Court File and Parties

COURT FILE NO.: CR-17-90000558-0000 DATE: 20190219 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN Respondent – and – CRAIG SAVORY Applicant

Counsel: Marina Elias, for the Respondent John Filiberto and Hilary Dudding, for the Applicant

REASONS FOR SENTENCE

FERGUSON J.:

I. The Conviction

[1] Craig Savory (Savory) was convicted by a jury on September 26, 2018 of the offence of possession of cocaine for the purpose of trafficking. Approximately $300,000.00 of cocaine was involved in the offence. On November 22, 2018 I heard sentencing submissions. This was the first date available for sentencing post-holiday season.

II. The PSR

[2] Joanne Smith, a social worker prepared a report dated November 12, 2018. The following information was provided in her PSR:

(i) Previous Record: 2011-11-22 Milton, ON (1) assault (1) suspended sentence probation 18 months (6 days pre‑sentence custody) Probation 18 months (6 days pre‑sentence (2) mischief under $5,000 (2) suspended sentence probation 18 months consecutive (I note that this is a dated criminal record not particularly relevant to this conviction. I put no weight on it in sentencing for this conviction.)

(ii) Savory was born on October 23, 1980 and raised in Toronto. His parents separated when he was approximately four years old. His mother had custody and he did not have a close relationship with his biological father;

(iii) his mother remarried when he was 27 years old and he had a close relationship with his stepfather until his death;

(iv) he indicated no history of abuse, mental health issues, or suicidal ideations;

(v) he was involved in a significant first relationship when he was 21 years old which lasted eight years;

(vi) he met his wife, Alice Savory (“Alice”) when he was 29 years old and they married in April of 2013. They separated in 2014. They share three children together - ages 9, 6 and 1. Even though they are separated they share custody. Savory is very involved with his children and often spends weekends with them;

(vii) Alice confirms that they have a healthy relationship when it comes to the well‑being of their children. Savory is an active part of the children’s lives and provides as much support as he can. He picks up the children from school, takes them to weekend extra‑curricular activities, and has them on some weekends;

(viii) he completed grade 11 and then had several retail type jobs; at age 23 he became employed as an oil technician. At age 26 he was employed with a condominium corporation. At age 29 he worked as a general contractor, specializing in floor tiling and kitchen backsplashes. He is currently employed through an online food delivery company. A prior employer, Scott Stevens, has known Savory since they were children and reported that Savory had a great work ethic when he was working for him;

(ix) Savory consumes alcohol only on a social basis. He used some marijuana before this criminal matter. He no longer does so because of his bail conditions. He has never tried or experimented with any illicit drugs;

(x) Savory’s mother, (Claire Garriques) has always had a close relationship with her son. She stated that he is a very committed person, is attentive and never gives up. She believes that her son is too trusting of other people. She is her son’s surety and he has complied with all bail conditions;

(xi) he is having great difficulty with this conviction because he does not believe he is guilty. I note that the author of this report (Ms. Smith) does not believe that he should be incarcerated because of the effect on his children (a non-custodial sentence is not available for this conviction nor is a conditional sentence).

[3] The Crown’s suggested range for sentencing is between five to eight years and she submits that eight years would be appropriate. Counsel for Savory submits that the appropriate sentence is about two years’ incarceration. They are aware that this is at the low end of the range and even outside of the range for this type of offence. However, they point to the particular circumstances of this case which they submit amount to exceptional circumstances. Their position is that a penitentiary sentence of five years or more will do nothing but put his significant rehabilitative efforts of risk.

[4] Savory’s counsel submits that the principles of sentencing specifically codify the principle of restraint and the principle that jail is an option of absolute last resort. This is closely correlated with the principle of rehabilitation particularly in the case of first offenders. In R. v. Priest the Court of Appeal stated:

The primary objectives in sentencing a first offender are individual deterrence and rehabilitation. Except for very serious offences and offences involving violence, this court has held that these objectives are not only paramount but best achieved by either a suspended sentence and probation or a very short term of imprisonment followed by a term of probation. [1]

[5] Mr. Savory’s counsel have provided case law regarding the position of the convicted individual in the trafficking organization hierarchy and the resulting sentence:

(i) For drug trafficking offences involving multiple kilograms of hard drugs, the offender’s degree of responsibility within the trafficking organization impacts the applicable range of sentence. A lower range applies to those who assist with transportation, storage, or other menial, often times dangerous tasks in the distribution operation but do not share in the profits. The following cases illustrate this lower range. In R. v. Deol [2], the Manitoba Court of Appeal upheld a four‑year sentence for an offender who was transporting a kilogram of cocaine in his backpack. The court noted a range of sentence that begins at two‑and‑a‑half years and extends beyond four years. [3]

(ii) Higher ranges are reserved for those offenders who occupy higher positions in drug distribution networks. In R. v. Oraha [4], the Ontario Court of Appeal upheld a nine‑year sentence for an offender who was convicted of conspiracy to traffic cocaine (one kilogram); possession for the purpose of trafficking cocaine (three kilograms); possession for the purpose of trafficking methamphetamine (three kilograms); and possession for the purpose of trafficking MDMA (one to three kilograms). The arrest of Oraha occurred near the end of a lengthy police investigation, which targeted a group of men who were trafficking cocaine at the multiple‑kilogram level in Toronto. In addition to the drugs found in his possession, Oraha was also captured on intercepted telephone conversations offering to sell a kilogram of cocaine to a prospective buyer.

[6] In this case Savory was found to be in possession of approximately $300,000.00 of cocaine which was found in a secret compartment in the back of the passenger seat in his car. He had earlier been given the car from a brother (a convicted drug dealer). He drove his kids around in their car seats. When he was arrested, he was at a friend’s apartment. There was no further evidence of drug paraphernalia, etc. which was linked to him. I agree with Savory’s counsel that a lower range is applicable because the evidence only supports that Savory was involved in transportation, storage and distribution. There is no evidence that he was involved in the sharing of profits.

[7] The mitigating factors in this case are as follows:

(i) strong family support from his ex‑wife and mother;

(ii) no breaches of bail conditions since he was arrested and placed on bail;

(iii) no issue with alcohol or drugs;

(iv) full time employment;

(v) no evidence of any involvement with the drug world apart from the possession of the drugs found in his car;

[8] The aggravating factors are as follows:

(i) he had his children in the car where the drugs were located (a dangerous situation);

(ii) the difficulty in the two police officers finding the secret compartment;

(iii) no guilty plea (although I note that he has maintained his innocence throughout this matter;

(iv) the society effect of drug trafficking.

[9] Section 718 of the Criminal Code gives a sentencing judge some guidelines. It states:

718. The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions but have one or more of the following objectives:

(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;

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

(c) to separate offenders from society where necessary;

(d) to assist in rehabilitating offenders;

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

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

III. Disposition

[10] In taking into account the various principles of sentencing, and the mitigating and aggravating factors, I find that a period of incarceration of six years is appropriate.

Justice J.E. Ferguson Date: February 19, 2019

COURT FILE NO.: CR-17-90000558-0000 DATE: 20190219 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN Respondent – and – CRAIG SAVORY Applicant

REASONS FOR SENTENCE J. E. Ferguson J. Released: February 19, 2019

[1] R. v. Priest, [1996] O.J. No. 3369 (C.A.).

[2] R. v. Deol, [2006] M.J. No. 147, Tab 21.

[3] R. v. Majnoon, 2009 ONCA 876, [2009] O.J. No. 5306, Tab 22.

[4] R. v. Oraha, [2014] O.J. No. 2165, Tab 24.