Court File and Parties

Court File No.: CR-16-G1050 Date: 2019/04/03 Ontario Superior Court of Justice

Between: Her Majesty the Queen – and – Elia S. Awad

Counsel: Brigid Luke for Her Majesty the Queen Richard Addelman for Mr. Awad

Heard: January 10, 2019 (at Ottawa)

Reasons for Decision - Sentence

O’Bonsawin J.

Overview

[1] This is the sentencing decision for Mr. Awad. He is currently 60 years old and working under a construction consulting contract for Carlyle Group.

[2] Mr. Awad was charged with 2 offences: possession for the purpose of trafficking as per ss. 5(2) of Controlled Drug and Substances Act, S.C. 1996, c.19 (“CDSA”), and possession of proceeds of crime not exceeding five thousand dollars, in the amount of $1,990 contrary to ss. 355(b) of the Criminal Code, R.S.C. 1985, c. C-46 (“Code”).

[3] On August 15, 2018, I found him guilty of both charges.

[4] I will provide a very brief summary of the facts of this matter.

[5] Pursuant to a tip from an informant, the Ottawa Police Service conducted surveillance on Mr. Awad, who was the original target; and a second individual, Mr. Christopher Campbell. The surveillance began on or about November 7, 2014, and lasted for twenty-three days. On December 17, 2014, the Ottawa Police Service executed four search warrants on four residential addresses. Mr. Awad was arrested at the Leitrim location.

[6] There were a series of exhibits entered as evidence at the hearing for submissions on the appropriate sentence for Mr. Awad. They included Mr. Awad’s criminal record, his Recognizance of Bail dated December 23, 2014, his Recognizance of Bail dated June 20, 2016, a letter dated December 28, 2018 from Mr. Peter Giannotti, President of the Carlyle Group, and a letter dated January 9, 2019 from Dr. R. Mansour, Mr. Awad’s treating physician.

[7] I must sentence Mr. Awad on the charges as per ss. 5(3) of the CDSA and ss. 355(b) of the Code. The charge of trafficking is a straight indictable offence with a maximum imprisonment for life. It was elected to proceed by indictment for the charge of proceeds of crime which contains a maximum imprisonment of ten years.

Position of the Parties

[8] With regards to the position of the parties, the Defence acknowledges that Mr. Awad will likely receive a sentence in the penitentiary range and the appropriate sentence would be for a period of three years. The Defence takes the position that Mr. Awad was not operating a very sophisticated drug trafficking enterprise. The amount seized was limited to $1,990 and was not a vast amount as normally seen in high level trafficking. In addition, the Defence seeks a credit of 1/3 (period of ten months) for the restrictive bail conditions that Mr. Awad was subjected to.

[9] On the other hand, the Crown seeks a sentence of eight years of imprisonment. In addition, the Crown seeks a mandatory DNA order, a mandatory s. 109 of the Code weapons prohibition for a lifetime due to Mr. Awad’s prior convictions, and an Order for Disposition of Property. With regards to the credit for Mr. Awad’s restrictive bail conditions, the Crown submits that a credit of 1/5 (period of six months) is appropriate.

Factors to be Considered

[10] I will review the factors to be considered regarding sentencing. The sentencing principles according to s. 718 of the Code are denunciation, deterrence, rehabilitation and the protection of society. More specifically, according to s. 718 of the Code, the purpose and principles of sentencing are to:

• denounce unlawful conduct and the harm done to victims or to the community;
• deter the offender and other persons from committing offences;
• separate offenders from society, where necessary;
• assist in rehabilitating offenders;
• provide reparations for harm done to victims or to the community; and
• to promote a sense of responsibility in offenders; and acknowledgment of the harm done to victims or to the community.

[11] Section 718.1 of the Code provides that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[12] Section 718.2 of the Code lists other sentencing principles that are relevant in this matter such as:

• the taking into account the relevant aggravating or mitigation circumstances;
• a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;
• where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;
• an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances; and
• all available sanctions other than imprisonment that are reasonable in the circumstances and consistent with the harm done to the victims or to the community should be considered for all offenders.

