R. v. De Aquino Date:, 2016 BCPC 116

Citation: R. v. De Aquino Date: 20160119 2016 BCPC 0116 File No: 160904 Registry: Victoria IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. IURY MARTINS DE AQUINO REASONS FOR SENTENCE OF THE HONOURABLE JUDGE E. C. BLAKE Counsel for the Crown: Mr. T. I. McFadgen and Ms. J. Vivian Counsel for the Defendant: Mr. L.D. Marshall Place of Hearing: Victoria , B.C. Dates of Hearing: February 27, 2015, April 23, 2015 and November 15, 2015 Date of Judgment: January 19, 2016

INTRODUCTION AND PROCEDURAL ISSUES [1] This matter is before me for decision as part of a sentencing proceeding. The procedure which has been adopted in this case,by agreement, is unusual and requires some elaboration at the outset. [2] On February 25, 2014 I convicted Mr. De Aquino of the offence of possession of cocaine for the purpose of trafficking. Although I was unaware of it at the time of the conviction, counsel advised me as we began the sentencing stage of the proceeding thatMr. De Aquino has a previous conviction for the same offence.

In the previous case the substance was marijuana and the convictionwas registered on November 7, 2005. On the same date Mr. De Aquino was also convicted of the offence of production of marijuana. For those offences he received concurrent sentences of 12 months’ imprisonment. He was permitted to serve that sentence conditionallypursuant to s. 742 of the Criminal Code. [3] The sentencing provisions in the Criminal Code and the Controlled Drugs and Substances Act (hereafter referred to as “theCDSA”) have undergone significant revision in recent years. By the time Mr.

De Aquino committed the offence of which he has nowbeen convicted, s. 5 of the Controlled Drugs and Substances Act provided that any person convicted of possession of cocaine for thepurpose of trafficking who had been convicted of a “designated substance offence” or had served a term of imprisonment for such anoffence within the previous 10 years was subject to a minimum punishment of imprisonment for a term of one year. A “designatedsubstance offence” is defined by s.2 of the CDSA to include both offences for which Mr.

De Aquino was convicted in 2005. [4] It is common ground that the Crown has provided notice to Mr. De Aquino of its intention to seek the mandatory minimumone-year sentence, as required by s.727 of the Criminal Code. Furthermore, the wording of s. 742.1 (

b) of the Criminal Code preventsthe imposition of a conditional sentence order with respect to any offence punishable by a minimum term of imprisonment. Absent anyconstitutional considerations, therefore, the combined application of the provisions of the Criminal Code and the CDSA clearly requiresme to sentence Mr. De Aquino to a minimum period of imprisonment of one year’s duration with no possibility for that sentence to beserved conditionally. [5] A further complication arises out of Mr.

De Aquino’s status as a landed immigrant in this country, although the significance ofthis factor was apparently not known to counsel until after the sentencing proceeding had begun. I should point out, parenthetically, thatcounsel on the sentencing proceeding did not become counsel until after the conviction had been registered. [6] In any event, it is now clear that given Mr.

De Aquino’s immigration status and the nature of the charge of which he has beenconvicted, any sentence in excess of six months’ imprisonment will in all likelihood lead to an order for his deportation from Canada,apparently without benefit of any appeal or consideration of humanitarian grounds. I was provided with expert evidence on thissentencing hearing to indicate that that is the effect of certain legislative amendments which took effect just a few months before Mr. DeAquino committed the present offence. [7] Mr.

De Aquino submits, however, that the mandatory minimum sentence provisions applicable to this case infringe upon hisright to be free from cruel and unusual punishment, in violation of s. 12 of the Charter of Rights. He also submits that the provisionswill lead to arbitrary detention or imprisonment in violation of s.9 of the Charter of Rights. [8] During the initial sentencing submissions on February 27, 2015, counsel referred me to the decision of R. v. Lloyd, 2014 BCCA224 , [2014] BCJ No. 1212 (CA).

After reviewing that decision at length, it appeared to me and to counsel that, by implicationat least, the Court of Appeal was endorsing a two-stage procedure in a case such as the present. In the first stage the court was toconsider the length of the sentence to be imposed in the absence of the mandatory minimum statutory provisions. If that sentence didnot differ significantly from the sentence mandated by the mandatory minimum provisions it would be deemed unnecessary, evenunwise, for the court to proceed to the second stage, which would involve a determination of the constitutionality of those provisions.

