Court File and Parties

COURT FILE NO.: CR 17-90000046-0000 DATE: 20180625 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – NICHOLAS APAN Defendant

Counsel: Dawn McDonald, for the Crown Andrea Vanderheyden, for the Defendant

HEARD: June 12, 2018

ANNE LONDON-WEINSTEIN, J.

Background Facts

[1] On March 5, 2018 Mr. Apan plead guilty to a single count of possession of cocaine for the purpose of trafficking. It was admitted for the purpose of sentencing that on September 17, 2015, Toronto Police Service executed a CDSA warrant at the residence of Nicholas Apan, 259 Taysham Crescent, Toronto, ON. The investigation was based on confidential informant information and other investigative steps were taken by police including brief surveillance observations where they observed the accused present in the garage area of this residence. Police also observed individuals unknown to them attend inside the garage for brief periods of time, however, no interactions between Mr. Apan and any individuals were observed. Mr. Apan was arrested at the time that the search warrant was executed.

[2] Police located 55 separate baggies of cocaine totaling 51.8 grams; 86.42 grams of marihuana in the garage, along with a small quantity in the pants pocket of Mr. Apan and $170 seized from his bedroom.

[3] The Toronto Police Service drug expert estimated the value of the cocaine if sold at the gram level to be between $4,144.00 and $5,180.00. If sold at the ounce level, the value would be between $2,600 and $3,200. The marihuana was found to be not inconsistent with an amount kept for personal consumption.

[4] Proportionality, Parity and the balancing of appropriate sentencing factors:

a. The fundamental principle of proportionality guides the analysis in every instance where sentence must be imposed. Section 718.1 of the Criminal Code mandates that any sentence I impose must be proportionate to the gravity of the offence and the degree of responsibility of the offender. A sentence will be demonstrably unfit if it constitutes an unreasonable departure from this principle. b. Proportionality is determined both on an individual basis, that is, in relation to the accused himself and to the offence committed by the accused, and by comparison with sentences imposed for similar offences committed in similar circumstances. c. The reconciliation of individual proportionality is linked to the principle of parity in sentencing. While sentencing is always a highly individualized process, the principle of parity in sentencing provides the law with a degree of predictability and certainty. d. That being said, the principle of parity of sentences is secondary to the fundamental principle of proportionality. R. v. Lacasse, 2015 SCC 64 at para 54. e. Where sentencing ranges are concerned, while they are used mainly to ensure the parity of sentences, they reflect all of the principles and objectives of sentencing. Sentencing ranges are nothing more than summaries of the minimum and maximum sentences imposed in the past, which serve in any given case as guides for the application of all relevant principles and objectives. Lacasse, supra, para 57. f. Sentencing ranges should not be considered “averages” let alone straitjackets, but should instead be seen as historical portraits for the use of sentencing judges, who must still exercise their discretion in each case. Lacasse, supra, para 57.

Balancing of Factors

[5] In this case, denunciation and general deterrence are factors that I must consider due to the fact that the drug in question was cocaine of a significant quantity. However, in the particular facts of this case, my view is that the potential for rehabilitation of Mr. Apan is significant. I have come to this conclusion based on several factors. In terms of specific deterrence, my view of this case is that Mr. Apan has taken significant steps to turn his life around over a period of years since this incident. In light of his rehabilitative efforts, my view is that he will be specifically deterred from returning to offending by virtue of completing his education, returning to the workforce, continuing his work with his therapist, continuing to be a productive member of his family and by continuing to take medication for his mental health needs. These productive steps toward a pro social life, in my view, will go further toward deterring Mr. Apan from re-offending than a lengthy period of incarceration which might be required in another case on different facts. I have attempted to craft a sentence which expresses the sentencing values of denunciation and general deterrence, in a case where I would be in error if I were to ascribe insufficient attention to the principle of rehabilitation in relation to this offender. Mr. Apan has had several severe setbacks in his life. In no way does this serve as an excuse for his offence. However, since the time he was arrested for the offence which brought him before me, he has worked hard to separate himself from the behavior which lead to his arrest. In so doing, he has had to deal with continuing mental health issues. In summary, this is a serious offence, but the offender in this case has demonstrated to me that rehabilitation, despite the seriousness of the offence, must be given serious consideration.

