COURT FILE NO.: CRIMJ(F) 134/22A & 134/22B

DATE: 20240207

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING

Erryl Taggart for the Crown

• and -

DEAN MCALPINE

Lenny Hochberg for the Accused

HEARD: June 7, 2023 (By Zoom videoconference), and October 24, 2023

REASONS FOR SENTENCE

STRIBOPOULOS J.:

Introduction

[1] Mr. McAlpine pled guilty to conspiracy to export cannabis, possessing cocaine for the purpose of trafficking, possessing the proceeds of crime, and breaching a weapons prohibition order. These are the court's reasons for sentencing Mr. McAlpine for these four offences.

I. Circumstances of the Offences

[2] On January 21, 2021, following a six-month investigation, the R.C.M.P. arrested Mr. McAlpine. During their investigation, they determined that Mr. McAlpine, along with two other individuals, was involved in a scheme to export cannabis to countries in the Caribbean.

[3] The R.C.M.P. interdicted five shipments during the investigation, four meant for Barbados and one for St. Maarten. Each used similar methods to conceal the cannabis. Mr. McAlpine and his accomplices purchased various non-contraband items and placed them in wooden crates in which they had constructed false bottoms where they hid the cannabis. Inside the five crates, police discovered and seized 43.2 kilograms of cannabis in total.

[4] Mr. McAlpine used various methods to insulate himself from the shipments. For example, he sometimes gave the shippers false names. With one of the shipments, Mr. McAlpine presented a fraudulent driver's license to the shipping company in the name of the "shipper," but that displayed his photograph. A few shipments listed one of Mr. McAlpine's accomplices as the shipper. Additionally, although the waybills for the shipments detailed their non-contraband contents, not surprisingly, they failed to disclose the cannabis hidden within them.

[5] As noted, the police arrested Mr. McAlpine on January 21, 2021. At the time of his arrest, he was holding a gift bag that contained 598 grams of cocaine, three bundles of cash totalling $28,100, and two cell phones.

[6] Later that same day, under the authority of search warrants, the police searched a residence and two vehicles that they had observed Mr. McAlpine driving during their investigation.

[7] At the residence, where the police arrested one of Mr. McAlpine's accomplices, they located 896.5 grams of cannabis in various locations and plywood in the backyard consistent with the wood used to build the shipping crates.

[8] Inside a 2008 Ford Escape, which police unlocked using a key found on a keychain that Mr. McAlpine had when arrested, the police discovered $98,500 in Canadian currency. They also located 516.5 grams of cocaine within a hidden compartment inside the vehicle's airbag.

[9] Additionally, in another secret compartment inside the vehicle's trunk, they found an extended magazine containing 13 cartridges of .40 calibre ammunition, a gun lock, a speed loader, a 5&M box of ammunition, and three boxes containing 41 cartridges of .40 calibre ammunition. At the time, Mr. McAlpine was subject to a weapons prohibition order.

[10] Inside the second vehicle, a 2019 GMC Yukon, which Mr. McAlpine was driving the day of his arrest, the police located a functional taser, a vacuum sealer, and bags for vacuum sealing. Additionally, the police determined that this vehicle had an altered Vehicle Identification Number (VIN). The Yukon was stolen on December 27, 2020, given a new VIN on January 12, 2021, and its ownership transferred to Mr. McAlpine's sister.

[11] The cannabis recovered by police from the five shipments they interdicted, 43.2 kilograms, had a value of between $86,400 and $172,800. The cocaine from the gift bag and the Ford Escape, 1,114.5 grams, had a value of between $60,000 and $89,167. The range of values is a function of the differences between retail and wholesale pricing.

II. Circumstances Surrounding Mr. McAlpine's Arrest

[12] The police used force to arrest Mr. McAlpine on January 21, 2021. That included one of the arresting police officers deploying his taser twice. The first time, one of the two barbs did not make contact with Mr. McAlpine's skin; therefore, it was ineffective. The second time, when the officer applied the device directly to Mr. McAlpine's lower leg (a "drive stun"), it succeeded in delivering an electric shock to his body.

[13] Justice Woollcombe, as a Case Management Judge, heard a pre-trial application brought by Mr. McAlpine in which he alleged that police violated his section 7 Charter right not to be deprived of the security of his person except in accordance with the principles of fundamental justice by using excessive force when arresting him.

[14] In written reasons, Justice Woollcombe concluded that although the officer who used the taser did so justifiably the first time, she found that its deployment the second time, the drive stun, was unreasonable and disproportionate: see R. v. McAlpine, 2023 ONSC 2462, at paras. 64-66. Given these findings, Justice Woollcombe concluded that the police breached Mr. McAlpine's section 7 Charter right: see at para. 67.

