COURT FILE NO.: CR-16-50000726 DATE: 20181212 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N : HER MAJESTY THE QUEEN – and – LAURALEE WALKER

Counsel: Susan Kim for the Crown Craig Bottomley and Andrea VanderHeyden for Lauralee Walker

HEARD: November 15, 2018

REASONS FOR SENTENCE

FAVREAU J. :

Introduction

[1] On September 21, 2018, Lauralee Walker was found guilty by a jury of conspiracy to traffic cocaine and possession of the proceeds of crime.

[2] On November 15, 2018, I heard sentencing submissions.

[3] This is my decision on the fit sentence for Ms. Walker.

Circumstances of the offence

[4] Section 724(2) of the Criminal Code sets out the principles that must guide the sentencing judge in determining the relevant facts following a conviction by a jury. Pursuant to section 724(2)(a), the sentencing judge "shall accept as proven all facts, express or implied, that are essential to the jury's verdict of guilty", and section 724(2)(b) provides that the judge "may find any other relevant fact that was disclosed by evidence at the trial to be proven, or hear evidence presented by either party with respect to that fact".

[5] In addition, section 724(d) provides that any additional facts relied on for sentencing must be proven on a balance of probabilities subject to section 724(3)(e), which directs that if any such facts are an aggravating factor, it is the Crown's burden to prove those facts beyond a reasonable doubt.

[6] In R. v. Ferguson, 2008 SCC 6, paras. 16-18, the Supreme Court of Canada reviewed the relevant principles that govern sentencing following a jury verdict:

[16] This poses a difficulty in a case such as this, since, unlike a judge sitting alone, who has a duty to give reasons, the jury gives only its ultimate verdict. The sentencing judge therefore must do his or her best to determine the facts necessary for sentencing from the issues before the jury and from the jury's verdict. This may not require the sentencing judge to arrive at a complete theory of the facts; the sentencing judge is required to make only those factual determinations necessary for deciding the appropriate sentence in the case at hand.

[17] Two principles govern the sentencing judge in this endeavour. First, the sentencing judge "is bound by the express and implied factual implications of the jury's verdict": R. v. Brown, [1991] 2 S.C.R. 518, p. 523. The sentencing judge "shall accept as proven all facts, express or implied, that are essential to the jury's verdict of guilty" (Criminal Code, s. 724(2)(a)), and must not accept as fact any evidence consistent only with a verdict rejected by the jury: Brown; R. v. Braun (1995), 95 C.C.C. (3d) 443 (Man. C.A.).

[18] Second, when the factual implications of the jury's verdict are ambiguous, the sentencing judge should not attempt to follow the logical process of the jury, but should come to his or her own independent determination of the relevant facts: Brown; R. v. Fiqia (1994), 1994 ABCA 402, 162 A.R. 117 (C.A.). In so doing, the sentencing judge "may find any other relevant fact that was disclosed by evidence at the trial to be proven" (s. 724(2)(b)). To rely upon an aggravating fact or previous conviction, the sentencing judge must be convinced of the existence of that fact or conviction beyond a reasonable doubt; to rely upon any other relevant fact, the sentencing judge must be persuaded on a balance of probabilities: ss. 724(3)(d) and 724(3)(e); see also R. v. Gardiner, [1982] 2 S.C.R. 368; R. v. Lawrence (1987), 58 C.R. (3d) 71 (Ont. H.C.). It follows from the purpose of the exercise that the sentencing judge should find only those facts necessary to permit the proper sentence to be imposed in the case at hand. The judge should first ask what the issues on sentencing are, and then find such facts as are necessary to deal with those issues.

[7] Based on these principles, I find that the following facts are essential to the jury's verdict and relevant to sentencing in this matter.

Context in which the offences were committed

[8] At the time of the offences, Ms. Walker was in a relationship with Danny Grandison. In May of 2015, Ms. Walker and Mr. Grandison lived together in a condominium which was rented by Ms. Walker.

[9] At that time, Mr. Grandison was a known and prominent member of the Mount Olive Crips, which is a criminal organization in Toronto. The Mount Olive Crips are known to engage in drug trafficking and other criminal activities, including violent crimes.

