R. v. Kumar, 2013 BCSC 2171

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Kumar, 2013 BCSC 2171 Date: 20131127 Docket: 76414-3 Registry: New Westminster Regina v. Sanjeel Kumar Before: The Honourable Mr. Justice S.R. Romilly Reasons for Sentence Counsel for the Crown: Cameron Fast Counsel for the Defence: John S. Stowe Place and Date of Hearing: New Westminster, B.C. November 22, 2013 Place and Date of Judgment: New Westminster, B.C. November 27, 2013 NATURE OF THE CHARGE [ 1 ] The accused is charged as follows: 1.

Count 1: On or about the 10th day of June, 2011, at or near the City of Surrey, in the Province of British Columbia, did unlawfully traffic in a controlled substance, to wit: Cocaine, contrary to s. 5(1) of the Controlled Drugs and Substances Act . 2. Count 2: On or about the 10th day of June, 2011, at or near the City of Surrey, in the Province of British Columbia, did unlawfully possess controlled substances, to wit: Cocaine and Heroin, for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act . [ 2 ] The accused entered a guilty plea to both charges.

The matter was adjourned for the preparation of a pre-sentence report. [ 3 ] For the reasons detailed below, the accused is sentenced to six months on Count 1. [ 4 ] On Count 2, the accused is also sentenced to a period of six months. The sentence on this count will be served concurrent to the sentence on Count 1.

CIRCUMSTANCES OF THE OFFENCE [ 5 ] The offences were the result of a “dial-a-dope” operation in which an undercover police officer purchased $80 worth of cocaine from the accused. [ 6 ] Once the accused was apprehended, a search of his person revealed 1.8 grams of heroin in his socks, divided into 18 packets of 0.1 grams each. A further $440 worth of cocaine was found on him as well. [ 7 ] During the search, the accused’s cell phone rang three times.

Police officers intercepted these calls and determined them to be from other “dial-a-dope” customers requesting to purchase drugs. [ 8 ] It is important to note that these offences occurred while the accused was on probation for a possession offence from March 2011. POSITIONS OF THE CROWN AND DEFENCE [ 9 ] The Crown submits that the accused should be sentenced to nine months’ incarceration on each count with the sentences to run concurrently. In support of that position, the Crown has drawn my attention to the following authorities: R. v. Ali , 2010 BCCA 4 ; R. v. Tran , 2007 BCCA 613 ; R. v.

Le , 2002 BCCA 98 ; R. v. Ahmed , 2001 BCCA 504 ; R. v. Nguyen & Bui , 2003 BCCA 686 ; R. v. Alibhai , 2008 BCSC 1549 ; and R. v. Franklin , 2001 BCSC 706 .

[10] Defence counsel submits that the accused should be sentenced to a conditional sentence of 12 months under s. 742.1 of theCriminal Code. He submits that the first three months should include terms for the full house arrest of the accused, the next threemonths should include a curfew, and the remainder should include the usual statutory conditions. [11] In support of his submissions, defence counsel drew my attention to the following authorities: R. v. Trinh, [1999] B.C.J.No. 3222 (S.C.); R. v. Kozma, 2000 BCCA 440; R. v. Edgar, 2000 BCCA 521; R. v. Wong, 2001 BCCA 491; R. v. Clough, 2001 BCCA613; R. v.

Poole, 2001 BCCA 689; R. v. Sidhu, 2007 BCSC 876; R. v. Schneider, 2007 BCCA 560; R. v. Cheung, 2008 BCSC 1834; R. v.Aabedi, 2010 BCSC 1095; R. v. Gill, 2013 BCCA 320; and R. v. Amhaz, 2013 BCCA 348. CIRCUMSTANCES OF THE OFFENDER [12] The accused is a 22-year-old man who was born in Fiji. He came to Canada at the age of four. He has a juvenile record.

OnMarch 8, 2011, approximately three months before these offences, the accused was placed on a probation order for possession of acontrolled substance under s. 4(1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 [CDSA]. [13] In his pre-sentence report, the probation officer notes: Sanjeel received his first Court disposition at the age of 17. He has appeared before the Court to be sentenced three times in the past, forthree different charges. He has received community supervision as a disposition each time. In addition, Sanjeel has been subject to twopeace bonds, in 2008 and then again 2012.