[15] However, Justice Woollcombe concluded that Mr. McAlpine had failed to establish that the circumstances justified a stay of proceedings: see at paras. 93-95. Additionally, she reasoned that the evidence acquired by the police in the days and months before his arrest was incapable of exclusion under section 24(2) because it was not "obtained in a manner" that violated the Charter: see at para. 101. Further, after considering the three lines of inquiry mandated by R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, Justice Woollcombe declined to order the exclusion of the evidence acquired incident to Mr. McAlpine's arrest under section 24(2): see at paras. 102-112.

[16] Nevertheless, Justice Woollcombe considered whether it would be appropriate to order a sentence reduction should Mr. McAlpine be found guilty. Although Mr. McAlpine urged her to make an order reducing any sentence to be imposed by 50% of what would otherwise be appropriate, Justice Woollcombe declined to make such an order. She explained, at para. 114:

In my view, if he is found guilty, the applicant's sentence ought to be reduced as a result of the excessive force used in his arrest. It is not for me to say at this point what that reduction ought to be. It will be for the sentencing judge to consider all of the relevant sentencing principles, including my findings respecting the excessive force that led to the s. 7 breach, and to reduce the sentence imposed appropriately.

III. Mr. McAlpine's Circumstances

[17] Mr. McAlpine is 37 years of age. He was born in Montreal but grew up in Ajax. Mr. McAlpine's mother and stepfather raised him. His stepfather passed away in 2019. Mr. McAlpine has a younger sister.

[18] There is no suggestion that anything about Mr. McAlpine's upbringing assists in explaining his criminal behaviour. He grew up in a prosocial family. His mother and sister are gainfully employed, as was his stepfather before he passed away. Unlike many offenders who come before this court, there is no suggestion that Mr. McAlpine's upbringing was in any way marred by abuse or addiction.

[19] Mr. McAlpine and his partner are in a long-term and committed relationship. They have a son, who is 11 years old. Mr. McAlpine is a loving and supportive father to his son. Correspondence from an administrator at his son's school confirmed that he has served as a volunteer coach for the school's basketball team and that Mr. McAlpine's coaching contributions were well received by staff, students, and parents.

[20] Mr. McAlpine has a criminal record. He has convictions from 2008 for possessing a controlled substance and failing to comply with a recognizance. Mr. McAlpine received a $300 fine for each offence and one year of probation. He also has convictions from 2013 for dangerous driving and unauthorized possession of a firearm. Mr. McAlpine received concurrent conditional sentences of two years less a day for those offences and a weapons prohibition order under section 109 of the Criminal Code.

[21] After graduating high school, Mr. McAlpine began working in the construction industry. Since his last involvement with the criminal justice system, Mr. McAlpine returned to school, learned the drywall trade, and eventually started his own drywall business. The business has three full-time employees and periodically employs others on a per diem basis.

[22] In his comments to the court at the end of the sentencing hearing, Mr. McAlpine attempted to explain the events that led to his involvement in the criminal activities for which the court is sentencing him.

[23] Mr. McAlpine noted that he was close with his stepfather and father-in-law and that his stepfather passed away in 2018, as did his father-in-law in 2019. Mr. McAlpine described how he looked to them for guidance and support; they helped him to "stay on the right track in life." It was against the backdrop of mourning the loss of these two mentors that the pandemic hit.

[24] Mr. McAlpine explained that he experienced a significant downturn in his business with the onset of the pandemic and that money became an issue. He and his partner were to close on a home they had purchased, and they risked losing their deposit, which represented the entirety of their savings if the transaction fell through.

[25] With the downturn in his business and the financial pressures he experienced, Mr. McAlpine explained that he reverted to his "old ways of thinking" and decided to engage in illegal activities to generate the income he lost because of the pandemic.

[26] Mr. McAlpine explained that the period since his arrest has been extraordinarily difficult for him and his family. He reports suffering from anxiety and PTSD, resulting in a diagnosis of hypertension, for which he now takes medication. Mr. McAlpine indicated that he feels he has lost everything and acknowledged that he now faces the prospect of losing his liberty.

[27] Mr. McAlpine apologized for his crimes and the harm they had caused to his family, friends, and the community. He expressed remorse for his wrongdoing and accepted responsibility for his actions. Mr. McAlpine assured the court that no matter what life might throw at him in the future, he is committed to never becoming involved in criminal activity again.

[28] Finally, it deserves mention that while the charges against him were outstanding, Mr. McAlpine spent six months subject to release terms that essentially confined him to his residence.

