PROVINCIAL COURT OF NOVA SCOTIA
Citation: R. v. Smith, 2012 NSPC 82
Date: 20120803
Docket: 2145257, 59
Registry: Dartmouth
Between:
Her Majesty the Queen
v.
Ricardo J. Smith
Decision
Judge: The Honourable Judge Frank P. Hoskins, J.P.C.
Oral Decision: August 3, 2012
Charges: On or about the 12th day of January, 2010, at or near Dartmouth, Nova Scotia, did unlawfully have in his possession, for the purpose of trafficking, not in excess of three kilograms, Cannabis (Marihuana), a substance included in Schedule II of the Controlled Drugs and Substances Act, S.C. 1996, c. 19, and did thereby commit an offence contrary to Section 5(2) of the said Act.
And further that at the same time and place aforesaid, did have in his possession for the purpose of trafficking, Cocaine, a substance included in Schedule I of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 and did thereby commit an offence contrary to Section 5(2) of the said Act.
Counsel: Timothy McLauglin and Angela Nimmo, for the Crown
Kevin Burke, for the Defence
By The Court (Orally):
Introduction
[1] Mr. Smith pleaded guilty to the offence of having in his possession, for the purpose of trafficking cocaine, a substance included in schedule 1 of the Controlled Drugs and Substances Act, (CDSA) and thereby committed an offence contrary to s. 5(2) of the said Act.
[2] In assessing the issue of what is the appropriate and just disposition for this offence and offender, I have carefully considered and reflected on the following: the circumstances surrounding the commission of the offence and the offender, Mr. Smith; the relevant statutory provisions, including s. 10 of the CDSA and s. 718 of the Criminal Code; the case law regarding sentences for trafficking in cocaine; the submissions of counsel; the Pre-Sentence Report, dated January 24, 2012; and several character letters written in support of Mr. Smith.
Background of Proceedings
[3] Mr. Smith pleaded guilty on September 13, 2011, after numerous court appearances, which included a re-election into this Court with the written consent of the Crown, for the purposes of resolution. Thus, approximately a period of 31 months has elapsed from the date of the offence until today.
[4] Mr. Smith was released on an Appearance Notice, without conditions: other than to attend court. There were no restrictive or onerous conditions imposed upon his liberty during this extended period of time.
[5] The sentence hearing was adjourned until today’s date, so that I could take the necessary time to consider the thorough and able submissions of both Crown and Defence counsel.
Circumstances of the Offence
[6] The circumstances surrounding the offence are not in dispute. The Crown has succinctly stated the facts as follows:
(a) On January 12, 2010, the police were provided source information that Mr. Smith was in possession of controlled substances, particularly crack cocaine and perhaps marijuana, and was driving a gray color Chevrolet Malibu.
(b) As a result of this information, the Quick Response Unit of the police conducted a traffic stop of Mr. Smith’s vehicle, for the purposes of effecting arrests of its occupants: Mr. Smith and a passenger.
(c) The vehicle was stopped on Highfield Park Drive, located in Dartmouth. Mr. Smith was driving the vehicle, and there was one passenger in the vehicle. As a result of searches conducted incident to arrest, the police seized from Mr. Smith’s immediate possession a large roll of money with a Nova Scotia Identification card in his name, which was located in his front left pocket, and a bag of cannabis inside an empty cigarette package, and another roll of money in his front right pocket.
(d) Mr. Smith was then transported to the RCMP detachment. Prior to placing Mr. Smith in the police vehicle, the officers ensured that there was nothing in the back seat of the police vehicle.
(e) The passenger was also searched and a small amount of cannabis marijuana was discovered in his personal possession. He was also transported to the RCMP detachment, with Mr. Smith.
(f) Upon arrival at the RCMP detachment, both men were removed from the vehicle. After removing the men, the police discovered a bag of crack cocaine in the back seat of the police vehicle where Mr. Smith had been seated.
(g) The total weight of the crack cocaine was 7.1 grams, which had an approximate street value of $700.00. The crack cocaine was distributed into the following:
· 0.1 gram wrapped in tin foil;
· 3.4 grams wrapped plastic;
· 3.3 grams wrapped in plastic; and
· 0.3 grams wrapped in plastic.
(h) The larger amounts of cocaine, weighing 3.4 grams and 3.3 grams, which is often referred to in the criminal drug subculture as two eight balls, and the smaller amounts, 0.1 and 0.3 grams are referred to as a 20 rock and a 40 rock.
(i) The $770.00 cash found in Mr. Smith’s possession was comprised of the following:
· 36 x $20.00 dollar bills;
· 2 x $10.00 dollar bills; and
· 6 x $5.00 dollar bills.
(j) An operable cell phone was also found next to where he was seated in the police vehicle.
(k) Scales were found in the possession of the passenger.
The Aggravating Circumstances of the Offence
[7] There are no aggravating factors as contemplated under s. 10 of the CDSA, nor are there any overt aggravating factors: such as, the presence of firearms or weapons.
[8] The inherent nature of this offence, however, is aggravating because it requires a degree of planning and forethought. Based on the undisputed facts, I am forced to the inescapable conclusion that Mr. Smith made a conscious and deliberate choice to engage in selling cocaine for profit. He was motivated by unadulterated greed, to make easy money. There is no evidence to suggest that Mr. Smith engaged in this offence for any other reason. In R. v. Andrews, [2005] O.J. No. 5708 (S.C.), Hill, J., emphasized the significance of the distinction between a drug addict who is trafficking for the purpose of supplying his or her habit and the non-addict who is trafficking purely out of motives of greed. Moreover, as noted by Gruchy J., writing for the Supreme Court of Nova Scotia in R. v. Lively, 2006 NSSC 274, at para. 39, the onus is on the offender to establish addiction and a causal connection of that addiction to the offence. I only mention this because there was no evidence proffered in this case to suggest addiction issues as a mitigating effect.
[9] In any event, the offences of cocaine trafficking and the possessing of it for the purpose of trafficking, are seen as grave offences with a high degree of moral blameworthiness that requires emphasis on the overarching principles of denunciation and general deterrence, which will be specifically addressed later on in these reasons.