[10] Ms. Walker was aware that Mr. Grandison was a drug dealer. She was also aware that he was not employed, and that any money he had was derived from drug trafficking.

[11] In May 2015, the Toronto police were conducting an investigation that was in part focused on Mr. Grandison. In the context of the investigation, the police obtained authorization to conduct wiretap surveillance on Mr. Grandison’s phone and car.

Conspiracy to traffic cocaine

[12] On May 4, 2015, the wiretap surveillance recorded Mr. Grandison making arrangements to sell crack cocaine to an unidentified man. As part of the transaction, Mr. Grandison directed Ms. Walker to transport the drugs to the unidentified man and to receive payment from him, which Ms. Walker agreed to do. The wiretap suggests that the quantity of crack cocaine to be sold was approximately 12.5 grams, in exchange for which Mr. Grandison was to be paid $575 plus $20 worth of marijuana.

[13] For the purposes of sentencing, in my view, it is relevant to consider some of the specific details of the manner in which Ms. Walker became involved and agreed to deliver the crack cocaine.

[14] Much of the evidence regarding the conspiracy to traffic cocaine comes from the intercepted wiretap communications between Mr. Grandison and the unknown man, and from communications between Mr. Grandison and Ms. Walker. The relevant sequence of communications is as follows:

a. Mr. Grandison had an initial conversation with the unknown man, in which the man asked Mr. Grandison whether he was “plugging”, which refers to dealing drugs according to expert evidence on drug terminology which was admitted at trial. Mr. Grandison asked the male to give him an hour and a half “cause my girl is gonna come with the car”. During a second conversation between Mr. Grandison and the male, they discussed quantities and numbers, ultimately agreeing to 12.5 grams in exchange for $575 plus a “half quarter” of marijuana. During the conversation, Mr. Grandison says that he could “make” his girlfriend meet the man downstairs with the drugs. At the end of the conversation, the unknown male said “just tell her I’m coming now”. b. Mr. Grandison then contacted Ms. Walker by phone. Mr. Grandison opened the conversation by saying “Yow Lauralee, this is what I’m gonna give you real quick. You’re gonna meet this guy, ah, downstairs… at like probably Toys-R-Us for me, and he’s gonna give you six hundred bucks… or no, no, he’s gonna give you like five seventy-five, and some weed”. Ms. Walker then responds “’Kay” and “Okay”, after which Mr. Grandison instructs her to take the “hard thing” – which the expert on drug terminology testified means crack cocaine – out of a cupboard. He tells her that it is the same package she had in her purse the previous day. They then have a discussion about who she will be meeting, after which Mr. Grandison tells Ms. Walker that he will call her in about half an hour when the man is ready to meet her. c. The man contacts Mr. Grandison to say that he has arrived at the building. d. There are then a number of calls between Mr. Grandison and Ms. Walker, during which Mr. Grandison gets impatient with Ms. Walker and Ms. Walker appears reluctant to deliver the package. In one call Mr. Grandison says “Yow, man like are you… what are you doing bro? Like the man’s downstairs bro. Didn’t… I tell you to do something?” In another call, after a discussion about how much money the man would be giving Ms. Walker, she says “…I don’t… I don’t really care about all o’ that right now”, to which Mr. Grandison responds “I know you don’t care … because it’s not your money, bro.” Later in the same call, in the face of Ms. Walker’s reluctance, Mr. Grandison says “Just go to the car bro. What’s wrong with this girl? Like, are you lost, bro?” e. Later, Mr. Grandison texts the unknown male and tells him “she in da front”. f. The unknown male and Mr. Grandison then have one last call, during which they have an argument about the weight of the crack cocaine. The male says that it weighs 11.87 grams and Mr. Grandison says that it was 12.5 grams.

[15] Ms. Walker was found guilty of conspiracy to traffic cocaine, which required the jury to find that there was an agreement to traffic cocaine and that Ms. Walker was a party to that agreement. Based on the evidence at trial, including the evidence reviewed above, it is evident that Ms. Walker was not the instigator of the agreement or transaction. Rather, Mr. Grandison directed her to bring the drugs to the unknown man, and Ms. Walker agreed to do so, but with clear reluctance. In addition, there is no evidence that she profited directly from the agreement or transaction. As reviewed above, Mr. Grandison speculated that Ms. Walker did not care about what was going on because it was not her money.

