R. v. Dormevil, 2011 ONCJ 323

Citation: R. v. Dormevil , 2011 ONCJ 323 ONTARIO COURT OF JUSTICE Old City Hall - Toronto BETWEEN: HER MAJESTY THE QUEEN AND PHILIPPE DORMEVIL ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) E. O’Grady For the Crown A. Herscovitch For the Defendant Heard: February 1 and April 28, 2011 REASONS for SENTENCE MELVYN GREEN J.: A. INTRODUCTION [ 1 ] Philippe Dormevil has pled guilty to seven drug-related offences, including trafficking in cocaine and the constructive trafficking of a number of other drugs. Mr. Dormevil (hereafter, the offender) is a young man of generally positive character and without criminal antecedents.

He works and attends university in Montreal. He has also committed a number of serious criminal offences. [ 2 ] Considering all these factors, Crown counsel says the appropriate sentence is one within a range that tops out at two years less one day of incarceration – the maximum reformatory term that, she says, is the sentence called for in the circumstances of this case.

Defence counsel takes no great issue with the duration of the proposed term, but argues that the goals of sentencing can be achieved through a conditional sentence rather than incarceration – that is, a sentence of imprisonment that is served in the community by way of strict terms and conditions rather than in a carceral facility. Although not unprecedented, a conditional sentence is an unusual disposition for offences of the genus presented here.

B. EVIDENCE (

a) Introduction [ 3 ] The offender pled guilty to two counts of trafficking in cocaine. The first offence occurred on September 3rd and the second on September 24 th , 2009. He has also pled guilty to one count of trafficking in “OxyContin” on October 19, 2009 and to possession for the purpose of trafficking, on the same date, of OxyContin, hydromorphone, amphetamine and psilocybin. Following his arrest on October 19, 2009, he was detained in custody for 19 days before being released on bail. [ 4 ] A chronology and brief description of the offender’s seven offences follow. (

b) The Offences [ 5 ] The offences in question occurred on three dates that span a six or seven week period. The defendant responded to a Craigslist ad posted by an undercover officer posing as a drug buyer. They two met on September 3, 2009, at which time the offender sold the officer 4.1 grams of cocaine and 4.0 grams of marihuana for a total of $300. A second sale occurred on September 24, 2009 when the offender sold the same officer 3.8 grams of cocaine for $250.

A few weeks later, on October 19 th , the offender sold the same officer 9 pills (1.6 grams) of OxyContin (oxycodone), 13.5 grams (approximately a half-ounce) of marihuana, 2.0 grams of MDMA (“Ecstasy”) and two tabs of LSD. The offender was then arrested. [ 6 ] Search warrants were subsequently executed on the offender’s car and at an apartment he shared with others.

A knapsack located in the car contained 23.8 grams of marihuana, a trace of hashish (0.1 grams), 6.5 grams of MDMA, 33.7 grams of psilocybin, 13.6 grams of OxyContin (approximately 60 pills), 49.9 grams of hydromorphone, 5.3 grams of “Adderall” (amphetamine) and 0.8 grams of “Dexedrine” (amphetamine). The offender accepts responsibility for the drugs found in his car. He does not accept responsibility for further quantities of illicit drugs located during the police search of the apartment. He does, however, agree that some $24,970 located in that apartment was, in effect, the proceeds of his criminal endeavours.

With the offender’s consent, these monies are ordered forfeited to the Crown. (

c) The Offender [ 7 ] The offender was 24 and single at the time of his arrest. He was born and raised in an underprivileged area of Montreal to parents of Haitian origin. His parents did their best to provide for the offender and his brothers. Their circumstances were very modest but they instilled the virtues of hard work and education. The offender’s father was absent for months at a time as he travelled between Montreal and Haiti. When he was about eight, the offender learned that his father maintained a second family in Haiti.

This deeply impacted the offender, as it did his mother to whom he was and remains devoted. [ 8 ] Many of the offender’s peers dropped out of school early and adopted criminal lifestyles. The offender resisted these negative influences. He was a good student and competitive athlete as a youth. He also worked at a number of part-time jobs to help support his mother.

He was introduced to alcohol and marihuana in his mid-teens, but has never been dependent on them or any other drug. [ 9 ] The offender attended community college in Quebec where he pursued courses in communications and social sciences, gravitating to legal studies in the hope of ameliorating the social and racial injustices he witnessed in his own neighbourhood. He completed a program on the commercial and political aspects of the music industry at L’Institut Trebas in Montreal. He then migrated to Ontario in search of better employment opportunities, securing a position in the field of text support.

