Court File and Parties
COURT FILE NO.: CR-22-0105-0000 DATE: 2024 06 13
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: His Majesty the King Kelvin Ramchand and Nicholas Baldwin, for the Crown
– and – Brian Aguiar Christopher Tarach, for the Accused
HEARD: June 7, 2024
Reasons for Sentence
I. The Facts
[1] On May 15, 2024, Mr. Brian Aguiar pleaded guilty to two counts: possession of cocaine for the purpose of trafficking contrary to section 5(2) of the Controlled Drugs and Substances Act, and possession of a firearm, a Glock handgun, knowing that he was not the holder of a licence under which he could possess it contrary to section 92(1) of the Criminal Code.
[2] On August 10, 2021, police attended at a residence in Burlington, Ontario. Mr. Aguiar was staying there at the time. The police were there to execute search warrants for the dwelling and for two motor vehicles that were located on the property. Mr. Aguiar was the registered owner of both of the motor vehicles.
[3] Inside the house, police found multiple cellular telephones, counterfeit currency, false government documents, and $4885.00 in Canadian currency.
[4] Inside one of the motor vehicles, a Honda Civic, police found a hidden trap compartment in the trunk. Therein, police discovered 687.3 grams of cocaine, 1421.7 grams of fentanyl, 567.9 grams of methamphetamine (“meth”), ammunition for various firearms, a digital scale, plastic wrap packaging with cocaine residue, and a hydraulic press used to press drugs.
[5] Inside the other motor vehicle, a Jeep Wrangler, again in hidden trap compartments, police found a 40 caliber Glock handgun (a prohibited firearm) and ammunition, 8.4 grams of fentanyl, 584.1 grams of meth, 722 Xanax pills, a digital scale, a handgun holster, cellular telephones, and $310.00 in U.S. currency and $5.00 in Canadian currency.
[6] Mr. Aguiar had no authorization for the Glock handgun. Mr. Aguiar was in possession of the seized cocaine for the purpose of trafficking in it.
[7] All of the above facts are taken from the Agreed Statement of Facts signed by all concerned, Exhibit 1.
II. The Circumstances of the Offender
[8] Mr. Aguiar has a very dated and limited criminal record (Exhibit 2). For our purposes, the only relevant entry is from April 2008, out of Brockville, a conviction for simple possession of a controlled substance, for which the sentence imposed was a $500.00 fine.
[9] Currently 35 years of age, Mr. Aguiar has had a difficult past but is facing a brighter future. His difficult past has included his experiences as a foster child and the instability that entailed as he was growing up, being the victim of physical and mental abuse as a child, his frequent struggles to just get by for the sake of himself and his brother, and him being forced to be independent as a young teenager at just 14 years old.
[10] His brighter future is evidenced by the reference letters filed on his behalf, including but not limited to that of the Carvalhos who have offered Mr. Aguiar assistance, guidance, mentorship, and employment as a labourer with their custom homes building company, upon Mr. Aguiar’s release from custody.
[11] The reference letters filed, collectively, speak very positively about Mr. Aguiar’s character, his industriousness, and his potential for being a highly contributing member of society.
III. The Positions of the Crown and the Defence
[12] The Crown advocates for the following sentence: 6 years in prison for the cocaine conviction, plus 3 years in custody, consecutive, for the gun conviction, less the appropriate credit for presentence custody.
[13] The Crown seeks a section 109 Criminal Code firearms and weapons prohibition order for 10 years and life, as per the two subsections, a secondary DNA order, and a forfeiture order. All of those ancillary orders are hereby made, without objection by the defence.
[14] The defence has two alternatives that it has put forward. First, a conditional sentence order of the maximum length, 2 years less 1 day in duration, to be followed by strict probation for 3 years, plus an elevated victim fine surcharge. If that is not deemed to be a fit sentence by this Court, then, alternatively, the defence suggests that any further sentence of imprisonment from today should be no longer than 3 years in length.
[15] Both sides agree that Mr. Aguiar has served 397 actual days in presentence custody (it was 391 days as of the date of the sentencing hearing, plus another 6 days between then and today). Both sides agree, further, that the said 397 days should be credited at 2 for 1, rather than the more customary 1.5 to 1, due to extremely harsh conditions at the correctional facility as confirmed in the documentation filed by the defence.
[16] I accept that joint position. Mr. Aguiar will be credited by this Court as having served the equivalent of 794 days of presentence custody, before a consideration of any credit that the offender may receive on account of his bail conditions.
