Provincial Court

IN THE PROVINCIAL COURT OF NOVA SCOTIA

Citation: R. v. Dunbar, 2008 NSPC 57

Date: September 29, 2008

Docket: 1878585; 1878586

Registry: Halifax

Her Majesty the Queen

v.

Ronald Austin Dunbar

DECISION ON SENTENCE

Judge:                          The Honourable Judge Anne S. Derrick

Heard:                           September 29, 2008

Decision:                      September 29, 2008

Charges:                      Criminal Code, section 733.1(1)(a)

Controlled Drugs and Substances Act, section 5(2)

Counsel:                       Shaun O’Leary/Jeffrey Moors ‑ Crown Attorneys

Peter Mancini - Defence Counsel

By the Court:

[1]     On July 2, 2008 I convicted Mr. Dunbar of possession for the purpose of trafficking in crack cocaine and breaching a condition of his probation order to keep the peace and be of good behaviour. I found that the breach was made out by Mr. Dunbar’s possession of the crack cocaine, which he admitted.

[2]     These offences occurred on March 2, 2008.  Mr. Dunbar’s trial was heard on

May 16 and 28, and June 27. A Pre-Sentence Report was ordered on July 2. Sentencing was scheduled for September 3, 2008 and then adjourned to September 15.  On September 15, I granted Mr. Dunbar a two week adjournment to call evidence on the issue of community options for drug treatment. Defence counsel advised me on September 29 that no evidence would be called and I therefore proceeded to hear counsels’ submissions on sentence.   I note that from his arrest to sentencing, Mr. Dunbar has been on remand at the Central Nova Scotia Correctional Facility (CNSCF), a period of nearly seven months.

[3]     Crown and Defence supplied me with briefs on the law and cases and I appreciate the assistance they have provided. I have reviewed these briefs and all the cases and will be referring to some of the authorities in my reasons. I have also examined several additional cases and will be commenting on those as well.

[4]     The Crown is seeking a penitentiary sentence in the 3 - 4 year range for Mr. Dunbar. The Defence takes the position that a 3 year sentence would be too harsh, identifying Mr. Dunbar as a petty retailer in possession of a small amount of cocaine who was cooperative with police and has prospects for rehabilitation. The Defence submits that an appropriate sentence is in the range of 10 - 12 months to be served in a provincial institution, having regard to the 14 months Mr. Dunbar has already effectively served on remand.

[5]     Certain findings of fact made by me at trial are relevant to this sentencing. Mr.

Dunbar testified in his own defence and while I did not accept his explanation that he was in possession of the crack cocaine for personal use only, I did accept that Mr. Dunbar may have smoked some of the cocaine he had purchased prior to his arrest at Sunrise Manor. Mr. Dunbar’s evidence and the Pre-Sentence Report establish that Mr. Dunbar has a serious and long-standing addiction to crack cocaine. Although I found that Mr. Dunbar was intending to traffick some of the crack cocaine in his possession, I have determined he would also have been smoking some of it to satisfy his addiction.

[6]     Mr. Dunbar claimed in his evidence that he had received some jewelry from his

brother and was selling it. I accepted this evidence and noted that a little blue notebook found in Mr. Dunbar’s possession by police searching him incidental to arrest contained references to jewelry and the $150 value of a ring. Therefore, some of the money found on Mr. Dunbar may have come from the legitimate sale of jewelry and not crack cocaine.

[7]     While I found that items seized from Mr. Dunbar were consistent with drug dealing: the separately packaged crack cocaine, a set of working digital scales and money, I did not place any particular significance on Mr. Dunbar having a cell phone nor was there a “score sheet” listing clients and their purchases or debts. The little blue notebook did not contain drug-sale information; it recorded innocuous information about rents, prices for appliances and other personal notations. The Crown confirmed that the little blue notebook was not being put forward to the court as evidence of a “score sheet.”

