REASONS FOR SENTENCING

CHARNEY J.:

Facts

[1] Mr. Babineau was charged with possession of cocaine and oxycodone for the purposes of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19. The charges relate to events that occurred on March 9, 2014. At the outset of his trial on June 20, 2016 he pled guilty to these charges. Sentencing submissions were adjourned on a number of occasions at the request of the defence, and were finally heard on June 2, 2017.

[2] The agreed facts are as follows:

[3] On March 9, 2014 at approximately 4:00 p.m. York Regional Police Services were conducting general patrol and observed Mr. Babineau’s motor vehicle travelling west bound on Main Street in the Town of Whitchurch-Stouffville. When the police conducted their standard check of the licence plate, the information associated with the vehicle indicated that the driver was a suspended driver. Mr. Babineau was pulled over. The officer requested his driver’s licence, insurance and ownership. Mr. Babineau reached over into a red fanny pack and provided the police with the documents. The driver’s licence confirmed that he was a suspended driver and the insurance was expired. He was arrested for driving while suspended. Police conducted a search incident to arrest and located a large quantity of white powder believed to be cocaine in the fanny pack. Also within the fanny pack was a small quantity of hashish and oxycodone and zip-lock baggies, two cell phones and a scale, consistent with drug trafficking. Mr. Babineau was arrested for possession of those items. When the items were tested he was found with 42 grams (1.5 ounces) of cocaine, 14.5 pills of oxycodone, multiple zip-lock bags, debt lists and folding knives, all within the fanny pack. The police also found $130 in Canadian currency.

Position of Crown and Defence

[4] The Crown seeks a prison sentence of 2.5 years for possession of cocaine and a concurrent sentence of 2 years for possession of oxycodone. He argues that these drugs are highly addictive and dangerous, and the quantity of drugs is consistent with a mid-level trafficker. Mr. Babineau has a criminal record dating back to 2002, although none of these offences were related to drugs or trafficking. These offences include assault with a weapon (2002, 4 months and 2 years probation), theft under $5000 and failure to comply with probation (2003, 7 days), mischief under $5000 (2006, suspended sentence), failure to comply with probation in 2006 and unlawfully in a dwelling house and threatening bodily harm in 2012, for which he received a 60 day conditional sentence and 12 months probation. The Crown also points out that Mr. Babineau was driving under suspension when he committed the offence.

[5] The Crown acknowledges that Mr. Babineau appears to have turned his life around since he was charged with this offence in 2014. He is now married and has a child. He has obtained full time employment. The Crown argues that without these mitigating circumstances the appropriate sentence would be 3 to 3.5 years. The Crown argues that the principle of general deterrence requires a sentence of 2.5 years even taking into account all the mitigating factors, which the Crown agrees are quite positive. Mr. Babineau took a business risk in trafficking a large quantity of cocaine for profit, and there must be consequences.

[6] Defence counsel argues that Mr. Babineau is not the man he was when he was arrested in March 2014. He has rehabilitated himself and turned his life around. He is now working hard to support his family, and he is no longer a threat to the community. His past trafficking was to support his own drug use. He entered a guilty plea (albeit on the day of trial) and has demonstrated remorse for his conduct. Since his arrest and brief time in custody in March 2014 he has not been stopped or questioned by the police for any reason. There have been no breaches of his bail conditions. Defence counsel argues that any custodial sentence be served conditionally in the community rather than the penitentiary so that Mr. Babineau can continue his employment. He suggests that Mr. Babineau should perform community service by, for example, attending high schools to warn students about the consequences of drug trafficking.

[7] The Crown responds that there would be little value to the community in having Mr. Babineau talk to high school students about the consequences of drug trafficking if the only consequence to speak of is that he must go to high schools to talk to students.

Pre-Sentence Report

[8] The Court has been provided with a pre-sentence report that indicates that Mr. Babineau is now 36 years of age. He had a difficult childhood and a troubled youth, moving out of his home when he was 16 years of age. He started smoking marihuana at the age of 12 and began drinking when he was 15 years of age. He did not complete his high school education.

[9] Despite his troubled past Mr. Babineau is now employed as a foreman by a roofing company. He has been employed with the company for approximately 3 years. The letters of reference from the company indicate that Mr. Babineau has become an essential member of the team and works between 40 and 60 hours a week. He manages a crew of 8 to 15 workers and performs emergency service calls as well as dealing with consultants, owners and inspectors. His employer states that Mr. Babineau’s work ethic has improved greatly over the last few years and that he is punctual and reliable.

