Court File and Parties
COURT FILE NO.: 107/16 DATE: 2017 05 24 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HER MAJESTY THE QUEEN – and – ERIK STRONG
Counsel: Christopher Bundy and Wendy Houtmeyers, for the Crown Ehsan Grebrai, for the Accused
HEARD: April 25, 2017
REASONS FOR SENTENCE
Woollcombe J.
A. Introduction
[1] Erik Strong is before me for the imposition of sentence.
[2] On February 6, 2017, Mr. Strong entered a guilty plea before me to four charges:
a. Trafficking in cannabis marihuana in an amount greater than 3 kilograms, contrary to s. 5(1) of the CDSA on September 11, 2014;
b. Trafficking in cannabis marihuana in an amount greater than 3 kilograms, contrary to s. 5(1) of the CDSA on September 25, 2014;
c. Conspiring with James Evans-O’Connell, Craig Jones and others to traffic in a controlled substance, to wit cannabis marihuana, contrary to s. 465(1) of the Criminal Code between October 28 and November 24, 2014;
d. Possessing proceeds of crime, to wit $53,832 in Canadian currency, knowing it was obtained directly or indirectly from the commission in Canada of an indictable offence, contrary to s. 354(1) of the Criminal Code, on or about November 24, 2014.
[3] It was agreed that the facts supporting the guilty plea would be the evidence adduced at his trial or as determined on the sentencing hearing.
[4] Mr. Strong chose to plead not guilty to three further charges and had a jury trial. On February 23, 2017, he was found guilty by the jury of one count of possession of a controlled substance, to wit: cannabis marihuana, in an amount greater than three kilograms, for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Services Act (“CDSA”). He was found not guilty of the two other charges.
B. The Facts
a) Circumstances of the Offences
[5] I find the following to be the relevant facts in relation to the offences.
[6] Mr. Strong was involved in the dangerous and violent business of drug trafficking. He was a commercial wholesaler of marihuana. He was motivated by greed and profit.
[7] Mr. Strong began selling marihuana while in university. He continued as a seller after university, at the retail level, selling small amounts at a time. In 2012, his business resulted in him being violently attacked and hospitalized. Rather than turning away from this lifestyle, Mr. Strong appears to have been motivated to find an alternative, safer way to ply his trade. He became a wholesaler of larger quantities of marihuana, a position in which he felt insulated from street level violence.
[8] Mr. Strong’s business appears to have involved him receiving large amounts of marihuana, storing it, and then selling it for a profit. The evidence before me, supported by Exhibit 3 on sentencing, is that Mr. Strong sold a large quantity of marihuana over the fall of 2014. He had in his possession 40 pounds of marihuana at 126 Simcoe Street, his “stash house”, at the time of his arrest on November 24, 2014.
[9] The Crown suggests that it has proven that Mr. Strong either had or sold at least 124 pounds of marihuana between September 11 and November 24, 2014. I accept that this has been proven.
[10] In terms of the value of the marihuana that Mr. Strong had or sold, the Crown’s expert evidence was that a pound of marihuana was worth between $2,000 and $3,000. This means he had or sold at least $248,000 of marihuana in that period in the fall of 2014. Sold at a gram or ounce level, the marihuana would be worth more. Suffice it to say, this was an enterprise that involved a high value of marihuana and large amounts of money.
[11] I accept that Mr. Strong was an organizer in this marihuana business. He hired people such as Craig Jones to be his driver. He had the ability to obtain product from Mr. Jones when he wanted it. He talked about hiring other drivers. He seemed to refer to people who worked for him in the intercepted conversations.
[12] On his own evidence, Mr. Strong also met with others in the drug underworld, including an individual named Preen, with the hope of expanding his business into the Toronto market. He was prepared to assume the risks of meeting others in the business, and discussing business opportunities with them, because he hoped for lucrative rewards.
[13] The business as operated by Mr. Strong was quite sophisticated. Mr. Strong sold, on his own evidence, high quality marihuana. He had regular buyers. He had product delivered to the underground parking lot of the building in which he lived. Sometimes he sold samples. He had a “stash house” where he stored product and where it was packaged. He had regular clients who made regular purchases.
[14] Mr. Strong was well aware that what he was doing was illegal and that there were risks of being caught by police. He took steps to evade being detected by the authorities. These included trying to cover his steps by carrying his product in a hockey bag and carrying a hockey stick with him when transporting it, using encrypted means to communicate with others in his business and using coded language when discussing his business in text messages or on the telephone. I find Mr. Strong was a savvy entrepreneur.
[15] In summary, I accept that Mr. Strong was a sophisticated business man involved in a large scale commercial wholesale marihuana business. His business was carried on over years and made Mr. Strong sufficient profit that he did not feel he needed any other job.