[6] The risk that a lengthy term of imprisonment may impair the rehabilitation and reintegration of an accused person as a responsible member of the community was recognized by our Court of Appeal in R. v. Pearce (1974), 16 C.C.C. (2d) 369 (Ont. C.A.). At p. 371, Dubin J.A., dissenting, stated:

It ought not to be overlooked that it is important that persons in prisons who are to be released at some time will not return to a life of crime but will become self-supporting, capable of assuming new responsibilities and turn in the direction of becoming useful members of society. If a prison term is of such a length as to endanger the future rehabilitation of an accused, then the term of imprisonment imposed on him will not protect society in the future.

[7] The above passage was cited by the Ontario Court of Appeal in R. v. Woolcock. In my view, not only will a lengthy period of incarceration impair Mr. Apan’s rehabilitative progress, but it is my view that the public will be better protected if Mr. Apan is given an opportunity to finish his education and return to the work force.

Circumstances of the Offender

[8] Mr. Apan was 36 years old at the time of his guilty plea. He was 33 at the time of the offence. He was born in Toronto and is the youngest in his family. His parents migrated from Guyana, South America many years ago and he has an older sister, Michelle Apan, age 40. Michelle Apan is married and lives with Mr. Apan and their parents. Her husband Raymond is a mechanic. She is a stay at home mom. Mr. Apan’s family have been hard working people all of their lives.

[9] His mother was a machine operator until she most recently was laid off. His father was a general laborer who is currently retired. The family lives together at 259 Taysham Drive, which is where Mr. Apan was found to be in possession of the cocaine which formed the subject matter of this charge. The drugs were in the garage of the family home.

[10] Mr. Apan has a good relationship with his sister and her children, and his parents. The family is close and loving. His parents are understandably disappointed in their son’s foray into the drug world, but they wrote a letter on his behalf expressing hope that I would exercise restraint in imposing sentence in order that their son may be able to continue to rehabilitate himself.

[11] His parents, Bhojmatee Apan and Chagall Apan advised in their letter that Nicholas Apan took excellent care of his disabled grandmother who had been living with the family prior to her recent passing. When his parents had to leave for work, Nicholas took care of her needs. She was confined to a wheelchair, so this included taking her to the washroom and cleaning up after her, including changing her diapers in the middle of the night.

[12] Mr. Apan at one time maintained steady employment. Unfortunately he suffered three accidents which pushed him out of the work force. In 2002 he was driving and he was stopped and was hit from behind at full speed. He incurred back and leg injuries and a legacy of chronic pain and severe migraine headaches.

[13] In 2005 he was on a bike and was hit by a vehicle. Most notably, in 2015 he was pinned against an ATM machine by a man who was threatening him. He went inside the bank and called police. As a result of that last incident he has ongoing pain and has also suffered from flashbacks.

[14] After this incident he was formally diagnosed with anxiety and depression. However, he suffered from both of these mental health issues throughout his life. In 2012 he began to experience major symptoms of depression. It caused him to have to leave his employment. In a moment of time he was transformed from someone who had been working two jobs, into someone who could not work due to being in significant and constant levels of pain.

[15] He currently sees a therapist and is on medication for depression and anxiety. In 2015 he entered a major depressive episode and began to use cocaine. This attempt at self-medication did not, of course, ameliorate his depression, but furthered his downward depressive spiral.

[16] Mr. Apan has enrolled in a course of study at the Academy of Learning. He is set to graduate from the home inspection program in March of 2019. He is an A student. He was on bail on these charges for three years without incident. He currently lives with his parents and pays them $450 a month rent out of the $600 he has as monthly income.

[17] Mr. Apan spent $17,000 on his tuition at the Academy of Learning. If he were to be incarcerated for a lengthy period of time he would not be able to recover the tuition he has paid.

[18] Mr. Apan’s parents were devastated by his being charged with this offence. They have taken an active role in helping him cut ties with persons who are not a good influence on their son. They have made it clear that while they are fully supportive of him, they will not support him if he re-offends. Mr. Apan, according to the submissions of his counsel, is very aware of this reality.