Possession of the proceeds of crime

[16] The jury’s finding that Ms. Walker is guilty of one count of possession of the proceeds of crime with a value of less than $5,000 arises from events that occurred on May 9, 2015.

[17] As a result of the investigation into Mr. Grandison’s activities, the police arrested Mr. Grandison on May 9, 2015, and obtained a search warrant for the apartment he shared with Ms. Walker.

[18] On May 9, 2015, after obtaining the search warrant, the police arrived at the apartment and entered without knocking, using a master key obtained from the concierge. When they entered, Ms. Walker was sitting on a couch in the living room, talking on her cell phone. Next to her, there was a bundle of cash totalling $2,690, held together with an elastic.

[19] After entering and clearing the apartment, the police searched the apartment, and found approximately $9,000 in cash buried in a box full of clothes, located in a small room that appeared to be used to store personal items such as shoes and clothes. While Ms. Walker was originally charged with possession of the proceeds of crime in relation to both bundles of cash, by the time the jury was charged, the Crown only sought a conviction in relation to the $2,690 found next to Ms. Walker at the time the police entered the apartment.

[20] Ms. Walker retrieved the money from Mr. Grandison’s possessions after he was arrested. She did so following a conversation with Mr. Grandison’s mother and his lawyer. The money was to be provided to Mr. Grandison’s lawyer. These findings, including the finding that the money belonged to Mr. Grandison, are supported by Ms. Walker’s own evidence at trial, and also by intercepted communications between Ms. Walker and Mr. Grandison after his arrest, in which she referred to the money as his money, saying that the police “stole” his money.

[21] In order to find Ms. Walker guilty of possession of the proceeds of crime, the jury had to be satisfied that Ms. Walker was in possession of the $2,690, that the money was obtained by crime, and that Ms. Walker knew that the money was obtained by crime. In order to make this finding, the jury was instructed that it was not necessary for Ms. Walker to be the owner of the money; she could be guilty of the offence if she was in possession of the money for someone else’s benefit. Based on the evidence I have reviewed above, I find that Ms. Walker was not the owner of the money, but that she was in possession of the money for Mr. Grandison’s benefit. In addition, given that Ms. Walker retrieved the money from Mr. Grandison’s possessions after his arrest for the purpose of providing it to Mr. Grandison’s lawyer, I find that the possession was brief and intended to be transitory.

Circumstances of the offender

[22] Ms. Walker is 29 years old. At the time of the offence, she was 26 years old.

[23] Ms. Walker does not have a criminal record.

[24] Ms. Walker is Black. She grew up in the Jane and Finch neighbourhood, where she lived with her mother and two sisters. Her father lives in Jamaica, where he has been living since 1992, after being deported from Canada. Ms. Walker’s mother owns and runs a clothing store. Ms. Walker described herself as “growing up” in her mother’s store.

[25] Ms. Walker completed high school. She then went to Seneca College, where she studied applied arts and completed a paralegal program. She graduated in 2013.

[26] After graduating, Ms. Walker received welfare benefits for a period of time, and eventually found work with a credit agency. She then started working as a law clerk in 2015. She worked in the same law office from 2015 to 2017, where she worked as a real estate clerk. In 2017, she started working in a different law office. She lost this most recent job following the guilty verdict in this case.

[27] Ms. Walker has strong ties to her family, including her mother, her sisters and a number of aunts. In fact, one of her aunts acted as her surety because her mother was required to travel for her work.

[28] Unfortunately, Ms. Walker and her family have faced a number of difficult and tragic circumstances. As mentioned above, Ms. Walker’s father was deported from Canada to Jamaica in 1992, which occurred when Ms. Walker was 4 or 5 years old. Ms. Walker was present when the police arrived and arrested her father, which happened while she and her family were in a fast food restaurant. More recently, while Ms. Walker was in college, one of her sisters and her nephew died in a house fire. Her sister was pregnant at the time. Ms. Walker took some time off from school after these tragic events, but she was later able to return to college and complete her studies.