He saved over ten thousand dollars towards a down payment on a house for his parents. His plan was that the house would go to his mother should his parents separate. However, he was laid off and had difficulty finding a new position. During this period of unemployment and drift he became acquainted with a man in Toronto with whom he began to traffic in various drugs. This enterprise, he concedes, was solely commercial, the prospect of financial enrichment overwhelming his ordinary moral ballast. [ 10 ] The offender has shamed himself before his family and friends. He presents as genuinely remorseful.

He spent 19 days in pre- sentence custody before being released on a recognizance that compelled him to live under very strict “house arrest” conditions for almost 15 months. These conditions were finally relaxed in early February 2011 so as to permit him leave his house for work, school and organized volunteerism. There is no suggestion that he has done other than comply with the terms of his bail. [ 11 ] Since the relaxation of his bail terms, the offender has worked part-time as an administrative assistant at the Montreal General Hospital and thereby contributes to his family’s meagre income.

Concurrently, he is pursuing a Bachelor of Arts degree in the Department of Sociology at Concordia University where he is enrolled in a program in “Law and Society”. He also applied to and has been accepted and trained as a volunteer at a downtown Montreal social service agency, “Face à Face Listening and Intervention Centre”.

According to its website, the agency has been in existence since 1982; it is a bilingual “ non-profit community organization dedicated to addressing the concerns of individuals in need”. [ 12 ] The offender continues to enjoy the support of his family and friends, many of whom travelled from Montreal to attend his sentencing hearing. Letters from several members of the offender’s family uniformly attest to his integrity, devotion to family, contrition and reform. Those from friends, colleagues and classmates are equally supportive of the offender’s good character, generosity, pro- social values and remorse.

By way of example, part of one such letter, written by an old friend and current Bell Mobility technician, speaks of the offender’s role in a non-profit organization they founded: Since the beginning of Young Artist Montreal , Philippe has quickly been seen as a teacher, a helper, a brother to many boys and girls. He openly shares his life and bad decisions, in the hopes of making our youths think twice about their actions or inactions. Philippe and I put copious time, effort, sweat and love into this project. If he would have to part ways, I would honestly not be capable of

proceeding without him. Consequently, many kids would not have the chance of taking

part in the great potential this organization couldhave. Letters from his employers and colleagues at the Montreal General Hospital speak favourably of the offender’s reliability, personalgrowth and rapport skills and of the hospital’s wish to “keep [the offender] in our team” despite its knowledge of his 2009 criminality. The hospital also notes its “zero tolerance” policy respecting illegal drugs. [13] The offender was the beneficiary of a favourable pre-sentence report that conveys much of the biographical information I havehere recited.

He is described as a young man of good intellectual and occupational abilities who was both co-operative and transparent inhis dealings with the Montreal-based author of the pre-sentence report. He provided access to others and confirmed his employment anduniversity enrolment. The author of the report concludes that Mr. Dormevil was of low risk to re-offend. C. ANALYSIS (

a) Introduction [14] Trafficking in drugs, particularly the kinds of drugs that ground this prosecution, is rightly treated very seriously by Parliamentand the courts. Deterrence and denunciation are frequently cited as the paramount sentencing objectives in cases of this nature. Ofcourse, all other sentencing goals, including that of rehabilitation, must be considered.

As in every case, the crafting of a fit andappropriate sentence must reflect both the circumstances of the offences and those of the offender. [15] Here, the offences are depressingly familiar to judges who preside in downtown Toronto courts: the street or near-street leveltrafficking of relatively small quantities of dangerous drugs from a small pharmacopeia of like substances. It is the characteristics of theoffender that are less typical.

As I have taken some care to detail, he is a young first offender with a history of academicaccomplishment, volunteerism and a demonstrated potential to positively contribute to his community. He is genuinely remorseful. Heworks, attends university, participates in social service organisations and helps support his parents and extended family. In accordancewith the fundamental principle of sentencing – that of proportionality – the ultimate disposition imposed here must be one that accountsfor the gravity of the offender’s crimes, his degree of responsibility and his personal circumstances.