[16] I will address now the specific counts before me.
September 11, 2014 trafficking marihuana count
[17] On September 11, 2014, Mr. Strong sold marihuana to his friend James Evans-O’Connell.
[18] Mr. Strong agreed that on September 11, 2014, he had sent a message to either Craig Jones or Nathan Freeman and that one of them had dropped off a box of marihuana at his address at 628 Fleet Street. Mr. Evans-O’Connell met Mr. Strong at 628 Fleet Street that morning at 11:41. Mr. Evans-O’Connell left with a big box. Mr. Evans-O’Connell then went to his storage locker. When the police entered the locker later that day, they found fifteen bags of marihuana inside. This marihuana weighed 28.4 pounds.
September 25, 2014 trafficking marihuana count
[19] It was agreed that Mr. Strong also sold marihuana to Mr. Evans-O’Connell on September 25, 2014. Based on the police evidence about the marihuana found in the locker belonging to Mr. Evans-O’Connell, I accept that this transaction was a sale of 28.4 pounds.
October 28 and November 24, 2014 conspiracy to traffic in marihuana
[20] Mr. Strong testified that Craig Jones was one of his marihuana suppliers. Mr. Jones provided him with marihuana on demand. Mr. Jones would provide him with marihuana in boxes and would deliver the marihuana to the underground parking lot at 628 Fleet Street so that Mr. Strong could sell the marihuana to his clients. These clients included Mr. Evans-O’Connell and others.
November 24, 2014 possession of proceeds of crime - $53,832
[21] Police conducted a search warrant at Mr. Strong’s residence on November 24, 2014. They located $53,832 in cash in a safe in his residence. Mr. Strong testified that this cash was from his marihuana sales over time.
November 24, 2014 possession of marihuana for the purpose of trafficking
[22] This count relates to the marihuana found in the apartment at 126 Simcoe Street, the location used by Mr. Strong as his “stash house”. When the police executed a search warrant at this address, they located about 40 pounds of marihuana. The marihuana was located in bags that were then placed in boxes and hockey bags.
[23] The issue for the jury to determine at trial was whether Mr. Strong was in possession of this marihuana or whether, as he claimed, it was really possessed by Nathan Freeman, whose apartment this appears to have been.
[24] The jury heard about and saw surveillance video of Mr. Strong taking marihuana in and out of the apartment at 126 Simcoe Street. They clearly rejected his evidence about who had control of this marihuana and concluded that Mr. Strong had it in his possession. I find that this was a location used regularly by Mr. Strong to store large quantities of marihuana away from his home. He did this in order to avoid any detection by authorities of his illegal business by keeping it away from his home.
b) Circumstances of the Offender
[25] During the trial, I heard evidence from Mr. Strong about his background. Further information is contained in a Pre-Sentence Report (“PSR”).
[26] Mr. Strong is now thirty-two years old. He has one prior criminal conviction for theft under from March 2004. He received a suspended sentence and probation.
[27] Mr. Strong began selling marihuana while in his fourth year of studies at Brock University. At that point, he sold small amounts. In 2009, following some family deaths, he began smoking more marihuana himself. He graduated from university in the summer of 2009 and then enrolled in the Canadian Securities Course. By January 2010, he had failed the course twice and did not have a job. His mother supported him and he continued to sell marihuana at the retail level.
[28] By the end of 2011, Mr. Strong was buying marihuana a pound at a time and breaking it up and selling it. He testified that a pound cost him between $1,000 and $3,000. He testified that in 2012, he was “jumped by two guys”. They punched him in the face and tried to rob him. Following surgery, he decided that it was safer to conduct his marihuana sales as a wholesale dealer, rather than selling at the street level. He did so over 2012 and 2013. Around this time, he met James Evans-O’Connell, who began buying five pounds of marihuana from him at a time.
[29] By the end of 2013, James Evans-O’Connell was buying ten pounds of marihuana from Mr. Strong at a time. Mr. Strong testified that Mr. Evans-O’Connell was more than half his business. By 2014, Mr. Strong was selling marihuana in quantities of ten to twenty pounds. There is evidence before me that sales in the fall of 2014 were of even larger volumes.
[30] While Mr. Strong used marihuana regularly from the time he was in university until his arrest, he advised the author of the Pre-Sentence Report that he has stopped using marihuana since his arrest.
[31] Following his arrest in 2014, Mr. Strong was not able to secure full time employment until February 2016. He is now working as a transition specialist advising clients about investments. His employer is Investment Planning Counsel. His annual income is approximately $45,000. Mr. Strong was able to complete the Canadian Securities course in September 2016, while awaiting trial in this matter.