[8]     The Crown’s expert, Sgt. MacDonald, considering the seized items and utterances made by Mr. Dunbar at the scene, concluded that Mr. Dunbar was running a dial-a-dope operation: prospective purchasers would call for the delivery of drugs, pay for them when they arrived and then the dealer would move on to the next transaction. Although I found that Mr. Dunbar was in possession of at least some of the crack cocaine for the purpose of selling it, I did not conclude that he was conducting a dial-a-dope business in the sense of a business that was a high volume, well-organized, if small, operation. The evidence indicates Mr. Dunbar was going to make a delivery at Sunrise Manor where he had a friend. Sunrise Manor was known to police to harbour drug dealers. The police concluded that Mr. Dunbar was delivering crack cocaine to someone in Sunrise Manor, so Sunrise Manor presumably housed drug users as well as drug dealers. Mr. Dunbar’s explanation at trial was that he was at Sunrise Manor to deliver not crack cocaine but syringes to a friend in exchange for two Dilaudid pills. I rejected this and found he was in possession of at least some of the crack cocaine for the purpose of selling it. Even if Mr. Dunbar had been going to trade crack cocaine for Dilaudids at Sunrise Manor, this would still have constituted possession for the purpose of trafficking.

[9]     The point in my reviewing the factual determinations I made following Mr. Dunbar’s trial is to highlight the nature of Mr. Dunbar’s intended drug-trafficking. My assessment of the evidence establishes Mr. Dunbar as a low-level street dealer selling to other drug users to support his own addiction. I did not find that Mr. Dunbar was operating a lucrative dial-a-dope business motivated by greed.

[10]    When Mr. Dunbar was searched by police behind Sunrise Manor on March 2,

2008, he was found to be in possession of crack cocaine valued between $500 - $600 according to Sgt. MacDonald’s evidence. The Crown’s recital of the facts in its brief on sentencing fixes the amount of crack cocaine seized from Mr. Dunbar at 5.5 grams.

[11]    A necessary step in sentencing for drug offences is the accurate characterization of the nature of the offence. This was noted by the Nova Scotia Court of Appeal in R. v. Jones, [2003] N.S.J. No. 146 with reference to the earlier decision of that court of R. v. Fifield, [1978] N.S.J. No. 42.  In Jones at paragraph 8, the Court observed that sentencing for possession for the purpose of trafficking has been influenced in Nova Scotia Court of Appeal decisions over the past 25 years by “the quantity of drugs involved and the function or position of the offender in the drug operation.” Underscoring that Fifield continues to represent good law on the issue, the classic framework in Fifield was reiterated:

The quantity [of the drug] is important in helping to show the quality of the act or the probable category of trafficker - the isolated accomodator of a friend, the petty retailer, the large retailer or small wholesaler, or the big-time operator. The categories respectively have broad or overlapping ranges of sentence into which the individual offender must be appropriately placed, depending on his age, background, criminal record, and all surrounding circumstances.

[12]    The Crown acknowledges in its brief on sentence that Mr. Dunbar qualifies as

a petty retailer. That is how I would describe Mr. Dunbar in relation to the Fifield categories. The evidence at trial did not lead me to conclude that Mr. Dunbar was an isolated accomodator of a friend at Sunrise Manor. While he may have been intending to sell to or barter with a friend, it would not appear that such conduct was isolated, especially given Mr. Dunbar’s recent history for drug offences - two convictions in September 2007 for possession contrary to section 4(1) of the Controlled Drugs and Substances Act (CDSA) and one in May 2007 for trafficking contrary to section 5(2) of the CDSA. I am also of the opinion that the evidence at trial pointed to Mr. Dunbar’s possession not solely relating to an intended transaction at Sunrise Manor. Describing Mr. Dunbar as a petty retailer at the street-level is the most accurate categorization of his role as a drug offender.

[13]    The Court in Fifield observed that the activities of wholesalers and large retailers warrant “materially larger sentences” than those imposed on petty retailers, noting the release on the market of large quantities of drugs by more significant drug dealers “clearly widen the use of a prohibited drug to many other persons.” (Fifield, supra, at paragraph 9)

[14]    Having concluded where Mr. Dunbar falls in the Fifield hierarchy, I must consider the legal principles that apply in drug sentencings. Section 10 (1) of the Controlled Drugs and Substances Act sets out the purpose of sentencing under that Act:

Without restricting the generality of the Criminal Code, the fundamental purpose of any sentence for an offence under this Part is to contribute to the respect for the law and the maintenance of a just, peaceful and safe society while encouraging rehabilitation, and treatment in appropriate circumstances, of offenders and acknowledging the harm done to victims and to the community.