That tension must be reconciled byway of an individualized disposition that gives appropriate weight to all relevant sentencing factors and principles. (

b) The Legal Framework [16] I begin with the now trite observation that Canadian appellate courts have consistently treated cocaine as an insidious drug thatwreaks havoc on its users, their families and their communities. (See, by way of example only, R. v. Pearson (1992), (SCC), 77 C.C.C. 124 (S.C.C.), at para. 60; Pushpanathan v. Canada (M.C.I.), (SCC), [1998] 1 S.C.R. 982, esp. atparas. 83-106; and R. v. Woolcock, [2002] O.J. No. 4927 (C.A.), at para. 8; and R. v. Hamilton (2004), (ON CA), 186C.C.C. (3d) 129 (Ont.

C.A.), at para. 104.) The harm attributed to pharmaceutical narcotics and amphetamines is not materiallydistinguishable from that associated with cocaine. The offender trafficked, directly or constructively, in all these drugs, as well ascannabis and hallucinogens. The harmful nature of these products and their repetitive sale are aggravating factors on sentencing, as isthe offender’s participation in the distribution of these prohibited substances for admittedly commercial purposes.

He is not an “addict-trafficker”. [17] As I have already noted, these features of the offender’s crimes call for a sanction that reflects the sentencing goals of bothdeterrence and denunciation. Absent strong mitigative considerations, attainment of these objectives frequently results in incarcerativesentences of substantial duration. On occasion, however, Ontario superior and appellate courts have granted conditional sentences incocaine trafficking cases where the circumstances defining the offences are equally or more aggravating than those before me: see, forexample, R. v.

Nault, (2002), (ON CA), 59 O.R. (3d) 388 (C.A.); R. v. Moore, [2000] O.J. No. 2260 (Sup. Ct.); R. v.Salazar, [2000] O.J. No. 4974; and R. v. Saikaley, [1999] O.J. No. 5462. Some members of the Ontario Court of Justice have imposedsimilar dispositions: see R. v. Payne, unrept., February 2, 2009 [Chisvin, J.] and R. v. Rebello, 2010 ONCJ 43 for but two examples.

Veryrecently, the Superior Court of Justice imposed a conditional sentence in a case involving substantial amounts of pharmaceutical opiatenarcotics (hydromorphone, oxycodone and morphine), as well as constructive possession of a relatively large amount of cocaine (5.3ounces): R. v. Fedorak, 2010 ONSC 40. (See, also, R. v. Schreinert (2002), (ON CA), 165 C.C.C. (3d) 295 (Ont.C.A.) and, by way of a recent extra-provincial appellate example involving large amounts of amphetamine, R. v. Pang, 2010 BCCA500.) [18] Conditional sentences such as these are relatively rare but they are not aberrant.

Rather, they reflect a careful and holisticconsideration and balancing of all the factors and values that govern the exercise of achieving an individualized sentence, including, asgermane to the instant matter, the principles of rehabilitation, restraint and restorative justice and the personal attributes of the offender. Exclusive precedential regard for that bulk of serious drug trafficking cases that result in lengthy custodial dispositions risks distortingthe framework for proper sentencing analysis and, accordingly, an individualized and just result.

Separating the forest from the treescommands, in a sense, a return to first principles and, in particular, to the critical sentencing amendments of 1996 and the manner inwhich these reforms have been judicially construed by our highest court. Two authoritative and interwoven decisions are here ofparticular importance: R. v. Gladue (1999), (SCC), 133 C.C.C. (3d) 385 (S.C.C.) and R. v. Proulx (2000), 2000 SCC 5, 140 C.C.C. (3d) 449 (S.C.C.). [19] The first, R. v. Gladue, required the Supreme Court to address the meaning and application of the then newly-minted s.718.2(e).

That provision directs sentencing courts to ensure that, 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. [Emphasis added.] [20] In framing its construction of this provision the Supreme Court immediately observed, at para. 1, that the 1996 amendments to

Part XXIII of the Criminal Code (of which s. 718.2(

e) is a part) “codif[ied] for the first time the fundamental purpose and principles ofsentencing”. However, the new sentencing regime’s mission was much larger than a mere codification of settled common law values. As the Supreme Court went on to note, at para. 33, s. 718.2(e), in particular, is “more than simply a re-affirmation of existing sentencingprinciples” (emphasis in original). Rather, it has a remedial purpose and, as directed at para. 34, “creates a judicial duty to give itsremedial purpose real force” (emphasis added). As said at para. 39, With respect for the contrary view, we do not interpret s. 718.2(

e) as expressing only a restatement of existing law … . One cannotinterpret the words of s. 718.2(

e) simply by looking to past cases to see if they contain similar statements of principle. The enactment ofthe new

