R. v. Soloway, 2012 ABQB 554

Court of Queen ’ s Bench of Alberta Citation: R. v. Soloway, 2012 ABQB 554 Date: 20120907 Docket: 100890177Q1 Registry: St. Paul Between: Her Majesty the Queen - and - Jordon Hector Soloway Accused _______________________________________________________ Reasons for Sentence of the Honourable Mr. Justice Brian R. Burrows _______________________________________________________ [ 1 ] On May 8, 2012 I found Jordon Hector Soloway guilty of the following 5 offences: 1. Possession of cocaine for the purpose of trafficking. 2. Possession of marihuana not exceeding 3 kg for the purpose of trafficking. 3.

Breach of Recognizance by failing to keep the peace and be of good behaviour. 4. Breach of Recognizance by failing to abide by a curfew condition in the recognizance.

5. Breach of Recognizance by failing to refrain from the possession of alcohol or drugs. Today I entered convictions in respect of all 5 counts of the indictment. [ 2 ] The events that lead to the charges and convictions occurred in the early morning hours of July 23, 2010 when Mr. Soloway ’ s car, in which he was a passenger, was stopped by the RCMP just after it entered the town limits of Bonnyville, Alberta. The circumstances are fully described in a voir dire decision and in reasons for conviction which I presented in Court on May 8, 2012. [ 3 ] The evidence disclosed that Mr.

Soloway was in possession of 98 grams of cocaine worth between $6000 and $8000 for the purpose of trafficking and that he was in possession of 112 grams of marihuana worth between $845 and $1000 for the purpose of trafficking. The recognizance, 3 conditions of which Mr. Soloway breached, was imposed on January 30, 2010 in respect of unrelated charges. Circumstances of the Accused [ 4 ] After I found Mr. Soloway guilty of these 5 offences, his counsel applied for an adjournment of sentencing so that a pre- sentence report and a Gladue report could be prepared. Sentencing was adjourned to today.

Both reports have been prepared and entered on the record in these proceedings. [ 5 ] Mr. Soloway is 25 years old. His parents are Pauline Cardinal and Hector Soloway. He is the only child of their relationship, though he has 8 older half siblings who are his father ’ s offspring. He has Treaty Status. [ 6 ] Both the pre-sentence report and the Gladue report indicate that Mr. Soloway had a healthy upbringing. His parents were both positive role models. Both were employed. Neither had substance abuse issues. There was no abuse or violence in his home. His parents were emotionally supportive.

They continue to be supportive. Mr. Soloway did not have a close relationship with any of his half siblings until his teenage years and then only with 2 of them. [ 7 ] Mr. Soloway moved out of his parents ’ home when he was 17. He attended NAIT in Edmonton when he was 19. He returned to Bonnyville when he was 20 and bought his own house. [ 8 ] Mr. Soloway has one child, a son, who is 3 years old and lives with his mother in northern Alberta. He has frequent contact with his son and contributes to his financial support. [ 9 ] Mr.

Soloway is presently in a common law relationship and is engaged to be married to his partner. She is presently about 4 months pregnant. [ 10 ] Mr. Soloway has his Grade 12 General Diploma and completed 1 year training as a pipefitter at NAIT. He worked as a pipefitter for several years. He presently works with his father. Together they operate a carpentry/construction business. He advised the author of the pre-sentence report that he has a monthly average net income of $20,000 from his work. He has further income from the rental of the house he owns. [ 11 ] Mr. Soloway has a significant criminal record.

He was convicted of offences on 4 occasions in Youth Court prior to his becoming an adult. In the 8 years since he became an adult he has been convicted of 12 offences on 6 occasions. The only previous drug conviction was for trafficking in marihuana when he was 15 years old. His adult convictions include 7 failures to comply with conditions of an undertaking or recognizance, 1 uttering threats, 1 careless storage of a firearm, 1 dangerous operation of a motor vehicle, 1 causing a disturbance, and 1 obstructing a peace officer. As an adult he has been sentenced to a term of incarceration twice.

On both occasions he was sentenced to time in custody. This was 16 days the first time, and 60 days the second time.

[12] Mr. Soloway spent 4 months in pre-trial custody in relation to these offences. Positions of Counsel [13] Mr. Smith, for the Crown, submits that a fit sentence for Mr. Soloway would be between 42 to 48 months globally. Mr.Smith submits that on the possession of cocaine for trafficking count, a sentence of between 42 and 45 months is fit. For the possessionof marihuana for trafficking count, a sentence of 12 months, concurrent with the sentence on Count 1, is fit.

For each of the 3 breaches ofrecognizance, a sentence of 90 days served concurrently but consecutive to the sentences on Counts 1 and 2, is fit. [14] Mr. Honey, for the Defence, submits that the appropriate disposition is a conditional sentence. Analysis [15] Mr. Soloway is Aboriginal.