The 2012 peace bond was due to an incident when Sanjeel uttered threats towards a policeofficer. Regarding his previous assault conviction, Sanjeel informs he got into a fight at school with another student who was beingdisrespectful to Sanjeel’s mother. Regarding his possession conviction, Sanjeel states he was in a vehicle that was stopped by the policeand took responsibility for a bag of marijuana that belonged to his friend. Upon discussing Sanjeel’s prior court history, it would appearas though he engages in blaming or denying behaviour to somewhat justify his actions.

Was the accused addicted to drugs at the time of the offences? [14] Where a drug addict commits a drug-related offence, the fact that he or she is a drug addict may be a mitigating factor insentencing: R. v. Stephenson (1957), (BC CA), 117 C.C.C. 292 at 295 (B.C.C.A.); R. v. Lebovitch (1979), (QC CA), 48 C.C.C. (2d) 539 at 542 (Que. C.A.); and R. v. Preston (1990), (BC CA), 47 B.C.L.R. (2d) 273(C.A.). [15] In his pre-sentence report to the Court, the probation officer writes: Sanjeel explains that he first tried smoking marijuana at the age of 18 with friends.

He continued to use it on a frequent basis from thatpoint forward, using it several times per week. At the time of the offence currently before the Court, Sanjeel states he was smokingmarijuana frequently as it assisted with his stress management and falling asleep. He informs he has significantly cut down on hismarijuana use, reportedly last using it in July 2013. Sanjeel states he was introduced to cocaine at the age of 19, from one of the men who would become his co-accused in this case. Heinforms he was addicted from his first use, and continued to use it daily for a period of roughly six months.

He states he was purchasing$40 worth of cocaine per day, but quickly ran out of money to pay for the substance, so he became involved in drug dealing to support hisown habit. Sanjeel reports the last time he used was the day he was arrested for the current offences. He denies ever using any other harddrugs. Sanjeel informs he has never attended any treatment or counselling regarding his drugs or alcohol use and denies that anyone has everexpressed concern about the same. He informs he feels as though he is capable of fighting his addiction on his own.

He deniesexperiencing any triggers or cravings since he last used cocaine. [16] In his submissions to the Court, defence counsel maintained that, at the time of the offences, the accused was indeed an addictand that he was merely selling drugs to support his habit. [17] However, evidence from the Crown’s expert witness, Cpl. Rob Jodrey, cast considerable doubt on the suggestion that theaccused was addicted to cocaine at the time he committed the offences. In his report to the Court, Cpl.

Jodrey wrote: Rates of Consumption – crack cocaine Based upon my experience as trained drug investigator and having spoken with hundreds of drug addicts over my service, I havedetermined that rates of consumption for a user of cocaine (in this case, crack cocaine) may vary dependent upon the user’s frequency ofuse and addiction level. For a casual user of crack cocaine (such as weekends only), the rates of consumption may be limited to once or twice a day in order toachieve the desired effect or high. For a crack cocaine user, this high may last for 20 minutes to an hour.

The amount of crack cocaineconsumed per ingestion session would likely be 1/10 to 1/4 gram of crack. When calculating this crack cocaine use at a monetary rate, the casual user will be able to support their habit with $20-$40 per day or$20-$100 per week. In relation to a moderate user of crack cocaine, the consumption rates will increase and likely be at a daily frequency. When calculated ata monetary rate, the moderate user will consume $100-$500 per week. Upon speaking with a heavy user of crack cocaine, their rates of consumption are continual throughout the day, every day. I have learned

that a heavy crack user will consume between $150-$300 per day worth of crack cocaine. At this rate, the user is consuming $1,000-$2,000 worth of crack cocaine per week. [18] I accept Cpl. Jodrey’s evidence. By the accused’s own admission, he purchased $40 worth of cocaine a day. From the evidencebefore me, I find that the accused was a casual user of cocaine and not a drug addict at the time of these offences. [19] In arriving at this conclusion, I have reviewed ss. 723 and 724 of the Criminal Code.