Part XXIII was a watershed, marking the first codification and significant reform of sentencing principles in the history ofCanadian criminal law. That reform, said the Court, at para. 93, means that while, All principles and factors set out in

Part XXIII must be taken into consideration in determining the fit sentence [, a]ttention should bepaid to the fact that

Part XXIII, through ss. 718, 718.2(e), and 742.1, among other provisions, has placed a new emphasis upondecreasing the use of incarceration. [Emphasis added.] [21] Decreased reliance on incarceration was only part of Parliament’s sentencing reform agenda.

In addition, as said in Gladue, atpara. 43, the purposes of sentencing, as set out in s. 718 of the Code as a result of the 1996 amendments, expressly and for the first timeenunciated, … restorative goals of repairing the harms suffered by individual victims and by the community as a whole, promoting a sense ofresponsibility and an acknowledgment of the harm caused on the part of the offender, and attempting to rehabilitate or heal the offender.

The concept of restorative justice … involves some form of restitution and reintegration into the community. … Restorative sentencinggoals do not usually correlate with the use of prison as a sanction. In our view, Parliament’s choice to include [restorative goals]alongside the traditional sentencing goals must be understood as evidencing an intention to expand the parameters of the sentencinganalysis for all offenders. The principle of restraint expressed in s. 718.2(

e) will necessarily be informed by this reorientation. [Emphasis added.] [22] R. v. Gladue is generally cited as the seminal case on the approach to be taken to the sentencing of aboriginal offenders. That itis. But the Supreme Court’s construction of the

Part XXIII amendments, and the principle of restraint expressed in s. 718.2(

e) inparticular, directs a far more expansive application. [23]

Section 718.2(

e) is almost always invoked on the sentencing of accused persons of native heritage, either explicitly or byreference to the “Gladue principles”. Despite occasional appellate reminders, my routine experience (and, I expect, that of many othertrial court judges) is that the provision appears to endure periods of extended legal hibernation when it comes to the sentencing of non-aboriginal offenders. This neglect has the effect of further ghettoizing First Nations peoples, a result that is offensive to both aboriginalcommunities and the letter and spirit of s. 718.2(e).

What should by now be patent is that the provision is of universal application. Whilethe reference to “the circumstances of aboriginal offenders” has given rise to a rich and distinct sentencing methodology when nativedefendants are before the court, the provision’s language clearly directs that it applies to “all offenders”. As said by a unanimousSupreme Court in Gladue, at para. 44: “s. 718.2(

e) has a remedial purpose for all offenders”. And further, at paras. 36 and 38:

Section 718.2(

e) directs a court, in imposing a sentence, to consider all available sanctions other than imprisonment that are reasonable inthe circumstances for all offenders, “with particular attention to the circumstances of aboriginal offenders”. The broad role of theprovision is clear. As a general principle, s. 718.2(

e) applies to all offenders, and states that imprisonment should be the penal sanctionof last resort. Prison is to be used only where no other sanction or combination of sanctions is appropriate to the offence and theoffender. … The wording of s. 718.2(

e) on its face, then, requires … consideration of alternatives to the use of imprisonment as a penal sanctiongenerally, which amounts to a restraint in the resort to imprisonment as a sentence … . [Emphasis added.] See, also, R. v. Hamilton, supra, at para. 98: “There can be no doubt that s. 718.2(

e) applies to all offenders”. [24] Relatively recently, in R. v. Batisse (2009), 2009 ONCA 114 , 93 O.R. (3d) 643, at paras. 32-35, the Court of Appealre-affirmed the principle of restraint expressed in s. 718.2(

e) and explained the scope of its reach, particularly in cases, as here, involvingfirst offenders whose crimes would ordinarily and predominantly be governed by the objectives of deterrence and denunciation. Theprinciple of restraint, said the Court, in language apposite to the case before me, … is an important consideration because the appellant was a first offender.

As such, the restraint principle requires that the sentencingjudge consider all sanctions apart from incarceration and where, as here, incarceration must be imposed, the term should be as short aspossible and tailored to the individual circumstances of the accused: see R. v. Priest (1996), (ON CA), 30 O.R. (3d)538 (C.A.), at p. 545. Second, the principle of restraint requires the sentencing judge to consider rehabilitation in determining the appropriate length ofthe sentence. In lowering a sentence given to a first offender, this court stated in R. v.

