.

39You have been convicted on count 3 for possession of marijuana for the purpose of trafficking. You stand to be sentenced on that offence.

40I sentence you to a conditional sentence in the community of six months on count 3.

41You have been convicted on count 4 for possession of proceeds of crime. You stand to be sentenced on that offence.

42I sentence you to a conditional sentence in the community of six months on count 4.

43The conditional sentences on the three counts shall be served concurrently. The total conditional sentence to be served in the community shall therefore be 12 months.

44The conditional sentences shall be served on the following terms:

[45] There are mandatory conditions set out under s. 742.3(1) of the Criminal Code. In addition to the mandatory conditions, I order that you comply with the following non-mandatory terms and conditions as permitted by section 742.3(2) of the Criminal Code. (a) For the first six months of this order, you shall continue to reside in your current home in Toronto, at 66 Pacific Avenue, and remain in your home, under house arrest, 24 hours per day, seven days per week, and not leave your home at any time except for the following reasons: (i) court attendances and reporting to your supervisor; (ii) attendance at your place of employment or for employment purposes only; (iii) attendance at your pilot training courses as required by the training program; (iv) attendance at scheduled medical or dental appointments for yourself and your father; (v) to deal with any medical emergency affecting you or a member of your immediate family; (vi) attendance at a religious institution for the purpose of worship not more than once per week; (vii) attendance at a native community centre for the purpose of engagement in cultural activities and counselling not more than once per week; (vi) a four-hour period weekly, the precise time to be agreed upon by your supervisor, during which time you may attend to personal matters such as banking, purchase of groceries and running household errands; (vii) travel directly to or from any of these activities; and (viii) at any other time with the prior written permission of your supervisor. (b) The remaining six months of your conditional sentence shall be served under a curfew. You are not to be away from your place of residence any day or night between the hours of 11:00 p.m. and 6:00 a.m., subject to a medical emergency affecting you or a member of your immediate family or subject to any special variation granted by your supervisor; (c) You shall permit police officers or your supervisor or designate to knock at the door of your residence at any time between 6 a.m. and 12 a.m. (midnight), on any day throughout your sentence for the purpose of ensuring your compliance with the house arrest and the curfew conditions of this order; (d) You shall abstain from the purchase, possession or consumption of any drugs (or other substances prohibited by law) except in accordance with a medical prescription.

[46] I make the following ancillary orders: (a) under s. 109 of the Criminal Code, a mandatory firearm prohibition for ten years. An exception is allowed for your use of a longbow when participating in indigenous cultural activities if supervised by the appropriate personnel from an aboriginal cultural centre. (b) under s. 490.1(1)(b) of the Criminal Code, a forfeiture order in relation to the $475.19 (CDN) and $91.25 (USD), two digital scales, and two cell phones seized.