[10] I agree with the Crown and Defence that Mr. Smith should be classified as a petty retailer as defined in R. v. Fifield, [1978] N.S.J. No. 42 (C.A.). In that case, the Court of Appeal categorized drug traffickers based on the type and amount of drugs involved, and the level of involvement in the drug business, to assist in placing them within the appropriate sentence range. Thus, the amount of drugs involved helps determine the quality of the act or probable category of trafficker.
[11] Mr. Smith was in possession of 7.1 grams of crack cocaine, which consisted of several small packages, and money, $770.00 in cash, in small denominations, all of which indicates an element of premeditation which Nova Scotia Courts have stated is an aggravating factor, the effect of which greatly diminishes the weight and significance of evidence of good character and good behaviour.
[12] One can reasonably assume that Mr. Smith, a mature and intelligent adult, at 30 years of age, weighed the benefits of the illegal activity against the risks of getting caught, and elected to engage in it any way, to make money.
Mitigating Factors surrounding the Offence
[13] As stated, the amount of cocaine in Mr. Smith’s possession places him in the lower categories of drug traffickers described in Fifield, supra.
[14] Mr. Smith was unknown to the police as he was not a target, and this is his first conviction for a criminal offence.
The Personal Circumstances of Mr. Smith
[15] Mr. Smith was 30 years of age when he committed the offence, in January 2010. While he is not a youthful offender, this is his first offence as he has no previous convictions.
[16] According to the letters submitted on his behalf, and the contents of his Pre-Sentence Report, this offence was simply “out of character” for him.
[17] It would appear from what I have read and what I have heard in oral submissions that Mr. Smith has the potential to make a meaningful and productive contribution to society. His background suggests that he has potential. He has successfully completed grade 12 and is contemplating further educational work-related training.
[18] The content of the Pre-Sentence Report reveals that Mr. Smith has had a positive upbringing, which included strong family and community support. He has endured the loss of his mother at age of 12, which has had, understandably, an impact upon him and his family.
[19] During his formative years, Mr. Smith resided with his family in East Preston. With the assistance of his oldest sister, his father supported him and provided care for him and his family. Mr. Smith reported that his father kept him out of trouble by being involved in his life and by ensuring that he attended school and behaved appropriately.
[20] Mr. Craig Williams, a friend of the family, was contacted for the purpose of the Pre-Sentence Report, and stated that he was shocked to learn about the offence as it was out of character for Mr. Smith. He expressed the view that Mr. Smith was involved with the “wrong crowd”. Mr. Williams advised that Mr. Smith accepted responsibility for the offence, and has expressed remorse, for having committed it. Mr. Williams is very supportive of Mr. Smith, and is prepared to assist him in the future.
[21] It is noted in the Pre-Sentence Report that Mr. Smith feels that he has “let his family down by getting into trouble”. The author of the report stated that Mr. Smith accepts responsibility for his actions, and since the commission of the offence has stated to the author, “what I did was wrong and since then I’ve never been around it”.
[22] Mr. Smith has been gainfully employed at Atlantic Windshield. His employer has provided a letter of support for him. His employer views him as an excellent employee, values his work ethic, and pleasant personality.
[23] The letters submitted to the Court are all positive and speak to Mr. Smith’s good character. He is viewed as a pleasant person, who is always respectful, and courteous, and values the support from his family and friends.
[24] It would appear from the contents of the letters and the Pre-Sentence Report, that the commission of the offence was out character for Mr. Smith. It seems that prior to this offence, Mr. Smith enjoyed a good reputation for being an honest, dependable, and hard working young man.
[25] Mr. Burke, counsel for Mr. Smith, has stressed that the commission of the offence was an isolated incident, committed by a young man who possesses a proven history of previous good behavior and success. To put it another way, Mr. Burke has suggested that this offence was out of character for Mr. Smith, and should be seen as an aberrant act committed on one occasion. He has learned his lesson as demonstrated by his conduct over the last two and one half years (31 months), during which time he has been gainfully employed and staying closely connected with his family. In other words, he is back on the right track, after committing a serious transgression, has learned from it, and is desirous of continuing down the right path by working hard, by supporting his family and by becoming a productive member of society.
[26] The defence contends that the prospects for Mr. Smith’s successful rehabilitation are very real as demonstrated by his good conduct during the last 31 months.
The Mitigating Factors Surrounding Mr. Smith
[27] There are several mitigating factors surrounding Mr. Smith, which have been ably stressed by Mr. Burke, and appropriately conceded by the Crown, which include the following:
(a) Mr. Smith has pleaded guilty and has accepted responsibility for the offence, thereby saving substantial resources to the justice system;
(b) The Pre-Sentence Report is positive, as it suggests that the commission of the offence by Mr. Smith was out of character for him;
(c) He does not possess a criminal record, this is his first offence;
(d) While not subject to onerous conditions of release, he has been compliant with the Appearance Notice, for approximately 31 months, and no longer associates himself with controlled substances since the offence was committed;
(e) Mr. Smith was unknown to the police, he was not a target, and was cooperative;
(f) He has the support of his family and friends, as disclosed in the letters of support, including a letter from his employer; and
(g) Mr. Smith is gainfully employed, and lives at home with his father.
The Applicable Legislation
[28] The Supreme Court of Canada has enunciated the correct approach to sentencing in R. v. M. (C.A.) (1996), 105 C.C.C. (3d) 327 and Parliament has enacted legislation which specifically sets out the purpose and principles of sentencing. Thus, it is to these sources, and the common law jurisprudence that courts must turn in determining the proper sentence to impose.
[29] It is trite to say that the imposition of a just and appropriate sentence can be difficult a task as any faced by a trial judge, as it was in this specific case. However, as difficult as the determination of a fit sentence can be, that process has a narrow focus. The Court aims at imposing a sentence that reflects the circumstances of the specific offence and the attributes of the individual offender. Sentencing is not based on group characteristics, but on the facts relating to the specific offence and offender as revealed by the evidence adduced in the proceedings. Generally, it is recognized that a fit sentence is the product of the combined effects of the circumstances of the specific offence with the unique attributes of the specific offender.
[30] Although the sentencing process is highly contextual and necessarily an individualized process, the judge must also take into account the nature of the offence, the victims and community. As Lamer C.J. (as he then was) noted in R. v. M. (C.A.), supra, sentencing requires an individualized focus, not only of the offender, but also of the victim and community as well.