A trial judge is entitled to rely on hearsayevidence to make findings of fact on sentencing, even if the facts are disputed: see s. 723(5). Under s. 724(3)(b), the party relying on thedisputed fact carries the onus of proving it. Before the Crown is put to the proof of facts on a sentencing hearing, the fact must be clearlyand unequivocally disputed: R. v. Ford, 2010 BCCA 105 at para. 59. [20] In addition, I have instructed myself on the law as enunciated in R. v. Tran, 2007 BCCA 405.

In Tran, the Court of Appealcommented on an error whereby the trial judge held that the Crown bore the burden of establishing any proposition disputed by theaccused. In that case, the dispute was whether or not Mr. Tran’s family was dependent upon him for support. The court referred to s. 724of the Code and its requirement that the party wishing to rely on the disputed fact has the burden of proving it. The Court of Appeal heldthat since Mr.

Tran wished to rely on the fact of having dependents as a mitigating circumstance, he bore the burden of proving thedependence when it became disputed. [21] In the case at bar, the accused bears the burden of proving that he was a drug addict at the time of the commission of theoffences to which he has pleaded guilty. In my view, there can be no question that he has clearly failed to satisfy that onus. PRINCIPLES OF SENTENCING [22] In R. v.

Knott, 2012 SCC 42 at para. 47, the Supreme Court of Canada held that “the purpose and principles of sentencing setout in the Criminal Code are meant to take into account the correctional imperative of sentence individualization.” [23] In R. v. Berner, 2013 BCCA 188 at para. 9, the British Columbia Court of Appeal recently indicated that the “purpose ofsentencing is to protect the public through sanctions a court imposes upon a person found guilty of committing an offence. Each codifiedobjective of sentencing is designed to further the protection of the community.” [24] In R. v.

Nasogaluak, 2010 SCC 6, the Supreme Court of Canada considered the principles of sentencing set out in the CriminalCode and indicated that any sentence imposed, regardless of the weight given to the factors set out in ss. 718.1 to 718.2, “must respectthe fundamental principle of proportionality”. The Court stated at para. 40: [40] The objectives of sentencing are given sharper focus in s. 718.1, which mandates that a sentence be “proportionate to the gravityof the offence and the degree of responsibility of the offender”.

Thus, whatever weight a judge may wish to accord to the objectiveslisted above, the resulting sentence must respect the fundamental principle of proportionality.

Section 718.2 provides a non-exhaustivelist of secondary sentencing principles, including the consideration of aggravating and mitigating circumstances, the principles of parityand totality, and the instruction to consider “all available sanctions other than imprisonment that are reasonable in the circumstances”,with particular attention paid to the circumstances of aboriginal offenders. [25] The Supreme Court of Canada went on to consider the concept of “ranges of sentences” and indicated, at para. 44, that theyconstitute “guidelines rather than hard and fast rules”: [44] The wide discretion granted to sentencing judges has limits.

It is fettered in part by the case law that has set down, in somecircumstances, general ranges of sentences for particular offences, to encourage greater consistency between sentencing decisions inaccordance with the principle of parity enshrined in the Code. But it must be remembered that, while courts should pay heed to theseranges, they are guidelines rather than hard and fast rules. A judge can order a sentence outside that range as long as it is in accordancewith the principles and objectives of sentencing. Thus, a sentence falling outside the regular range of appropriate sentences is notnecessarily unfit.