[15]    Section 10(2) of the Controlled Drugs and Substances Act identifies a series of aggravating factors the sentencing judge is mandated to take into account. Most of the aggravating factors are not present in this case. No weapons were involved, Mr. Dunbar was not near a school or public place frequented by persons under 18, it was not established that the intended sale was to a person under 18 and no one under 18 was involved to facilitate the sale. However, as I mentioned earlier, Mr. Dunbar does have a previous record for drug offences. This is an aggravating factor I must consider under section 10(2)(b) of the CDSA.

[16]    The purpose and principles of sentencing in the Criminal Code also apply to this sentencing. Parliament has articulated the fundamental purpose and principles of sentencing in sections 718 and 718.1 of the Criminal Code.

[18]    Section 718.1 is also relevant to sentencing Mr. Dunbar: a sentence must be proportional to the gravity of the offence and the degree of responsibility of the offender.

[19]  Sentencing is an individualized process requiring an examination of the facts of the offence and the circumstances of the offender and an assessment and weighing of the relevant sentencing principles to arrive at a fit and proper disposition.  (R. v. C.A.M., [1996] S.C.J. No. 28 (S.C.C.))  The courts have long rejected a “cookie-cutter” approach to sentencing. This was reinforced in the 1996 amendments to the Criminal Code that I have recited above.

[20]  Notwithstanding the requirement to tailor sentences to the specific offender, courts have been consistent in emphasizing denunciation and deterrence in sentencing for drug trafficking offences with Parliament prescribing life imprisonment as the maximum penalty for possession for the purpose of trafficking.

[21]  Courts have reserved their harshest language for drug traffickers motivated by greed and profit. Lower courts have echoed the sentiments of the Supreme Court of Canada in R. v. Smith, [1987] S.C.J. No. 36 where the Court condemned drug profiteers for the harm their greed inflicts on their victims, assigning responsibility to them for the desperate drug addicts who go on to commit “...innumerable serious crimes of all sorts...in order to feed their demand for drugs.” (paragraph 2)

[22]  Courts in Nova Scotia have repeatedly emphasized denunciation and deterrence

when sentencing drug traffickers, leveling the strongest condemnation at drug-dealing motivated by greed.  An illustration of this is found in the decision of the Nova Scotia Court of Appeal in R. v. Byers, [1989] N.S.J. No. 168 where Hart, J. said:

In my opinion the time has come for this court to give warning to all those greedy persons who deal in the supply and distribution of the narcotic cocaine that more severe penalties will be imposed even when relatively small amounts of the drug are involved.

[23]    Similar statements have been made in a number of cases: R. v. Sparks, [1993]

N.S.J. No. 448 (N.S.C.A.); R. v. Gray, [2001] N.S.J. No. 553 (N.S.S.C.);  R. v. Smith, [1992] N.S.J. No. 365 (N.S.C.A.); R. v. Butler, [1987] N.S.J. No. 237 (N.S.S.C., App. Div.); R. v. Kenneth George Moore - unreported decision of Kennedy, C.J.C., September 2, 2003. Greed as the motivating force in drug trafficking is treated as an aggravating factor. (R. v. Tokic, [2002] N.S.J. No. 80 at paragraph 13 (N.S.S.C.); R. v. David, [2004] N.S.J. No. 477 at paragraph 4 (N.S.S.C.))

[24]    In the Nova Scotia Court of Appeal decision in R. v. Smith, Matthews, J. focused on the business of drug-dealing, observing that the effectiveness of a sentence as a deterrent depends on it not being viewed by the offender “and others of similar inclination simply as the cost of doing business or as a license to conduct this nefarious and lucrative enterprise.” The courts have consistently held that general deterrence is the paramount consideration where the objective is to deter “those of like-mind who may be lured into the business with the hope of easy gain.” (R. v. Butler, supra)

[25]    However, I am not sentencing the abstinent drug entrepreneur who assumes the

calculated risk associated with running a drug trafficking business in order to reap the financial rewards. I am sentencing a severely drug-addicted petty retailer who was feeding his habit, both using and selling his small stash of crack cocaine. Judgments focused on condemning drug profiteers are not so helpful where the individual circumstances involve the selling of crack cocaine to support a serious addiction. The Supreme Court of Canada recognized this distinction in Smith where Lamer, J. (as he then was) said the following at paragraph 2:

...the guilt of addicts who import not only to meet but also to finance their needs is not necessarily the same in degree as that of cold-blooded non-users.