IV. Positions of the Parties

[29] The ancillary orders that should form part of the sentence are not a matter of dispute. These include a DNA order and a lifetime weapons prohibition order under section 109 of the Criminal Code.

[30] However, the parties disagree on the global sentence the court should impose. The Crown submits that a sentence of five years is warranted, while Mr. McAlpine maintains that a conditional sentence of two years less a day followed by 18 months of probation would be appropriate. The parties' conflicting positions stem from two more discrete points of disagreement.

[31] Firstly, they differ regarding the sentencing ranges for the offences of possessing cocaine for the purpose of trafficking and conspiracy to export cannabis.

[32] Secondly, they also disagree about the degree to which the violation of Mr. McAlpine's section 7 Charter right, due to the excessive use of force by police when arresting him, should mitigate the sentence the court imposes.

The Crown's position

[33] In submitting that the court should impose a global sentence of five years, Ms. Taggart noted that a sentence of that duration would fall at the bottom end of the five to eight-year sentencing range recognized by the Court of Appeal for offenders like Mr. McAlpine, who possess large quantities of cocaine for the purpose of trafficking.

[34] Concerning the offence of conspiracy to export cannabis, Ms. Taggart acknowledged that there are no sentencing decisions that post-date the Cannabis Act, S.C. 2018, c. 16, involving this or the related offence of exporting cannabis. However, relying on decisions from the Court of Appeal recognizing that that Act should not occasion a change in the sentences imposed on offenders involved in large-scale cannabis production or distribution operations, Ms. Taggart submits the applicable sentencing range is between two- and five-years imprisonment. She argued that the court should impose a three-year concurrent sentence to reflect the gravity of Mr. McAlpine's offence of conspiring to export 43.2 kgs of cannabis.

[35] Ms. Taggart did not make extensive submissions concerning the appropriate sentence for the offence of possessing the proceeds of crime. However, she submitted that the sentence for that offence should be one year of imprisonment, to run concurrently with the sentences for the drug offences.

[36] Finally, Ms. Taggart submitted that the breach of the weapons prohibition order, a separate and serious offence, should attract a six-month consecutive sentence.

[37] When combined, the sentences urged by Ms. Taggart would total five-and-a-half years. In submitting that the court should impose a five-year sentence, Ms. Taggart argued that the court should reduce the sentence that would otherwise be appropriate by six months to account for the breach of Mr. McAlpine's section 7 Charter right found by Justice Woollcombe.

Mr. McAlpine's position

[38] In contrast, Mr. Hochberg, on behalf of Mr. McAlpine, submits that the appropriate sentence, in this case, is a conditional sentence of two years less a day, followed by 18 months of probation.

[39] In advancing that position, Mr. Hochberg disagrees that the range of sentences for possessing cocaine for the purpose of trafficking is as high as Ms. Taggart claimed. He argues the sentence for that offence should be two and a half years before any mitigating benefit for the six months spent by Mr. McAlpine on house arrest bail and for the section 7 Charter breach found by Justice Woollcombe.

[40] Mr. Hochberg cited two cases where judges imposed conditional sentences for possessing cocaine for the purpose of trafficking to support his argument that such a sentence would be appropriate. He argued that such a sentence is necessary to properly account for the gravely serious Charter violation occasioned by the police unjustifiably tasering Mr. McAlpine.

[41] Mr. Hochberg submits that breaches of weapons prohibitions attract sentences ranging from fines to imprisonment. He argues that any sentence imposed for that offence should run concurrently with the other sentences imposed.

[42] Mr. Hochberg notes that there is a paucity of sentencing decisions involving the exportation of cannabis. He emphasizes that the cases cited by the Crown involve larger quantities than the 43.2 kgs Mr. McAlpine acknowledged conspiring to export and argues that they are not especially instructive.

[43] Ultimately, Mr. Hochberg submits that the court should exercise its discretion to fashion a sentence that expresses its unequivocal disapproval of how the police conducted themselves in this case. Justice Woollcombe found that the police unjustifiably tasered Mr. McAlpine, and he deposed that that has occasioned lasting psychological harm, including anxiety, PTSD, loss of sleep, and hypertension - which is brought on by stress. Mr. Hochberg notes that Mr. McAlpine had no history of mental health difficulties before being tasered.

[44] A conditional sentence for these offences, Mr. Hochberg argues, would account for the harm caused to Mr. McAlpine and send a necessary message to the police that courts will not tolerate their use of excessive force when exercising their extraordinary powers.