[32] The defence has filed letters from others at Investment Planning Counsel where Mr. Strong currently works. His employer is aware of the criminal investigation. The letter from the President and CEO indicates that the firm would be prepared to maintain Mr. Strong’s employment following a conviction if he receives a suspended sentence. The letter indicates that if there were any large gap of time for which Mr. Strong is unavailable, it would be difficult to hold his position.
[33] A second letter from an Associate at Investment Planning Counsel indicates that Mr. Strong is remorseful and has learned from what happened. He indicates that he will offer Mr. Strong a position of employment regardless of the legal outcome in this case.
[34] Mr. Strong reported to the author of the PSR that he has critically evaluated his life and has put the drug sales business behind him. He and his mother joined the Harvest Bible Chapel evangelical congregation two years ago. He assists with weekly services and attends small group church meetings. His pastor’s letter indicates that the pastor believes that Mr. Strong has deepened his faith and is a changed man.
[35] I have been provided with other supportive letters from members of the church. They suggest that Mr. Strong has become more open and humble, that he is remorseful for his conduct and that he has shown genuine care and concern for others.
[36] As he spoke in court at the conclusion of the sentencing hearing, Mr. Strong eloquently conveyed the depth of his regret and remorse for the lifestyle that he chose, and which led to these convictions. He said that at the time, he convinced himself that what he was doing was justified, without thinking about the impact that it had on others. He expressed shame about the way he appeared in the intercepted communications.
[37] Mr. Strong tells me that he has reflected deeply on the poor decisions that he has made and that he is committed to making lasting, life-long changes. He says he is fortunate to have a wide circle of support and that he is confident that he has turned his life around and will become a positive member of society.
C. Positions of the Parties
[38] The Crown seeks a sentence of five to six years for the drug offences and a sentence of 18 months, consecutive, for the proceeds charge. In addition, the Crown seeks the following ancillary orders: a fine for $167,660, a DNA order under s. 487.051(3) of the Criminal Code and a ten year weapon prohibition under s. 109(2)(a) of the Criminal Code.
[39] The Crown also sought forfeiture orders of both the $53,832 seized from Mr. Strong’s address and of the $6,860 seized at 126 Simcoe Street. At the conclusion of the sentencing hearing, Mr. Ghebrai indicated that he consented to the forfeiture order of the $53,832 seized from Mr. Strong’s apartment. Consistent with Mr. Strong’s position at trial that he had no knowledge of the money seized from 126 Simcoe Street, Mr. Ghebrai took no position on the forfeiture of this money. On April 25, 2017, I made both of the forfeiture orders sought by the Crown.
[40] The defence position is that a fit sentence is in the range of 15 to 18 months in totality. The defence says that I should deduct from this credit for between 3 ½ and 4 months for state misconduct. The defence says I should also deduct between 3 ½ and 4 months for harsh conditions of bail. Were I to find that a fit sentence was 15 months, with the 8 months then deducted, that would leave 7 months. The defence asks that I impose a 90-day intermittent sentence for the drug offences and that I impose whatever additional time I see as fit, up to two years less a day conditional, for the proceeds offence. Ultimately, the defence asks me to be as creative as I can in imposing a sentence that will enable Mr. Strong to serve a brief further period of jail on an intermittent basis, and the rest as a conditional sentence, thereby enabling him to continue his rehabilitation and employment.
D. Analysis
a) General principles
[41] The CDSA offences of trafficking in marihuana and possession for the purpose of trafficking in marihuana carry a maximum sentence of life imprisonment. The conspiracy to traffic in marihuana also carries a maximum life sentence. The possession of proceeds of crime over $5,000 carries a maximum sentence of ten years.
[42] As Trotter J., as he then was, noted at para. 30 of his decision in R. v. Tran, 2016 ONSC 3225, when offenders are sentenced for their involvement in large scale drug trafficking, general deterrence and denunciation are the most important factors to consider.
[43] I have been provided with a casebook by the Crown and an extensive sentencing chart by the defence. These make clear that there is a fairly broad range of sentences that have been imposed for trafficking in marihuana.
[44] One helpful case is that of R. v. Shin, 2012 ONSC 6293, 272 C.R.R. (2d) 120; aff’d 2015 ONCA 189, 322 C.C.C. (3d) 554. The accused was sentenced to five years for possession for the purpose of trafficking and to eighteen months, consecutive, for possession of proceeds of crime. The evidence was that the offender was in possession of 12 kg of marihuana (20 pounds) and $240,000 of proceeds of drug sales. The Court of Appeal affirmed the sentence, concluding at paras. 98-100 that it was within the range, that the offender was a career drug trafficker and that he operated a well-planned business over 14 years.
[45] It is the defence position that this sentence, though affirmed by the Court of Appeal, is a “complete outlier”.