Blanas (2006), (ON CA), 207O.A.C. 226, at para. 5: [G]eneral deterrence cannot be the sole consideration. The appellant is relatively youthful and has no prior record and appears to havethe full support of her family and community. Appropriate consideration must be given to the rehabilitation of the appellant. In serious cases and cases involving violence, rehabilitation alone is not the determinative factor – general deterrence anddenunciation are also significant factors to be considered. However, as this court ruled in R. v. Dubinsky, , at para. 1,

it is an error to focus almost exclusively on general deterrence and fail to consider individual deterrence and rehabilitation, especially when sentencing a first offender. Third, Parliament has codified the principle of restraint to limit the use of incarceration as a sentencing alternative … [ 25 ] For the Gladue court (and as echoed in Batisse ), at least one “purpose of s. 718.2(

e) is to respond to the problem of overincarceration in Canada” (at para. 50). The Supreme Court’s construction of s. 718.2(

e) as a remedial provision directed to a reduction in the use of incarceration as a sentencing alternative is reinforced by the concurrent introduction of conditional sentencing into Canadian law. The Court addressed this at para. 40 of its reasons in Gladue : … the sentencing amendments which came into force in 1996 as the new

Part XXIII have changed the range of available penal sanctions in a significant way. The availability of the conditional sentence of imprisonment, in particular, alters the sentencing landscape in a manner which gives an entirely new meaning to the principle that imprisonment should be resorted to only where no other sentencing option is reasonable in the circumstances. The creation of the conditional sentence suggests, on its face, a desire to lessen the use of incarceration. The general principle expressed in s. 718.2(

e) must be construed and applied in this light. [Emphasis added.] [ 26 ] Less than two months after its decision in Gladue , the Supreme Court released what may properly be seen as a companion case, that of R. v. Proulx , supra . In Proulx , the Court construed for the first time the conditional sentencing regime enacted as part of the 1996 amendments and offered detailed guidance as to its application. Writing for a unanimous Supreme Court, Chief Justice Lamer, at para. 15, re-asserted the primary holdings of R. v. Gladue , noting that the Court there concluded that, … two of Parliament’s principal objectives in enacting this new legislation [were]: (

i) reducing the use of prison as a sanction, and (ii) expanding the use of restorative justice principles in sentencing. [ 27 ] Reinforcing Gladue , Proulx affirms, at para. 16 , that that the 1996 amendments to the sentencing code are to be read as “in large part a response to the problem of overincarceration in Canada”. “Caution”, directs the Court at, para. 17, must “be exercised in sentencing offenders to prison”.

And, at para. 20: Parliament has mandated that expanded use be made of restorative principles in sentencing as a result of the general failure of incarceration to rehabilitate offenders and reintegrate them into society. By placing a new emphasis on restorative principles, Parliament expects both to reduce the rate of incarceration and improve the effectiveness of sentencing.

The Court then approvingly quotes the words of the Minister of Justice on second reading of the bill introducing the 1996 sentencing amendments (Bill C-41): Jails and prisons will be there for those who need them, for those who should be punished in that way or separated from society. . . . [T]his bill creates an environment which encourages community sanctions and the rehabilitation of offenders together with reparation to victims and promoting in criminals a sense of accountability for what they have done. It is not simply by being more harsh that we will achieve more effective criminal justice.

We must use our scarce resources wisely. [ 28 ] Conditional sentences, the Court held, at para. 21, were a “meaningful alternative to incarceration”. “Because it is served in the community”, the Court continues, at para. 22, it will generally be more effective than incarceration at achieving the restorative objectives of rehabilitation, reparations to the victim and community, and the promotion of a sense of responsibility in the offender. However, it is also a punitive sanction capable of achieving the objectives of denunciation and deterrence .

It is this punitive aspect that distinguishes the conditional sentence from probation. [Emphasis in original.] [ 29 ] The Court summarized its approach at para. 113: In sum, in determining whether a conditional sentence would be consistent with the fundamental purpose and principles of sentencing, sentencing judges should consider which sentencing objectives figure most prominently in the factual circumstances of the particular case before them. Where a combination of both punitive and restorative objectives may be achieved, a conditional sentence will likely be more appropriate than incarceration.