Regard must be had to all the circumstances of the offence and the offender, and to the needs of the community inwhich the offence occurred. Statutory Framework [26] Section 5(2) of the CDSA states that no “person shall, for the purpose of trafficking, possess a substance included in

Schedule I,II, III or IV.” Cocaine is a substance listed in

Schedule I and thus s. 5(3)(

a) of the CDSA applies. It states:

(3) Every person who contravenes subsection (1) or (2) (

a) subject to paragraph (a.1), if the subject matter of the offence is a substance included in

Schedule I or II, is guilty of an indictableoffence and liable to imprisonment for life… [27] Section 10(1) of the CDSA sets out the following fundamental principles of sentencing applicable to offences against itsprovisions:

(1) Without restricting the generality of the Criminal Code, the fundamental purpose of any sentence for an offence under this Partis to contribute to the respect for the law and the maintenance of a just, peaceful and safe society while encouraging rehabilitation, andtreatment in appropriate circumstances, of offenders and acknowledging the harm done to victims and to the community. [28] In Pushpanathan v. Canada (Minister of Citizenship and Immigration), (SCC), [1998] 1 S.C.R. 982 atpara. 89, Mr.

Justice Cory, although dissenting, commented generally on drugs, crime, as well as their societal and economic effects. Hedescribed the “costs to society of drug abuse and trafficking in illicit drugs” as being “at least significant if not staggering.” He indicated

that there “is an established connection between heavy drug use and crimes motivated by the need to finance a drug habit” (para. 85).Finally, at para. 91, Mr. Justice Cory noted: [91] These significant and often tragic consequences serve to emphasize that the harm caused by trafficking in illicit drugs is veryproperly a matter of grave concern in Canada, as it is throughout the world. [29] In R. v. Martin, (NL PC), [2010] N.J. No. 332 (P.C.), Gorman P.C.J. discussed the nature of sentencing foran offence under s. 5(2) of the CDSA. At paras. 29-30, he stated: 29 In R. v. Butt, 2010 NSCA 56 , [2010] N.S.J.

No. 346 (C.A.), the Court of Appeal, at paragraph 43, noted that “cocainehas consistently been recognized by this Court as a deadly and devastating drug that ravages lives. Involvement in the cocaine trade, atany level, attracts substantial penalties ... It is significant that the CDSA classifies cocaine as one of the drugs for which trafficking canattract a life sentence.” However, in R. v. L.M. (2008), 2008 SCC 31 , 231 C.C.C. (3d) 310, the Supreme Court of Canada, inconsidering the imposition of maximum sentences indicated that they had become “almost theoretical” (at paragraph 18). 30 In R. v.

Conyers, [2010] A.J. No. 940 (Q.B.), it was noted that the “societal damage caused by [cocaine] is notorious.” [30] He went on to cite the above quoted passage from Pushpanathan. At para. 32, Gorman P.C.J. noted that, where an individual isinvolved in a trafficking operation purely for financial gain (as opposed to being involved to serve an addiction), for such individuals“the Court must place its greatest emphasis on general deterrence.” [31] At para. 33, Gorman P.C.J. further noted that: 33 The drug trade can be a lucrative business ….

Short periods of imprisonment will not deter involvement in it as the financialrewards which can be gathered are too great …. Deterrence is necessary because trafficking “in methamphetamine and trafficking incocaine, the offences involved in this appeal, are serious criminal offences. The pernicious effects of these illicit drugs directly on theirusers and indirectly on society in general are well known” (see R. v. Punko, 2010 BCCA 365 , [2010] B.C.J. No. 1551 (C.A.)).The connection which [exists] between drug addiction and violent criminal behaviour is well documented. In R. v.

Rebello, 2010 ONCJ43 , it was suggested that every “jurist in Canada is well aware of the physical damage cocaine addiction causes and the often-fatal gun violence that is associated with this drug.” As examples, see R. v. Maroti, [2010] M.J. No. 172 (C.A.) and R. v. Keepness, 2010SKCA 76 , [2010] S.J. No. 326 (C.A.). [32] To balance the emphasis on general and individual deterrence, Gorman P.C.J. also stressed the need for proportionality.

Atpara. 38, he referred to the above quoted passage from para. 40 of the Supreme Court of Canada’s decision in Nasogaluak. “Dial-A-Dope” Operations [33] In Franklin, Henderson J. commented on the seriousness of “dial-a-dope” operations at paras. 17-21: [17] Some explanation of Dial-A-Dope operations is relevant. [18] Traditionally, drugs were disseminated at the street level by purchasers going to certain areas of town and taking the initiative toseek out those who sold the drugs on street corners and in back alleys. This, to some extent, constrained the dissemination of theproduct.