[46] The Court of Appeal in Shin referred to the decision in R. v. Tran, [2005] O.J. No. 5920 (S.C.); aff’d R. v. Tran, [2006] O.J. No, 4161 (C.A.). In that case, the offender pleaded guilty to possession for the purpose of trafficking marihuana. He had been involved in shipping by rail large amounts of marihuana from British Columbia to Ontario. Police had searched his storage area and seized 750 pounds of marihuana, with an estimated value of $2.1 million. The Court accepted that there was a high level of planning and organization in the scheme and that the offender was a trusted member of the organization. Given his significant role and the very large scale nature of the operation, the Court of Appeal upheld the four year sentence.
[47] In R. v. Tran et al, 2016 ONSC 3225, [2016] O.J. No. 2468, Trotter J. found that three years was a fit sentence for Steven Tran. Mr. Tran was a first offender found guilty of conspiracy to traffic marihuana, trafficking marihuana and possession of the proceeds of crime. He was one of a group involved in a sophisticated operation involving the weekly shipping of hundreds of pounds of marihuana from British Columbia to Ontario. Mr. Tran was seen carrying bags or suitcases in and out of a co-accused’s condominium. On arrest, he had $200,000 in cash.
[48] There are numerous other cases that have been put before me suggesting a range in the reformatory time. For example, in R. v. Caven and Scott, (1999), 1999 ONCA 9309, 139 C.C.C. (3d) 449 (Ont. C.A.), the Court of Appeal upheld a 15 month sentence for offenders convicted, after trial, of trafficking in hashish. The trial judge found that they had trafficked in about four kilograms of hashish. This case suggests to me that upper reformatory sentences are appropriate in cases that are much less aggravated than that of Mr. Strong.
b) The defence position that the case law and the “war on cannabis” are a “relic”
[49] Defence counsel forcefully advocates that the existing caselaw, and the ranges discussed therein, are a “relic”. This submission, as I understand it, is grounded in the fact that the Government of Canada has introduced legislation to legalize marihuana. I am advised that this legislation has received first reading in Parliament. While that legislation was not put before me, the argument was made that the legislation signals a recognition by Parliament that marihuana is of such low harm that Canadians will, when the legislation becomes law, be permitted to use marihuana recreationally. When considering where in the range to impose sentence, the defence says that I should be mindful of the sea change that is coming to this country and that the sentence imposed should be dramatically less than that proposed by the Crown.
[50] While the argument is not identical to that made before Trotter J. in Tran, it is similar. There, counsel asked the sentencing judge to adjourn the sentencing hearing to await anticipated changes in the legal status of marihuana. The argument was made in that case that because possession of marihuana would soon be legal, there was no need for a sentence to give effect to general deterrence.
[51] Trotter J. unequivocally rejected this argument, commenting that judges should not refuse to apply laws based on their subjective impressions of the likelihood of reform. He held that judges are not entitled to subjectively apply the law and individuals are not entitled to pick and choose which laws to obey, even if changes and reform are on the horizon.
[52] Mr. Ghebrai says that things have moved forward since Trotter J.’s May 2016 decision so that there is now more than a speculative impression of the likelihood of reform. Legislation has been tabled and received first reading.
[53] In my view, while the landscape may have changed somewhat since Trotter J.’s decision, the logic animating his decision remains valid. There is no certainty that the legislation that has been introduced will become law. There are many stages that it needs to go through, stages at which it could be significantly amended. In my opinion, Trotter J.’s comment that “if judges refuse to apply laws based on their subjective impressions of the likelihood of reform, the rule of law would be seriously undermined” remains valid, notwithstanding the introduction into Parliament, by way of first reading, of new legislation.
[54] I do not think it is my role to pick and choose which laws to apply. My responsibility is to apply the law as it exists in this country, and to give effect to the principles of sentencing as they exist now. I do not think it is an appropriate exercise of my sentencing discretion to impose a sentence that is well below that which would be otherwise appropriate on the basis of the counsel’s submission that new legislation will fundamentally change the legal landscape.
[55] It is my intention to impose a fit sentence for the offence and offender in view of the law as it currently exists, and as it existed when Mr. Strong committed these offences. I decline to speculate about what the law may, at some point in the future, become. Surely, in any event, it will not become the law in this country that private citizens like Mr. Strong will be acting legally when they store and sell pounds and pounds of marihuana at a time as private wholesale dealers.
c) Should the proceeds sentence be concurrent or consecutive?
[56] The Crown’s position is that there should be one sentence imposed for all of the drug offences and a consecutive sentence imposed for the proceeds offence.
[57] It is the defence position that the proceeds sentence should run concurrent to the drug sentence, although I did understand that the defence position to be that it would be open to me to impose a conditional sentence for the proceeds count and to order that it be consecutive.