V. Law and Analysis

[45] Sentencing is, by its very nature, highly discretionary. There is no set formula that judges can follow when it comes to sentencing. Instead, in sentencing, judges must consider the purpose and objectives of sentencing, mindful of the governing sentencing principles, especially the need to impose a proportionate sentence. A sentencing judge must balance these considerations to arrive at a just and appropriate sentence.

Purpose, objectives, and principles of sentencing

[46] Sentencing judges must remember the fundamental purpose of sentencing, which Parliament has identified as protecting society and contributing "to respect for the law and the maintenance of a just, peaceful and safe society": Criminal Code, s. 718, similarly, see Controlled Drugs and Substances Act, S.C. c. 19, s. 10(1); Cannabis Act, s. 15(1).

[47] Achieving that purpose requires the court to impose "just sanctions" that reflect one or more traditional sentencing objectives: see s. 718. These include denunciation, general and specific deterrence, separation of offenders from society, rehabilitation, reparation to victims, promoting a sense of responsibility in offenders, and acknowledging the harm done to victims and the community: see ss. 718(a)-(f).

[48] Ultimately, the court must respect the fundamental principle of sentencing: that any sentence "must be proportionate to the gravity of the offence and the degree of responsibility of the offender": s. 718.1. In other words, the sentence must fit both the seriousness of the crime and the offender's level of moral blameworthiness in its commission: see R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at paras. 36-37; R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at paras. 40-43.

[49] The principle of parity lights the way toward arriving at a proportionate sentence. As the Supreme Court has explained: "Individualization and parity of sentences must be reconciled for a sentence to be proportionate": R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 53, citing Criminal Code ss. 718.2(a) and (b). As the Criminal Code instructs, "a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances:" s. 718.2(b). As a result, "parity is an expression of proportionality": R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, at para. 32; see also paras. 30-33 more generally.

[50] Ultimately, proportionality "has a restraining function" because it helps "guarantee that a sentence is individualized, just and appropriate:" R. v. Bissonnette, 2022 SCC 23, 80 C.R. (7th) 127, at para. 51.

Range of sentences

[51] As noted, the parties disagree on the appropriate sentencing range for Mr. McAlpine's offences of possessing cocaine for the purpose of trafficking and conspiring to export cannabis. Consequently, I will address the range of sentences for each offence.

[52] The Court of Appeal has recognized that the sentencing range for offenders who traffic or possess for the purpose of trafficking smaller amounts of cocaine is between six months and two years less a day of imprisonment: see R. v. Woolcock, [2002] O.J. No. 4927 (C.A.), at para. 15 (6.3 grams - 15 months); R. v. Butters, 2017 ONCA 973, at para. 6 (.20 grams - six months); R. v. Ahmed, 2016 ONCA 831, at para. 4 (28 grams - two years); R. v. Speziale, 2011 ONCA 580, 107 O.R. (3d) 447, at paras. 22-24 (14.87 grams - 14 months).

[53] In contrast, where more substantial quantities of cocaine are involved, a higher sentencing range applies. The Court of Appeal has repeatedly recognized that for first offenders who possess large quantities of cocaine (more than a pound) for trafficking, the range of sentences is between five and eight years of imprisonment: see R. v. Bryan, 2011 ONCA 273, at para. 1; R. v Wawrykiewicz, 2019 ONCA 21, at para. 15; R. v. Brown, 2021 ONCA 35, at para. 9; R. v. Morgan, 2021 ONCA 812, 407 C.C.C. (3d) 147, at para. 20.

[54] After citing various cases, Justice Weiler, in R. v. Bajada (2003), 2003 CanLII 15687 (ON CA), 169 O.A.C. 226 (C.A.), noted, at para. 13, that it "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."

[55] Given the substantial quantity of cocaine involved in this case – 1,114.5 grams, almost 2 1/2 lbs – I agree with the Crown that, in the circumstances, the applicable sentencing range for Mr. McAlpine's offence of possessing cocaine for the purpose of trafficking is between five and eight years of imprisonment.

[56] The parties also disagree concerning the sentencing range for offenders who export cannabis or conspire to do so. Unfortunately, neither they nor the court could identify any sentencing decisions involving those offences that post-date the Cannabis Act.

[57] Nevertheless, it is noteworthy that since the introduction of the Cannabis Act, the Court of Appeal has affirmed lengthy custodial sentences for those involved in the production or distribution of large quantities of cannabis: see R. v. Fan, 2021 ONCA 674, 75 C.R. (7th) 1 (15 and 20-month sentences for offenders involved in large-scale commercial cannabis cultivation operation); R. v. Strong, 2017 ONSC 3163, 383 C.R.R. (2d) 142 (three-year sentence for trafficking 124 lbs, and possessing 40 lbs for that purpose), aff’d R. v. Strong, 2019 ONCA 15; R. v. Hanse, 2022 ONCA 843 (9-month sentence for conspiracy to traffic).