[31] As previously mentioned, sentencing of drug offenders is governed by the specific sentencing principles enunciated in the CDSA in conjunction with the more general principles of sentencing provided for in s. 718 of the Code.
[32] The fundamental purpose to be pursued in sentencing drug offenders is to contribute to respect for the law and the maintenance of a just, peaceful and safe society, taking into account the rehabilitation and, where appropriate, the treatment of offenders, and acknowledging the harm done to victims and the community.
[33] In addition to complying with these principles of sentencing, dispositions or sentences must promote one or more of the six objectives identified in s. 718(a) to (f), inclusive.
[34] The purpose of sentencing is achieved by blending the various objectives identified in s. 718(a) to (f). The proper blending of those objectives depends upon the nature of the offence and the circumstances of the offender. Thus, the judge is often faced with the difficult challenge of determining which objective, or combination of objectives deserves priority. Section 718.1 directs that the sentenced imposed must fit the offence and offender. Section 718.1 is the codification of the fundamental principle of sentencing which is the principle of proportionality. This principle is deeply rooted in notions of fairness and justice.
[35] In addition to the specific sentencing principles articulated in s. 10(1) of the CDSA, s. 10(2) of the CDSA identifies a number of aggravating factors that must be considered by the Court when sentencing drug offenders.
[36] I am also mindful of the principle of restraint which underlies the provisions of s. 718 of the Code.
[37] Accordingly, in accordance with s. 726.2 of the Code, what follows are my reasons for imposing the sentence that I view as a “just and appropriate”, and “a fit and proper sentence” for this offender and for this offence.
Position of the Crown
[38] The Crown submits that the range of sentence for this offence and offender, is two years in a federal institution, because of the mitigating factors, but contends that there are no exceptional circumstances in this case to warrant a departure from the normal range of two to five year penitentiary sentence.
Position of the Defence
[39] Defence contends that there are extraordinary or exceptional circumstances in this case that warrants a departure from the normal range of sentence for this offence to something less than two years and thus argues that a conditional sentence is appropriate as it strikes a just proportion between the circumstances surrounding the commission of the offence and the personal circumstances of Mr. Smith.
Analysis
[40] This is a very serious offence as reflected by Parliament’s imposition of a maximum sentence of life imprisonment. Indeed, the Nova Scotia Court of Appeal has repeatedly stated, for more than 25 years (at least since 1984), that persons involved in trafficking in cocaine will be subject to sentences of incarceration. For instance, in R. v. Byers, [1989] N.S.J. No. 168, Hart J.A., in delivering the judgement for the Court expressed the following view:
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. Nor should the lack of a criminal record stand in the way of a substantial period of imprisonment. No one today can claim to be so naive as to think that trafficking in cocaine can be conducted without serious damage to our social structure.
[41] The same view was expressed in R. v. Huskins (1990), 95 N.S.R. (2d) 109, wherein the Court of Appeal stated:
No one can seriously dispute that cocaine is an extremely dangerous drug and that society demands that those who are involved in selling it must be dealt with severely. Rare indeed will be the case where less than federal time should be considered as a proper sanction for such offence.
[42] In R. v. Dawe (2002) NSCA 147, Hamilton, J.A., in delivering the Court of Appeal’s judgement stated at para. 6:
The appellant has not satisfied us that the sentence is demonstrably unfit. To the contrary, the sentence is, if anything, unduly lenient. Possession of cocaine for the purposes of trafficking typically results in sentences of two years or more, as the judge pointed out. (Emphasis added)
[43] Similarly, in R. v. Steeves, 2007 NSCA 130, at para. 18, the Court stated:
This court has been steadfast in emphasizing that deterrence is a primary consideration in sentencing for drug offences. In R. v. Robins, [1993] N.S.J. No. 152 (C.A.), Chief Justice Clarke stated at p. 1:
. . . The position of this court, repeated in many of our decisions since Byers, is that there are no exceptional circumstances where cocaine is involved. We are persuaded that general deterrence must be prominently addressed if the public is to be protected from the nefarious trade that has developed in this drug that is so crippling to our society.
See also, for example, R. v. McCurdy [2002] N.S.J. No. 459 at para. 15.
[44] Recently, in R. v. Knickle, 2009 NSCA 59, at para. 18, the Court of Appeal noted:
Numerous other sentencing decisions from this court repeatedly and consistently emphasize that persons involved in trafficking in cocaine will be subject to sentences of incarceration. This has been absolutely clear since the very first case heard by this court involving trafficking in cocaine: R. v. Merlin, [1984] N.S.J. No. 346, 63 N.S.R. (2d) 78. See also, for example: R. v. Dawe, 2002 NSCA 147; R. v. Jones, 2008 NSCA 99; R. v. Stokes, [1993] N.S.J. No. 412, 126 N.S.R. (2d) 66; and R. v. J.B.M., 2003 NSCA 142. This court has never approved or endorsed a conditional sentence on charges of possession for the purpose of trafficking or trafficking in cocaine. As well, we have regularly allowed appeals from conditional sentence orders for trafficking in large amounts marijuana and substituted penitentiary terms. See for example: R. v. Hill, 1999 NSCA 118; R. v. McCurdy, 2002 NSCA 132; R. v. Jones, 2003 NSCA 48. The sentencing judge in this case did not refer to any decisions of this court.
[45] In R. v. Conway, 2009 NSCA 95, the Nova Scotia Court of Appeal, reaffirmed what the Court had emphasized earlier in Knickle, supra, that the Court has never approved or endorsed a conditional sentence on charges of possession for the purposes of trafficking in cocaine.
[46] More recently, in R. v. Butts, [2010] N.S.J. No. 346 at para. 13, the Nova Scotia Court of Appeal stated:
. . . cocaine has consistently been recognized by this Court as a deadly and devastating drug that ravages lives. Involvement in the cocaine trade, at any level, attracts substantial penalties (see, for example, R. v. Conway, 2009 NSCA 95; R. v. Knickle, 2009 NSCA 59;R. v. Steeves, 2007 NSCA 130; R. v. Dawe, 2002 NSCA 147; R. v. Robins, [1993] N.S.J. No. 152 (Q.L.)(C.A.); R. v. Huskins, [1990] N.S.J. No. 46 (Q.L.)(C.A.); and R. v. Smith,[1990] N.S.J. No. 30 (Q.L.)(C.A.)). It is significant that the CDSA classifies cocaine as one of the drugs for which trafficking can attract a life sentence.