[13] In R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, the Supreme Court provided the following helpful guidance for sentencing judges:

53 This inquiry must be focused on the fundamental principle of proportionality stated in s. 718.1 of the Criminal Code, which provides that a sentence must be “proportionate to the gravity of the offence and the degree of responsibility of the offender”. A sentence will therefore be demonstrably unfit if it constitutes an unreasonable departure from this principle. Proportionality is determined both on an individual basis, that is, in relation to the accused him or herself and to the offence committed by the accused, and by comparison with sentences imposed for similar offences committed in similar circumstances. Individualization and parity of sentences must be reconciled for a sentence to be proportionate: s. 718.2(a) and (b) of the Criminal Code.

54 The determination of whether a sentence is fit also requires that the sentencing objectives set out in s. 718 of the Criminal Code and the other sentencing principles set out in s. 718.2 be taken into account. Once again, however, it is up to the trial judge to properly weigh these various principles and objectives, whose relative importance will necessarily vary with the nature of the crime and the circumstances in which it was committed. The principle of parity of sentences, on which the Court of Appeal relied, is secondary to the fundamental principle of proportionality. This Court explained this as follows in M. (C.A.):

It has been repeatedly stressed that there is no such thing as a uniform sentence for a particular crime...Sentencing is an inherently individualized process, and the search for a single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise of academic abstraction. [para. 92]

55 Where sentencing ranges are concerned, although they are used mainly to ensure the parity of sentences, they reflect all 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 the relevant principles and objectives. However, they 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:

Even when an appellate court has established a range, it may be that a fact pattern will arise, which is sufficiently dissimilar to past decisions that the “range”, as it were, must be expanded. The fundamental point is that a “range” is not a straitjacket to the exercise of discretion of a sentencing judge.

60 In other words, sentencing ranges are primarily guidelines, and not hard and fast rules: Nasogaluak, at para. 44. As a result, a deviation from a sentencing range is not synonymous with an error of law or an error in principle. Sopinka J. stated this clearly in McDonnell, although he was referring in that case to categories of assault:

... in my view it can never be an error in principle in itself to fail to place a particular offence within a judicially created category of assault for the purposes of sentencing... . If the categories are defined narrowly, and deviations from the categorization are generally reversed, the discretion that should be left in the hands of the trial and sentencing judges is shifted considerably to the appellate courts.

Mitigating and Aggravating Factors

[14] According to the Defence, the mitigating factors in Mr. Awad’s case are as follows:

• he spent approximately 30 months on strict bail conditions and has not been charged with any other offences;
• he has a current contract of employment and the potential to work in the future;
• he has strong family support and cares for his elderly mother along with his brother; and
• he sees a psychiatrist for his depression related to a motor vehicle accident in 2004 and as a result, he is on a series of medications.

[15] According to the Crown, the aggravating factors in Mr. Awad’s case are as follows:

• he was a sophisticated mid-high level drug trafficker; and
• he has a criminal record including possession and trafficking in 1986, possession of Schedule II substance for trafficking in 2010; and the last entry is from 2011 for possession of property obtained by crime over $5,000.

Caselaw

[16] I will now turn to the caselaw. The Defence refers me to three cases in which the Courts have provided credits for stringent bail conditions: R. v. Downes, 76 O.R. (3d) 321 (C.A.); R. v. Dia (27 October, 2015), 14/10853 and 14/11770 Ottawa, (C.J.); and R. v. Banke, 2012 ONSC 5221. The caselaw supports that a sentencing judge can provide some weight to the restrictive bail conditions when determining the ultimate sentence. In Downes, the Court of Appeal determined as follows: “the lengthy period the appellant spent under pre-sentence house arrest in this case is a relevant mitigating factor and should have been given some weight in his sentence. It is therefore necessary to consider the impact of the house arrest on the appellant. For the following reasons, I would give it relatively little weight” (para. 42). The Court of Appeal provided the accused with a credit of five months for eighteen months of house arrest. In Dia, Webber J. provided Mr. Dia with a credit of approximately 1/3 for the time spent on his house arrest.