[17] The defence also asks that the Court apply some “Downes credit” in this case, something in the range of one-third or one-sixth of the 10 months that Mr. Aguiar spent on strict house arrest bail, although the defence rightly acknowledges that the said credit is not an arithmetic exercise and is to be treated as a mitigating factor on sentence without the requirement to quantify it with a specific number of days.
[18] The Crown disputes that there ought to be any Downes credit in this case because Mr. Aguiar absconded for a period of time, which is true.
[19] The major difference between the positions of the Crown and the defence is in how each side approaches an issue about solicitor-client privilege, and the violation thereof, in this case.
[20] The defence argues that this is a unique case. An exceptional one that is beyond the reach of what would otherwise be considered to be the usual sentencing range. It is one where the police, repeatedly (as many as 50 times or even more), by multiple officers, and even after certain communications between Mr. Aguiar and his counsel, Mr. Tarach, were expressly flagged by the police as being privileged, accessed and listened to or read solicitor-client electronic communications that were intercepted as part of a wiretap authorization, not only in violation of basic and well-understood notions of lawyer-client privilege but also directly contrary to the express wording of the terms and conditions of the court-ordered authorization itself.
[21] The Crown does not dispute any of the facts related to the solicitor-client privilege violations committed by the police, all outlined in detail in the chart and in the compendium filed by the defence at the sentencing hearing. Nor does the Crown disagree with the seriousness of those violations. The Crown simply argues that the violations may not necessarily have led to any Charter remedy, including a stay of proceedings or exclusion of the evidence under section 24(2), and further the Crown’s case did not rest exclusively or even predominantly on the wiretap evidence, and further still the Crown’s position already takes into account the lawyer-client privilege issue.
IV. Analysis
The Principles of Sentencing
[22] The fundamental purpose of sentencing, which is a highly individualized process, is that the sentence imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender – section 718.1 of the Criminal Code.
[23] For Mr. Aguiar specifically, and for these particular offences that he committed, under section 718 of the Criminal Code, I think that the most important sentencing objectives are (i) denunciation, (ii) deterrence (both general and specific but mainly general because I do not see Mr. Aguiar as posing a considerable risk of recidivism), and (iii) rehabilitation.
The Range of Sentence
[24] Both sides agree that there is no mandatory minimum penalty for either conviction, and both sides agree, further, that a conditional sentence order is statutorily available for Mr. Aguiar under section 742.1 of the Criminal Code, subject of course to the Court being satisfied of the other requirements in the preamble to that section and in clause (a) thereunder.
[25] The section 92(1) Criminal Code conviction has a maximum penalty of 10 years’ imprisonment.
[26] The section 5(2) Controlled Drugs and Substances Act conviction has a maximum penalty of life imprisonment.
[27] As the Court of Appeal for Ontario stated in R. v. Bajada, 173 CCC (3d) 255, [2003] OJ No. 721 (QL), at paragraph 13, “[i]t would appear that sentences of five to five and one half years are not uncommon for possession of a substantial amount of cocaine for the purposes of trafficking following an accused’s plea of guilty or where the accused has no prior record”.
[28] In R. v. McAlpine, 2024 ONSC 797, where the 37-year-old offender had pleaded guilty to four offences including possession of cocaine for the purpose of trafficking (1114.5 grams), and had a criminal record including one prior narcotics conviction, my colleague Justice Stribopoulos agreed with the Crown that the range of sentence for that offender was between 5 and 8 years’ imprisonment (paragraph 55). His Honour ultimately imposed a sentence of 42 months on that offender for that conviction (paragraph 104).
[29] In R. v. Hussey-Rodrigues, 2024 ONSC 2671, at paragraph 88, after referring to several decisions including that of the Supreme Court of Canada in R. v. Nur, 2015 SCC 15, [2015] 1 SCR 773, Presser J. stated as follows, “I am satisfied that s. 95 offences committed in circumstances like this (true crimes but not at the outlaw end of the spectrum), by offenders like Mr. Hussey-Rodrigues (youthful first offenders with other mitigating factors), typically attract a sentence of between upper reformatory and three years in penitentiary”.
[30] The offender before Justice Presser did not plead guilty, although he also did not contest the facts or call any evidence. He was found guilty of offences under both sections 95(1) and 92(1) of the Criminal Code (only the latter is a part of our case). He had no criminal record at all. He was just 23 years of age at the time of the sentencing, and he was only 18 years old at the time that he committed the offences.
[31] Ultimately, Presser J. imposed on that offender a conditional sentence order of close to the maximum permissible length (2 years less 1 day), plus 3 years of probation to follow.