[58] Commenting on the changes ushered in by the Cannabis Act, the Court of Appeal noted in Strong, at para: 4, that:

Parliament has not significantly altered the applicable penalty. Nor, in our view, can one assume that a large-scale, prolonged trafficking for profit in marijuana is somehow viewed as less serious because of the legislative changes in respect of personal possession and use.

[59] It follows that the sentencing decisions that pre-date the Cannabis Act for offenders involved in the production, distribution or exportation of cannabis or conspiracy to commit these offences remain authoritative.

[60] Given that the pursuit of profit invariably drives such criminal behaviour, the sentences imposed by courts understandably prioritize the need to denounce and deter such crimes. As a result, "High-level commercial cannabis traffickers tend to receive jail sentences in the range of high reformatory to penitentiary time.": Andrew Sabbadini, Sentencing Drug Offenders (Toronto: Thompson Reuters, 2023) (loose-leaf updated November 2023, release 40), at § 4:9.

[61] For example, in R. v. Tran, 2016 ONSC 3225, the four offenders were involved in a sophisticated cannabis distribution operation; during an eight-month police investigation, they were shipping hundreds of pounds of cannabis from British Columbia to Ontario every week. In sentencing them for conspiracy to traffic and trafficking cannabis, Justice Trotter (as he then was) imposed a sentence of 15 months for two of the offenders and sentences of 18 months and two years less a day for the other two. He declined to impose conditional sentences after noting that the Court of Appeal had instructed that "conditional sentences will be rare - even for first offenders - in cases involving large residential marijuana grow operations": R. v. Song, 2009 ONCA 896, 100 O.R. (3d) 23, at para. 5. The Court of Appeal dismissed the sentence appeal brought by one of the offenders in Tran, who received a sentence of 15 months imprisonment, concluding that it was "a fit sentence": R. v. Lam, 2017 ONCA 329, at para. 18, leave to appeal refused, [2018] S.C.C.A. No. 161.

[62] Even before the Cannabis Act, there were few decisions involving the sentencing of offenders involved in the exportation of cannabis or conspiracy to export it.

[63] In R. v. Adam, 2007 BCSC 764, five offenders were convicted after a year-long trial for their respective roles in "a massive conspiracy to transport tons of marihuana from British Columbia into the United States of America": at para. 5. According to the trial judge, "Tens of millions of dollars were realized by the conspirators in this illegal enterprise": at para. 7. The trial judge imposed sentences ranging from three and a half to seven years of imprisonment on the offenders, with the differences in the sentences mainly resulting from their varying roles in the enterprise.

[64] In contrast, in R. v. Zeneli, 2011 ONCJ 23, the sentence imposed was much lower for a comparatively less sophisticated and prolonged scheme involving a far less substantial amount of cannabis. The offender pled guilty for his organizational role in coordinating two shipments of cannabis, totalling 87.3 kilograms, to the United States using an airplane. The offender, who had no criminal record, was sentenced to two years imprisonment. In his reasons, Justice Reinhardt emphasized the importance of denunciation and deterrence in declining to impose a shorter sentence that would have allowed for a conditional sentence.

[65] Given that there are so few sentencing decisions involving the exportation of cannabis or conspiracies to export it, there is no discernible sentencing range for these offences. However, mindful that such offences undermine the integrity of Canada's borders and negatively impact its international reputation, they undoubtedly should attract sentences even more severe than those imposed on offenders involved in the unlawful domestic production and distribution of cannabis.

Aggravating and Mitigating Circumstances

[66] In determining the appropriate sentence, a sentencing judge must consider any aggravating or mitigating circumstances relating to the offence or the offender: see Criminal Code, s. 718.2(a). A proper inventory of these is essential to evaluating the offence's gravity and the offender's degree of responsibility in its commission. They serve to "push the sentence up or down the scale of appropriate sentences for similar offences": Nasogaluak, at para. 43.

[67] Several aggravating factors in this case speak to the gravity of Mr. McAlpine's offences and his degree of responsibility in their commission.

[68] First, Mr. McAlpine has a criminal record. Although it is now relatively dated, with the last entry from 2013, it is nevertheless somewhat related and deserving of consideration as an aggravating factor.

[69] Second, the offence of possessing a controlled substance for the purpose of trafficking concerns cocaine, a highly addictive and dangerous narcotic. Further, the quantity involved, just slightly more than a kilogram, is substantial. These are aggravating considerations.