In determining whether restorative objectives can be satisfied in a particular case, the judge should consider the offender’s prospects of rehabilitation, including whether the offender has proposed a particular plan of rehabilitation; the availability of appropriate community service and treatment programs; whether the offender has acknowledged his or her wrongdoing and expresses remorse; as well as the victim’s wishes as revealed by the victim impact statement … [ 30 ] Crown and defence counsel agree that the appropriate global sentence in this case is one within the reformatory range – that is, a maximum of two years less one day.

This inevitably begs the question of whether that custodial disposition need be one of incarceration, as urged by the Crown, or one that, in part or full, can properly be served in the community by way of a conditional sentence. The criteria governing the determination of an offender’s qualification for a conditional sentence are those set out in

Section 742.1 of the Code: (1) the offender must be convicted of an offence that is not punishable by a minimum term of imprisonment; (2) the term of imprisonment imposed must be less than two years; (3) the safety of the community would not be endangered by the offender serving the sentence in the community; and

(4) a conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2 ofthe Criminal Code. The first three criteria are necessary conditions that must be satisfied before any conditional sentence may be imposed. If met, the finalquestion is, in essence, whether a conditional sentence is otherwise a fit disposition. (

c) Applying the Law [31] As to the first two criteria, I note, that there is no minimum penalty for the offences for which the offender has been foundguilty and, second, that I agree with counsel that a global disposition in the reformatory range (that is, a sentence of less than two years)is appropriate. [32] The third requirement focuses on the risks to the public attending the offender serving his sentence in the community. I hererecycle most of the words I expressed at para. 17 in R. v.

Acorn, 2010 ONCJ 142: This criterion mandates focus on the jeopardy posed by the specific offender, not the broader risk of whether the imposition of aconditional sentence would endanger the safety of the community by compromising general deterrence or by subverting general respectfor the law: R. v. Proulx, at paras. 66ff. Two factors need be considered: first, the risk of the offender re-offending; and, second, thegravity of the damage that could ensue in the event of such recurrence.

In my view, while the same dangers attach to any return tocriminality as manifested at the time of the offences at issue, the risk of recidivism is only slight (and, importantly, manageable) giventhe offender’s … untarnished antecedents, compliance with a lengthy period of strict bail, remorse, acceptance of responsibility [and,here, a pre-sentence report assessment of minimal risk] … and provided, of course, adequate community supervision. As a result I findthat the necessary pre-conditions to the imposition of a conditional sentence are here met.

Accordingly, and as dictated by Proulx, atpara. 90, “serious consideration should be given to the imposition of a conditional sentence”. [Emphasis in original.] [33] The application of “serious consideration” engenders only one conclusion consistent with the purposes and principles ofsentencing as prescribed in

Part XXIII of the Code: a conditional sentence, I find, is an appropriate disposition in the circumstances ofthis case. As said in Proulx, at para. 100 (and re-affirmed by the Court of Appeal in R. v. Kutsukake (2006), (ONCA), 213 C.C.C. (3d) 80, at para. 15), where, as here, “both punitive and restorative [sentencing] objectives can be achieved … aconditional sentence is likely a better sanction than incarceration”. The Court of Appeal recently made clear that this principle obtainseven where, as here, “the paramount sentencing objectives [are] deterrence and denunciation”.

Speaking for a panel that included theChief Justice, Watt J.A., in R. v. Jacko, 2010 ONCA 452, at para. 80, stated that, It is well-settled that the prominence of these sentencing objectives does not, on its own, foreclose a conditional sentence order asa sentencing alternative, since a properly crafted conditional sentence can give full voice to both objectives. [Emphasis in original.] [34] A conditional sentence, replete with restrictions on the mobility of the offender, will here serve to both denounce hismisconduct and deter him and other like-minded persons from committing similar offences.

Combined with appropriate probationaryterms, it will also assist in his rehabilitation and societal reintegration, reinforce his sense of responsibility and allow for the attainmentof restorative objectives. As said in R. v. Jacko, supra, at paras. 87 and 94: In cases such as these, we must do more than simply acknowledge restorative justice sentencing objectives and note approvinglythe rehabilitative efforts of those convicted. They must have some tangible impact on the length, nature and venue of the sentenceimposed.