[29] While the jury did not accept Ms. Walker’s defence of duress, in my view the nature of Ms. Walker’s relationship with Mr. Grandison nevertheless forms part of her personal circumstances for the purposes of sentencing.

[30] Based on Ms. Walker’s evidence and additional corroborating evidence, I find that Mr. Grandison was abusive and violent towards Ms. Walker. Ms. Walker and Mr. Grandison first got together in 2013. She ended the relationship a few months later, after a violent incident when Mr. Grandison punched Ms. Walker while she was driving her car.

[31] In the summer of 2014, Mr. Grandison was hospitalized after he had been shot. At that time, one of Mr. Grandison’s friends encouraged Ms. Walker to visit Mr. Grandison in the hospital, which she did. Their relationship then resumed. There were then at least three incidents of violence.

[32] In September of 2014, Mr. Grandison hit Ms. Walker, resulting in a cut to her lip and bruises to her face. Ms. Walker’s mother called the police, which was an agreed fact at trial. When the police came, Ms. Walker referred to the person who hit her as “Jermaine Johnson”, but Ms. Walker’s evidence at trial, which I accept, is that it was Mr. Grandison who hit her. She testified that she used a fake name because Mr. Grandison had told her he would beat her if she called the police.

[33] The second incident occurred on November 19, 2014. While they were at home, Mr. Grandison punched Ms. Walker in the face and knocked her out. When she came to, she was bleeding from her mouth and she wanted to go to the hospital. Initially, Mr. Grandison did not want to take her to the hospital, and when he eventually took her, he would not leave her side. There is a hospital record from this incident, showing that Ms. Walker suffered an injury to her mouth that required stitches.

[34] The third incident occurred on April 11, 2015. This time, Mr. Grandison punched Ms. Walker in the face while he was driving. Ms. Walker called the police. She again gave a fake name for Mr. Grandison out of fear. Ms. Walker’s call to the police formed part of the agreed facts at trial.

[35] During her evidence, Ms. Walker testified that there was an ongoing pattern of violence in the relationship. Mr. Grandison would be violent and abusive, after which he would be remorseful and nice for a period of time.

[36] I accept Ms. Walker’s evidence that the relationship was abusive. I found Ms. Walker’s description of the abuse to be credible, and it is also corroborated by the two calls to the police and a hospital record for the November 19, 2014 incident.

[37] Besides Ms. Walker’s circumstances prior to and at the time the offences were committed, during the hearing of submissions on sentencing, Ms. Walker read a statement in which she expressed regret over her actions and her association with Mr. Grandison. She said that she is committed to avoiding any future association with Mr. Grandison or with the criminal activities with which he was involved.

[38] Unfortunately, Ms. Walker lost her job as a law clerk as a result of the convictions in this case. However, she expressed a commitment to finding employment and she has started a new romantic relationship.

Positions of the parties

[39] The Crown seeks a custodial sentence of 2 years less a day on both charges to be served concurrently, with a period of probation that would include conditions that Ms. Walker have no contact with Mr. Grandison, that she report as directed and that she reside where approved.

[40] Ms. Walker’s lawyers proposes that the appropriate sentence in this case is a suspended sentence with a period of twelve months’ probation, to include conditions that Ms. Walker report as directed, that she reside where directed, that she participate in counseling as directed, and that she seek and maintain gainful employment.

Sentencing principles

[41] As set out in section 719 of the Criminal Code, the fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society. This is achieved by imposing "just sanctions" that reflect one or more of the traditional sentencing objectives, which include denunciation, general and specific deterrence, and rehabilitation.

[42] The Criminal Code lists a number of principles to guide sentencing judges.

[43] The parity principle is set out in section 718.2(b) of the Criminal Code, and it provides that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. As noted in R. v. Mann, 2010 ONCA 342 at para. 17, the parity principle is not to be applied in an absolute fashion; given the highly individualized sentencing process, sentences imposed for offences of the same type will not always be identical.