[70] Third, the offence of conspiracy to export cannabis took place over six months and involved at least five attempted shipments. The conspiracy's prolonged and sophisticated nature is a significant aggravating factor.

[71] Fourth, it is apparent from the facts admitted, including the amount of proceeds of crime he possessed ($126,600 in cash), that Mr. McAlpine was at the upper echelon of the scheme. That, too, is an aggravating factor.

[72] Finally, in admitting the facts to support his guilty pleas, Mr. McAlpine acknowledged committing other offences for which he did not plead guilty. That included uttering a forged document by using a fake license to arrange one of the shipments and possessing a stolen vehicle with an altered VIN. Additionally, while he only pled guilty to one count of violating a weapons prohibition order concerning an oversized magazine, Mr. McAlpine admitted that he possessed other items that also ran afoul of the prohibition order, including a functional taser and ammunition. These additional offences are aggravating circumstances that the court must consider when deciding on the appropriate sentences for the offences for which Mr. McAlpine pled guilty: see Criminal Code, s. 725(1)(b.1).

[73] At the same time, there are several mitigating factors the court must also consider in deciding on the appropriate sentence in this case.

[74] First, Mr. McAlpine pled guilty. Although he did so after mounting an unsuccessful Charter application for a stay of proceedings or the exclusion of evidence, given Justice Woollcombe's finding that police violated his section 7 Charter right by using excessive force in his arrest, his guilty plea deserves its full mitigating effect. It undoubtedly spared the administration of justice the time and expense of a trial, which is no small matter in a jurisdiction as busy as Brampton.

[75] Second, Mr. McAlpine has a demonstrated capacity to be prosocial. He has a positive work history and owns a drywall business that employs others. Additionally, Mr. McAlpine has the love and support of his long-term partner, and he appears to be an attentive and engaged father to their son. All that bodes well for his eventual rehabilitation.

[76] Third, I accept that Mr. McAlpine is remorseful for his offences. That is evidenced not only by his guilty pleas but also by his comments delivered at the end of the sentencing hearing. Mr. McAlpine seems to appreciate the gravity of his wrongdoing; he takes full responsibility for his actions and appears genuinely committed to not reoffending in the future.

[77] Fourth, Mr. McAlpine spent six months on bail under very restrictive conditions, including a GPS ankle monitor. In effect, he was under house arrest. Although there is no set formula for the credit that house arrest bail deserves, it requires consideration as a mitigating factor: see R. v. Downes (2006), 2006 CanLII 3957 (ON CA), 79 O.R. (3d) 321 (C.A.), at para. 37.

[78] Finally, state misconduct, including when it occasions a Charter breach, may qualify as a mitigating factor, and be considered in determining a fit sentence: see Nasogaluak, at paras. 3, 47. That will be the case where the misconduct relates to the circumstances of the offence or the offender: see Nasogaluak, at paras. 3-4, 46-49; see also R. v. Donnelly, 2016 ONCA 988, 135 O.R. (3d) 336, at paras. 150-154.

[79] The use of excessive force by the police when arresting an offender is a circumstance relating to the offender because it amounts to a form of extra-judicial "punishment" that the court must account for in arriving at an appropriate sentence: see R. v. Tran, 2010 ONCA 471, 103 O.R. (3d) 131, at para. 92.

[80] In submitting the section 7 Charter breach that resulted from police using excessive force in carrying out the arrest should have a significant mitigating effect on the sentence the court imposes, Mr. Hochberg emphasized the gravity of the police misconduct and its lasting impacts on Mr. McAlpine.

[81] Concerning the effects of the tasering, Mr. Hochberg noted that in his affidavit in support of his Charter application, Mr. McAlpine deposed that, due to being tasered he had experienced anxiety, sleep loss, PTSD, and developed hypertension. Mr. Hochberg points out that Mr. McAlpine had no such health issues before his arrest.

[82] It is not my role to revisit the findings made by Justice Woollcombe; I must defer to them. Given this, it is appropriate to reproduce those portions of her reasons explaining her conclusions concerning the Charter breach and its impact on Mr. McAlpine. Justice Woollcombe described the state misconduct occasioning the constitutional violation at paras. 64-65 of her ruling:

[64] In my view, before administering an electric shock to the applicant's leg with the drive stun, Constable Ross needed to be satisfied that it was necessary. The evidence before me does not support a finding that he satisfied himself it was necessary at the time, given his inability to explain what the necessity really was.