That approach seemed consistent with the generally established principle that courts ought not to enter into constitutional issues if it isunnecessary to do so in order to decide a specific case. [9] Counsel agreed to proceed in accordance with the approach to which I have just referred. Submissions were presented on thatbasis and I completed written Reasons which were to be delivered in court on April 23, 2015. On April 14, 2015, however, the SupremeCourt of Canada released its decision in R. v.

Nur, [2015] 1 SCR 775. [10] The Nur decision caused both counsel and me to take a step back, adjourn the sentencing date, and reconsider the procedurethat we had agreed upon in this case.

Although the Supreme Court of Canada’s decision did not refer to Lloyd specifically, it emphasizedthat an accused person who challenged the constitutionality of any legislation imposing minimum sentences was entitled to have thesentencing court consider not only the effect of such a sentence upon himself or herself , but also to consider whether such a sentencecould produce an unconstitutional result in a reasonably foreseeable hypothetical case. [11] After we had all had the opportunity to consider the effect of the Nur decision, counsel and I met once more.

I advised counselof my view that while Nur recognized the right of an accused person to challenge mandatory minimum sentences on two bases, it did notsay that the accused was necessarily bound to pursue both arguments, and certainly it did not say that he or she was bound to pursue botharguments on the same hearing date. [12] I continued to be attracted by the notion that if an accused person could in some way obtain a ruling from the court that theminimum sentence set by the legislation was not inconsistent with the sort of sentence that the court would impose in any event in his orher own case, he might not be interested in determining the court’s position in a purely hypothetical context.

Indeed, it occurred to methat compelling a convicted person who had concerns about the effect of the mandatory minimum sentence regime in his case to alwaysproceed with a full frontal constitutional attack, to the extent contemplated in Nur, could be financially crippling, and often unnecessarilyso. Such a process would also involve the significant, and often doubtful, use of scarce court resources.

[13] Counsel ultimately accepted my invitation to begin the sentencing process by obtaining a ruling from the court concerning thesentence that the court would impose in the absence of the mandatory minimum sentencing provision. The court would notify Mr. DeAquino of its conclusion in that respect and he could then decide if, and to what extent, he wished to challenge the constitutionality ofthe sentencing legislation. [14] To a considerable extent, it might fairly be said that the process which we agreed upon generally follows the lines suggested inthe first place by Lloyd.

That may well be true, but that does not mean that it is any sort of renunciation of Nur. I view Nur as animportant theoretical analysis concerning the scope of a constitutional challenge to mandatory minimum sentence legislation. I do notview it as being intended for procedural guidance in the same way as the Lloyd decision. [15] I would only add one further comment concerning procedural matters.

Having determined late in the day that there weresignificant immigration considerations flowing from the sentence proceeding in this case, defence counsel asked for the opportunity tomake further submissions about that aspect of the matter. That request was granted and the relevant submissions were made onNovember 15, 2015.

ANALYSIS [16] It is commonly understood that when determining an appropriate sentence a court should consider the general nature of theoffence with which the accused person is charged, the particular circumstances under which the offence was committed, and the personalcircumstances of the offender. Each of those considerations must take place against the background of the general principles ofsentencing referred to in sections 718 to 718.2 of the Criminal Code. [17] In the present case, there can be no doubt that the offence charged is serious indeed.

Parliament has provided that the maximumpenalty for the offence of possessing cocaine for the purpose of trafficking is life imprisonment. [18] It is not difficult to see why the law treats offences related to trafficking in cocaine so seriously. It is a matter of commonknowledge that illicit drug usage, and cocaine usage in particular, constitutes a serious social problem in this country and elsewhere. Infact, the problem is so well-known that it would probably be considered both unnecessary and self-indulgent for me to engage in anextended discussion on the point.

I will content myself with reference to only one judicial comment. In R. v. Beaudry (2002), 2000 ABCA 243 , 37 CR (5th) 1 (Alta CA), at paras. 158 and 165, Russell, J.A. said: The damage to the community from trafficking in cocaine is substantial, and extends well beyond the offender and his prospectivecustomers… it contributes to a variety of other offences, with the potential for extremely serious health and economic consequences.

Drug trafficking remains a serious problem in Canada. [19] The wide-ranging, damaging consequences which flow from trafficking in drugs like cocaine have led courts to hold that ingeneral the elements of deterrence and denunciation are to be considered as the most significant factors in sentencing in such cases. [20] The circumstances under which the offence occurred in the present case and the manner in which the case was conducted areboth unusual.

