Cite as: R. v. Jordan, 1973 NSCA 5 1972 So Ho Noo 01066 IN niE SUPREME COURT OF NlVA SCOT IA APPEAL DlVISWN - CROWN SlOE BETWEEN: HER MAJESTY THE QUEEN by Her Attorney General of Canada Respondent - and DAV 80 LALR iE JORDAN Appellant [Oral Op an ion ] The appellant, aged 19, was convicted at Kentvil1e, Nova Scotia~ on September 11, 1972, by His Honour Judge Co To LeBrun on two separate charges of trafficking in hashish contrary to section 4 (1) of the ~arcotic Control Acto He was sentenced to a term of bleive months imprisonfllel!'llt to be followed by a two-year period of probation on the first charge al1Jd a Goncurrent term of eighteen months imprisonme~t on the second chargeo The convictions arose out of sales CIT hasliishto CstoJoseph Arsenault of the Royal Canadian Mounted Pol ieeon June 29th and 30th, 19720 This is an appe.al against sente~ce and leave' to appeal is granted" The grounds of appeal are: "(1) ~ the learned Tria 1 Mag istrate erred in pass ing a sentence containing a provision for both incarceration ar,d recog I'll i zance 0 1
(2) ~ the sentence passed upon me by the Learned Trial ~.';I-1agistrate was excessive and too onerous cOf1l.Sider... ing : (a) My age; (b) The circumstances leading to the commission of the offence; (c) The effect the conviction will have upon any opportunity to practice my profession as a cooko (d) That I have had no previous convictiono (3) ItlaI the Learned Trial Magistrate failed to
consider that I was persuaded to commit the offence by
a member of the Royal Canadian Mounted Po) Rce, namely"
Constable Joseph Andre..., Af'senaulto
(4) -THAT the peMltl' is oppressive 8S'td El-'(cessive having regard to the sentence passed by this Ho~ou~ablc Courts, for simila.· offenceso" The record shO;,.,;s that the sentence imposed by the trial Judge3 following conviction on the first offence, was as fOll~~s: '\!\fter hearing submissions on penalty from counsel, His Honour Judge Co To LeBrun imposed a sentence of 12 months on the accused to be served in the Halifax County Correction Centre to be folloned by a period of probation for 2 years with the cOE1Idition that he abSOlutely refrain -from the use or consumption or dealing with in any 1l"k1nner in narcotics or drugs unless it is prescr4bed by a regular pract i ci n9 doctor 0 II Ground No o (1) should be dismissed because subsection (1) ill of section 663 of the Criminal Code" as amended,t provid(~s for the imposition of both imprisonment and probation as foliCW"s: 1'6630 (1) ill hl acld It ion to fin i ng the accused or
sentencing him to impresornment, whether in default of
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payment of a fine or othe~ise, for a tenm not exceeding two years, direct that the accused comply with the con ditions prescribed in a probation order." Regarding ground Noo(2), in Resina v. McNicol" (1969), 3 CoC.Co 56, one of the cases following by this Court in Regina v. Hemsworth, (1971), 2 CoCoCo 301, l-tonnin, JoA., of the MSI1itoba Court of Appeal, is quoted as follows, at po 58: lilt thus appears that the Magistrate was solely concerned with the accused's chances of bettering h;s educat ion \>lithout regard to the sedousness of the offence and the effect of traff icking in drugs on soc iety as a wholec In other words, he placed all emphasis 011 the individual and :-'is im,ne:diate future and 1 itt 1e or none on the I-equ i rements of org8ft i zed soc iety in the face of a serious drug probl em. II at po 64: "Hany of the above cases dealt with possession of mari Juana and not with traff ;cldngo Wf1atever \'laS sa id in these various judgments with respect to possession applies with greater force to cases of traffickingo It has always been considel"ed and accepted that traffickii'!9 is the more serious of the two offences because it invoives cOimlercialization by sate and a corruption of !'lion-users and ease of acquisition of drugs by steady users o Of the two offences, traff ick ir.g involves a larger df~9ree of mora! turpitude since it preys on the passions and the cravings of persons who have lost the ab i1 ity to res ist consumpt ion of the dr-ug (whether it a be 'hard I or 'soft I drug) 0 Pari iament itsel f I by the \lar iation in sen "t e nces If,i1ich may be imposed.., 11amely, 1H:e !m~ priso!'lfllent in the case of trafficking .and a maximum of seven years in the ffii:Jtt<311 of possession, has dearly iO-d,icated ,,J,ich one it consideis the more serious of the two. " 0 .. 3
Consequently we must indicate to the Courts and to
the profession as a whole that possession and traffick
ing in marijuana are serious offences trA1 ich must be dealt with adequately by our Courts~ especially at a
time when there is an unfortunate rash of this type of·
crirneo From the above reported judgments of the Courts
of Ontario and British Columbia it will be seen that
those jurisdictions have found - too Jate for their own
satisfaction - that this is not a matter to be dealt \'>lith
Ien i ent 1y 0 II We agree with the remarks of Monnin,JoA~,and dismiss this ground ofappea 1.. With reference to ground Noo (3), the learned trial Judge, who heard the evidence below, could find nothing improper about the con duct of csto Arsenaulto Further, this Court has reviewed similar evidence in other cases where drugs were sold to policemen under similar circum stances and found that the actions of the officers in seeking to purchase drugs were not impropero ~t is also noted that the learMd trial Judge made a finding of credibility in favour of Cst. Arsenault when his evidence was in confl let with that of the accused, and this Court should not inter fere with this finding. We do not find merit in this groundo \~ ith regard to ground Noo (4), in tile very; recent case of Regina v. DOhert~ (1973), 9 CoCQCo (2d) 115, at PPo 116 J i17, Gale, Chief Justice of OntariO, stated as follows: ·11 000 in the case being considered, the Judge stated as
follows:
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'I have reviewed the ,ases stated to me by counsel and I find that there are no guide I ines set as to what constitutes exceptional circumstances o This duty has been left to the sentencing judgco' If by that statement the trial Judge was indicating that in his opinion this Court should set exhaustive guide 1 ines of sentencing for trial Judges» I simply decl ine to accept his invitationo In my view it would not only be unwisep but dangerous to attempt any such exerciseo Each case must be cons idered in the I ight of its own c ircurnstances 0 0 0 ", In the case at bar, the evidence discloses that the appellant apparently had been carrying on a systemized operation in the sale of marijuanao It shoy 1d a Iso be noted tha t wha t ha5 been sa i d '10'18 th regard to the sentence imposed for the first offence appl iss equally to the penalty imposed for the second offence on which the appellant had been charged and sentenced to eighteen months to run concurrently with the sentence for the first offence .. Having consndered all of the evidei\1ce and having heard the submissions of counsel, it is the unanimous opinion of the court that the learned trial Judge d cd 1I10t fol1~1 any Wfo"'3 prine iple in impos i ng sentence and did not er'r in cons i dod ng a second offence in sentenc i ng the ar'pe 11 ant () Accord i 1191 y, the appea 1 shou 1d be d ism i ssed cl!1d the sentences confinned" tV>;TED at He'd ifnx,\l Nova Scot ia, th is 2nd day of February, A0 Do, 19730 5
Members of Appeal Division McKinnon~ CoJoN.So Coffin, J.A. Cooper" JoA 0 Counsel David Jo C. Waterburyo QaCo Reid Tilley, Esqo Appellant Responde~t " 6
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