[19] Mr. Apan dropped out of school in the 11th grade, but finished his Grade 12 by taking courses while he was in open custody as a youth. His long term partner Stefania Comande is very supportive of him. She has been employed for 12 years at Food Basics and is a positive influence in his life.

Impact on the Community

[20] In R. v. Woolcock, supra, it was noted that crack cocaine is an extremely dangerous and insidious drug with potential to cause a great deal of harm to individuals and to society. (See para 15). In Woolcock, the accused was discovered with 5.3 grams of crack cocaine. In the case before me the substance is powdered, not crack cocaine, but the amount is 51.8 grams of powder, which was packaged in 48 separate bags. While the substance in question is not crack cocaine, I accept the fact that cocaine itself is an addictive substance which contributes to human suffering, misery, increase in crime and the risk of violence which goes along with drug trafficking. While it is not as addictive as crack cocaine, cocaine in any form is a dangerous and addictive drug.

Positions of Counsel

[21] Ms. MacDonald, for the federal Crown, is of the view that two years of incarceration is warranted with regard to all of the factors in this case.

[22] Ms. Vanderheyden, for the defence, takes the position that I should suspend the passage of sentence for Mr. Apan and impose a period of probation.

Legal Parameters

[23] Pursuant to s. 5(3)(a) of the Controlled Drugs and Substances Act, a conviction for possession of cocaine for the purpose of trafficking carries a maximum sentence of life imprisonment. There is no minimum sentence. A conditional sentence is no longer available for this offence pursuant to an amendment to s. 742.1 of the Criminal Code in force in 2012.

Considerations for an Appropriate Sentence

[24] The fundamental purpose of sentencing as set out in s. 718 of the Criminal Code, is to engender respect for the law and the maintenance of a just, peaceful and safe society. In endeavouring to foster the above noted values, sentences must reflect the objectives of sentencing including denouncing unlawful conduct, specific and general deterrence, protection of the public, sometimes through separation where required, assisting in the rehabilitation of the offender, making amends to victim and community and promoting a sense of responsibility within the offender. The sentence should also acknowledge any harm done to any victims and to the community at large.

[25] As I indicated, any sentence I impose must be proportionate both in relation to the gravity of the offence and the responsibility of the offender pursuant to s. 718.1 of the Criminal Code.

[26] In the creation of an appropriate sentence, the following principles must be considered and reflected in the sentence:

1. The sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender;
2. The sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;
3. Offenders should not be deprived of liberty if less restrictive sanctions are appropriate; and
4. All available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders.

Aggravating Factors

[27] The aggravating factors in this case are the fact that the substance in question was cocaine in a substantial amount. Mr. Apan has a criminal record, albeit it is dated and completely unrelated. Mr. Apan was apparently allowing cocaine to be trafficked out of his garage despite the fact that his niece and nephew and the rest of his family lived in the same residence. The fact that Mr. Apan was willing to expose his family to the hazard of violence which is attendant to drug trafficking, is in my view aggravating. He is not an addict, suggesting that profit was the motivation for the offence. (That being said, his lack of addiction will make it easier for him to attain rehabilitation).

Mitigating Factors

[28] Mr. Apan has a warm and loving family who support him. He had a positive pre-sentence report. He is enrolled in a short course of study which will enable him to return to the work force. He is an A student in this program. He will be able to work as a home inspector upon completion of the program. Mr. Apan cares for his aging parents. He was very close to his grandmother prior to her death. He changed her diapers and offered the sort of kindness and care that we all should be so fortunate to receive in our last days. While on the one hand Mr. Apan exposed his family to the risk of violence, on the other hand he has demonstrated that he is capable of caring compassion. In my view, the existence of this positive character trait is a relevant factor to consider when assessing his potential for rehabilitation.

Similar Cases and Similar Offenders

[29] I have considered all of the cases provided to me by both counsel. The principle of parity of sentence requires me to look to see how other courts have treated similarly situated offenders in cases which are factually similar to that of Mr. Apan.