[58] No authorities dealing specifically with the issue of when a proceeds count should attract a sentence that is consecutive or concurrent were put before me.
[59] In R. v. Pham, 2008 ONCA 421, [2008] O.J. No. 2080, the Court of Appeal upheld Justice Molloy’s decision to impose a total sentence of six years for convictions for possession for the purpose of trafficking, conspiracy to traffic, trafficking and possession of proceeds of crime. It appears that the four years was for the possession for the purpose count and that six years was for the conspiracy. I can only conclude that the proceeds sentence, whatever it may have been, ran concurrently.
[60] In the Shin decision, McIsaac J. imposed a sentence of five years for the possession for the purpose of trafficking count, and 18 months consecutive for the possession of the proceeds of crime count. The Court of Appeal did not vary the trial judge’s decision that the sentence be consecutive. The Crown invites me to follow this.
[61] I note, however, that the proceeds of crime conviction in the Shin case flowed from the accused’s decision to allow one of his criminal associates to use his stash house as a place to store money made from selling cocaine. This was quite separate and apart from his possession of marihuana for the purpose of trafficking. In my view, the proceeds count was very much a separate transaction from the trafficking, justifying a consecutive sentence.
[62] In the case of Mr. Strong, his possession of proceeds, in the form of cash located at his apartment, was the profits from his marihuana sales. I see this as very much related to the other offences. While I think it is open to me to impose a consecutive sentence for the proceeds offence, in these circumstances, rather than impose a consecutive sentence, I am going to impose one global sentence for all of the counts before me. All of the counts relate to Mr. Strong’s marihuana sales and trafficking and the possession of his profits from that activity.
d) Credit for alleged state misconduct
[63] The defence position is that the sentence imposed should be reduced on account of alleged state misconduct.
[64] In R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, the Supreme Court of Canada considered the possibility of reducing an offender’s sentence to take account of a violation of his or her constitutional rights. Writing for the court, Lebel J. explained at para. 49 that because s. 718 of the Criminal Code provides that the fundamental purpose of sentencing is to contribute to respect for the law and maintenance of a just, peaceful and safe society, it must be understood as permitting a sentencing judge to consider not only the acts of an offender, but also acts of state actors. He held, at para. 47, that if the facts alleged to constitute a Charter breach are related to one or more of the relevant principles of sentencing, then the sentencing judge may properly take this into consideration in arriving at a fit sentence. Further, it is clear from para. 53 that a sentence may be reduced even when the state misconduct does not rise to the level of a Charter breach. Thus, state violence or police misconduct may be taken into account when crafting a fit and proportionate sentence. See also: R. v. Donnelly, 2016 ONCA 988, 345 C.C.C. (3d) 56.
[65] In support of his argument that there was state misconduct, Mr. Ghebrai has filed a transcript of Officer Kilfeather’s evidence at the preliminary inquiry. The defence position, as I understand it, is that this transcript makes clear that the officer violated Mr. Strong’s right to counsel. More specifically, it is alleged that having provided him with his right to counsel, and knowing that he wished to exercise that right, the officer did not hold off questioning Mr. Strong. Instead, he continued to ask Mr. Strong questions, including showing him photographs of people and asking him if he knew the individuals, asking him about how much he paid in rent and asking him about the combination for the locker that was located by the police during the search of the apartment.
[66] Mr. Ghebrai submits that he has no obligation to prove a Charter violation as Nasogaluak permits me to reduce the sentence I impose on Mr. Strong for something short of a Charter breach.
[67] There was much discussion at the sentencing hearing as to whether the record before me was sufficient for this argument to be made and whether Officer Kilfeather or other officers should be called. At one point, the Crown asserted that it was not open to me to determine the issue of whether there was state misconduct on the basis of the transcript of the preliminary inquiry. Ultimately, when I was prepared to adjourn the sentencing so that evidence could be called on this issue, the Crown declined to call any evidence and submitted that the evidence before me fell short of establishing any state misconduct.
[68] I observe that there was a defence pre-trial Charter application filed in this case. In it, the defence alleged various violations, including that the police elicited evidence from Mr. Strong before affording him the opportunity to exercise his right to counsel. This application was abandoned. As a result, no evidence was called on a Charter motion, no argument was made and, perhaps most importantly, no finding of any Charter breach was ever made.
[69] However, I accept the defence position that the absence of any finding of a Charter breach does not bar me from considering whether there has been state misconduct that should result in a reduction of sentence.