The rehabilitative efforts here … extend well beyond the promises made all too frequently between conviction and sentence… … Incarceration may provide for more denunciation and deterrence than a conditional sentence. But, at least as a general rule, a conditionalsentence is more tailored to accomplishing the restorative objectives of rehabilitation, reparation and promotion of a sense ofresponsibility in the offender. [Emphasis added.] [35] A carefully nuanced conditional sentence is here proportionate to the gravity of the offence and the offender’s degree ofresponsibility.

In this regard I take into consideration the fact that, but for his reliance on internet technology, the offender’s role waslittle removed from that of a street dealer or, at highest, a low-intermediate trafficker. There is no evidence that he imported ormanufactured drugs, distributed to mid-level vendors or hid behind front-end dealers. The offender peddled or possessed a broad array ofpotentially dangerous substances but, while not insignificant, his inventory was ultimately of relatively modest proportions.

Thequantities sold admit to various inferences but, in the end, I have heard no evidence that the amounts of the sales were inconsistent withpersonal use or that they were intended for further distribution. He was, in short, not far from the bottom end of the distributionhierarchy. This, of course, did not prevent him (either alone or with associates) from amassing substantial proceeds from his illicitenterprise – a clearly aggravating factor but not one that itself disentitles the offender from serving his sentence of imprisonment in thecommunity.

A forfeiture order will divest the offender of his ill-gained riches. Such orders are not part of the assessment of anappropriate sentence: R. v. Craig, 2009 SCC 23 , [2009] 1 S.C.R. 762. Nonetheless, as subsequently said by the BritishColumbia Court of Appeal in R. v. Wu (2010), 2010 BCCA 366 , 258 C.C.C. (3d) 135, at para. 36, “[t]here is also a punitiveaspect to the effect of a forfeiture order”. [36] I am also conscious of the offender’s pro-social history and of the efforts he has made since his arrest to distance himself fromhis unlawful enterprise and his more nefarious acquaintances.

He has returned to work and pursues a university education. He hasenrolled in a program of voluntary social service consistent with the principles of restorative justice. He is, I find, deeply and earnestlyashamed of his criminal conduct. And he is strongly committed to his family who remain supportive. It would be crushing, unnecessaryand, in the end, retrograde to now send this youthful first offender to prison when his conduct in the more than 19 months since his arrestdemonstrates a settled resolve to rehabilitate himself, make amends for his transgressions and constructively contribute to society infuture.

[37] I am also of the view that a sentence of two years less a day is not required to meet the goals of sentencing in this case. Applying the totality principle to the various counts, a global incarcerative sentence of 15 months would suffice. However, a conditionalsentence, as observed in Proulx, at paras. 41 and 44, while not a “lenient sentence … will usually be a more lenient sentence than a jailterm of equivalent duration”.

To compensate for this relative reduction in the onerousness of a purely incarcerative disposition, I intendto impose an effective global sentence of 18 months. [38] I note that the offender spent 19 days in pre-sentence custody before being released on bail with strict “house arrest” conditionswith which he appears to have diligently complied for the past year and a half. The nature and duration of the offender’s bail aremitigating factors (if not major ones) in my calculation of the appropriate length of his effective sentence: R. v. Panday (2007), 2007ONCA 598 , 226 C.C.C. (3d) 349, at para. 28 (Ont. C.A.).

This protracted period of house arrest, along with his pre-sentencecustody, are circumstances that go considerable distance in securing the objective of specific deterrence in the case, as here, of a youthfulfirst offender. As the Court of Appeal has repeatedly said, such offenders should be afforded the “shortest possible sentence [necessaryto] achieve the relevant objectives”: R. v. Borde (2003), (ON CA), 172 C.C.C. (3d) 225, at para. 36. (See, also, R. v.Vandale and Maciejewski (1974), (ON CA), 21 C.C.C. (2d) 250 at 251-2 (Ont. C.A.) and R. v. Hayman (1999), (ON CA), 135 C.C.C. 338, at para 22 (Ont.

C.A.); R. v. Priest, supra; and R. v.