The Crown called evidence which demonstrated that on July 18, 2013, after a minor motor vehicle accident had occurredand just before police arrived on the scene, a bystander saw a person suspiciously place a bag into some nearby bushes. When policearrived a few minutes later the bystander directed them to the hedge. At the spot pointed out by the bystander, the police located 26small bags, each containing .75 grams of cocaine, wrapped inside a larger bag.

The total weight of the cocaine was 19.5 grams. [21] At the outset of the trial, defence counsel indicated that identification was the sole issue for determination. Counsel concededthat if the court was satisfied beyond doubt that Mr. De Aquino was the person who stashed the cocaine into the hedge it would beappropriate to conclude that he was not only in possession of the drug, but also that he was in possession of it for the purpose oftrafficking.

It would be fair to assume that counsel’s concession on this last point was based upon the quantity of cocaine found and uponthe method of its packaging. [22] At the conclusion of the trial I determined that the Crown had proved Mr. De Aquino to be the culprit and I convicted him ofthe offence charged. [23] A sentencing court often considers the precise method of trafficking, and the reasons for its occurrence, to be significant factorsto be taken into account, either because it may tend to increase the severity of the sentence or decrease it.

Because of the manner inwhich the present case unfolded at trial, however, there are only a limited number of conclusions or inferences that I may draw from theevidence to assist in the sentencing process. [24] Obviously, I know that the quantity of cocaine was significant, though hardly enormous. The evidence presented at trialindicated that the value of the drug in this case was somewhere in the range of $1500 to $2000, if sold on the street. [25] The evidence provides no detail at all, however, about the precise nature of the trafficking in which Mr. De Aquino wasengaged. That is unfortunate indeed.

It is not uncommon, for example, for a sentencing court to take into account that an offendercommitted the offence not primarily for purposes of commercial gain, but rather for purposes of acquiring enough funds to support his orher own drug addiction. Such motivation is often considered to be a factor tending to reduce the severity of the sentence. On the otherhand, a person who commits offences related to trafficking solely for purposes of commercial gain can reasonably expect his or hersentence to be increased in severity as a result.

[26] In the present case, there is no evidence at all that Mr. De Aquino was himself a user of cocaine, much less an addict. Therewas no evidence of drug paraphernalia found about him or at the accident scene. Furthermore, the letters of family and communitysupport which he has filed on this sentencing proceeding say nothing about drug usage on his part. In fact, the implication is decidedly tothe contrary. His counsel does not suggest that his client is deserving of any special dispensation due to drug dependency. [27] At the same time, though, there is also a decided lack of evidence that Mr.

De Aquino was acting primarily for commercialgain. There was no significant evidence regarding large quantities of money on Mr. De Aquino’s person nor was there evidence of cellphones ringing in such a manner as to suggest that he was engaged in a so-called “dial-a-dope” operation. [28] In short, I have no basis on which to conclude that the circumstances under which Mr. De Aquino committed the offence aremitigated by his own drug usage, but neither do I have any basis on which to conclude that the circumstances are aggravated by themotivational factor of greed.

In that respect, the circumstances are neutral. [29] It is important to note that the word “traffic” is defined in extremely broad terms in

section 2 of the CDSA, as follows: “traffic” means, in respect of a substance included in any of Schedules I to IV, (

a) to sell, administer, give, transfer, transport, send or deliver the substance, (

b) to sell an authorization to obtain the substance, or (

c) to offer to do anything mentioned in paragraph (

a) or (b) [30] The facts as found in the present case could lead to the conclusion that Mr. De Aquino engaged in “trafficking” in one or moreof the methods set forth in the statutory definition. He may well have intended to sell the drug, but it is not possible to entirely discountthe prospect that he was merely transporting or delivering it. His bare admission, though counsel at the outset of the trial, that traffickingof some sort would be conceded if possession could be proved, provides no clue as to the precise form of trafficking that was beingconceded. [31] Having regard to s. 724(3)(

a) of the Criminal Code, it may well be that I should now be calling upon the parties to adduceevidence concerning the exact nature of the trafficking that occurred here, in somewhat the same manner as took place in the recent caseof R. v. Mauro, 2015 BCPC 379. [32] Adopting that course of action may be both problematic and unnecessary in the present case, however, for several reasons. First, it seems to me that it would be challenging indeed for either side to call any helpful, relevant evidence on the point.

It is likely thatany evidence which the Crown put forward would be largely, if not entirely, speculative. Mr. De Aquino’s difficulties in callingevidence would be even greater. He did not give evidence at trial but, at a subsequent stage of the proceeding, sought to re-open the trialby filing an affidavit in which he denied his guilt completely.