[32] In our case, absent a consideration of the solicitor-client privilege issue, I would place the range of sentence for this offender, on these facts, at 5-8 years’ imprisonment for the cocaine conviction and 2-3 years’ imprisonment for the gun conviction.
[33] Finally, I am not persuaded by the Crown’s submission that the sentences to be imposed on Mr. Aguiar ought to be made consecutive. The defence did not squarely address this issue, but it seems to me that the sentences ought to be made concurrent with one another.
[34] The Glock handgun and the cocaine were found in separate motor vehicles but both in the name of Mr. Aguiar, both searched by the police on the same date, and both found at the same property. There is no admission or evidence that the handgun was a “tool of the trade” for Mr. Aguiar in his narcotics trafficking business.
[35] As long as this Court remembers to keep in mind the “toxic combination” of drugs and guns in arriving at the global sentence to be imposed on this offender, I do not see it as being inappropriate that the sentences to be imposed on Mr. Aguiar be made concurrent with one another. R. v. Delchev, 2014 ONCA 448, at paragraphs 33-35.
The Aggravating and Mitigating Factors
[36] In my view, there are three major aggravating factors in this case, considerations that would tend to increase the severity of the sentence to be imposed by this Court.
[37] First, this was a relatively sophisticated mid-level trafficking operation that Mr. Aguiar was involved in. We know that from the sheer quantity of the cocaine that was seized, and the multitude of narcotics that were discovered, and the fact that the drugs were concealed inside hidden trap compartments within the two vehicles.
[38] Second, this case is an illustration of the very dangerous, toxic combination of drugs and a firearm. The Glock handgun was accompanied by ammunition at the ready disposal, which is dangerous enough, but we also know the ravages that hard drugs and trafficking in those narcotics have left in our communities across Canada. R. v. Parranto, 2021 SCC 46, 463 DLR (4th) 389, 411 CCC (3d) 1, 75 CR (7th) 217, [2021] SCJ No. 46 (QL), at paragraph 87 and following.
[39] Third, it is clear that these crimes were motivated by greed. There is no information before the Court that Mr. Aguiar is an addict. An offender who deals in narcotics to, in part, feed their own substance use disorder is in a different position than one who is trafficking hard drugs purely for profit. R. v. Wawrykiewycz, 2020 ONCA 269, at paragraph 59; R. v. Smith, [1987] 1 SCR 1045, 34 CCC (3d) 97, at page 1053.
[40] Even those courts that have been reluctant to identify trafficking in the absence of an addiction as an aggravating factor on sentence, that is nonetheless properly considered by those Courts as affecting the length of the sentence to be imposed because it speaks to a need to emphasize the principles of denunciation and deterrence. R. v. Fraser, 2009 BCCA 179, at paragraphs 12-13.
[41] There are two major mitigating factors in this case, considerations that would tend to decrease the severity of the sentence to be imposed by this Court.
[42] First, as the character reference letters filed by the defence amply demonstrate, Mr. Aguiar is a man who has had a very difficult past but, for the most part, has persevered as a law-abiding and productive member of society. He has always supported his brother who was disabled. He has volunteered at a youth camp and at the YMCA. He was always there for his mother when he reconciled with her in his twenties. He is described by those who have taken the time to write lengthy letters to this Court as a compassionate, loyal, and resilient person. Mr. Aguiar is, in my opinion, an excellent candidate for rehabilitation.
[43] Second, by pleading guilty to these offences, Mr. Aguiar has expressed his remorse for what he did, something that he repeated in his thoughtful allocution during the sentencing hearing, and he has accepted responsibility for his actions, and he has saved the administration of justice valuable resources that would have been expended during lengthy pretrial applications and a lengthy jury trial. In fact, a minimum of twenty days had been scheduled for this case.
[44] These guilty pleas, however, are especially mitigating because they were entered in the face of a meritorious argument that the charges ought to be stayed or evidence excluded because of the serious solicitor-client privilege issue discussed above in these reasons. The Crown is correct that we cannot know for sure what would have happened, but the law is clear that a sentencing judge may take into account state misconduct while crafting a fit and proportionate sentence, without the offender being required to prove that the misconduct complained of amounted to a Charter violation. R. v. Nasogaluak, 2010 SCC 6, [2010] 1 SCR 206, [2010] SCJ No. 6 (QL), at paragraph 55.
[45] Further, beyond the serious solicitor-client privilege issue, these guilty pleas were entered in the face of triable issues in terms of possession – knowledge and control. During the sentencing hearing, I was told by Mr. Tarach, and the Crown did not disagree with this, that Mr. Aguiar did not have exclusive use of the residence and the two motor vehicles that the police searched on August 10, 2021.