[17] The Defence also relies on the following caselaw regarding the appropriate sentence to impose on Mr. Awad: R. v. Ketch, 2018 BCSC 204; R. v. Goodkey, 2013 BCSC 1722; R. v. Henrique Goncalves, 2011 ONSC 2577; R. v. Rebelo, 2017 ONSC 1036; and R. v. Norman, 2018 ONSC 2872. The sentences range from two years less one day to three years of incarceration.

[18] The Crown referred me to the following cases: R. v. Bajada (2003), 173 C.C.C. (3d) 255 (Ont. C.A.); R. v. Bryan, 2011 ONCA 273; R. v. Sayeed (4 December 2018), Ottawa, 044-998-18/R1802 and 17/A13212 (C.J.); R. v. Rehman (17 December 2018), Ottawa, 0411-998-18-1863-03 (C.J.); and R. v. Williams, 2018 ONCA 367. The sentences range from thirteen months to nine years of incarceration.

[19] In R. v. Bryan, the Court of Appeal stated: “Normally, in cases of this nature, sentences of 5 to 8 years would reflect the proper range for someone, without a record, convicted of possession for the purpose of trafficking in slightly more than a pound of cocaine” (para. 1).

[20] In R. v. Ethier, 2018 ONSC 1200, Hackland J. dealt with charges that arose out of Project Adelaide. This was a large scale Ontario Provincial Police investigation into cocaine trafficking in the Ottawa and Smith Falls areas by a group of individuals. Mr. Ethier acted principally as a runner with additional tasks such as cutting and packaging the cocaine in a stash house. He also served as a conduit between suppliers and another dealer. This was a well-organized cocaine supply operation on a commercial level which involved multiple transactions at the half of a kilogram level. Mr. Ethier did not have prior drug related convictions and was a recovering alcoholic. He offered an apology at his sentence hearing and also had a generally positive pre-sentence report. Hackland J. reviewed the sentences imposed on the other accused related to Project Adelaide. He quoted R. v. McGregor, 2017 ONCA 399, at para 13, which found as follows:

We agree with the Crown that the case law supports the submission that eight years is toward the low-end of the accepted range for conspiracy to traffic in cocaine for mid-level dealers trafficking in quantities that include the kilogram level. While a very heavy sentence was warranted in this case, we cannot say that it is an error of law beyond the discretion of the trial judge to have imposed five years as part of a total sentence following a guilty plea and this is in accord with other sentences to which the parity principle applies.

Hackland J. imposed a five year sentence on Mr. Ethier. He also provided Mr. Ethier with a credit of 1/3 for his restrictive bail conditions which amounted essentially to house arrest and considered other credits as well.

Analysis

[21] Mr. Awad was on strict bail conditions for a period of thirty months. He was basically on house arrest and had to remain in his residence at all times except for medical emergencies, and attending court or meetings with his lawyers unless he was in the presence of one of his sureties.

[22] Mr. Awad has a criminal record which includes the following:

• 1980 driving while disqualified;
• 1986 possession of narcotic and trafficking in narcotics;
• 1998 failure to attend court;
• 2010 possession of a Schedule II substance for trafficking; and
• 2011 possession of property over $5,000 obtained by crime.

[23] Mr. Awad’s current employer provided a letter dated December 28, 2018. It states that Mr. Awad is under a construction consulting contract with the Carlyle Group. His services are required until April 15, 2019. Unfortunately, the letter does not provide further details regarding the full nature of his work, his hours of work, his history of work or his future with the company if any, etc.

[24] Dr. Mansour, Mr. Awad’s treating physician since 2004, also provided a letter dated January 9, 2019. The letter advises that Mr. Awad was in a severe motor vehicle accident in December 2004. Dr. Mansour sees Mr. Awad for monthly appointments. He provides a list of Mr. Awad’s current medication regime and states that with the exception of one medication, the seven other medications listed are prescribed by his psychiatrist, Dr. Cattan.

[25] The Defence submitted that Mr. Awad has the potential to work in the future; he has strong family support and cares for his elderly mother along with his brother and he sees a psychiatrist for his depression related to a motor vehicle accident in 2004. Other than Defence counsel advising the court, evidence was not provided to support these arguments.

