COURT FILE NO.: CR-17-90000285
DATE: 20190909
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
SHANE CORTINA
Helena Solin, for the Crown
Alex Trica, for the accused
HEARD: June 13, 2019
REASONS FOR SENTENCE
P.J. Monahan J.
[1] On March 6, 2019, following a jury trial, Shane Cortina was convicted of 2 counts of trafficking in a controlled substance and 2 counts of possession of property derived from crime. He is before the court today for sentencing on these four convictions.
[2] The Crown seeks a global sentence of 2 years less a day while the defence seeks a sentence of 90 days, to be served on an intermittent basis.
Circumstances of the Offences
[3] On September 28, 2015, an undercover police officer arranged to purchase a quantity of powder cocaine through a contact, Raveen Nischal. The undercover officer had picked up Mr. Nischal and they had driven together to a condominium building at 10 Navy Wharf Court, in the area of the Rogers Centre in downtown Toronto. The undercover officer gave Mr. Nischal $290 in police buy money and waited in his vehicle while Mr. Nischal went upstairs to one of the apartments. Mr. Nischal returned about 20 minutes later with a clear plastic baggie containing powder cocaine.
[4] The undercover officer contacted Mr. Nischal the next day, September 29, 2015, and indicated that he wished to make another purchase. Mr. Nischal was not available that day but he arranged for the undercover officer to make the purchase himself directly from his supplier. When the undercover officer arrived at 10 Navy Wharf Court, he called Mr. Nischal. A few minutes later, Shane Cortina came out of the condominium building and got into the undercover officer’s car. The undercover officer paid Mr. Cortina $900 in police buy money and received two clear plastic baggies containing approximately 14.5 grams of cocaine.
[5] On October 7, 2015, the undercover officer made arrangements to make another purchase through Mr. Nischal. He picked up Mr. Nischal and they drove together to 10 Navy Wharf Court. The undercover officer gave Mr. Nischal $1000 in police buy money and waited in his vehicle while Mr. Nischal went upstairs. Mr. Nichal returned about 20 minutes later with a clear plastic baggie containing approximately 14 grams of powder cocaine.
[6] Mr. Cortina was arrested at his home in February 2016. He did not have any controlled substances in his possession at the time of his arrest. He was charged with and convicted by a jury of having trafficked in cocaine on September 29, 2015 and October 7, 2015.
Circumstances of Mr. Cortina
[7] Mr. Cortina is 43 years old. He was previously married and has 2 daughters ages 18 and 16, both of whom now live with their mother. His older daughter is enrolled at Brock University while his younger daughter is a grade 11 student in Toronto.
[8] Mr. Cortina has lived in Toronto for most of his life. He has a degree from Ryerson University. Since 2004 he has been employed at a general contracting company in Toronto. He has supplied a letter from the owner of the company, Mr. Christian Bustos, which states that Mr. Cortina is a reliable person who has been an integral part of the company’s team. Mr. Bustos indicates that Mr. Cortina has operated heavy machinery and is extremely knowledgeable in the shoring and waterproofing sector of the company business. Mr. Bustos asks for leniency on behalf of Mr. Cortina.
[9] Mr. Cortina has filed a letter from his ex-wife indicating that Mr. Cortina loves his daughters, has contributed to their support financially and has a good relationship with them. His ex-wife indicates that Mr. Cortina is a hard worker and is dedicated to his 2 daughters. She asks the courts to show compassion and mercy in his case.
[10] Also relevant is the fact that in August 2016 Mr. Cortina was involved in a hit-and-run motor vehicle accident. He was cycling when a large SUV hit him and ran over his right leg. He sustained severe fractures to his right leg and required surgeries, including an open reduction and internal fixation surgery to implant hardware in his leg.
[11] Mr. Cortina started physiotherapy in November 2016 but his treatment was terminated in May 2018 due to the denial of funding by his insurance company. He has filed a letter from his physiotherapy clinic indicating that Mr. Cortina needs to maintain his range of motion, strength and endurance by regularly attending the gym on his own or participating in aquatic therapy at a local community centre.
[12] Mr. Cortina’s criminal record consists of a conviction for theft under, entered on November 28, 2012. He received a conditional discharge and 2 years of probation.
[13] At the sentencing hearing Mr. Cortina indicated that he was truly sorry for what he had done. He indicated that it was bad judgment on his part to become involved with Mr. Nischal and he indicated that he would never be involved in anything like this again. He stated that his top priority is his children and he wants to be able to be there for them in the future.
Applicable Sentencing Principles
[14] The purpose and principles of sentencing are set out in s. 718 of the Criminal Code. Parliament has mandated that the fundamental purpose of sentencing is to protect society and contribute to respect for the law and the maintenance of a just, peaceful and safe society. Trial judges are required to impose a just sanction that has one or more of the following six objectives:
a. to denounce unlawful conduct;
b. to deter the offender and others from committing offences;
c. to separate offenders from society, where necessary;
d. to assist in the rehabilitation of offenders;
e. to provide reparations for harm done to victims or to the community; and
f. to promote a sense of responsibility in offenders, and acknowledge the harm done to victims and to the community.
[15] A fundamental principle of sentencing is proportionality, namely, that the sentence imposed be proportionate to the gravity of the offence and the degree of responsibility of the offender. A sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender. Further, a court that imposes a sentence shall also take into consideration the principle that a sentence should be similar to sentences imposed on similar offenders for similar offences, committed in similar circumstances; the principle that, where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; and the principle that courts should exercise restraint in imposing imprisonment.