[65] Nor does it appear to me that in the circumstances, the drive stun was reasonable. By the time it was used, the applicant was lying on his stomach with his left hand exposed. The officers on his right side were controlling him. There were three officers in close proximity to him. There were at least 6 other officers in the immediate vicinity. There were no civilians in the immediate area. The police had the applicant subdued and there appears to have been no ongoing risk identified by Constable Ross prior to utilizing the drive stun. Doing so cannot be said to have been reasonable or proportionate. I find that doing so was, in all the circumstances excessive.

[83] Later in her reasons, when addressing whether the evidence obtained incidental to the arrest should be excluded under section 24(2) of the Charter, under Grant's first line of inquiry, Justice Woollcombe characterized the seriousness of the violation in these terms, at para. 105:

While any decision to unnecessarily taser a person during an arrest is serious, it must be remembered that the situation was one in which Constable Ross was required to make very quick decisions in the challenging circumstances of this arrest. The applicant was known to have had a gun before. His left hand was not immediately visible. I have found that the officer's first deployment of the taser was reasonable. While the drive stun was not proportionate, I cannot conclude that his conduct revealed a wilful or reckless disregard for the applicant's Charter rights. Nor is there any basis upon which to conclude that this error in judgment was part of any systemic pattern of abuse.

[84] As a result, Justice Woollcombe concluded that the first line of inquiry under Grant favoured the admission of the evidence: at para. 106.

[85] Considering the second prong of analysis under Grant, which required an evaluation of the breach's impact on Mr. McAlpine's constitutionally protected interests, Justice Woollcombe wrote, at para. 108:

... While he largely complied with police directions during his arrest, the applicant was subjected to an unnecessary electric shock to his body. In his affidavit, he spoke about the lasting impacts of this experience. While he likely had a barb in his leg for several weeks after his arrest, that barb was from the first taser deployment, which I found was reasonable and not the cause of a Charter breach. In his evidence, the applicant was clear that he had never sought medical assistance from the tasering, at the time or after his arrest. There is no evidence of any short term or lasting physical injury. Nor has he been medically diagnosed with PTSD or any mental health consequence of the drive stun, though I acknowledge he may have suffered such effects.

[86] As a result, Justice Woollcombe placed the breach's impact "in the mid-range of seriousness": at para. 109.

[87] Beyond a short note from his doctor confirming that Mr. McAlpine now suffers from hypertension and is taking medication to treat that condition, Mr. McAlpine has not otherwise supplemented the record that was before Justice Woollcombe. As a result, there remains no evidence from a qualified mental health professional diagnosing him with PTSD. Further, there is no evidence that Mr. McAlpine has sought treatment for the other psychological effects he claims are attributable to the tasering.

[88] Nevertheless, Mr. McAlpine maintains that the tasering caused his anxiety, loss of sleep and diagnosis of hypertension. I am hard-pressed to draw a straight causal line between the tasering and the consequences that Mr. McAlpine ascribes to it. After all, the impacts Mr. McAlpine describes could equally be the unfortunate but understandable result of facing gravely serious criminal charges and the potential of a lengthy sentence of imprisonment.

[89] That said, I do not doubt that being tasered would have been excruciatingly painful for Mr. McAlpine. Additionally, an experience of that nature would unavoidably have occasioned some adverse psychological effects. I am prepared to take judicial notice of all that. As a result, I accept that the tasering likely played at least some contributory role in the anxiety and loss of sleep Mr. McAlpine reports experiencing since his arrest and his developing hypertension. No finding by Justice Woollcombe precludes me from reaching these conclusions. However, like Justice Woollcombe, I am not prepared to find that Mr. McAlpine has PTSD because that is something only a qualified expert could diagnose.

[90] Given all this, the tasering, which was unjustified, unlawful, and unconstitutional, should undoubtedly be given significant mitigating weight when deciding on the appropriate sentence for Mr. McAlpine.

The appropriate sentence

[91] In deciding on the appropriate sentence, I have carefully considered the purpose, principles, and objectives of sentencing, the range of sentences for these offences, and the aggravating and mitigating factors in this case.

[92] But for the excessive use of force by police in arresting Mr. McAlpine, bearing in mind the principle of totality, I would have imposed a global sentence of five-and-a-half years imprisonment. I would have apportioned the sentences as follows: 18 months for conspiracy to export cannabis, five years concurrent for possessing cocaine for the purpose of trafficking, 12 months concurrent for possessing property obtained by crime, and six months to be served consecutively for breaching a weapons prohibition. As a result, the global sentence would have mirrored that urged by the Crown before accounting for the mitigating effect of the excessive force used by police during Mr. McAlpine’s arrest.