[26]    With that statement in mind, I return to the principle of proportionality in sentencing: a sentence must be proportional to the gravity of the offence and the degree of responsibility of the offender.

[27]    The “cold-blooded non-user” has been seen by the courts as a greedy parasite,

exploiting vulnerable addicts and profiting from the “gradual but inexorable degeneration of many of their fellow human beings as a result of their becoming drug addicts.” (Smith, supra at paragraph 2) Non-using profiteers have been described as “bottom feeders living off other people’s misery.” (R. v. Blair Guy David - unreported decision of Scanlan, J., October 29, 2004) The fact that an offender is not an addict has been remarked upon as it underscores the offender’s profit-driven motivation. (Tokic, supra, at paragraph 13; Butler, supra)

[28]    Mr. Dunbar at 44 is profoundly addicted to crack cocaine and Dilaudid and has

been for many years. He endured foster homes and sexual and physical abuse as a child. He resorted to drugs to numb these painful memories; as he says in the Pre-Sentence Report, he uses non-prescription drugs as “a pain killer for my past thoughts which are in my head.” Mr. Dunbar has spent much of his adult life behind bars. While incarcerated he has completed a number of programs relating to substance abuse but he has not yet been successful in controlling his addictions. He has accumulated a lengthy criminal record, including as I mentioned earlier, recent convictions for drug offences. 

[29]    Approximately three years ago, Mr. Dunbar was diagnosed with a life-threatening illness. He told the author of the Pre-Sentence Report that he is “sick” of his lifestyle and wants to make changes so that he does not “end up dead.” He told me at the sentencing hearing that he does not want to die in prison. He wants to make a renewed effort to deal with his drug addiction. A volunteer chaplain at the Central Nova Scotia Correctional Facility who was interviewed for the Pre-Sentence Report and has known Mr. Dunbar for approximately four years, believes Mr. Dunbar is genuinely interested in turning his life around. Mr. Dunbar is apparently quite realistic, with a certain amount of insight into his addiction and its origins, and acknowledged in his interview with the author of the Pre-Sentence Report that he cannot be certain his attempts to change will be successful. He will obviously be recognizing that only last year he was before the court to be sentenced on a drug trafficking charge, no doubt related to his addiction.

[30]    When not in the grips of his addiction, Mr. Dunbar is described by his sister and another volunteer chaplain at the CNSCF in very positive terms. Mr. Dunbar’s sister describes him as “a very good guy” with a warm, affectionate relationship with her children. Ms. O’Neill, the volunteer chaplain, told the author of the Pre-Sentence Report that in the institution, Mr. Dunbar is “very kind and agreeable.” She shares the view that Mr. Dunbar is sincere about trying to overcome his addiction but noted that he relapses when he is back on the street. She described Mr. Dunbar as having “a lot of desire to change” noting that it will be “an uphill battle” for him. 

[31]    The nature of that uphill battle is confirmed by an interview for the Pre-Sentence Report with Reverend John DenHollander, Coordinator of the Anchorage Program at the Salvation Army. Reverend DenHollander indicated that Mr. Dunbar had previously enrolled in the Anchorage Program but was ultimately terminated for relapsing. Reverend DenHollander noted that relapses are a common problem for drug addicts.

[32]    While on remand, in a renewed effort to address his addiction, Mr. Dunbar inquired about admission to the Anchorage Program at the Salvation Army, a program he participated in several years ago. At the sentencing hearing I was told that the Anchorage Program will accept Mr. Dunbar once he has served whatever sentence he receives. Mr. Dunbar indicates he wishes to get treatment for his drug addiction in the community and then relocate to Ontario where he has two supportive brothers who have offered him an opportunity to make a fresh start.

[33]    One can only view Mr. Dunbar’s history with sympathy: his journey into addiction and crime is the tragic legacy of the physical and sexual abuse he endured as a child, including, he has told me, at the hands of a former provincial youth worker.  However Mr. Dunbar’s record, particularly his recent drug convictions, his failure to comply with court ordered conditions  and the severity of his drug addiction make it necessary to focus on  protection of the public in fashioning his sentence for the offences before the court.