Positions of the Parties
[16] The Crown argues that there are a number of aggravating circumstances which justify the imposition of a sentence of 2 years less a day. First, trafficking in cocaine is a serious offence with the potential to cause a great deal of harm to individuals and to society. Mr. Cortina committed this offence on 2 separate occasions. In addition, he was the supplier or “back end” of the transactions involving Mr. Nischal. There was also evidence at trial suggesting that Mr. Nischal planned to increase the quantities of cocaine purchased from Mr. Cortina. The Crown argues that since Mr. Cortina was a supplier he should receive a more serious sentence than individuals engaged in street-level transactions.
[17] The Crown acknowledges that there are a number of mitigating considerations in Mr. Cortina’s favour. Mr. Cortina is employed and has a good relationship with his daughters and ex-wife. He also suffered severe injuries in the hit-and-run accident that took place in August of 2016. The continuing nature of his injuries requires that he have the opportunity to engage in physiotherapy, which will be limited by an extensive period of incarceration.
[18] The Crown relies on the fact that Mr. Cortina’s associate, Mr. Nischal, was sentenced to 33 months incarceration for his involvement in various drug transactions in the fall 2015. The Crown does acknowledge that Mr. Nischal became involved in increased sales of amounts up to half a kilo of cocaine, and had an extensive criminal record involving 9 prior drug-related convictions, as well as firearms offenses, assaults, and failures to comply.
[19] The Crown argues that in the absence of any mitigating circumstances, Mr. Cortina would deserve a sentence of between 2 and 5 years incarceration. However, given his significant potential for rehabilitation as well as various other considerations, the Crown seeks a sentence of 2 years less a day.
[20] Mr. Cortina, through his counsel, argues that the amounts of cocaine trafficked in these cases was small, approximately half an ounce in each case. Mr. Cortina has only one prior criminal conviction which occurred almost 7 years ago that did not involve drugs or violence. He has steady employment and is actively involved with his 2 daughters. As such his prospects for rehabilitation are excellent. A lengthy period of incarceration may cause his employment to be terminated and may also limit his ability to continue with his physiotherapy, required as a result of the hit-and-run accident in 2016.
[21] Counsel argues that Mr. Cortina’s circumstances are quite different from those of Mr. Nischal. Mr. Nischal was convicted of trafficking large quantities of cocaine, up to half a kilo. Mr. Nischal also had an extensive criminal record involving drugs, firearms and crimes of violence.
[22] Counsel argues that an intermittent sentence will permit Mr. Nischal to continue his employment as well as his physiotherapy. He will also be able to maintain his involvement with his daughters. In these circumstances, counsel suggests that a 90 day sentence is appropriate.
Analysis
[23] In Ontario, save in exceptional circumstances, custodial sentences are imposed for cases involving trafficking in serious drugs like cocaine. The usual range of sentence appears to be between 6 to 9 months on the low-end and 18 to 24 months at the upper end, depending on the aggravating and mitigating circumstances of the case.[^1] Of course, these ranges are not fixed or immutable but serve as useful starting points and help to ensure that like cases are treated alike. The overarching duty of the sentencing judge is to determine a “just and appropriate” sentence; this is necessarily a highly individualized exercise, tailored to the gravity of the offence and the moral blameworthiness of the offender.[^2]
[24] In this case, there are a number of aggravating factors that suggest that a significant custodial sentence is appropriate. Of particular importance is the fact that Mr. Cortina was supplying cocaine to Mr. Nischal. Even though the amounts that were actually trafficked to the undercover officer were small, it was contemplated that Mr. Cortina would provide larger quantities in the future. This did not occur because of some sort of falling-out between Mr. Nischal and Mr. Cortina, as opposed to a decision by Mr. Cortina to cease his trafficking activity.
[25] That said, I am also of the view that there are significant mitigating factors which suggest that the appropriate sentence should fall at the lower end of the range referred to by the Court of Appeal in Woolcock. I place emphasis on the fact that Mr. Cortina has been and continues to be gainfully employed. He is also committed to maintaining his positive involvement in his daughters’ lives. He has no prior criminal record involving drugs. I accept his expressions of remorse to be genuine and believe that his prospects for rehabilitation are strong. As the Court of Appeal noted in Woolcock, one of the dangers of imposing lengthy terms of imprisonment in cases such as these is that it could impair the rehabilitation and reintegration of the individual as a responsible member of his community.
[26] Taking these various considerations into account, I find that a global sentence of 8 months imprisonment is appropriate in the circumstances of this case.
[27] I therefore impose sentences of 8 months for each of the trafficking convictions (namely, counts 1 and 3 in the Indictment), to be served concurrently with each other, and 4 months for each of the possession of proceeds of crime convictions (namely, counts 2 and 4 in the Indictment), to be served concurrently with each other and with the sentences for counts 1 and 3.
[28] In addition, pursuant to s. 109 of the Criminal Code, I order that Mr. Cortina is prohibited from possessing any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life, and that he is prohibited from possessing any firearm (other than one that is prohibited or restricted), crossbow, restricted weapon, ammunition or explosive substance for 10 years.
[29] I also order that a DNA sample be given pursuant to s. 487.051 (3) of the Criminal Code, as Mr. Cortina has been convicted of a secondary designated offence. I am satisfied that it is in the best interests of justice to make such an order having regard to the nature and circumstances surrounding the offenses and the minimal impact that this will have an Mr. Cortina’s privacy and security of the person.
P. J. Monahan J.
Released: September 9, 2019
COURT FILE NO.: CR-17-90000285
DATE: 20190909
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
SHANE CORTINA
REASONS FOR SENTENCE
P. J. Monahan J.
Released: September 9, 2019
[^1]: R. v. Woolcock, [2002] O.J. No. 4927, at paragraph 15.
[^2]: R. v. M. (C.A.), 1996 230 (SCC), [1996] 1 SCR 500, at paragraph 81.