[26] In my Reasons for Decision, I found that based on the evidence, Mr. Awad was using the Leitrim location as a drug trafficking centre. He was seen in and out of that location, meeting with individuals, and conducting hand to hand drug transactions. In addition, Mr. Awad kept changing the licence plates on his vehicles as a tool to counter police surveillance. The evidence also supported that Mr. Awad had at least one, even possibly two suspected runners who worked for him.

[27] Furthermore, I concluded that Mr. Awad had knowledge and control of the approximate one kilogram of cocaine that was located under his passenger seat. When he was arrested, Mr. Awad also had on his person the amount of $1,990 which constituted proceeds that were obtained by the crime of drug trafficking. Staff Sergeant Fulford testified that the price of a one kilogram brick of cocaine varies from $40,000-60,000 and in Ottawa, the average price is $45,000. Based on the facts, Mr. Awad was a mid-level drug trafficker.

[28] It is clear that cocaine has had a devastating impact on many lives, especially of vulnerable individuals. Drug trafficking cannot be viewed as a victimless crime. In R. v. Toms, [2001] O.J. No. 4844 (S.C.), at para. 5, Beaulieu J. stated: “The harmful effects of cocaine in our communities are twofold: not only do families suffer when a member becomes addicted, but so does the community as a whole. Addicts often resort to criminal activity to support their habits, and innocent citizens suffer losses at their hands”.

[29] In Pushpanathan v. Canada (Minister of Employment & Immigration), [1998] 1 S.C.R. 982, para. 89 and 91:

The costs to society of drug abuse and trafficking in illicit drugs are at least significant if not staggering. They include direct costs such as health care and law enforcement, and indirect costs of lost productivity…

These significant and often tragic consequences serve to emphasize that the harm caused by trafficking in illicit drugs is very properly a matter of grave concern in Canada, as it is throughout the world.

[30] In R. v. Hoang, [2002] O.J. No. 1355 (S.C.), at para. 71, Hill J. stated: “those who contribute to the availability of unlawful drugs on our streets and in our schools are engaged in commercial enterprise often inextricably linked to consequential criminality and other social evils”.

[31] As stated by Dunnet J. in R. v. Nero, [2007] O.J. No. 2316 (S.C.), at para. 62: “…there is no issue that general deterrence and denunciation are of paramount importance. It is well documented that the use and distribution of cocaine perpetuates crimes of violence”.

[32] In coming to my decision, I have kept in mind the sentencing principles, the mitigating and aggravating factors and the caselaw. There is no caselaw that falls squarely on the facts of Mr. Awad’s case. As stated in R. v. Lacasse: “sentencing ranges are primarily guidelines, and not hard and fast rules” (para. 60).

Conclusion

[33] In all of the circumstances, I consider that the appropriate sentence for Mr. Awad’s charge as per ss. 5(3) of the CDSA is a period of six years of imprisonment. In addition, I find that the appropriate sentence for Mr. Awad’s charge as per ss. 355(b) of the Code is a period of 1 year to be served concurrently to the charge as per ss. 5(3) of the CDSA. I am also prepared to credit Mr. Awad for a period of eleven days for the period of seven days that he spent in pre-trial custody at a ratio of 1:5 and in keeping in mind R. v. Downes, I grant Mr. Awad a credit of ten months (1/3) of the thirty months that he spent under strict bail conditions.

[34] Consequently, Mr. Awad’s sentence of six years of imprisonment is reduced by a total of eleven days for pre-trial custody in addition to a credit of ten months for his restrictive bail conditions. This amounts to a period of five years, one month and nineteen days.

[35] I also make the following ancillary orders:

• a DNA order; and
• a lifetime weapons prohibition pursuant to s. 109 of the Code.

[36] Lastly, I have signed the Order for Disposition of Property regarding the amount of $1,990 in Canadian currency, a ZTE flip phone, a silver digital scale, and the packaging that was provided to me by the Crown during her sentencing arguments.

Justice M. O’Bonsawin Released: April 3, 2019