[44] The totality principle is addressed by section 718.2(c) of the Criminal Code. A sentencing judge who orders an offender to serve consecutive sentences must ensure that the combined sentence is not unduly long or harsh. The cumulative sentence imposed must not exceed the overall culpability of the offender (R. v. C.A.M., [1996] 1 S.C.R. 500 at para. 42).

[45] The restraint principle is reflected in both ss. 718.2(d) and (e). As the Court of Appeal explained in R. v. Hamilton, [2004] O.J. No. 3252 (C.A.), at paras. 95-96, the restraint principle is of paramount importance where incarceration is a potential disposition:

95 Proportionality is the fundamental principle of sentencing, but it is not the only principle to be considered. Parity, totality, and restraint are also principles which must be engaged when determining the appropriate sentence: Criminal Code, ss. 718.2(b)-(e). The restraint principle is of particular importance where incarceration is a potential disposition. That principle is reflected in ss. 178.2(d) and (e):

(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and

(e) 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.

96 The express inclusion of restraint as a principle of sentencing is one of the most significant features of the 1996 Criminal Code amendments statutizing sentencing principles for the first time. As Professor Manson explains:

Restraint means that prison is the sanction of last resort ... Restraint also means that when considering other sanctions, the sentencing court should seek the least intrusive sentence and the least quantum which will achieve the overall purpose of being an appropriate and just sanction…

[46] The fundamental principle of sentencing is the proportionality requirement, which is set out in s. 718.1: a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. The "gravity of the offence" refers to the seriousness of the offence as reflected by the potential penalty imposed by Parliament and any specific features of the commission of the crime which may tend to increase or decrease the harm or risk of harm to the community occasioned by the offence: Hamilton, para 90. The "degree of responsibility of the offender" refers to the offender's culpability as reflected in the substantive elements of the offence -- especially the fault component -- and any specific aspects of the offender's conduct or background that tend to increase or decrease the offender's personal responsibility for the crime: Hamilton, para 91.

[47] Section 731(1) of the Criminal Code gives the Court the power to impose a suspended sentence in specified circumstances:

731 (1) Where a person is convicted of an offence, a court may, having regard to the age and character of the offender, the nature of the offence and the circumstances surrounding its commission,

(a) if no minimum punishment is prescribed by law, suspend the passing of sentence and direct that the offender be released on the conditions prescribed in a probation order…

Aggravating and mitigating circumstances

[48] In determining the appropriate sentence, I must consider aggravating and mitigating factors.

[49] The nature of the substance at issue in this case is an aggravating factor. In R. v. Woolcock, [2002] O.J. No. 4927 (C.A.), at para. 9, the Court of Appeal 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".

[50] While the substance at issue is a serious aggravating factor, there are also significant mitigating factors in this case:

a. Ms. Walker has no prior record. b. Ms. Walker is relatively young. She was 26 years old at the time of the offence, and is now 29 years old. c. Despite some challenges in her family background, Ms. Walker obtained a college degree and has been consistently employed up until very recently, when she lost her job as a law clerk due to the convictions in this case. d. Ms. Walker has a supportive family, including her mother and her aunt who was her surety. e. Ms. Walker’s participation in the drug transaction was very limited. She did not initiate the transaction; rather it was Mr. Grandison who arranged the sale. Her role was limited to transporting a package from her apartment to the buyer’s car. Given her knowledge that Mr. Grandison was a drug trafficker and Mr. Grandison’s use of the term the “hard stuff”, she knew or was wilfully blind as to the fact that she was carrying crack cocaine. However, there is no evidence that she knew the specific quantity involved. There is also no evidence that she was paid for transporting the drugs. In fact, Mr. Grandison’s comment that it was not her money strongly suggests that she was not in fact paid. Therefore, her participation was not for direct commercial gain. Her participation is essentially limited to agreeing to do what she was told to do. f. Similarly, Ms. Walker’s possession of the proceeds of crime was for a very limited period and for a purpose that was for Mr. Grandison’s benefit, rather than for her own benefit. Ms. Walker located the money amongst Mr. Grandison’s things after he had been arrested, and she did so for the purpose of providing the money to Mr. Grandison’s lawyer. Therefore, she had the money in her possession for a very period of time and the money was not intended for her own use. g. While the jury did not accept Ms. Walker’s defence of duress, in my view, the circumstances of her relationship with Mr. Grandison are nevertheless a mitigating factor for the purpose of sentencing. Ms. Walker knew that Mr. Grandison was a gang member, who was high up in his organization. She knew that he was violent towards other people. He had assaulted her on at least three occasions, one of which required her to go to the hospital. While Ms. Walker may have had choices other than to comply with Mr. Grandison’s direction that she bring the package of drugs to the unknown male, I have no doubt that her decision to do so was influenced by the history of violence in their relationship. While Mr. Grandison did not make any direct threats at the time he told her to take the package down to the unknown male, he was directive in the language and tone he used with Ms. Walker, clearly expecting that she would comply with his instructions. Ms. Walker complied, but was clearly reluctant to do so. h. Ms. Walker has voluntarily cut off all ties with Mr. Grandison. She had a number of conversations with him when he was initially arrested. However, she never visited him in jail, and soon cut off all contact with him. i. While she did not plead guilty, at the end of the sentencing submissions, she did express remorse and indicated a strong commitment to move forward with her life in a positive way.