In those circumstances, I think that it would be exceedingly difficult, if notimpossible, for him to now attempt to lead evidence explaining the nature of his trafficking without opening himself up to the mostembarrassing cross-examination. [33] A second factor for me to consider is that this proceeding has already carried on far too long. The incident itself occurred inJuly 2013 and Mr. De Aquino was convicted in February 2014, nearly two years ago.

Matters should not be delayed any further unlessthere is good reason for it. [34] Given the conclusion which I have ultimately reached in this case, I propose to proceed instead on the basis of the leastaggravating version of the facts that is reasonably plausible. I will therefore assume that on the evening of July 13, 2013 Mr. De Aquinowas either transporting or delivering cocaine when he became involved in the minor traffic accident that ultimately led to the discoveryof the drug in the hedge by the roadside. [35] I turn next to a consideration of Mr. De Aquino’s own circumstances.

He is a man in his early 40s, originally from Brazil butnow a permanent resident of Canada. He has been married for seven years and has two daughters. At the initial sentencing hearing inFebruary 2015, he filed a number of letters which speak in highly positive fashion about his commitment to family life. He is employedfull-time as a concrete finisher and is described by his employer as an asset to the firm where he works. There is no doubt that Mr. DeAquino is capable of contributing in a positive way to his community, and he does so. [36] Many of the support letters filed by Mr.

De Aquino refer to his present legal predicament as being totally out of character. Thatobservation, however, must be tempered with the knowledge that he does have the previous cognate convictions which I have alreadymentioned. Those convictions both occurred on the same date in 2005, or about eight years before the present offence occurred.

WhilstI acknowledge defence counsel’s comment that the length of a conditional sentence imposed in 2005 may well be longer than thesentence that would have been imposed in the case of a “traditional” jail sentence, it remains true that the sentence imposed was asignificant one. It is reasonable to infer that the offences themselves must have been of some significance. [37] I have already mentioned the potentially dire immigration consequences that could well be visited upon Mr. De Aquino if thesentence imposed here exceeds six months in prison.

In accordance with the guidance offered by the Supreme Court of Canada in thecase of R. v. Pham, 2013 SCC 15 , [2013] SCJ 100 I acknowledge that immigration consequences are a relevant considerationon sentencing, while at the same time recognizing that this is not an immigration tribunal and that immigration consequences must notoverwhelm the process of determining a fit sentence. [38] Using all of the information which is available to me with respect to the offence and the offender, it remains for me to considerthe specific submissions of counsel concerning the appropriate sentence that could be imposed here.

[ 39 ] I have read all of the sentencing materials provided by both counsel, as well as some of the cases that are referred to secondarily in that material. All of the cases are helpful in a general way, but on a sentencing proceeding the value of case authorities must always be limited.

After all, sentencing is dependent in part upon the circumstances of the individual before the court, and no two individuals are ever exactly the same. [ 40 ] Whilst acknowledging that the authorities frequently refer to the general paramountcy of deterrence and denunciation in cases of drug trafficking, defence counsel points out that in appropriate cases rehabilitation has been considered by the courts to be of great significance. He has referred me to a number of authorities to establish that point.

I do not disagree with the general position that is being advanced. [ 41 ] I wish to specifically refer to only three authorities, and I will refer to two others in passing. [ 42 ] The first case that I wish to touch on specifically is R. v. Williams , [2010] OJ No. 2971 , in which Hill, J. provides an extensive and useful

summary of the principles which a judge should consider when sentencing an accused for the offence of possession of cocaine for the purpose of trafficking. At paragraph 28 of that decision Hill,J. cites the Ontario Court of Appeal case of R. v.

Woolcock , [2002] OJ No. 4927 (CA) for the proposition that the range of sentence for street level cocaine trafficking appears to be in the range of 6 months to 2 years less a day, noting that sentences at the higher end of that range involved either larger quantities of the drugs or occurred at a time when the accused was on probation for a similar offence, while sentences at the low end often involve youthful offenders with no previous history of offending. [ 43 ] The second case is R. v. Shusterman , [2012] BCJ No. 484 (SC) , a decision of Romilly, J.

In that case, the police conducted a search of premises occupied by Mr. Shusterman. The accused attempted to dispose of a bag containing 29 grams of cocaine by dropping it out a window, but it was discovered by police. [ 44 ] Mr. Shusterman was 22 years old at the time of the offence, with a lengthy criminal record. The record did not include drug offences, but Mr.