[93] Respectfully, however, I must disagree with the Crown’s submission that the tasering should only result in a six-month reduction in the sentence that would otherwise be appropriate. Although the cases do not supply any formula for determining the proper sentencing reduction when the police use excessive force in carrying out an arrest, a review of the case law suggests there are two key determinants—the effects of the misconduct on the offender and the nature and extent of the state misconduct.

[94] In R. v. Acheampong, 2018 ONCJ 798, during his arrest the police unjustifiably punched the offender about the head, resulting in swelling, bruising, and continuing headaches requiring treatment with medication. The court would have imposed a seven-and-a-half-year sentence but reduced the sentence by two years to account for the harm caused to the offender and the administration of justice.

[95] In R. v. Kristoffersen, 2014 ONCJ 137, when arresting the offender, the police kicked him repeatedly in the head, face, and torso, resulting in cuts and bruises. The sentencing judge concluded that the force used by police was not justified. He imposed a suspended sentence instead of the 60 to 90-day custodial sentence that would otherwise have been appropriate.

[96] In R. v. Dinh, 2012 ONSC 1016, 252 C.R.R. (2d) 237, the offender pled guilty to trafficking over a kilogram of cocaine. Even though he was compliant when arrested, the police beat him, resulting in significant bruises and numerous cuts. The trial judge also found serious violations of his sections 8 and 10(b) Charter rights and that the police gave false testimony during the voir dire. The trial judge imposed a conditional sentence of two years less a day, deviating significantly from the range of sentences that trafficking a substantial amount of cocaine would ordinarily attract.

[97] Finally, there are the circumstances in Nasogaluak. The offender, a drunk driver who took flight from police, was not compliant when police attempted to arrest him. Although the police were justified in using some force to subdue him, the trial judge found that a punch delivered to his head by one of the arresting officers and two punches to his back by another were unwarranted and, therefore, excessive. The punches to his back broke his ribs and punctured his lung. Although the offences would have ordinarily drawn a custodial sentence of between six and 18 months, the trial judge granted a conditional discharge and a one-year driving prohibition. The Alberta Court of Appeal substituted the statutorily prescribed minimum fine. The Supreme Court dismissed the appeal, concluding that the Court of Appeal had crafted a fit and appropriate sentence: at para. 65.

[98] The effects of the misconduct on the offender and the nature and extent of the misconduct are, therefore, key considerations. That flows logically from the Supreme Court’s decision in Nasogaluak, which recognized that sentencing judges must consider state misconduct in sentencing where it “relates to the individual offender and the circumstances of his or her offence” because “the sentencing process includes consideration of society’s collective interest in ensuring that law enforcement respects the rule of law and the shared values of our society.”: at para. 49. Therefore, the more impactful on the offender and the more corrosive of the rule of law because of the nature and extent of the misconduct, the greater the mitigating effect of the state misconduct on the sentence imposed.

[99] The circumstances of this case are distinguishable from most of those just cited. In each, except, arguably, Nasogaluak, the state misconduct was far more severe than what Justice Woollcombe found.

[100] Nevertheless, given the excruciating pain that the tasering would have undoubtedly caused, the psychological trauma it would have necessarily occasioned, and my inability to discount its potential contribution to Mr. McAlpine's ongoing struggles with anxiety and his sleep disruptions, I accept that it deserves much more mitigating weight than the six-month sentence reduction the Crown suggests.

[101] Taking account of all the circumstances, including the excessive use of force by police in arresting Mr. McAlpine, I am of the view that a global sentence of four years of imprisonment would be appropriate.

[102] A sentence of that duration obviously forecloses the conditional sentence sought by Mr. McAlpine, given that such a sentence is unavailable when the court imposes a sentence of two years or more of imprisonment: see Criminal Code, s. 742.1

Conclusion

[103] For these reasons, the court sentences Mr. McAlpine as follows:

[104] On Indictment No. 134/22A: for count 1, conspiracy to export cannabis, 18 months of imprisonment; for count 7, possessing cocaine for the purpose of trafficking, 42 months of imprisonment, concurrent; and for count 12, possessing the proceeds of crime, 12 months of imprisonment, concurrent. Additionally, a DNA order and a lifetime section 109 weapons prohibition order shall issue. Finally, Mr. McAlpine shall pay a victim surcharge of $600 for these three offences by no later than February 7, 2029.

[105] On Indictment No. 134/22B, count 2, breaching a weapons prohibition order, six months imprisonment, consecutive to the sentences imposed on Indictment No. 134/22A. Mr. McAlpine shall also pay a victim surcharge of $200 for this offence by no later than February 7, 2029.

Signed: “J. Stribopoulos J.”

Released: February 7, 2024