Sentences imposed in other cases

[51] In deciding on the appropriate sentence in this case, I must consider sentences imposed in similar circumstances to ensure that the principle of parity is met.

[52] In Woolcock, the appellant was found guilty of possession of crack cocaine for the purpose of trafficking. The amount at issue was approximately 5 grams. The Court of Appeal stated, at para. 15, that the "range of sentence for this type of offence appears to be 6 months to 2 years less a day". The Court also noted in the same paragraph that "the cases that fall at the higher end of this range involved either larger quantities of narcotics or offences committed while the accused was on probation for a similar offence." In that case, the Court reduced the trial judge's sentence of 2 years less one day to 15 months on the basis that the trial judge had failed to consider the principle of rehabilitation.

[53] During sentencing submissions in this case, the Crown candidly admitted not having found any cases with similar facts. Rather, the cases the Crown relied on were primarily cases in which courts had rejected suspended or conditional sentences. [1]

[54] For example, in R. v. Bui, [2004] O.J. No. 3452, the Court of Appeal dismissed an appeal, finding that the trial judge did not commit an error in imposing a twelve month custodial sentence and rejecting a conditional sentence in a case involving one drug transaction by a youthful first time offender, where the transaction was commercial in nature and the trial judge placed emphasis on the need for deterrence.

[55] Similarly, in R. v. Williams, 2010 ONSC 3904 (Sup. Ct.), Hill J. found that a conditional sentence was not appropriate in circumstances where the defendant was a 26 year old first offender found guilty of trafficking cocaine for commercial gain. In that case, the sentence imposed was 9 months. At para. 25, Hill J. reviewed a number of cases in which courts have emphasized that a non-custodial sentence will be rare in situations involving the trafficking of crack cocaine, given the importance of denunciation and deterrence in such cases:

In R. v. Ly (1997), 114 C.C.C. (3d) 279 (Ont. C.A.) at 286, the court stated that conditional sentences "will be looked to only rarely in cases of drug trafficking". Likewise, in R. v. Sawatsky, 2007 ABCA 353 at para. 4, the court stated: "We agree with the Crown that those who organize and manage "dial-a-dope" schemes to traffic in drugs, such as cocaine ... should usually be sentenced to terms of actual incarceration." At p. 155 of R. v. Brown (1997), 119 C.C.C. (3d) 147 (Nfld. C.A.), Marshall J.A. (Green J.A. concurring) observed that:

It is true that judicial reaction to cocaine trafficking has been stern, rarely failing to result in prison terms.

[56] In contrast, the defence relied on a number of cases where suspended sentences were imposed in drugs trafficking cases.