A Dial-A-Dope operation is different. Anyone, anywhere in the Lower Mainland, can place a telephone call to a vendor ofnarcotics and, after establishing his or her credibility by satisfying the vendor that he or she is not an undercover officer, make anarrangement to have the drugs delivered to wherever the purchaser happens to be.

Typically, the drugs are delivered within fifteen ortwenty minutes and handed over in exchange for cash. [19] This has several significant results. [20] First, it makes these drugs, and I refer primarily to cocaine and heroin, more readily accessible throughout the Lower Mainlandthan they have been in the past. It makes them accessible with less effort on the part of the purchasers.

Purchasers, and here I think ofadolescents, who might feel intimidated at the thought of seeking out a drug dealer in the recesses of the Main and Hastings area maynevertheless, in the relative comfort and safety of suburban locations, easily purchase cocaine and heroin as long as Dial-A-Dopeoperators are willing to oblige them. [21] I infer also that Dial-A-Dope operations are profitable.

There is no evidence before me as to how much a typical Dial-A-Dopedealer makes in the course of a day or a week but, having sat as the trial judge on a number of these cases, I am aware that it is aprofitable way to make easy money. [34] These observations were agreed with and adopted by the British Columbia Court of Appeal in R. v. Ali, 2010 BCCA 4 atpara. 11. [35] In R. v. Martinez, 2001 BCCA 712, the Court of Appeal discussed the range of sentences for “dial-a-dope” offences. Sentencestypically range from the low end of six months (R. v. Vu (1998), (BC CA), 103 B.C.A.C. 252 (C.A.); R. v. Nguyen,[1998] B.C.J.

No. 1191 (S.C.)) to as high as 12 months (R. v. Bains, [1998] B.C.J. No. 809 (S.C.); R. v. Farnsworth, 2000 BCCA 678).In Farnsworth, the prison term was reduced from 14 months to 10 months, but the offender had been in prison for a couple of months bythe time he was sentenced. Higher sentences have also been imposed: see R. v. Cook, 2001 BCCA 225; R. v. Vu (1996), (BC CA), 81 B.C.A.C. 267 (C.A.); and R. v. Diep, 1999 BCCA 721. In R. v. Duong, 2003 BCCA 120, the Court of Appeal uphelda six-month sentence for a “dial-a-dope” scheme. [36] Other notable cases include R. v. Nguyen & Bui, 2003 BCCA 686; and R. v.

Reddy, 2002 BCPC 146. The aggravating featuresof a “dial-a-dope” operation were the subject of comment in: R. v. Le, 2002 BCCA 98; R. v. Tran, 2007 BCCA 405; R. v. Rastgoei, 2008

BCCA 242; and R. v. Gill, 2013 BCCA 320. Mitigating Factors [37] The only mitigating factor is that the accused entered a guilty plea to these offences. [38] A guilty plea may be taken into account by the court in mitigation of sentence: R. v. DeHaan (1967), 3 All E.R. 618 (C.A.); R.v. Saulnier (1987), (BC CA), 21 B.C.L.R. (2d) 232 (C.A.); R. v. Sandercock (1985), 1985 ABCA 218 , 22C.C.C. (3d) 79 at 86 (Alta. C.A.); R. v. R.T. (1992), (ON CA), 17 C.R. (4th) 247 (Ont. C.A.); MacMillan Bloedel Ltd.v. Brown (1994), (BC CA), 88 C.C.C. (3d) 148 (B.C.C.A.); R. v. Patterson (5 March 1998), CA C28919 (Ont. C.A.);R. v.

Pitkeathly (1994), (ON CA), 29 C.R. (4th) 182 (Ont. C.A.); and R. v. Duong, 2006 BCCA 325. [39] In R. v. Hoang (27 March 2002), CRIMJ(F) 5252/01 (Ont. S.C.J.), after a lengthy review of cases dealing with a guilty plea as amitigating factor in sentencing, Hill J. wrote at para. 110: [110] The guilty plea on the part of each accused, although not tendered until two years after arrest, is nevertheless a substantialmitigating factor. [40] In R. v. Ticne, 2009 BCCA 191, Frankel J.A., in dissent, commented: [22] … As Mr. Justice Watson stated in R. v.