Section 718.2(

e) requires the Court to take the following principle into account whendetermining a fit sentence: All available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders withparticular attention to the circumstances of aboriginal offenders. [16] In R. v. Gladue, (SCC), [1999] 1 S.C.R. 688, the Supreme Court held that this provision requiressentencing judges to use a different method of analysis in determining a fit sentence for aboriginal offenders. When sentencing anaboriginal offender, a judge must consider (

a) the unique systemic or background factors which may have played a

part in bringing theparticular aboriginal offender before the Courts; and (

b) the types of sentencing procedures and sanctions which may be appropriate inthe circumstances for the offender because of his or her particular aboriginal heritage or connection. [17] In R. v. Ipeelee, 2012 SCC 13, the Supreme Court makes it clear that this principle applies even to serious offences whereincarceration is necessary. It applies in every case involving an aboriginal offender. [18] The first consideration identified in Gladue relates to moral blameworthiness.

In Ipeelee the Court said at para 73: First, systemic and background factors may bear on the culpability of the offender, to the extent that they shed light on his or her level ofmoral blameworthiness. [19] Nothing in the systemic and background factors identified in either the pre-sentence report or the Gladue report prepared inrespect of Mr. Soloway justifies the conclusion that the level of Mr. Soloway’s moral blameworthiness for these crimes is any differentfor Mr. Soloway than it would be for any other offender.

Further, I see no justification for inferring that broad systemic and backgroundfactors affecting Aboriginal people generally, of which factors I take judicial notice, have any significance in this case. [20] Mr. Soloway has been raised and nurtured by competent, loving and supportive parents who were stable and productivemembers of their community. Mr. Soloway was not raised in a context of poverty, substance abuse or violence. [21] Further the offence Mr. Soloway has committed is one of greed. It is not a crime of violence. There is no evidence that Mr.Soloway was supporting an addiction.

His crime is one that preys on and encourages the development of personally destructiveaddictions in weak members of the community. His moral blameworthiness is high. It is not diminished by any aspect of the fact that heis Aboriginal.

[ 22 ] The writer of the Gladue report submitted in this case concluded and recommended, on what I consider to be very slim foundation, that Mr. Soloway should not be sentenced to a term of imprisonment. The slim foundation consisted of suggestions that because Mr. Soloway was not raised in an aboriginal community, was not as in touch with his cultural and ancestral heritage as he might be, was the son of a mother who had been a foster child, and was the great grandson of great grandparents who had attended residential school, he was less morally blameworthy for these crimes than would otherwise be the case.

As noted I do not accept that conclusion. I observe that the Gladue report in this case appeared to me to be more of a piece of advocacy on Mr. Soloway ’ s behalf than an objective statement of facts. [ 23 ] The guideline starting point sentence suggested by the Alberta Court of Appeal for an accused convicted of commercial trafficking of cocaine on more than a minimal scale (or possession of cocaine for the purpose of such trafficking) is 3 years. I consider that the appropriate starting point in this case. Mr. Smith accepts that Mr. Soloway ’ s family support and work background mitigate.

They do not however mitigate in the sense that they reduce the moral blameworthiness of Mr. Soloway ’ s criminal actions. Mr. Soloway ’ s criminal record aggravates. [ 24 ] In my view there is no sanction other than imprisonment that is reasonable in the present circumstances. I have reached that conclusion after giving particular attention to Mr. Soloway ’ s circumstances as an aboriginal offender. As a fit sentence is in excess of 2 years imprisonment, Mr. Soloway would not be eligible for a conditional sentence even if the other preconditions for such a disposition were present, which they are not.

A suspended sentence would not give appropriate recognition of the priority need that the sentence denounce Mr. Soloway ’ s conduct and deter him and others from engaging in such conduct in the future. [ 25 ] Before taking into account Mr. Soloway ’ s pre-trial custody, I conclude that a fit sentence is 3 years and 6 months for the first count of the indictment - the possession of cocaine for the purposes of trafficking.

For the remaining 4 counts, I conclude that a fit sentence is 6 months on each of the 4 counts, to be served concurrently with the sentence on Count 1. [ 26 ] After giving credit for the 4 months pre-trial custody, I sentence Mr. Soloway to 3 years 2 months on Count 1, and 6 months on each of Counts 2, 3, 4, and 5. The 6-month sentences are to be served concurrently with the 38-month sentence on Count 1. [ 27 ] There will be a lifetime fire arms prohibition under s. 109 of the Criminal Code . There will be an order requiring Mr. Soloway to provide a DNA sample.

The items seized in connection with this prosecution will be forfeited to the Crown. There will be a Victim Fine Surcharge of $100. Heard on the 16 th day of August 2012. Dated at the City of St. Paul, Alberta this 16 th day of August 2012. Brian R. Burrows J.C.Q.B.A. Appearances:

Donald R. Smith for the Crown Gordon D. Honey for the Accused