[57] For example, in R. v. Dallal, 2018 ONSC 715 (Sup. Ct.), Allen J. imposed a suspended sentence for trafficking cocaine in circumstances where the defendant was a 65 year old first time offender, the quantity was small, the defendant pleaded guilty, and the defendant had significant health problems. During the course of her reasons, at paras. 14-15, Allen J. acknowledged that non-custodial sentences in cases involving the trafficking of cocaine are rare, but that they do occur in appropriate circumstances:

14 Most often courts have tended to impose a custodial sentence. It has been observed that reported cases imposing suspended sentences for an offender convicted of trafficking in Schedule I drugs like cocaine or heroin are rare: R. v. McGill, at para. 61. In those rare cases courts have relied on the doctrine of "exceptional circumstances".

15 Exceptional circumstances have been found in cases involving the following mitigating circumstances:

• rehabilitation after arrest [R. v. Duncan, 2016 ONCJ 25];
• a guilty plea to trafficking in cocaine [R. v. McGill, 2016 ONCJ 138];
• a guilty plea to trafficking in MDMA [R. v. Caputi, 2013 ONCJ 644];
• small amounts of drugs, post-conviction sobriety and no prior convictions for some of the accused [R. v. Voong, 2015 BCCA 285];
• no related record, rehabilitation, youthful offender [R. v. Dickey, 2015 BCSC 1465]; affirmed [2016 BCCA 192];
• a guilty plea and rehabilitation [R. v. Carillo, 2015 BCCA 192]; and
• a guilty plea, no criminal record, good prospects for rehabilitation [R. v. Orr, 2015 BCPC 285].

[58] Similarly, in R. v. Strutt, 2018 ONSC 5184 (Sup. Ct.), Tramner J. imposed a suspended sentence in a drug trafficking case. In that case, the defendant was a first time offender, who had bought and sent himself a package of MDMA via mail to be used by himself and his partner. Tramner J. found that a suspended sentence was warranted in that case, in part, because the defendant was a first time offender and because the trafficking was not undertaken for commercial purposes. In reaching this conclusion, Tramner J. reviewed with approval the Ontario Court of Justice decision in R. v. McGill, 2016 ONCJ 138 (O.C.J.), where Green J. went over the sentencing principles applicable to drug trafficking cases involving relatively small amounts of Schedule I substances, including circumstances in which a suspended sentence may be appropriate:

23 Justice Green reviews the issue of sentence ranges in exceptional circumstances as "an analytical device by which sentences below an approved range find lawful purchase". He concedes the Canadian sentencing jurisprudence treats exceptional circumstances as rare occurrences, perhaps exceedingly rare. He considers that the relatively severe sentences reflected in the approved range for trafficking in Schedule I drugs are rationalized by the need for deterrence and denunciation. Drugs like heroin and cocaine are hazardous substances that reap personal and social misery on our communities and the principles of sentencing seek to reduce the demand for these drugs and their supply.

24 He also recognizes the importance of the sentencing principle of rehabilitation. Justice Green considered the principle of specific deterrence in the context of the offender's interaction with the criminal justice system. In Mr. Strutt's case he has no criminal record. The drugs were for his own purpose and to share with his partner. He was self-medicating with them, and he has taken proven steps for treatment and counselling, thus addressing specific deterrence issues.

25 At paragraph 114, he concludes as follows:

The preceding review of the governing law leads, in my view, to a single proportionate result, that of a noncustodial disposition. This flows from Mr. McGill's evident remorse, an appreciation of both the reality and consequences of his dreadful childhood and adolescence, his self-directed and demonstrable rehabilitation in the years since he was released on bail, his vibrant and salutary reclamation of his cultural identity and his immediate and ongoing investment in family, education and employment. Any concerns for specific deterrence can here readily be met by lengthy community supervision, appropriate probationary terms and the risk of resentencing for any future criminality. The sentencing objectives reflected in the principles of general deterrence and denunciation, to the degree that they are community-directed, are far better met in this case by a sanction that rewards rehabilitation than one that perpetuates incarceration.

[59] Based on the cases and principles reviewed above, it appears that the range of sentences for this type of offence is six months to two years, with six months being appropriate for a single transaction involving small amounts and the higher end of the range being appropriate for somewhat larger transactions. Other factors considered by the courts include the prospects of rehabilitation and the offender’s record. However, in circumstances of a first offender, especially a younger first offender with strong prospects of rehabilitation, the courts have also found that a suspended sentence, although exceptional, may be appropriate.