[47] Lastly, in a recent judgment of the Court of Appeal, in R. v. Jamieson, 2011 NSCA 688, the Court reaffirmed the proposition that persons involved in trafficking cocaine or possessing it for the purpose of trafficking will upon conviction, be virtually guaranteed a prison term in a federal penitentiary. In that case, however, the Court reduced Mr. Jamieson sentence by two days, which resulted in a provincial sentence of less than two years, because the Court found that it was a proper case to exercise its authority to relieve against a patently unfair result. To avoid a disproportionately severe collateral sanction, the Court reduced Mr. Jamieson's sentence by two days, which would allow him to exercise his immigration appeal rights. The Court held that the case “is truly exceptional for the single reason that the appellant's sentence denied him an avenue of appeal from his deportation; an unintended result of great significance”. After making that determination, Saunders J.A., in delivering the judgement for the Court, at para. 38, expressed the following view:
Nothing in these reasons should be taken as signaling a softening of this Court's view towards the seriousness of trafficking in cocaine and the severity of sentences that will be imposed upon conviction. Such an approach has been consistently taken by the courts in this province for almost 35 years. See for example the inventory of cases chronicled by Roscoe, J.A. in R. v. Knickle, 2009 NSCA 59. Persons who seek to profit by trafficking in cocaine, or possessing it for the purpose of trafficking, will upon conviction, be virtually guaranteed a prison term in a federal penitentiary. (Emphasis added)
[48] The Nova Scotia Court of Appeal has repeatedly emphasized that deterrence is a primary consideration in sentencing for drug offences, especially offences involving trafficking in cocaine or possessing it for the purpose of trafficking. Thus, in the present case there must be a strong emphasis on the principles of denunciation and deterrence. Sections 718(a) and (b) of the Code identify denunciation and deterrence as appropriate objectives of sentencing. Where the primary objective of sentencing is denunciation, the sentence must publicly condemn the offender’s conduct. Denunciation typically plays a more central role in drug offences involving dangerous drugs; such as cocaine, because it poses an especially high risk to users and the community. Where the primary objective is also deterrence, the sentence must attempt to discourage individuals through specific deterrence as well as to deter other potential offenders from committing similar offences by way of general deterrence. Where, as in this case, the primary purpose of sentencing is to deter and denounce this type of behaviour the Court must ensure its sentences are perceived by the public as strong condemnations of this type of behaviour.
[49] While the Nova Scotia Court of Appeal, has repeatedly and consistently stated that offenders involved in trafficking cocaine or possessing it for the purpose of trafficking should receive a federal term of incarceration as the norm, the Court has clearly recognized that there is no minimum punishment of imprisonment mandated for these specific offences. In other words, the Court of Appeal has not precluded the possibility of the imposition of a conditional sentence for persons involved in trafficking in cocaine, or involved in the possession of it for the purposes of trafficking. The Court has not created a judicial minimum punishment of imprisonment for theses type of offence, as that would be clearly inconsistent with what the Supreme Court of Canada stated in R. v. Proulx, [2000] 1 S.C.R. 61. In fact, in Proulx, supra, Lamer C.J., in delivering the judgement for the Court, recognized that conditional sentence orders, in some instances, satisfy the objectives of denunciation and deterrence. Indeed, tailored properly, a conditional sentence order can be very restrictive and punitive in nature.
[50] In R. v. Steeves, supra, at para. 20, the Court held:
While time served in a federal penitentiary is the norm, this is not to say that conditional sentences are precluded for trafficking in cocaine. Conditional sentences have been imposed where the judge has determined that exceptional circumstances exist. See, for example R. v. Cameron, [2002] N.S.J. No. 163 (S.C.); R. v. Provo, [2001] N.S.J. No. 526, 2001 NSSC 189; R. v. Messervey, [2004] N.S.J. No. 520 (P.C.); and R. v. Coombs, [2005] N.S.J. No. 158, 2005 NSSC 90. Circumstances that are sufficiently exceptional as to change a sentence of incarceration for such a serious offence to one that can be served in the community are rare.
[51] More recently, in R. v. Calder, 2012 NSCA 3, the Court of Appeal, reaffirmed the proposition that in cases where there exists exceptional circumstances a conditional sentence is appropriate for a trafficking offence or possession for the purposes of trafficking. At paras. 34-5, Hamilton, J.A. stated:
Ms. Calder's second argument is that the judge erred in determining that her convictions called for a sentence in excess of two years. She points to four cases where conditional sentences have been awarded for drug offences: R. v. Coombs, 2005 NSSC 90, R. v. Provo, 2001 NSSC 189; R. v. Brown, [1997] N.J. No 233 (Q.L.); R. v. C.B., 2006 ABPC 167. She refers to two other cases where a custodial sentence has been ordered for less than two years; R. v. Klassen, 2008 YKTC 64; R. v. Charlish, 2001 BCCA 27. Based on these cases she argues the judge erred in finding the minimum sentence for her was in excess of two years.
It is important to note the judge did not find that a sentence in excess of two years is always required for a trafficking offence or for a possession for the purpose of trafficking offence. He recognized a conditional sentence for these offences is a possibility:
[67] The Defence has requested a conditional sentence based on exceptional circumstances. I accept that a conditional sentence addresses both punitive and rehabilitative objectives.
[68] I also accept that trafficking Schedule I substances and possession of same for the purpose of trafficking are not precluded from conditional sentences.
[52] In view of all of the foregoing, it seems that although the range for the offence of trafficking in cocaine or possessing it for the purposes of trafficking is two or more years, there are cases where the circumstances are sufficiently mitigating to warrant a sentence of less than two years of imprisonment. See, for example: Dawe, supra, and Robbins, supra. In fact, there are cases where conditional sentences have been imposed where the judge has determined that exceptional circumstances exist. See, for example, as noted in Steeves, supra, Cameron, supra, Provo, supra, Messervey, supra, Coombs, supra, and more recently, R. v. Scott, [2012] N.S.J. No. 80.
[53] It should be stressed here, however, as it was in Steeves, supra, that circumstances which are sufficiently exceptional as to change a sentence of incarceration for such a serious offence of trafficking in cocaine to one that can be served in the community are rare.
