REASONS FOR SENTENCE

McCarthy, J.

[1] The defendant appears before me today for sentencing.

[2] The defendant pleaded guilty to possession for the purpose of trafficking cocaine. Following an investigation, code named Project Rios, which focused on drug trafficking in Barrie, a search warrant executed at the defendant’s home on April 18, 2019, uncovered 1279 grams of cocaine.

[3] The Crown seeks a three-year custodial sentence which it states would be at the low end of the range for this type of offence. The Crown acknowledges that both the minor role played by the defendant in the apprehended drug trafficking operation and his law-abiding conduct since his arrest should benefit him in sentencing.

[4] The defendant seeks a conditional sentence of two years less a day to be served under house arrest at the home of the defendant’s parents.

[5] The Crown’s request for a s. 109 order for life and a DNA order is not opposed.

[6] There is a line of cases which would serve as precedents for the custodial sentence requested by the Crown.

[7] In R. v. Crozier, [2021] O.J. No. 2014, 2021 ONCJ 235, De Filippis J. determined a fit sentence was three years imprisonment. The defendant was 49 years old, had significant community support, and pleaded guilty shortly after an unsuccessful Charter motion. The quantity of cocaine was 475.7 grams.

[8] In R. v. Pileggi, [2019] O.J. No. 3660, 2019 ONSC 4182, Casullo J. considered the appropriate sentence for a defendant convicted of possessing approximately one kilogram of cocaine. The 47-year-old defendant had no prior record and benefitted from strong family support. After he unsuccessfully pursued a Charter application, the defendant declined to contest the Crown’s case. He was sentenced to four years and four months of incarceration, less a period for a Downes credit.

[9] In R. v. Collins, [2023] O.J. No. 52, 2023 ONCA 2, the Court of Appeal upheld a sentence of five years for possession of 1.4 kilograms of cocaine. The Court ruled that the sentence was appropriate and sufficiently accounted for the defendant’s various mitigating circumstances.

[10] In R. v. Currant, 2018 ONSC 7094, the defendant pleaded guilty to possession of 1.02 kilograms of cocaine. The defendant had been addicted to cocaine, had no criminal record, enjoyed community support and was the parent of a young child. Fragomeni J handed down a sentence of six years.

[11] In the case at bar, the court is drawn to a custodial sentence for the following reasons:

(a) The principle of denunciation is especially significant in drug trafficking cases: see R v Woolcock, [2002] O.J. No. 4927 (Ont. C.A.) at para. 8; and R v Landell, 2023 ONSC 6526 at para. 28.

(b) Section 10(1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (“the CDSA”) stipulates that the fundamental purpose of any sentence for a trafficking offence is to contribute to the respect for the law and the maintenance of a just, peaceful, and safe society, and acknowledging the harm done to victims and to the community.

(d) The sheer quantity of cocaine seized makes it evident that the product was intended for commercial gain at some level.

(e) There is no evidence that the defendant was forced, coerced, or tricked into harboring the cocaine.

(f) While not as dangerous as fentanyl, cocaine is nonetheless a highly addictive substance, damaging to and even ruinous of lives.

(g) The defendant is not a youthful offender.

[12] There are indeed mitigating factors and considerations which might tend to weigh against a custodial sentence and in favour of the conditional sentence urged upon me by the defendant.

[13] One, the defendant does not strike me as a risk to re-offend in any way, in fact, quite the opposite. He impressed me as truly remorseful, full of shame but also keenly insightful of the harm his crime has caused to both his older family members and his two young sons.

[14] Two, he did not re-offend during more than 4 ½ years of house arrest. He has no other matters before the court.

[15] Three, the defendant has made attempts to better himself enrolling in and completing a course at Canada Careers College.

[16] Four, he has a dated criminal record from 17 years ago. While a repeat offender, he is no way a habitual one.

[17] Five, there is no evidence that defendant played anything but a minor role in the drug trafficking operation in question.

[18] Six, he has a supportive family of parents, children, and sibling all who vouch for his dedication as a father and his earnest attempt to atone for his criminal conduct.

[19] Seven, as the child of ageing parents and the father of teenage sons, the defendant plays an important part in the lives of those around him.

[20] Eight, the defendant benefits from the mitigating factor of having pleaded guilty without challenging the search warrant.

[21] Nine, there is no evidence that violence or firearms were in any way associated with this offence. Nor do any of the other aggravating factors set out in subsection 10(2)(a) of the CDSA apply.

[22] Finally, subsections 718.2 (d) and (e) of the Criminal Code set out the following sentencing principles:

(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 and consistent with the harm done to victims of or to the community should be considered for all offenders…

[23] I have carefully considered this matter, the surrounding circumstances, the appropriateness of a conditional sentence order and the applicable case law. I have arrived at the conclusion that only a custodial sentence can respect and advance the twin principles of denunciation and deterrence.

[24] The amount of cocaine seized here is simply too great. While I acknowledge that a conditional sentence order can promote the principles of denunciation and deterrence, the quantity of cocaine in question make the need for denunciation so pressing that only a period of incarceration can reasonably express society’s condemnation.

[25] What message would it send to the community and to victims of drug trafficking if the defendant here was spared from custody after being found in possession of such a volume of dangerous, illegal drugs? The wrong one. One that says trafficking in cocaine, no matter what the quantity, is no longer so serious that it will land the average person in jail.

[26] Cocaine is an addictive and dangerous drug that destroy the lives of its victims and wreaks havoc on society. Those who traffic in it must be made to know that very serious punishment awaits them. A sentence of the kind sought by the defendant would do little to deter casual and would be drug dealers; and it would do nothing to deter more sophisticated traffickers.

[27] Cocaine trafficking needs to be sternly, emphatically, consistently, and unswervingly denounced by our courts. There is too much at stake, and not just public confidence in the justice system. There are countless lives that are daily impacted by the deleterious effects of addictive street drugs. Trafficking in illegal drugs brings with it, not just devastation on an individual level, but the insidious and pervasive side effects of accompanying violence.

[28] On balance, and even considering the many mitigating factors at play here, I am persuaded that the custodial sentence sought by the Crown is a just and fit one.

Disposition

[29] Mr. Gurango please stand.

[30] I sentence you to 3 years in custody.

[31] There shall be a s. 109 order to issue for life as well as an order that the defendant submit for a DNA sample forthwith.

[32] And that is the sentence of the court.

McCarthy J.

Released: January 18th, 2024

NOTE: As noted in court, on the record, this written Ruling is to be considered the official version and takes precedence over the oral reasons read into the record. If any discrepancies between the oral and written versions, it is the official written Ruling that is to be relied upon.

R. v. Gurango, 2024 ONSC 364

Case Summary

REASONS FOR SENTENCE

Disposition

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 4

Legislation 3