Fit sentence in this case

[60] Given the circumstances of this case, I cannot accept the Crown’s suggestion that a two year custodial sentence is appropriate. Two years is the top end of the Woolcock range. It is a sentence that would be appropriate for someone with a prior record and for whom there is little prospect of rehabilitation. This is clearly not the situation in this case.

[61] As reviewed above, Ms. Walker’s role in committing both offences was relatively minor. In addition, it is evident that she committed the offences under Mr. Grandison’s influence, in a context in which there was a history of domestic abuse. Ms. Walker has voluntarily renounced any relationship with Mr. Grandison and she is therefore no longer vulnerable to his influence. On this basis alone, the prospects that Ms. Walker would commit similar offences in the future appear low.

[62] Besides the circumstances of the offence, Ms. Walker’s remorse, her strong family ties, the fact that she has no prior record, her relatively young age and her demonstrated commitment to education and work suggest that her prospects of rehabilitation are very good.

[63] At most, Ms. Walker’s personal circumstances and the circumstances of the offence suggest that Ms. Walker should receive a sentence at the lowest end of the Woolcock range.

[64] However, in my view, this is an appropriate case for a suspended sentence. In addition to the very strong prospects of rehabilitation and the relatively low level of fault that can be attributed to Ms. Walker’s participation in the offences, Ms. Walker has already spent over 600 days under restrictive bail conditions. She was under house arrest for a lengthy period of time, only permitted to leave the house to go to work or to go out with her surety.

[65] I am aware that offences involving drugs that are as harmful as crack cocaine generally require a custodial sentence to ensure that crimes of this nature are denounced and to promote general deterrence. However, in my view, the restrictive conditions of Ms. Walker’s bail and the conditions to be imposed on her during probation fulfill these objectives in these unique circumstances.

[66] Balancing all of these factors together, I find that this is an appropriate case for a suspended sentence with eighteen months of probation.

Conclusion

[67] Accordingly, I impose a suspended sentence with eighteen months of probation.

[68] Ms. Walker, the conditions imposed on you during you probation are the following:

a. Keep the peace and be of good behaviour; b. Appear before the court when required to do so; c. Report in person to a probation officer within four working days of today, and after that at all times and places as directed by your probation officer or any person authorized by your probation officer to assist in your supervision; d. Reside at a place approved by your probation officer; e. Notify the court or probation officer in advance of any change of name or address and promptly notify the court or probation officer of any change in employment or occupation; f. Seek and maintain employment, and report your efforts to seek and maintain employment to your probation officer; g. Attend and actively participate, to the satisfaction of your probation officer, in 75 hours of community service at a community centre or agency approved by your probation officer; h. Attend and actively participated in any assessment, treatment or counselling required by your probation officer, and sign all necessary consents and releases in order to allow your probation officer to monitor compliance with any assessment, treatment or counselling; i. Do not contact or communicate in any way, either directly or indirectly, by any physical, electronic or other means with Danny Grandison; j. Do not be within 250 meters of any place you know Danny Grandison to work, go to school, or frequent, or any place you know him to be, except as required for court appearances; and k. Do not own, possess or carry any weapons as defined by the Criminal Code.

[69] In addition, I make the following ancillary orders:

a. Pursuant to section 109 of the Criminal Code, I order that Ms. Walker is prohibited form possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive substance prohibited for 10 years; b. I order that a DNA sample be given pursuant to section 487.051(3) of the Criminal Code. I am satisfied that it is in the interests of justice to make such an order having regard to the nature and circumstances surrounding the offense and the minimal impact that it will have on Ms. Walker’s privacy and security of the person; and c. Pursuant to section 737(2)(b)(ii) of the Criminal Code, Ms. Walker is to pay the victim surcharge of $200 for each indictable offence for a total of $400. This amount is to be paid within 12 months of today’s date.

FAVREAU J. RELEASED: December 12, 2018

[1] While conditional sentences are no longer available, I expect that the Crown relied on cases dealing with defence requests for conditional sentences for the purpose of arguing against a non-custodial sentence in this case.