[30] In Woolcock, supra, the Court sentenced an accused who was found to have 5.3 grams of crack cocaine in his possession for the purpose of trafficking to two years less a day of incarceration. The offender was 53 years old and was selling crack cocaine as a commercial enterprise in a residential community. He was not an addict. The trial judge was found to have paid insufficient attention to the potential for rehabilitation and the Court reduced the imposed sentence to 15 months. In that case, the accused had two prior convictions for drug related offences. In analyzing whether this offender is similar to Mr. Apan, I note that Mr. Woolcock had two prior drug convictions. He was older and like Mr. Apan, had suffered reversals as a result of misfortune. The prior convictions in my view make this offender unlike Mr. Apan in ways that are material to my consideration of him as being similarly situated to Mr. Apan.

[31] In R. v. Ahmed, 2016 ONSC 5699, the accused was convicted of conspiracy to traffic in cocaine arising from an investigation into drug trafficking activities in the Niagara region by a group called the Black Pistons Motorcycle Club. The accused was sentenced to two years imprisonment, less eight months custody for pre-sentence custody. The case was categorized as being part of a larger semi-organized commercial enterprise.

[32] In that case, the amount of cocaine was 28 grams, considerably less than the 51.8 grams in the case of Mr. Apan. Significantly, however, Ahmed had a prior conviction for possession of cocaine for the purpose of trafficking and two further convictions for possession of cocaine. As mentioned, Mr. Apan has no prior drug entries on his criminal record.

[33] In R. v. Young, 2016 ONSC 2968, the accused was sentenced, after trial, to 30 months with 10 months subtracted for time served in pre-trial custody. Young was in possession of 56 grams of convictions. His lengthy record, including his prior drug convictions distinguish him from Mr. Apan.

Defence Authorities

[34] The defence provided me with R. v. Browne, 2013 ONSC 5354. In that case a two year conditional sentence was imposed. Browne had a lengthy and related criminal record. The amount of cocaine involved was 69 grams. Browne had a 2005 conviction for possession of cocaine for the purpose of trafficking, a 2006 conviction for possession of cocaine for the purpose of trafficking and two convictions for obstruct peace officer, amongst other entries on his record. The trial judge paid due attention to the possibility of rehabilitation, despite the substance involved, and the quantum. The offender in that case had made significant progress toward rehabilitation, as I have found that Mr. Apan has done in this case.

[35] In R. v. Hussein, 2016 ONSC 1246, a conditional sentence of two years less a day was imposed for an offender who was convicted of possession of crack cocaine for the purpose of trafficking. The accused in that case was found with 62.85 grams of crack cocaine in his apartment. He had a mental illness and a problem with alcohol and marijuana. He had been on bail for four and a half years and had breached his recognizance twice. The offender in that case did not demonstrate remorse, and continued to maintain his innocence.

[36] In R. v. Irish, 2016 ONSC 3837, Justice Allen sentenced the accused to an intermittent sentence of 30 days to be served on weekends and a two year period of probation. Ms. Irish’s situation was quite different from Mr. Apan, as she was a drug addict who lived in housing provided by the Toronto Community Housing Corporation. Ms. Irish feared that a jail sentence would jeopardize her living accommodations. On two occasions she had trafficked 0.66 grams of crack cocaine to an undercover officer. She was also charged on two occasions while on bail. She had a lengthy criminal record including drug offences. The nature of the offence in question and the much smaller quantity of drug make this case unlike the one before me. I note that Ms. Irish had prior drug convictions, as have the accused in most of the other cases provided to me. Mr. Apan, of course, has no prior drug convictions.

[37] In R. v. Phan, 2015 ONSC 4863, the accused received a conditional sentence for possession of over 600 grams of ketamine for the purpose of trafficking. He had no prior record. He was a paraplegic after being shot at age 25. I found that both the nature of the offence and the offender in this case to be too far away from that of Mr. Apan to be of much guidance to me in regard to sentence.

[38] Finally, the defence provided R. v. McGill, 2016 ONCJ 138. In that case an aboriginal accused received a suspended sentence and probation for possession of 300 grams of cocaine. Mr. McGill was 40, and worked part time while attending school part time. He had turned his life completely around since the date of his arrest. He had a prior dated record for violence and narcotics.