[70] I have carefully reviewed the transcript of Officer Kilfeather’s evidence. The officer testified that while he explained the right to counsel to Mr. Strong, and was told by Mr. Strong that he wished to call contact counsel, there was no ability to facilitate this in Mr. Strong’s apartment was it was “an insecure premise” and privacy could not be afforded. He explained this to Mr. Strong. The officer said that he told Mr. Strong that he had no obligation to speak with him, but that if Mr. Strong chose to, he would write down what was said.
[71] The officer said that Mr. Strong wanted to know what the investigation was all about and was asking the officer questions. The officer did not agree that he was asking questions to elicit evidence and said “I wasn’t necessarily looking to afford evidence”. The officer summarized a bit of the investigation and then agreed that he showed photographs to Mr. Strong and asked if he knew any of the individuals depicted, whom he explained to Mr. Strong were targets of the investigation.
[72] The officer told Mr. Strong that the police were going to take the safe and that if he wanted, he could give them the combination and they would then take the items contained in it and would leave the safe without it being damaged.
[73] The officer also agreed that he asked Mr. Strong what he paid in rent. He said that “part of this was just a discussion” and that “has to do with two guys passing time while we’re awaiting for the transportation vehicle”. The officer said that he was not trying to get Mr. Strong to tell him something that would implicate him. He agreed that some of their conversation was geared towards eliciting inculpatory information.
[74] The jurisprudence under s. 10(b) of the Charter establishes that if a detained person, after being advised of his right to counsel, chooses to exercise that right, the police must provide him with a reasonable opportunity to exercise that right. Police must refrain from eliciting incriminating evidence from a detained person until after he has had the opportunity to consult with counsel: R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at para. 38; R. v. Grant 2009 SCC 32, [2009] 2 S.C.R. 353 at para. 58; R. v. Taylor, 2014 SCC 50, [2014] 2 S.C.R. 495, at paras. 20-26.
[75] The evidence before me suggests that after providing him with his rights to counsel, and knowing that he wished to exercise that right, Officer Kilfeather did not hold off seeking to elicit incriminating evidence from Mr. Strong. On the basis of the evidence before me, it appears to me that the officer did not hold off questioning of Mr. Strong as he ought to have.
[76] The Crown submits that if there is any police error, it did not rise to the level of state misconduct warranting a reduction in sentence. The defence argues that this warrants a 3 ½ to 4 month reduction in sentence.
[77] In my view, Mr. Strong’s sentence should not be reduced on account of state misconduct. While the officer should have held off asking Mr. Strong any questions intended to elicit incriminating evidence before Mr. Strong had the opportunity to consult with counsel, the nature of the discussion, viewed in the context in which it occurred as described by Officer Kilfeather, is not so serious as to warrant a reduction in Mr. Strong’s sentence. Nothing really came of the questioning, other than that the police opened the safe without breaking it. The questioning had no impact on Mr. Strong. There is no suggestion that he provided any evidence that was later used to incriminate him. I am not prepared to conclude that any mis-step by an officer, regardless of whether it has any impact on the trial or the accused, necessarily warrants a reduction in sentence.
e) Credit for onerous bail conditions
[78] Mr. Ghebrai also seeks a reduction in sentence for the time that Mr. Strong spent on house arrest and under restrictive bail conditions.
[79] As Rosenberg J.A. held in R. v. Downes (2005) 2006 ONCA 3957, 205 C.C.C. (3d) 488 (Ont.C.A.), house arrest is a form of punishment. Accordingly, time spent under stringent bail conditions, especially house arrest, must be taken into account as a relevant mitigating circumstance. There is no rigid formula for how much credit is to be given.
[80] Mr. Strong was arrested on November 24, 2014. He was released on bail on November 28, 2014. As a result of this recognizance, he was to remain in his residence at all times except for emergencies or if in the company of one of his sureties or Jesse Reynolds. While I accept that this was a significant deprivation of his liberty, I note that he was free to leave his home at any time, for any purpose, as long as he was with one of his sureties.
[81] In March of 2015, Mr. Strong requested a variation to his bail to permit him to obtain employment. The Crown agreed in principle and the plan was for Mr. Strong to begin work on March 24, 2015. Unfortunately, the Justice of the Peace before whom the variation was brought declined to grant it initially. This resulted in delay. Ultimately, although the bail was varied on May 8, 2015 to permit Mr. Strong to work. Mr. Ghebrai says that by that point, the job Mr. Strong had been offered was no longer available. The result was that Mr. Strong remained under house arrest, with the existing exceptions that he could leave with one of his sureties or with Jesse Reynolds.
[82] The bail was varied again on September 2, 2015 to permit Mr. Strong to travel to work at Investment Planning Counsel. This recognizance remained in place until February 26, 2016.
[83] On February 26, 2016, the bail was varied so that the house arrest was lifted and a curfew was imposed on Mr. Strong from 10:00 p.m. to 6:00 a.m. There remained an exception that he could leave at any time if accompanied by one of his sureties.