[54] As noted in the Supreme Court of Canada decision, R. v. Wells, [2000] 1 S.C.R. 207, at para. 27, I am required to proceed in stages in determining the appropriateness of a conditional sentence. At the preliminary stage, I must exclude as an appropriate sentence a non-custodial probationary sentence or a penitentiary term of imprisonment. If the Court excludes both of these options, then consideration can be given as to whether a conditional sentence is appropriate. It is obvious that a non-custodial probationary sentence would not be appropriate in the circumstances of this case. Thus, the issue is whether I can exclude a federal period of imprisonment. This requires consideration of all of the circumstances surrounding the offence, and offender, Mr. Smith, as well as consideration of the relevant statutory provisions and case law.
[55] Having carefully considered and weighed all of the mitigating factors earlier identified in this case against the seriousness of the offence and the normal range of sentence for this specific offence and offender, I am of the view that I cannot exclude a federal period of incarceration as a fit and proper punishment for this offence and offender, for the following reasons.
[56] I agree with the Crown’s submission, which recognizes the mitigating factors surrounding the offence and offender, Mr. Smith. The cumulative weight of all of these mitigating factors justify some leniency or reduction in the sentence within the range of two years, but does not warrant or justify a departure from the range. Further, the Crown argues that this is not “exceptional or extraordinary case” so as to justify a conditional sentence.
[57] Notwithstanding, Mr. Burke’s very able argument, I do not find that the cumulative weight of the mitigating factors sufficient to justify a departure from the normal range of sentence for this specific offence and offender, which is in the range of two years or more. Rather, I am the view that the cumulative weight of all of the mitigating factors present in this case justify an imposition at the lowest end of the range, which is two years. Having reached that determination, pursuant to the analysis in Proulx, supra, a conditional sentence is not available.
[58] Considering the need for denunciation and general deterrence as emphasized in the case law when sentencing persons involved in trafficking cocaine or in possession of it for the purposes of trafficking and having considered the totality of the circumstances of the offence and Mr. Smith, I am not satisfied an appropriate sentence in this case is less than two years.
[59] Mr. Burke argues that the present case is an exceptional case, which justifies a departure from the normal range of sentence, and contends that a conditional sentence is appropriate because it would be similar to other cases in Nova Scotia where conditional sentences have been imposed in similar circumstances. In essence, Mr. Burke argues the principle under s. 718.2(b) of the Code must be considered, which states that, “a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances”.
[60] In my view, that while the cumulative weight of the mitigating factors justify some leniency or reduction of the sentence within the normal range for this specific offence and offender, the circumstances of this case are not sufficiently exceptional or extraordinary.
[61] During oral argument both Crown and defence counsel discussed cases where exceptional circumstances were found to exists, which included the following cases: Cameron, supra, Messervey, supra, Coombs, supra, Talbot, supra, Provo, supra, Scott, supra, and Jamieson, supra.
[62] Although there are similarities with these cases to the present case, there are also differences as well, as discussed in oral submissions.
[63] While each case appears to turn, very much, on its own unique set of circumstances and thus no case can be an exact guide for another, it is important to carefully review the cases in an effort to apply the principle under s. 718.2(b) of the Code.
[64] The accused in Messervey, supra, was a youthful offender, 21 years old, and acted as a courier delivering small amounts of cocaine for which he received no share in the profit. He had no prior record. In the two years between the date of the offence and the sentencing he had abided by the terms of his release and commenced an employment training course. Like Mr. Messervey, Mr. Smith dealt in a small amount of cocaine, has no prior record, complied with a Promise to Appear for a significant period of time (31 months) and is gainfully employed. However, unlike Mr. Smith, Mr. Messervey was a youthful offender, and received no share in the profit, and became involved in drug trafficking only to assist his long-time personal friend, after having given in to peer pressure.
[65] The significant distinction between these two cases is the age of the offenders and their motivation to become engaged in drug trafficking. Mr. Smith was involved in the offence purely for monetary gain.
[66] In Coombs, supra, the 29 year-old defendant pleaded guilty to trafficking in 50 grams of crack cocaine, a much larger amount than in the present case. The judge found that he was a “middle-man” in the transaction who had been approached by a police agent who sought to purchase cocaine in order to get closer to the target of a drug investigation. Unlike, in the instant case, where Mr. Smith’s involvement was fully engaged to make a profit, Mr. Coombs was acting as a middle man. In fact, Justice Cacchione made the following observation about Mr. Coombs and Mr. Messervey at para. 22:
In R. v. Messervey a conditional sentence was imposed on a 21 year old who trafficked in 85 grams of crack cocaine. Mr. Messervey had no prior record and was a trusted associate of one of the targeted individuals. Mr. Messervey gave into peer pressure and became involved. Although three separate transactions occurred there was only one charge encompassing all three events. Mr. Messervey complied with his release conditions for almost two years, although the conditions were not as onerous as those under which this accused has been living for the past two and half years. The Court in Messervey considered the following factors in finding exceptional circumstances allowing deviation from the standard two to five years incarceration for this offence: (1) Mr. Messervey was 21 at the time of the offence, 23 at the time of sentencing. Here Mr. Coombs was 27 at the time of the offence and is 30 years old now. (2) The nature and limited scope of Messervey's involvement. It was considered one bad weekend I think was the phrase used. It was essentially a one-time deal. The same can be said about this accused.
[67] It would appear that the nature and limited scope of the offender’s involvement was a significant consideration for Justice Cacchione, as it is for me. In the present case, Mr. Smith was fully involved in the offence, and motivated to make money. Like, Mr. Smith, Mr. Coombs had a very positive Pre-Sentence Report and the offence was found to be out of character. He was remorseful and unlike Mr. Smith had been subject to strict conditions of release including house arrest for 30 months pending sentencing. While Mr. Smith has been compliant with his Promise to Appear for approximately 31 months, he was not on house arrest conditions like Mr. Coombs.
[68] It appears that Justice Cacchione, quite appropriately, placed a great deal of weight on the fact that Mr. Coombs liberty was significantly restricted for 30 months.