Blanas, supra.) [39] As the offender’s arrest preceded the 2010 amendments to s. 719 of the Code, and as his pre-bail detention was served in thenotorious confines of the Toronto (“Don”) Jail, I grant him pre-sentence custody credit of one and half months, thus reducing his finalglobal custodial disposition (which, as I have noted, is to be served in the community) to 16½ months. (Nine days of the offender’s pre-sentence custody are to be assigned to each of the cocaine trafficking offences and accordingly noted on the Information and warrant ofcommittal.) A one-year period of probation (concurrent on all charges), including community service, will follow the termination of thecustodial period of the offender’s sentence, thus affording a graduated reintegration into society while maintaining continued communitysupervision for close to 2½ years and ensuring a significant measure of restorative justice. [40] On application of the totality principle, I allocate the offender’s 16½-month conditional sentence as follows: • Trafficking in cocaine on September 3, 2009: 4½ months; • Trafficking in cocaine on September 24, 2009: 4½ months, consecutive; • Trafficking in oxycodone on October 19, 2009: 3 months, consecutive; • Possession for the purpose of trafficking in oxycodone, hydromorphone, amphetamine and psilocybin (4 counts): 4½ months,concurrent to each other and consecutive to the cumulative sentence for the three trafficking offences. [41] Commencing, at latest, 24 hours from the release of these Reasons, the offender will be subject to strict house arrest conditionsduring the first eight months of his conditional sentence.

During this period he is compelled to reside at a residential address approvedby his conditional sentence supervisor and not to leave that house at any time but for the following exceptions: • To attend school; • To attend employment; • To perform volunteer services at an agency approved by his conditional sentence supervisor; • For scheduled medical and dental appointments, any medical emergencies, and scheduled appointments with his conditionalsentence supervisor; • When in the immediate and constant company of Claire Joelle Joseph or Rose Andree Joseph; • From noon to 3pm on Wednesdays to attend to personal needs; • For any other purpose for which his conditional sentence supervisor has provided advance written authorization. [42] During the final 8½ months of his conditional sentence, the offender will be subject to a curfew: apart from employmentextending beyond 11pm (in which case his conditional sentence supervisor must be notified in writing in advance) and medicalemergencies, if any, he must be in his approved residence every day from 11pm to 6am. [43] By way of “general terms”, commencing immediately and throughout his conditional sentence the offender is: • Not to possess or consume any non-prescription drugs listed in Schedules I, III and IV of the Controlled Drugs and SubstancesAct; • To maintain employment and/or pursue his education; • To promptly advise his conditional sentence supervisor of any change in employment or education. [44] Upon the completion of his conditional sentence the offender is to report forthwith to the probation office and thereafter asdirected until he has satisfactorily completed the community service component of his probation.

Other than the substitution of thewords “probation officer” for “conditional sentence supervisor”, he is to comply with the “general terms” of his conditional sentenceduring the course of his 12 months of probation. In addition, he is to perform 100 hours of community service as directed by hisprobation officer and at a rate of not less than ten hours a month. [45] By way of ancillary orders, the offender is prohibited, pursuant to s. 109 of the Code, from possessing any of the weapons,ammunition, explosives and other offensive devices listed in that provision for a period of ten years.

He is also required to provide a

sample of his bodily substance for purposes of DNA analysis and archiving. Further, and as earlier noted, the $24,970 seized from his apartment is forfeited to the Crown. [ 46 ] In view of the offender’s current circumstances and the impact of the sentence I am imposing, the victim fine surcharge is waived. [ 47 ] Finally, a copy of these Reasons is to be attached to the Information and the conditional sentence order which, in turn, will be forwarded to the offender’s conditional sentence supervisor. D.

CONCLUSION [ 48 ] In the result, Philippe Dormevil is sentenced to a global conditional sentence of 16½ months to be followed by a one-year period of probation. Weapons prohibition, DNA and forfeiture orders complete this disposition. [ 49 ] I do not mean by this judgement to suggest that conditional sentences are restricted to young persons or those without prior criminal histories in cases involving, as here, the sale of “hard” drugs. Mr.

Dormevil’s antecedents, sincere remorse and rehabilitative efforts render him an appropriate candidate to serve his sentence of imprisonment in the community under stringent conditions. A different constellation of factors may warrant a similar disposition in a very dissimilar case. A judicially-constructed sentencing range is a persuasive guideline, not an inflexible vise that risks adding injustice to illegality through rigid adherence to its parameters. Some circumstances justify appropriate deviation. As said in R. v.

Jacko , supra , at para. 90 : To consider a range of sentence as creating a de facto minimum sentence misses the point [and] ignores the fundamental principle of proportionality… . Individual circumstances matter ”. [Underlining added.] Released on: June 8, 2011 ___________________________ Signed: Justice Melvyn Green