[34]    Mr. Dunbar has a lengthy criminal record going back at least twenty years. He

has served custodial sentences in both federal prison and provincial correctional facilities.  In April 2005, Mr. Dunbar received a conditional sentence of two years less a day for robbery to be followed by twelve months probation. The Pre-Sentence Report states that the conditional sentence was terminated when new charges were acquired. I am advised that Mr. Dunbar breached his 2005 conditional sentence on two occasions: on July 18, 2005 he received a 30 day sentence for a breach of the sentence and on January 11, 2006, the conditional sentence was terminated and Mr. Dunbar was sent to jail to serve the remaining 490 days of the sentence. In April 2007 Mr. Dunbar was charged for trafficking contrary to section 5(2) of the CDSA: on May 25, 2007 he received a sentence of 100 days in custody on this charge. In September 2007, Mr. Dunbar was sentenced to six months concurrent on two charges of possession contrary to section 4(1) of the CDSA. Mr. Dunbar’s arrest on March 2, 2008 for possession for the purpose of trafficking must have come soon after he was released into the community from his jail sentence on the drug possession charges. At the time he was on the probationary portion of the sentence he received for the 2005 robbery charge.  Mr. Dunbar also has prior convictions for breaching recognizances and probation orders.

[35]    Mr. Dunbar’s addiction has likely been the principle cause of his long involvement in the criminal justice system. While his rehabilitation offers the greatest assurance of protecting the public in the future, Mr. Dunbar cannot presently demonstrate that he does not need to be deterred from committing further offences nor can he make a convincing case that he is, at this time, a reliable candidate for a community-based sentence, which he is not seeking in any event.  His failure to successfully complete his 2005 conditional sentence and his 2007 drug convictions indicate he presents a significant risk for non-compliance and reoffending. I do note that Mr. Dunbar does not appear to have breached his 2005 conditional sentence by committing new offences.

[36]    In the context of protecting the public it will be noted that I am focusing on Mr.

Dunbar’s deterrence rather than on general deterrence. That is because I find it difficult to reconcile the customary role of general deterrence and the expectations associated with it as a principle of sentencing with the reality of a severe drug addiction. I am not alone in raising this issue: Hill, J. in R. v. Andrews, [2005] O.J. No. 5708 (Ont. Sup. Ct. of Just.) has commented as follows:

[36]    As a general rule, heroin and cocaine trafficking are properly seen as grave offences with a high degree of moral blameworthiness. Most often, these are planned crimes carried out for profit by individuals apparently philosophically opposed to holding gainful and lawful employment as opposed to simply conducting illicit drug sales. Not surprisingly then, the overarching principles of sentencing in these cases have been denunciation and general deterrence.

[37]    That said, the law has treated the addict who trafficks to support her habit somewhat differently - the profiteering for greed element is absent, a serious health issue emerges as context, and many question the efficacy of general deterrence in controlling the actions of one who is ill.

[37]    As I said earlier, the sentencing cases that urge a strong message of general deterrence to discourage others who might be tempted by the prospect of financial profit in the drug trade are confronting a different problem from the one presented by Mr. Dunbar. Mr. Dunbar had 5.5 grams of crack cocaine that he was both peddling for a little money and also dipping into for his own use. His focus was on his immediate needs. I am not satisfied there was any real planning, calculation or forethought involved beyond feeding his addiction: indeed when he was arrested he castigated himself for lapsing back into drug use. The police overheard him berating himself for getting back into drugs and being “stupid.” Mr. Dunbar obviously was not considering the consequences of possessing 5.5 grams of cocaine on March 2, he was absorbed by his addiction and the means by which he could satisfy it.

[38]    Mr. Dunbar is being sentenced as “a user trafficker” to adopt the language of

Lamer, J.A. (as he then was) in R. v. Lebovitch, [1979] 48 C.C.C. (2d) 539 (Que. C.A.)  As Lamer, J.A. noted, when the user trafficker is incarcerated it is “not so much on the grounds of denunciation as on the need to neutralize his dangerousness, which becomes greater when he chooses, among other crimes, to provide drugs to others in order to supply himself.”  Gaining control over a drug addiction was viewed by Lamer, J.A. as pivotal to removing the risk the offender poses to the public. Mr. Dunbar has not gained control over his addiction and while he is developing an approach and building his motivation to change, he continues to present a significant risk to the public, one that, in my opinion, cannot presently be managed effectively in the community.