[69] The defendant in Talbot, supra, was a youthful offender, 23 years old, had no criminal record and was involved as the middle-man in one sale of .22 grams of crack cocaine for $40. The quantity of the controlled substance was much less than in the case at bar and Mr. Talbot was a youthful offender. The nature and limited scope of Mr. Talbot’s involvement is different than in Mr. Smith’s. Like Mr. Smith, Mr. Talbot possessed numerous mitigating factors surrounding his personal circumstances.
[70] In Provo, supra, the Court considered that the offender was 28 years old and had sold 0.67 grams of crack cocaine to a police agent for $50.00. A much smaller quantity than in the present case, but still a street level amount. Although Mr. Provo had a lengthy criminal record, his Pre-Sentence Report was positive. The sentencing judge found that he had taken steps to turn his life around, was no longer a threat to the community, and in fact had been operating a successful business for two years which enabled him to support his family. The judge was concerned that the business would be lost if a penitentiary term was imposed. It would seem in that case, the judge greatly emphasized the steps that Mr. Provo had taken to turn his life around. In the present case, Mr. Smith has resumed gainful employment after being charged and released. There is no remarkable change surrounding his circumstances as he appeared to be doing reasonably well before the date of the offence.
[71] In Cameron, supra, the offender was involved in selling cocaine for a friend to support his drug habit and not for profit. While he had a criminal record, it was not related or violent. Again, unlike Mr. Smith, Mr. Cameron was not engaged in the trafficking cocaine for profit.
[72] In Scott, supra, the offender was in possession of 30 grams of cocaine, which is a much larger amount than in Mr. Smith’s possession. Unlike, in the present case, Mr. Scott was a youthful first offender who possessed the cocaine primarily to feed and fund his own addiction. Judge Tufts held that Mr. Scott was a petty retailer and had turned his life around by enrolling in substance abuse counseling on his own initiative. Judge Tufts stressed that Mr. Scott was not a greedy non-user selling for profit: unlike, Mr. Smith, who is a greedy non-user selling for profit.
[73] Again, what can be seen by comparing the aforementioned cases, is that no two cases are exactly alike, and it is often difficult to compare cases because of the multitude of varying factors or considerations that are considered and weighed cumulatively.
[74] In considering the disparity principle under s. 718.2(b) of the Code, I am also mindful of the cases which have similar circumstances as in the present case, wherein the courts have imposed a federal period of imprisonment; notwithstanding the existence of significant mitigating factors surrounding the offence and offender. For example, in R. v. Tokic, [2002] N.S.J.No. 80 (S.C.), the offender pleaded guilty to four counts of trafficking in cocaine. The offences arose from four sales of cocaine to an undercover RCMP officer. The total amount sold was 10 grams and the proceeds were approximately $700.00. The accused, who was 37 years old, had no previous drug-related convictions and he was employed as a machinist. He had a common law wife and her three children were dependent on him. He was well thought of by his family, neighbours, employer and fellow workers. The Pre- Sentence Report was generally very positive, and indicated that the accused had taken responsibility for his actions, which had been characterized as a mistake in judgment. He had not been experiencing financial difficulty at the time. His actions had been motivated by greed. The Pre-Sentence Report also outlined a pattern of exemplary conduct during the two years since the offences were committed. The accused no longer associated with his former friends.
[75] Again, there are similarities to the present case as well as differences, which I have considered.
[76] In Tokic, supra, the sentencing judge was well aware of the impact on the accused and his family but felt a period of federal incarceration was necessary to address the need for general deterrence. In reaching his decision Murphy, J. considered the following mitigating factors:
(a) The Accused has pleaded guilty, thereby saving substantial resources to the justice system;
(b) The Pre-Sentence Report outlines a pattern of exemplary conduct during the two years since the offences were committed, and Mr. Tokic no longer associates with his former friends who may have been a factor in his involvement in the offences; and
(c) The quantities of cocaine sold, while not insignificant, positioned the Accused in a class of traffickers at the upper end of “petty retail”, rather than among those dealing with “wholesale” amounts.
[77] Another case in which there were significant mitigating factors surrounding the offender is R. v. Clarke, [2005] N.S.J. No. 358 (S.C.), where Chief Justice Kennedy imposed a two year period of incarceration for a first time offender who recently had a baby. The Pre-Sentence Report was positive and she was not considered to be a risk to re-offend. The Court refused to grant a conditional sentence finding that general deterrence and denunciation required a period of incarceration be imposed. However, unlike the present case, the circumstances surrounding the offence, included four counts of trafficking in cocaine.
[78] In R. v. VanAmburg, 2007 NSSC 220, the offender was a street level trafficker, part of a large scale commercial operation. He took part in the enterprise for financial gain or greed. He was a youthful first offender, at 23, unemployed and in a common law relationship for four years, with two children: a daughter, 30 months old and a son, one year old. The Pre-Sentence Report indicated that he took responsibility for his actions and expressed remorse. At para. 13 of the decision, the sentencing judge noted the following mitigating factors: no criminal record, accepted responsibility, expressed remorse and appeared motivated to make changes in his life, pleaded guilty, avoiding the necessity of a trial; and was a street level trafficker.
[79] While I understand and appreciate that there are differences between the VanAmburg, supra, case and the present case, the VanAmburg, supra, case does provide an example where the sentencing judge felt compelled to impose a two year period of imprisonment, rather than a conditional sentence; notwithstanding the mitigating factors surrounding the offender.
[80] In R. v. Gray, [2001] N.S.J. No. 553 (S.C.), Goodfellow J., sentenced an offender to two years and three months for trafficking in cocaine. In that case, the offender pleaded guilty to two counts of trafficking in crack cocaine. Undercover police officers purchased crack from him on two occasions. Gray admitted that he sold crack for one year. His last conviction was in 1985. He did not have a prior record for drug-related offences. Gray was born in 1939. He was involved in drug trafficking because of financial problems. His Pre-Sentence Report indicated that he was a good candidate for community-based supervision. The Crown sought a sentence of four years imprisonment in a federal penitentiary. Gray requested a conditional sentence. Justice Goodfellow sentenced Mr. Gray to two years and three months imprisonment concurrently on each count, notwithstanding there were strong mitigating factors in his favour, with strong prospects of rehabilitation. Justice Goodfellow expressed the view that responsible individuals do not participate in this type of activity, and consequently Mr. Gary was sentenced to prison because a conditional sentence did not meet the need for general deterrence and would bring the administration of justice into disrepute.