Lake, 2008 ABCA 204, 429 A.R. 398, “its significance as [a mitigating] factor isvariable”: para. 12. [23] In MacMillan Bloedel v. Brown (1994), (BC CA), 88 C.C.C. (3d) 148 (B.C.C.A.), Chief Justice McEachern,in recognizing that a guilty plea will generally be deserving of some credit, noted that such a plea not only obviates the need for a trial,but also saves the public the expense associated with taking a matter to trial: at 165, 166. It has also been recognized that a guilty pleacan be indicative of remorse, and of the fact that the offender takes responsibility for his or her actions. Further, as Mr.

Justice Hall notedin R. v. Randhawa, 2007 BCCA 598, 249 B.C.A.C. 87, there are certain types of cases in which an early guilty plea will spare victimsand family members from the uncertainty as to the outcome of a trial, and the trauma of having to testify and relive horrible events: para.7; see also R. v. Graham, 2008 BCCA 489 at para. 5. Aggravating Factors [41] The aggravating factors in this case are: (1) the accused was on probation at the time of the offences; and (2) the accused’smotivation for committing the offences included greed and financial gain.

As I have found, he was not an addict at the time hecommitted these offences. ANALYSIS [42] As the offences are not considered “serious personal injury” offences, a conditional sentence order under s. 742.1 of the Codewas, at the time the offences were committed, a possibility for the accused. [43] In R. v. Ly (1997), (ON CA), 114 C.C.C. (3d) 279 at 286 (Ont. C.A.), the Court stated that conditionalsentences “will be looked to only rarely in cases of drug trafficking”. Likewise, in R. v.

Sawatsky, 2007 ABCA 353 at para. 4, the Courtstated: We agree with the Crown that those who organize and manage “dial-a-dope” schemes to traffic in drugs, such as cocaine,methamphetamine and ecstasy, should usually be sentenced to terms of actual incarceration. [44] In R. v. Brown (1997), (NL CA), 119 C.C.C. (3d) 147 at 155 (Nfld.

C.A.), Marshall J.A. (Green J.A.concurring) observed that: It is true that judicial reaction to cocaine trafficking has been stern, rarely failing to result in prison terms. [45] The crimes to which the accused pleaded guilty in this case were, at the time of the offences, eligible for the imposition of aconditional sentence order. However, some cases in which conditional sentences have been found on appeal to be demonstrably unfit forfailure to give sufficient weight to the relevant aggravating factors are: R. v. Vu (1998), (BC CA), 103 B.C.A.C. 252(C.A.); R. v. Hill, 1999 NSCA 118; R. v. Migalski, [1999] O.J.

No. 1235 (C.A.); R. v. Prudencio, [2000] O.J. No. 4638 (C.A.); and R. v.Ahmed, 2001 BCCA 504. [46] In this case, there is insufficient evidence in support of an assertion that the accused has addiction problems or that there is aneed for treatment. The accused’s involvement in the offences was purely for financial gain. In my view, this is an aggravating factor.For such individuals, courts must place primary emphasis on general deterrence. I am of the view that a conditional sentence order wouldnot be appropriate in the circumstances of this case. [47] In R. v.

McIntyre, 2012 SKCA 111 at paras. 28-29, the Saskatchewan Court of Appeal noted that: [28] … the fitness of a sentence for a trafficking offence will depend on a variety of factors. One of those factors is the motivation forthe offence. … [29] It is important to remember, however, that an offender’s motivation for trafficking is only one of the factors that bears on the

determination of an appropriate sentence. Other considerations include matters such as the sophistication and significance of the offence and the accused’s place in the trafficking scheme, the type and quantity of the drug involved, the need for and the utility of the deterrence which will flow from the sentence imposed, the offender’s record, and the offender's age and personal circumstances. [ 48 ] Recently, the British Columbia Court of Appeal discussed sentencing for offenders charged with “dial-a-dope” trafficking in R. v. Gill , 2013 BCCA 320 .