Legal Analysis

[39] The appropriate range for this type of offence is six months to two years as set out in Woolcock. Mr. Apan has no related criminal record. His last entry was 9 years ago for which he received a suspended sentence and probation. He suffers from depression and anxiety. The crown, Ms. MacDonald, argues that there is no direct evidence before me that depression and anxiety contributed to the commission of this offence. I agree with this proposition, but I am also aware that depression in particular can impair an individual’s decision making abilities and judgment.

[40] Mr. Apan was seriously injured in several accidents which edged him out of the workforce and caused him to live with chronic body pain and migraine headaches. It is not a leap of logic for me to infer that the loss of employment and related loss of self-esteem contributed to his depression and associated anxiety for which he currently receives treatment. His family are hardworking people who immigrated to Canada and created a life for themselves here by virtue of persistence and diligence. They love and support their son.

[41] Mr. Apan’s course of study ends in March of 2019. If I impose the sentence requested by the crown, Mr. Apan will not finish his course of study and will forfeit the $17,000 he has paid in tuition. I note that he and his family are of modest means and that this sum of money is a very significant amount for them.

[42] A conditional sentence is not available to me as a sentencing option. Therefore the question before me is how do I preserve the rehabilitative steps taken by Mr. Apan, while also denouncing the possession of cocaine for the purpose of trafficking to the appropriate degree?

[43] Defence counsel in this case argues that the reasoning set out in McGill, supra has direct application. McGill, supra, dealt with an aboriginal offender. Gladue principles were applicable in that case and a restorative approach to sentence adopted. In that case, Green J., was of the view that the appropriate level of denunciation could be expressed through imposition of the suspension of the passage of sentence and probationary terms. He cited para 102 of R. v. Proulx, 2000 SCC 5:

102. Incarceration will usually provide more denunciation than a conditional sentence, as a conditional sentence is generally a more lenient sentence than a jail term of equivalent duration. That said, a conditional sentence can still provide a significant amount of denunciation. This is particularly so when onerous conditions are imposed and the duration of the conditional sentence is extended beyond the duration of the jail.

[44] At paragraph 98 of McGill, supra, Green J., wrote, “Proulx dealt with the newly introduced conditional sentence regime. “Incarceration”, the Chief Justice there explained, “will usually provide more denunciation” than a conditional sentence. Nonetheless, and in words I take to apply generally to non-custodial dispositions,” he went on to say that such sentences “can still provide a significant amount of denunciation, particularly so when onerous conditions are imposed.”

[45] I am unable to agree with the proposition that there is no distinction between the purpose of a conditional sentence, which encompasses denunciation and rehabilitation and a period of probation, which serves the interests of rehabilitation and protection of the public. In Proulx, the Court made clear that a suspended sentence with probation is primarily a rehabilitative sentencing tool, while Parliament intended a conditional sentence to address both punitive and rehabilitative objectives. (Proulx, para 23)

[46] At para 29 the Court notes that Parliament intended imprisonment, in the form of incarceration, to be more punitive than probation, as it is far more restrictive of the offender’s liberty. Since a conditional sentence is, at least notionally, a sentence of imprisonment, it follows that it too should be interpreted as more punitive than probation.

[47] The Chief Justice wrote that with the enactment of s. 742.1, Parliament mandated that certain non-dangerous offenders who would otherwise have gone to jail for up to two years now serve their sentences in the community. “If a conditional sentence is not distinguished from probation, then these offenders will receive what are effectively considerably less onerous probation orders instead of jail terms. Such lenient sentences would not provide sufficient denunciation and deterrence, nor would they be accepted by the public. The Court, at paragraph 30, noted that Section 718 provides that the fundamental purpose of sentencing is “to contribute to….to respect for the law and the maintenance of a just, peaceful and safe society.” Inadequate sanctions undermine the respect for the law. Accordingly, it is important to distinguish a conditional sentence from probation by way of the use of punitive conditions.