[81] Despite a positive Pre-Sentence Report and strong mitigating factors Mr. Justice Goodfellow observed:
Trafficking cocaine is a despicable crime that has far-reaching consequences. The trafficker places his greed for the easy almighty dollar above all other considerations. The trafficker is a retailer of poison. Cocaine destroys lives and breeds crime. In addition, cocaine is known to foster theft, robbery, embezzlement and often it results in people who are exposed to it becoming involved in the drug trade itself. Often the initial victims are the young and other vulnerable members of society, their families and friend. It is an evil trade. The consequences to society in both human and financial terms are substantial. Many consumers lose all dignity and ability without help to stay away from cocaine. Traffickers are an essential link in this evil trade and by making cocaine available they help to sustain, if not expand, the cocaine consumer market. While I am very much influenced by the considerable mitigating circumstances of this case, I view the many statements from the Church, employers and others to the effect that you are a caring, responsible person, is an indication that is strong hope for your rehabilitation. But, I must make note that a caring, responsible person is not a person who participates motivated by greed in this evil trade. I do not consider that a conditional sentence can in all circumstances adequately meet the need for general deterrence. A conditional sentence would in my view bring the administration of justice into disrepute. The circumstances here demand a sentence in a federal penitentiary.
[82] Given that the norm for sentencing of offenders involved in drug trafficking is in the range of two to five years, which includes first time offenders with mitigating circumstances, it is not surprising that exceptional circumstances must exist to justify a conditional sentence.
[83] As previously mentioned, in oral argument, both Crown and Defence counsel focused on all of the mitigating factors surrounding the circumstances of this offence and Mr. Smith in arguing whether or not this case was an exceptional case which justifies an imposition of a conditional sentence.
[84] While it seems most exceptional cases will likely have a number of significant mitigating factors surrounding the offence and/or offender, there are some which may not; such as, Jamieson, supra. In Jamieson, supra, the Court found that it was a proper case to exercise its authority to relieve against a patently unfair result, to avoid a disproportionately severe collateral sanction.
[85] Having considered all of the circumstances of instant case, which includes the circumstances of the offence and Mr. Smith, it is my view that there are no extraordinary or exceptional circumstances in this case to justify or warrant a deviation from the normal range of sentence for this offence.
[86] Unfortunately, the case law does not clearly define or delineate factors to consider in determining when a case is exceptional to warrant a sentence outside of the usual range. The reason for that may be because sentencing is a highly contextual and necessarily an individualize process, therefore a wide and flexible approach is required.
[87] I am sure that there are an indefinite number of factors or considerations that could be considered, as each case very much turns on its own unique set of circumstances. Moreover, while there is no definite test of what constitutes an exceptional case, the Court is required to consider a multitude of considerations or factors, and balance them accordingly. Obviously, in some cases, more weight will be attributed to some considerations or factors than the others.
[88] In considering the issue of whether the present case is an exceptional case, I have considered a number of factors, including the nature and quantity of the cocaine. In my view, while the nature of quantity of the drugs is not determinative of the issue, it is a significant factor which must be considered. It would appear from review of the case law that courts embrace the notion that the nature and quantity of the drugs is relative to the risk of danger to the general public.
[89] The degree of the offender’s involvement in the commission of the offence is also a relevant factor, which includes consideration of the offender’s motivation to engage in the offence. Often, in drug trafficking cases, offenders are motivated by the greed to make easy money as this type of offence is an enterprise crime. However, there are cases where the offender was involved in trafficking in drugs to feed his or her drug addiction. Generally, courts seem to be more lenient in sentencing of drug addicts then in sentencing offenders motivated by greed: for example, Scott, supra. Perhaps, this is a reflection of an emphasis on rehabilitation, as well as, on the principles of general and specific deterrence and restraint. Similarly, the courts seem to be more lenient in sentencing offenders who acted under a degree of duress, or compulsion to help a friend, rather than for profit. For example, see: Cameron, supra, Messervey, supra, and Coombs, supra.
[90] The age of the offender is often considered in cases involving youthful offenders, particularly in cases where the personal antecedents of the youthful person demonstrates a real potential for successful rehabilitation.
[91] Also, a significant consideration is the medical condition or needs of an offender, especially in circumstances where his or her medical condition cannot be treated or properly provided for in a custodial institution which would, indeed, be rare, given that correctional facilities are obliged under the Correction and Conditional Release Act to provide inmates with essential health care, as stated in R. v. Aquino, [2002] O. J. No. 3631, a brief oral judgement of the Ontario Court of Appeal. In any event, where it is alleged that an offender’s medical condition is justification for a conditional sentence, there would have to be cogent and compelling evidence to support such a finding. Presumably, this would include the calling of expert evidence and evidence from those employed within correctional services.
[92] In my view, an important or critical consideration to justify a departure from the norm is whether there has been a significant and remarkable change in the personal circumstances of the offender since the commission of the offence. In circumstances, where the offender has clearly shown a substantial or remarkable improvement in his or her life; such as successful enrollment in a rehabilitation treatment program, where success is imminent and thus rehabilitation is certain, a departure from a federal period of incarceration could be justified, all things being equal. However, there will be cases where the nature and quantity of the cocaine is just too great to be seriously considered as an exceptional case for these purposes; for example, Knickle, supra.
[93] While the quantity of the cocaine is at the petty retailer level, Mr. Smith’s motive to participate in the offence is aggravating as it greatly diminishes the weight and significance of evidence of good character and good behaviour. As stressed earlier, one can reasonably assume that Mr. Smith, a mature and intelligent adult, not a youthful offender at 30 years of age, weighed the benefits of the illegal activity against the risks of getting caught, and elected to engaged in it any way, for the lure of making money at the expense of so many others. Cocaine, whether it is crack cocaine or powder cocaine, is a drug that ravages lives, and undoubtedly, the amount here was designated for the consumption of users, with devastating results to the community.