[10] The pre-sentence report indicates that Mr. Babineau was cooperative throughout the pre-sentence process and accepted full responsibility for his actions. He recognizes that his previous choices have cost him a great deal personally, financially and emotionally. He states that he is making every effort to turn his life around. Collateral sources contacted confirm that Mr. Babineau appears to be making progress towards stabilizing his lifestyle.

Analysis

[11] The fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions: s. 718 of the Criminal Code. The following objectives must be considered in forming a just sanction:

(a) To denounce unlawful conduct;

(b) To deter the offender and other persons from committing offences;

(d) To assist in rehabilitating offenders;

(e) To provide reparations for harm done to victims or to the community; and

(f) To promote a sense of responsibility in offenders and acknowledgment of the harm done to victims and to the community.

[12] A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender: s. 718.1 of the Code.

[13] A sentence must also take into account any aggravating or mitigating circumstances relating to the offence or the offender, as well as the sentences imposed on similar offenders for similar offences committed in similar circumstances: ss. 718.2(a) and (b) of the Code.

[14] It is well established that the paramount principles of sentencing with respect to the commercial trafficking of illicit drugs are denunciation and general deterrence. At the same time, it is incumbent upon me to consider all of the principles of sentencing contained in section 718 of the Criminal Code, including rehabilitation.

[15] Also relevant is s. 10 of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (CDSA), which adds the following:

(1) Without restricting the generality of the Criminal Code, the fundamental purpose of any sentence for an offence under this Part is to contribute to the respect for the law and the maintenance of a just, peaceful and safe society while encouraging rehabilitation, and treatment in appropriate circumstances, of offenders and acknowledging the harm done to victims and to the community.

[16] The Court must impose a sentence that appropriately denounces Mr. Babineau’s conduct and deters others from following suit, but the sentence must not ignore nor lose sight of Mr. Babineau’s proven record of and further potential for rehabilitation.

[17] Courts have frequently noted the destructive effect of cocaine on those who abuse it and on the friends and family of users and the community generally. Trafficking of cocaine multiplies the destructive effects and introduces harm to society (R. v. Oraha, 2012 ONSC 1439, at paras. 29-30; R. v. Nguyen, 2016 ONSC 1286 at para. 21 and cases cited therein).

[18] Oxycodone has been described as a “scourge on the community”. It is highly addictive and dangerous (R. v. Moore, [2009] O.J. No. 6388 at para. 6). In R. v. Bonnie, 2013 ONCJ 243 the Court stated (at paras. 34 and 35):

The havoc and destruction caused by oxycodone is seen all too frequently in this court by persons addicted to this drug who commit further crimes in order to finance their dependencies. The harm done to them personally and the devastating effect on their families and this community are deeply concerning. There is a growing concern about the ease of availability of this drug in this jurisdiction.

Accordingly, denunciation is particularly important in this community with the ultimate goal being to deter like-minded individuals from trafficking in drugs.

[19] Counsel for Mr. Babineau has proposed a conditional sentence, although a conditional sentence in not available for the offence of possession of cocaine or oxycodone for the purposes of trafficking by virtue of s. 742.1(e)(ii) of the Criminal Code, which makes conditional sentences unavailable for offences that involve trafficking of drugs: R. v. Gabbidon, 2017 ONCJ 55 at para. 17; R. v Sawh, 2016 ONSC 7797. In addition, s. 742.1(c) makes conditional sentences unavailable where the offence attracts a maximum sentence of a term of imprisonment for 14 years or life. The maximum sentence for possession for the purposes of trafficking for Schedule I drugs like cocaine and oxycodone is life (Controlled Drugs and Substances Act, s. 5(3)(a)).

[20] In any event, I would not have found that a conditional sentence was appropriate in this case given the dangers and harm to society associated with cocaine and oxycodone. In R. v. Woolcock, [2002] O.J. No. 4927 (C.A.), the Ontario Court of Appeal 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. See also: R. v Sawh, at paras. 27 – 37 and cases reviewed therein, and R. v. Williams, [2010] O.J. No. 2971, at paras. 20 – 30.

[21] The seriousness in this case is compounded by the fact that the accused was also involved in possession of oxycodone for the purposes of trafficking. Oxycodone is considered to be a dangerous drug rivalling heroin. Absent exceptional circumstances generally a period of incarceration is imposed (R. v. Bonnie, at para. 37).

[22] The crime of trafficking drugs like cocaine and oxycodone constitutes a serious offence because these drugs constitute a serious danger to Canadian society. A conditional sentence in this case would not meet the principles of denunciation and deterrence.

[23] The aggravating factors in this case include the serious nature of the two drugs involved, and the fact that Mr. Babineau was transporting drugs in a motor vehicle while his licence was under suspension and his insurance expired. While Mr. Babineau has a criminal record, none of the previous offences were drug related.