[48] The Chief Justice noted at para 35 that Parliament intended a conditional sentence to be more punitive than a suspended sentence of probation, notwithstanding the similarities between the two sanctions in respect of their rehabilitative purposes. The CJ wrote, “I agree wholeheartedly with Vancise J.A., who, dissenting in R. v. McDonald (1997), 113 C.C.C. (3d) 418 (Sask. C.A.), who stated at p. 443, that conditional sentences were designed to “permit the accused to avoid imprisonment but not to avoid punishment.” (At para 35 of Proulx)

[49] Conditions of probation can be rehabilitative, or serve the protection of the public, but if they are denunciatory, the punitive aspect must be consequential and not the primary purpose of the condition. In R. v. Bosco, 2016 BCCA 55, Dickson JA wrote (at para 55):

a. While a condition may serve one or both goals of protecting society and facilitating reintegration, if imposed solely to punish the offender it will lack the requisite nexus. Without the requisite nexus, a probation condition, punitive or otherwise cannot be imposed lawfully. R. v. Singh, 2016 MBCA 38. b. Terms of probation cannot be imposed for purely punitive purposes. Conditions imposed must be ordered either for the purpose of protecting society, or facilitating the particular offender’s successful reintegration into the community, or both.

[50] Since Parliament has eliminated the availability of conditional sentences for this offence, and a period of probation is not an available method of expressing denunciation where it is required, as it is in this case, actual jail must be contemplated.

[51] Imposing a suspended sentence with a period of probation, does not, in my view meet the required level of denunciation mandated by this offence. While an offender who violates the term of their probation can be brought back in front of the sentencing judge and receive a lengthy and harsh sentence, it is my view that the threat of future punishment may serve as specific deterrence, but it has little denunciatory effect.

[52] In all of the circumstances of this case, I am of the view that an intermittent sentence of a further 90 days is an appropriate and proportional sentence. Mr. Apan has already served the equivalent of 30 days in jail. In essence, he will be receiving a four month sentence, with credit for 30 days he has already served, and a further intermittent sentence of 90 days.

[53] This sentence is low and indeed, if I were relying on quantum of the drugs alone, it would be arguably completely outside the range. However, quantum is just one factor for my consideration. Mr. Apan has no prior drug convictions. He is still young, at least from my perspective, and he has his whole life in front of him. He has a good family who are supportive and a partner who is an excellent influence on him. And most importantly, perhaps, he is doing well in school where he has at the end of it all, a good chance of being employed, which will restore his self-esteem. The public is best protected by his being able to finish school, not lose his $17,000 in tuition, and his return to the work force as a productive young man.

[54] I do not agree that a shorter sentence is an empty symbol, or rank tokenism, as expressed in McGill, supra. To the extent that the value of denunciation lies in its communicated message to the community, I would say that conditions in some of our jails are such that any time spent within those walls should rightfully be regarded as real punishment.

[55] I am of the view that jail was not required in terms of specific deterrence for Mr. Apan. In the time since this offence he has not re-offended, and his progress satisfies me that he has turned the corner in terms of his past associations and conduct. The sentence I have imposed will further the goals of rehabilitation by allowing Mr. Apan to continue his therapy and finish his schooling without losing his deposit. What is the equivalent of a four month sentence is admittedly low for this type of offence, but is a proportional result when all of the facts of this case are weighed.

[56] There will be a section 109 order prohibiting Mr. Apan from possessing any weapons for ten years and an order procuring a sample of his DNA.

[57] After serving his sentence, Mr. Apan will be on probation for 18 months. He will take whatever programs are recommended to him by his probation officer, including the anti-criminal thinking program offered by the Ministry of Community Safety and Correctional Services in house program if it is available during this probationary period. He shall continue seeing his therapist and he shall continue to attend his school, after which he is to seek employment.

Anne London-Weinstein, J.

Released: June 25, 2018

Reasons for Sentence

COURT FILE NO.: CR 17-90000046-0000 DATE: 20180625 ONTARIO SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN – and – NICHOLAS APAN Defendant

REASONS FOR SENTENCE Anne London-Weinstein, J.

**Released:** June 25, 2018