[94] Another factor, although perhaps not as significant as a remarkable change in the offender’s life, is the criminal record of the offender. The absence of a criminal record is a mitigating factor, which is obviously considered favorably toward an offender. Unfortunately, in the Provincial Court it is not uncommon to deal with cases involving persons charged with serious drug offences who do not have a criminal record, or have never been charged with a criminal offence. Usually, these first offenders, like Mr. Smith, are of persons of previous good character, but are lured by greed to make easy money in the very lucrative business of drug trafficking. Thus, it is not a rarity to have first time offenders charged with drug offences appear in the Provincial Court, nor is it rare to read about them in the case law; for example, R. v. Smith, [1990] N.S. J. No. 30 (C.A.), Talbot, supra, R. v. VanAmburg, supra, Conway, supra, and Messervey, supra.
[95] As previously mentioned, the nature and length of the time that the offender was subject to a release order is a relevant factor. A very restrictive release order, where the offender’s liberty had been significantly restricted for over a lengthy period of time, would be a favourable consideration for the offender; such as, house arrest conditions; for example, see: Coombs, supra.
[96] Obviously, the offender’s conduct or behaviour while on release is a relevant factor. An aggravating factor would be non-compliance of court orders, or the commission of a further offence while on release under a court order.
[97] Another relevant factor is an unforeseen or unintended consequence similar to what occurred in Jamieson, supra, where the Court of Appeal varied a federal sentence of two years’ imprisonment to two years less one day (a reduction of two days) because the Court found “truly exceptional” circumstances to avoid a disproportionately severe collateral sanction.
[98] Lastly, it may be helpful to review cases other than drug cases, where the courts have considered exceptional circumstances in the context of the offender’s personal circumstances to warrant or justify a departure from a federal sentence. An excellent example of this in found in the decision of R. v. Bratzer, 2001 NSCA 166. In that case, the Crown sought leave to appeal a conditional sentence given Mr. Bratzer following his conviction for three robberies. Mr. Bratzer robbed three gas stations, brandishing a weapon each time to take money in the early hours of the morning from the sole employee on duty. He was 18 years old, and pleaded guilty upon appearing for trial. He had a record of minor previous offences, but the trial judge found that he had made significant progress while awaiting trial, having completed his grade 12 equivalency, having performed volunteer work, and having undergone counselling. He had significant family support and was a good candidate for a career in the armed forces. Considering these improvements and Mr. Bratzer's youth, the trial judge sentenced him to a conditional sentence of two years less a day on each offence, all to be served concurrently.
[99] To conclude, I want to re-emphasize the important principles that have guided me in reaching my decision here today to impose a two year term of imprisonment; that is, the principles of denunciation and deterrence. These principles have been repeatedly and consistently emphasized by the Court of Appeal, as noted earlier in these reasons.
[100] I am mindful that a proper sentence must take into account the aggravating factors of this offence namely: the nature of the offence; the type of drugs involved; and the prevalence of the offence in the community; and balance them against all of the mitigating factors identified earlier in these reasons including: Mr. Smith’s lack of criminal record, his plea of guilty, his expression of remorse, his positive Pre-Sentence Report and letters of support from his family, friends, and employer, his continued support of his family and friends, that he was unknown to the police, he was not a target; and his compliance and good behaviour during the last 31 months, and his previous good behaviour,
[101] Although the principles of denunciation and deterrence have been stressed for many years, there continues to be a pressing need to emphasize these principles in cases such as this, as Hart J.A., observed in Byers, supra, over twenty years ago, which is worth repeating:
. . . 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. Nor should the lack of a criminal record stand in the way of a substantial period of imprisonment. No one today can claim to be so naive as to think that trafficking in cocaine can be conducted without serious damage to our social structure.
[102] In 1989, Clark J.A., in Downey, supra, observed:
The trial judge in his remarks at sentencing observed, properly in our opinion that trafficking of cocaine in the City of Halifax has increased to the point that the courts can no longer be lenient if the public is to be protected from this unlawful activity. General deterrence must be emphasized.
[103] Similarly, in 2004, Chisholm, P.C.J., in Messervey, supra, expressed the view that in his “humble opinion the cocaine trade and its impact on the community of Halifax and Nova Scotia has gotten much worse since 1989”.
[104] Again, the same sentiment as expressed above can be made in the instant case as the prevalence of trafficking and possession of cocaine offences in our community continues unabated in 2012. Indeed, here, in the Dartmouth Provincial Court, we routinely and consistently deal with cases involving trafficking in cocaine and other highly addictive illicit substances. On a daily basis the Court deals with the manifestations of the crippling effects that cocaine is having on our community. Far too often, individuals, like Mr. Smith, first time offenders with many positive attributes are appearing in Provincial Court facing serious offences of trafficking in cocaine or possessing it for the purposes of trafficking.
[105] Where the offence of trafficking in cocaine or for possession of it for the purposes of trafficking is involved, judges at all levels of court in this province have emphasized the principles of denunciation and deterrence. As Clarke J.A., stated in Robins, supra:
. . . We are persuaded that general deterrence must be prominently addressed if the public is to be protected from the nefarious trade that has developed in this drug that is so crippling to our society.
[106] Mindful of the clear direction from our Court of Appeal, as earlier discussed in these reasons, it should be stressed that those who are motivated to engage in the business of trafficking in cocaine for profit, can expect denunciation of the Court and the imposition of a federal term of imprisonment as a deterrent. As Saunders, J.A., recently put it in delivering the Court’s judgement in Jamieson, supra, at para. 38:
Persons who seek to profit by trafficking in cocaine, or possessing it for the purpose of trafficking, will upon conviction, be virtually guaranteed a prison term in a federal penitentiary.
[107] For all of the foregoing reasons, having carefully considered all of the circumstances surrounding the offence, and Mr. Smith, I conclude that the appropriate sentence to be imposed upon Mr. Smith is two years imprisonment in a federal institution.
[108] Mr. Smith, would you please stand, I sentence you to two years in a federal institution for having committed the offence of possession for the purposes of trafficking cocaine, a controlled substance included in Schedule 1 of the Controlled Drugs and Substances Act, contrary to s. 5(2) of the said Act.
[109] The Crown also seeks as part of this sentencing three ancillary orders; namely, a weapons prohibition order under s. 109 of the Criminal Code for 10 years, a DNA sampling order, and an order of forfeiture of items seized from Mr. Smith. These ancillary orders are not contested by the defence and will be granted by the Court in the usual form.
[110] Mr. Smith, you have potential, and I wish you every success and hope that I never see you again in these circumstances. Thank you Mr. Smith.