What is a Fit Sentence for Mr. Aguiar?
[46] Sentencing ranges are not fixed tariffs. They are not meant to operate as straightjackets for sentencing judges. They are not “averages” that are designed to unduly confine the discretion that is inherent in the sentencing process. A judge can impose a sentence that is outside the range as long as it is in accordance with the principles and the objectives of sentencing. A sentence that falls outside the regular range of sentence is not necessarily unfit. There will always be cases that call for a sentence that falls outside a particular range. That is the very nature of the sentencing process – it is not a mathematical calculation or a scientific exercise but rather a highly individualized process that involves a myriad of factors that are difficult to define with any degree of precision. R. v. Lacasse, 2015 SCC 64, [2015] SCJ No. 64 (QL), [2015] 3 SCR 1089, 333 CCC (3d) 450, 24 CR (7th) 225, at paragraphs 57-58.
[47] In my view, notwithstanding the aggravating factors present in this case, mainly because of the unique aspect of this case in that Mr. Aguiar has pleaded guilty in the face of meritorious triable issues including the serious matter of police violations of solicitor-client privilege, before any consideration of presentence custody and Downes credit, a fit sentence for this offender would be 5 years’ imprisonment on the cocaine conviction and 2 years in custody, concurrent, on the firearm conviction.
[48] Undoubtedly, that starting point of 5 years’ imprisonment, on a global basis, for Mr. Aguiar is at the very low end of the range of sentence for these offences, arguably outside the range some would say, but it is fully justified, in my opinion, by the peculiar features of this case.
[49] Deducting from that 5 years the presentence custody agreed to by counsel, 794 days or 2.175 years, leaves 2.825 years in custody.
[50] The Warrant of Committal will express the sentence imposed in days, thus, before considering any Downes credit, we are currently at 1031 days in custody.
[51] In my view, Mr. Aguiar’s strict bail conditions for about 10 months should be taken into account by this Court. It is true that he absconded, but he has paid the price for that already in that he has now been in presentence custody for a long time, and Justice Durno previously marked his bail for estreatment. Further, the police could have (and maybe did, I was not told) charged Mr. Aguiar with breaching his release order. More important, what happened after 10 months does not change the fact that this offender was the subject of very strict bail conditions up until that point.
[52] In all of the circumstances, I have decided that a net sentence of 950 days in custody, from today, is appropriate.
[53] That is less than the ceiling of what the defence proposed as its alternative submission, 3 years in custody from today. It is closer to 2.5 years in jail, from today.
[54] Mr. Tarach has done a tremendous job of advocacy for his client, Mr. Aguiar, however, with respect, I cannot find a way to a conclusion that a net sentence of less than 2 years is a fit one in this case. It follows that I am not imposing a conditional sentence order.
[55] Beyond the fact that I have determined that a fit sentence for Mr. Aguiar must be longer than 2 years less 1 day in custody from today, and therefore a conditional sentence order is not possible for this offender, I am also of the view that a conditional sentence order would not adequately address two of the most important principles of sentencing in this case – denunciation and general deterrence.
[56] Hard drugs and a prohibited handgun with ammunition is a deadly combination. The trafficking in the former has been a scourge in our society that has devastated so many lives and has destroyed so many futures. The latter poses a risk of death or injury to anyone who may encounter it.
[57] This Court must denounce this unlawful conduct and deter like-minded individuals from taking their chances with an enterprise that includes such a toxic combination. Denunciation and deterrence can be achieved through the imposition of a conditional sentence order, but each case turns on its individual facts, and imprisonment in the community by way of a conditional sentence order would be an unfit sentence for this offender on these facts.
[58] The sentence of the Court is as follows: 5(2) CDSA – 5 years or 1825 days’ imprisonment, less presentence custody of 397 days which is credited as 875 days, leaving a net sentence from today of 950 days in custody; and 92(1) CCC – 2 years or 730 days in custody, concurrent.
[59] The reader will note that the Court has included the Downes credit in the 875 days attributed to presentence custody (rather than reducing the 5 years on account of the mitigating factor of the strict bail conditions). The result is the same either way, but I have done it as I have because I think that it makes the sentence more understandable for Mr. Aguiar.
[60] The global sentence of imprisonment from today is 950 days.
[61] The ancillary orders were outlined previously in these reasons.
[62] I would like to thank Mr. Ramchand and Mr. Tarach for their helpful submissions on sentence.
[63] For Mr. Aguiar, I hope that he takes advantage of the offers of assistance from his friends upon his release from custody. He has a brighter future ahead of him.
Conlan J. Released: June 13, 2024