[84] It is Mr. Strong’s position that he should be credited for the house arrest from November 28, 2014 to September 2, 2015. He suggests credit of 2½ to 4 months for this period.
[85] The defence also asks that Mr. Strong be credited for the restrictive conditions that remained in place when he was able to work in the period following September 2, 2015.
[86] In total, I understand the defence to seek credit of 3 ½ to 4 months for the harsh bail conditions.
[87] The Crown’s position is that the restrictions on Mr. Strong’s liberty have been minimal, as evidenced by what he has been able to accomplish while on bail. He has obtained full time employment, was able to complete the Canadian Securities Course, and has become a valued and integral member of his church, offering assistance to others in the church regularly.
[88] In this case, Mr. Strong spent just over nine months on house arrest. While it was not the most restrictive house arrest, in that he could leave home with one of his sureties or Jesse Reynolds, I find that this bail placed pretty significant restrictions on him. I am going to credit him with 70 days, or just over two months for this nine-month period.
[89] I decline to provide any additional credit for the time after he was able to work after September 2, 2015. In my view, the evidence that he has provided makes clear that the restrictions on Mr. Strong’s liberty had a minimal effect on him. He was able to work. He was able to join a church, to attend meetings and services, to begin and maintain a new relationship and to create and continue relationships with members of his community. In many, though not all respects, his life appears to have returned to normal.
f) The Sentence to be Imposed
[90] As I have set out, Mr. Strong has been found guilty of involvement in a scheme to sell marihuana. He was a self-described wholesale marihuana dealer who obtained large volumes of marihuana from his friends Nathan Freeman and Craig Jones and sold it to others, including James Evans-O’Connell, over a period of several months.
[91] I find that the following factors are aggravating:
- Mr. Strong had a leadership role in his marihuana sales enterprise. He operated at a high level in a sophisticated commercial enterprise;
- Mr. Strong sold marihuana multiple times over the fall of 2014. The evidence supports a conclusion that he had been involved in the marihuana sales business for multiple years, including for periods outside the time frame in the indictment: R. v. Larche, 2006 SCC 56, [2006] 2 S.C.R. 762;
- There was a large quantity of marihuana sold or possessed by Mr. Strong. I accept the Crown’s position that he sold at least 124 pounds over the fall of 2014 and had a further 40 pounds in his possession at 126 Simcoe St.;
- The value of the marihuana was significant;
- Mr. Strong’s well developed network included drivers who provided him with marihuana and regular customers who made purchases from him.
[92] At the same time, Mr. Strong took responsibility for a number of the offences charged. He pleaded guilty to most of them. Counsel tells me that it was always his intent to plead guilty to the marihuana charges. I find this difficult to accept, given that no one seemed aware that he planned to plead guilty to any of the charges until the day the trial was scheduled to begin. I accept, however, that the guilty pleas do demonstrate an acceptance of responsibility and are a demonstration of remorse.
[93] I find that the following further factors are mitigating:
- Mr. Strong has only one prior conviction for an unrelated offence from 2004;
- Mr. Strong has acknowledged responsibility for the offences;
- Since his arrest, Mr. Strong appears to have taken significant steps to turn his life around. He has given of his time to others and has done what he can to become a productive contributing member of society, through his church, his community and through his employment.
[94] I do not think the circumstances of the offence and offender warrant a global sentence in the six and a half year range as sought by the Crown. I view the circumstances, viewed as a whole, as less serious than those discussed by the Court of Appeal in both Shin and Tran. Certainly, I do not see Mr. Strong’s role in the marihuana business as being as extensive and as aggravated as the roles of the offenders in those cases. Nor is the proceeds offence as aggravated. Bearing in mind all of the circumstances of the offence and offender, and the relevant caselaw that has been put before me, I impose a sentence of 3 years for the drug offences. I impose a concurrent sentence of 1 year for the proceeds offence. The total sentence, therefore, will be one of 3 years or 1095 days.
[95] I deduct from this the five days of custody Mr. Strong served before his release. He should be credited for this at 1.5:1, reducing his sentence by eight days. In addition, as I have indicated, I give Mr. Strong 70 days for harsh bail conditions. The result is that the sentence to be imposed is three years less 78 days. This is 1017 days or 2 years, 287 days.
g) Should there be a fine and if so for how much?
[96] The Crown seeks a fine of $167,660. In a chart filed as Exhibit 3 on sentencing, the Crown sets out why, in its view, I should conclude that Mr. Strong made at least $167,660 in revenue from marihuana sales to Mr. Evans-O’Connell between September 11 and November 21, 2014. This is said by the Crown to be a low estimate as it does not take into account sales to individuals other than Mr. Evans-O’Connell. The Crown reminds me that on Mr. Strong’s own evidence, he was also selling to other people over this period.