[39]    This is not a case like Andrews, supra, where the offender had made significant

strides toward overcoming her addiction, including being drug-free for a year prior to sentencing, and was able to put evidence before the court that “confirmed the case for optimism.” (Andrews, supra, at paragraph 47) Mr. Dunbar may be able to demonstrate in the future that he is a good candidate for rehabilitation. His inability to satisfy the conditions of his 2005 conditional sentence, his drug convictions in 2007 and the breach of probation so soon after he started to serve that order count against him and indicate a present need for specific deterrence. Even though Mr. Dunbar’s intended market for the sale or barter of crack cocaine may have been other addicts, that does not mean no harm is caused by his activities.  Addicted purchasers have their access to a dangerous drug facilitated and the broader community suffers collateral harm from the fueling of existing drug addictions.

[40]    Crown and Defence are in agreement that the fit and proper sentence here is a

period of incarceration. In my view that is correct. The issue I have to decide is the duration of that incarceration and in doing so, I must balance the principles of sentencing to arrive at an appropriate sentence for this offender. I note that the Crown has cited in its brief the case of R. v. Downey, [2000] N.S.J. No. 311 (N.S.C.A.) where a three year prison sentence was upheld for a drug sale involving $40 worth of crack cocaine. Mr. Downey had a lengthy record. The Court of Appeal observed that Mr. Downey was on probation at the time of the offence and had failed to abide by terms of probation orders in the past. The sentencing judge had also considered that Mr. Downey denied he had a substance abuse problem.

[41]    While there are obvious parallels here with the Downey case, I think it is significant that Mr. Dunbar, unlike Mr. Downey, has acknowledged his addiction and is exploring how to confront it more effectively. There are also identifiable underlying reasons for Mr. Dunbar’s addiction that he has recognized. He expresses a strong motivation to overcome his addiction and understands what is at stake if he is not successful: the links he is forging with his family, such as his sister’s children, and, with the diagnosis of a life-threatening disease, there is the stark reality that he is running out of time. These insights and Mr. Dunbar’s resolve should not be extinguished by too onerous a sentence. In concrete terms, I note that Mr. Dunbar is interested in applying for re-admission to the Anchorage Program and wants to relocate to make a new beginning for himself.  His ability to complete a community-based program successfully should be enhanced by his decision that he has to make fundamental changes in his life.

[42]    In the circumstances of this case, Mr. Dunbar should not receive a sentence that

will postpone too long the opportunity for him to build on his commitment to overcome his addiction and dash his hopes of making real changes in his life.  Most significantly, Mr. Dunbar’s rehabilitation, if it can be achieved through his efforts to change, is the most effective way to ensure the future protection of the public. Sooner or later his resolve will be put to the test. It is not enough if Mr. Dunbar is drug-free in custody, although that is important: he must be able to function drug-free in the community.  A drug-free Mr. Dunbar will not pose a threat to the public and can be a contributing member of his community. The potential for Mr. Dunbar to make more effective strides toward controlling his addiction requires me to include rehabilitative considerations when fashioning his sentence.

[43]    For the reasons I have just outlined, I am sentencing Mr. Dunbar on the drug charge to sixteen months in a provincial institution. I am arriving at this sentence having regard for the fact that Mr. Dunbar has spent the equivalent of fourteen months in custody. On the breach of probation charge for failing to keep the peace and be of good behaviour, I sentence Mr. Dunbar to six months concurrent to the sentence on the drug charge.

[44]    I urge the correctional officials who will be case-managing Mr. Dunbar’s sentence to ensure he has access to counselling and programs while he is incarcerated that will assist him in addressing his drug addictions and their underlying causes and equip him for re-entry to society. Recognizing the uphill battle that drug addicts face in overcoming their addictions and the relapsing that is commonplace, Mr. Dunbar should be eligible for any programs that could assist him, including any that he may have taken during previous custodial sentences. He should also be supported in his applications for suitable post-release programs in the community.

Anne S. Derrick

Judge of the Provincial Court of Nova Scotia