[24] The mitigating factors are substantial. Mr. Babineau pled guilty, and by all accounts has demonstrated real remorse for his past conduct. The evidence indicates that he was involved in trafficking to support his own addiction, which he appears to have overcome. He does appear to have turned his life around since his arrest. He has a stable family life and a responsible full time job that he takes seriously. He has a proven track record of rehabilitation.

[25] Having reviewed a number of cases, I agree with the Crown that absent mitigating factors the sentence for possession for the purposes of trafficking this quantity of cocaine could be as much as 3.5 years. The issue for me is whether the mitigating circumstances in this case call for a sentence of 2.5 years or something less.

[26] In R. v. Nguyen, 2016 ONSC 1286 Woollcombe J. reviewed a number of cases dealing with similar quantities of cocaine (see paras. 22 – 43). In that case the accused pled guilty to possession of 182 grams of cocaine for the purposes of trafficking and was sentenced to two years’ less a day, which Woollcombe J. indicated was at the low end of the range. A sentence of two years’ less a day was also given in the case of R. v. Tulloch, 2016 ONSC 5997 (260 grams of cocaine). In R. v. Douglas, 2017 ONCA 609, the accused was found guilty of possession of 110 grams of cocaine for the purposes of trafficking and he was also sentenced to two years’ less a day. The Court of Appeal upheld the sentence as fit “taking account of the quantity of cocaine involved”.

[27] In the Moore case the accused was guilty of trafficking in sixteen oxycodone pills and received 18 months in prison, which was upheld by the Ontario Court of Appeal (2011 ONCA 413).

[28] In Nguyen, Woollcombe J. states (at paras. 47 – 48):

A review of the case law makes clear that there is a significant range of sentence imposed on those who traffic in cocaine. Sentences are higher with larger amounts of cocaine or when there are multiple incidents of trafficking, as these factors suggest a greater need for denunciation and general deterrence. They are also higher when the offender has been previously convicted of trafficking, as there is a more pressing need for specific deterrence…

At the same time, sentences are lower in the range when an offender’s trafficking has flowed from his or her addiction, and the offender takes steps to overcome the addiction before sentencing…

[29] I am concerned that the sentence proposed by the Crown would be too long a sentence for Mr. Babineau to preserve the positive aspects of his life that he has worked to achieve since his arrest. The significant mitigating factors in this case call for a reformatory sentence rather than time in a federal penitentiary. It also calls for a sentence at the lower end of the range. In my view a reformatory sentence is consistent with other cases involving possession for the purposes of trafficking similar quantities of Schedule I drugs, and that involved similar mitigating factors, in particular a first-time drug related offence by an addict trafficker with demonstrated potential for rehabilitation.

Conclusion

[30] Will the accused please stand.

[31] Having carefully considered the various aggravating and mitigating factors, I have concluded that the appropriate sentence to be imposed on the possession for the purposes of trafficking cocaine is 18 months, and the appropriate sentence to be imposed on the possession for the purposes of trafficking oxycodone is also 18 months, to be served concurrently.

[32] The overall sentence is therefore 18 months imprisonment, which in my view appropriately reflects the serious criminal conduct giving rise to these charges and the quantity of drugs involved. This sentence gives effect to the principles of deterrence and denunciation while promoting Mr. Babineau’s continued rehabilitation and his demonstrated commitment to establish himself as a productive member of the community. Mr. Babineau was released soon after his arrest and there is therefore no credit against sentence to give him under the circumstances.

[33] Upon his release Mr. Babineau will be placed on probation for a further two-year period. In addition to the statutory conditions set out in s. 732.1(2) (a), (b) and (c) of the Code the following terms of that probation order shall apply:

(a) To report to a probation officer within two working days after the making of the probation order and thereafter as and when required by the probation officer and in the manner he or she directs; and

(b) To abstain from the consumption of drugs except in accordance with a medical prescription.

[34] There shall be a forfeiture order in relation to the seized currency pursuant to s. 16(1)(b) of the CDSA.

[35] There shall also be a firearms prohibition pursuant to s.109 of the Code.

Justice R.E. Charney

Released: August 18, 2017

CITATION: R. v. Babineau, 2017 ONSC 4872

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

STEVEN BABINEAU

Defendant

REASONS FOR sentencing

Justice R.E. Charney

Released: August 18, 2017

Her Majesty the Queen v. Steven Babineau, 2017 ONSC 4872

Case Summary

REASONS FOR SENTENCING

Facts

Position of Crown and Defence

Pre-Sentence Report

Analysis

Conclusion

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 4

Legislation 6