Shusterman is described as a drug dealer, a person engaged in drug sales for purposes of monetary gain. [ 45 ] Romilly, J. conducted a comprehensive review of the case authorities and concluded, at paragraph 30, that “the range of sentences for the type of street level trafficking in cocaine involved in the case at bar would appear to be 6 months to 3 years.” In the end result, His Lordship sentenced the accused to a period of one year in jail, in addition to the 6 months with which he was credited for time already spent in custody. To put it another way, the effective sentence was an 18-month jail term.

The court refused the application for the sentence to be served in the community pursuant to a conditional sentence order. [ 46 ] The only other case to which I wish to make specific reference is the British Columbia Court of Appeal decision in Lloyd , which has already been referred to at length in another context. That case dealt with an appeal in the sentencing of a 25-year old man with a limited education and a sporadic employment history in construction.

At the time that he committed the offences of possession of for the purpose of trafficking in three different drugs he was an addict primarily concerned with financing his own habit.

He had an extensive criminal record, including a previous conviction under the CDSA and had just completed a jail sentence when the present offences occurred. [ 47 ] At paragraphs 59 to 64 of the Lloyd decision, Groberman, J.A. refers with apparent approval to a range of sentence between 12 months and 18 months for “low-level drug dealers with relevant prior convictions who have been found guilty of trafficking (or possession for the purpose of trafficking) where they have sold drugs in order to support their own addictions.” Finding Mr.

Lloyd’s case to be at the upper end of the usual range, the Court of Appeal substituted an 18-month sentence for the 12 months which had been imposed by the sentencing judge. [ 48 ] The two cases that I wish to refer to in passing are R. v. Cisneros , 2014 BCCA 154 and R. v. Voong , 2015 BCCA 285 . I do so largely because those two cases are often considered as benchmark decisions of the Court of Appeal of this province.

Having reviewed those cases again, I must say that I did not find either of them to be particularly helpful in the present context, except with respect to general statements of principle, because both of them focus upon the so-called dial-a-dope version of drug trafficking. [ 49 ] The three cases to which I have specifically referred suggest that there is a relatively wide range of sentence applicable here, although it would appear the Lloyd decision narrows that range somewhat.

Once more, I emphasize that none of these cases is precisely the same as the matter before me. [ 50 ] Giving the best consideration I can to the authorities and applying them to Mr. De Aquino’s situation I am of the view that an appropriate sentence in his case could fall anywhere within the range of 9 to 18 months. Unconstrained by any mandatory minimum sentencing provisions, I am bound to say, with some irony, that I would have imposed a sentence of 12 months’ imprisonment. [ 51 ] The discussion does not quite end there, however.

I must also consider the so-called “inflationary floor” which is sometimes said to be created by any regime of mandatory minimum sentencing. This issue is helpfully discussed in the Lloyd decision at paragraphs 48 to 58 . [ 52 ] The essence of the issue is this: A statutory provision which establishes a mandatory minimum sentence does not establish the exact sentence in any given case; it only establishes a minimum below which the sentencing judge may not venture. Sentences will vary upward from the mandatory minimum, depending on the circumstances.

To put it another way, if there is an “inflationary floor” the mandatory minimum may tend to become reserved for only the least serious scenario.

Any set of circumstances which will is “worse” than the “best case scenario” will attract a sentence higher than the mandatory minimum. [ 53 ] The question that must be asked, then, is whether the mandatory minimum sentencing regime would actually require the court to impose a sentence in excess of the one year minimum here, thereby increasing the likelihood that sentencing under such a regime would produce a sentence that is seriously adrift from the sort of sentence that the court would otherwise impose. Mr.

De Aquino would no doubt wish to know that information before deciding whether to pursue his constitutional challenge.

[ 54 ] I find that I am quickly able to answer the question concerning the application of the “inflationary floor” in its application to this case. I am not at all satisfied that there are relevant aggravating factors which would cause Mr. De. Aquino’s sentence to be increased above the mandatory minimum penalty. It is at this point, I think, that the likely disastrous immigration consequences for Mr. De Aquino become a prime matter for consideration. CONCLUSION [ 55 ] In

summary, then, I have determined that the sentence that I would have imposed in this case in the absence of the mandatory minimum sentence is a prison term of 12 months’ duration. Ironically, it turns out to be the same sentence that I would impose under the mandatory minimum sentence regime. [ 56 ] In light of the conclusion which I have reached, the next step in the sentencing process which we have adopted involves Mr. De Aquino determining whether he wishes to proceed with his constitutional challenge.

The outcome of that challenge, following either of the branches identified in the Nur decision, will not change his own sentence, but he is entitled to explore the issues if he wishes. E.C. Blake Provincial Court Judge