At paras. 22-26, Neilson J.A., writing for the Court, stated the following: [22] It is well known that dial-a-dope operations enable a pervasive and rapid dissemination of illicit narcotics that wreak destruction to both the individuals who use them and to our community. The proliferation of these operations has significantly increased accessibility to these drugs, and their harmful effects. As a result, the courts have routinely recognized that the primary objectives in imposing sentences for trafficking in this manner must be deterrence and denunciation. [23] In [ R. v.

Proulx , 2000 SCC 5 ], the Court was clear that a conditional sentence may satisfy those objectives. Nevertheless, as the problems and tragedies associated with narcotic use have multiplied, this Court has repeatedly indicated that a fit sentence for a dial-a- dope trafficker will generally be a custodial term of six to 12 months. In R. v.

Tran , 2007 BCCA 613 , a case in which the appellant argued the trial judge wrongly imposed a sentence of 9 months’ incarceration instead of a conditional sentence for a conviction arising from a dial-a-dope scenario, this Court captured the approach it has generally taken in such cases at para. 6: … There is a line, fairly long now, of cases from this Court in which, absent an out of the ordinary circumstance, a custodial sentence has been found to be a fit sentence on a conviction of trafficking in a hard drug in what is referred to as a “dial-a-dope” scheme, where the offender is not an addict and has participated simply for profit. [24] Subsequent decisions of this Court dealing with similar circumstances reveal that approach has not changed: [citations omitted].

These cases generally support the view that, in the absence of special circumstances, a dial-a-dope trafficker should expect a custodial sentence. [25] Mr. Gill is not a first offender. He has an earlier conviction for trafficking and, as the sentencing judge recognized, the conditional sentence he received failed to deter him. His motive for selling cocaine was purely profit. Further, this was not a one-off incident. Mr. Gill made it clear to the undercover officer he was willing to continue to provide cocaine to him in the future. [26] I am satisfied the circumstances I have outlined support the view Mr.

Gill could not qualify for a conditional sentence order as he did not meet the third and fourth criteria in s. 742.1. Moreover, I am not persuaded there is anything out of the ordinary in his circumstances that would justify a departure from the usual range of sentences for dial-a-dope traffickers. His custodial sentence of six months sits at the low end of that range and, in my view, was a fit sentence. None of the alleged errors put forward by Mr.

Gill justify interference by this Court in that sentence. [ 49 ] I find the above passage from Gill to be relevant to the case before me and I am in total agreement with those remarks. I am also in agreement with the comments of Gorman P.C.J. in the Martin decision. [ 50 ] I have reviewed the law as enunciated above and applied the legal principles to the facts of this case. I have considered the accused’s guilty plea as a mitigating factor.

I have considered the fact that the accused’s involvement was solely for financial gain and that he was on probation at the time he committed these offences as aggravating factors. I have also considered the sophistication and significance of the offence, the accused’s place in the trafficking scheme, and the type and quantity of the drugs involved. I have further considered the need for and utility of the deterrence which will flow from the sentence imposed, the offender’s record, as well as the offender’s age and personal circumstances.

I also acknowledge that although all drug-related offences are serious and worthy of significant deterrence and denunciation, in this case, the offences committed by the accused should not be characterized as the most severe in nature. [ 51 ] I am satisfied that the accused should be sentenced on Count 1 to a period of six months’ imprisonment and on Count 2 to a period of six months’ imprisonment. The sentence on Count 2 will be served concurrently with the sentence on Count 1. [ 52 ] In addition, there will be the following ancillary orders: 1. an order pursuant to s. 109(1) (

c) of the Criminal Code prohibiting the accused from being in possession of firearms for a period of ten years following the accused’s release from imprisonment and a lifetime prohibition for restricted/prohibited firearms; 2. an order pursuant to s. 487.151 that the accused provide a sample of his DNA; 3. the items seized by the police from the accused are forfeited to the Crown; and 4. the victim surcharge under s. 737 of the Criminal Code is waived. “Romilly J.”