[97] While the Crown acknowledges that Mr. Strong’s profit was only a fraction of the value of the marihuana he sold, the submission is made that I can infer from the photographs in Exhibit 4, photographs seized from Mr. Strong’s phone and said to be photographs of large amounts of cash taken at his home, that he was in possession of large amounts of cash.
[98] The defence position is that the evidence before me does not support the imposition of a fine in the magnitude sought by the Crown. Mr. Ghebrai reminds me that the cash at Mr. Strong’s apartment was seized and that it was his evidence that this was the profit he accumulated over time. Mr. Ghebrai submits that any fine should be in the $10,000 to $20,000 range, given that there has already been forfeiture of the $53,000.
[99] Section 734(2) of the Criminal Code permits a court to fine an offender if satisfied that the offender is able to pay the fine. In order to impose a fine, therefore, I must be satisfied on a balance of probabilities that Mr. Strong has the ability to pay whatever fine I impose.
[100] In R. v. Topp, 2011 SCC 43, [2011] 3 S.C.R 119 at para. 27, Fish J. observed for the Court that “in the absence of a reasonable explanation to the contrary, past receipt of illegally obtained funds will often – but not always – support an inference that the offender still possesses sufficient funds to pay a fine at the time of sentencing.” Sentencing courts retain a discretion to determine how much weight should be given to proof of past possession of funds.
[101] I am not satisfied that Mr. Strong has the ability to pay a fine close to the amount sought by the Crown. The Crown has not accounted, at all, for the fact that out of the money made from the sales, Mr. Strong had to pay for the marihuana he sold. The Crown has no evidence as to what profit Mr. Strong was earning on his sales. The fact that the Crown has proven that Mr. Strong sold marihuana worth well over $167,660 does not, in itself, justify a fine of that magnitude.
[102] The evidence that Mr. Strong provided was that he sold 20 to 60 pounds of marihuana to Mr. Evans-O’Connell a month. Mr. Evans-O’Connell only accounted for about half of his sales. This means that in the fall of 2014, Mr. Strong was selling between 40 and 120 pounds of marihuana a month.
[103] Mr. Strong testified that he was making about $50 to $100 per pound of marihuana he sold. In my view, based on the evidence as a whole, Mr. Strong was likely undervaluing the profit he was making.
[104] But, even on Mr. Strong’s own figures, he would have been making between $2,000 and $12,000 profit per month. I reject his evidence that the only profit he had from his entire marihuana business was the $53,832 found in the safe in his apartment. This seems far less profit than he would, on his own evidence, have been making.
[105] I am left without evidence as to precisely what profits Mr. Strong was making. I have significant concerns about relying on the photographs of the cash tendered by the Crown in Exhibit 4 as evidence that Mr. Strong has the ability to pay the sort of fine sought by the Crown. There is no evidence as to when these photographs were taken. Even if they were taken in Mr. Strong’s apartment, as the Crown says, it seems to me to be a real leap to say that a photograph created on August 17, 2013 affords evidence that Mr. Strong has this cash now.
[106] Mr. Strong is clearly capable of making money by advising clients about investments. He has managed to secure a position earning $45,000 a year. He has $10,000 in savings. The money that Mr. Strong says was his accumulated profits from the marihuana business includes the $53,832 that has been seized from him and ordered forfeited. But I find that his profits were in fact well in excess of that amount. Given the evidence, I am satisfied that Mr. Strong has the ability to pay a fine of $25,000 and order that he do so.
[107] Pursuant to s. 737(2)(a) of the Criminal Code, I am required to impose a surcharge of 30 per cent of any fine. A victim surcharge of $7,500 is imposed.
h) Other Ancillary Orders
[108] As I have indicated, I have already made forfeiture orders for the $53,832 seized from Mr. Strong’s apartment and the $6,860 found at 126 Simcoe Street.
[109] The defence concedes that the s. 109 firearms order is mandatory and it is made for ten years.
[110] The defence says that the DNA order is not needed and asks that I exercise my discretion not to make it. I have considered s. 487.051(3) of the Criminal Code, and, in particular, the minimal criminal record that Mr. Strong has, the nature of the offences, the circumstances of the offender and the impact that the making of such an order would have on Mr. Strong’s privacy and security of the person. In view of the connection between drug trafficking and other violent offences, I am satisfied that it is in the best interests of the administration of justice for the order to be made. This is so particularly because of Mr. Strong’s diminished expectation of privacy following conviction, the minimal intrusion into Mr. Strong’s security of the person, and the important interests served by the DNA databank.
Woollcombe J.