R. v. Murphy, 2018 NLSC 256

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Murphy , 2018 NLSC 256 Date : December 18, 2018 Docket : 201701G6134 Her Majesty The Queen v. Nicholas David Murphy Before: Justice Donald H. Burrage Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: November 23, 2018

Summary: The 26-year-old, first time offender, pled guilty and was given a suspended sentence and two years’ probation for possession of 24.8 lbs. of cannabis for the purpose of trafficking, contrary to subsection 5(2) of the Controlled Drugs and Substances Act. While the sentencing principles of denunciation and general deterrence remain relevant, given the positive antecedents of the offender, justice would not be served by imposing a term of imprisonment. Appearances:

Brenda P. Boyd, Q.C. Appearing on behalf of the Crown Randolph J. Piercey, Q.C. Appearing on behalf of the Accused Authorities Cited: CASES CONSIDERED: R. v. Malmo-Levine , 2003 SCC 74 ; R. v. Boudreault , 2018 SCC 58 ; R. v. Lundrigan , 2012 NLCA 43 ; R. v. Cluney , 2013 NLCA 46 ; R. v. Briand , 2010 NLCA 67 ; R. v. Johnston , 2011 NLCA 56 ; R. v. Kane , 2012 NLCA 53 ; R. v. Provost , 2006 NLCA 30 ; R. v. Hunt , 2012 NLCA 5 ; R. v. Tatchell , 2011 NLTD(G) 87; R. v. Martin , 2011 NLTD(G) 142; R. v. Gendron , 2012 NLTD(G) 35; R. v. Sullivan , 2012 NLTD(G) 88; R. v. Martin , 2012 NLTD(G) 128; R. v.

Roach , 2012 NLTD(G) 153; R. v. Parsons , 2012 NLTD(G) 192; R. v. Hawco (2013), 335 Nfld. & P.E.I.R. 318, 1040 A.P.R. 318 (N.L. Prov. Ct.) ; R. v. Lord , 2013 NLTD(G) 5; R. v. Giulioni , 2013 NLTD(G) 54; R. v. Burke (2013), 339 Nfld. & P.E.I.R. 30, 1054 A.P.R. 30 (N.L. Prov. Ct.) ; R. v. Proulx , 2000 SCC 5 ; R. v. St. Croix , 2014 CarswellNfld 120, 1082 A.P.R. 1 (Prov. Ct.) ; R. v. Owens , 2014 BCSC 32 ; R. v. Brenton , 2016 NLTD(G) 121; R. v. Brenton , 2016 NLCA 66 ; Fiander v. Mills , 2015 NLCA 31 ; R. v. Neary , 2017 SKCA 2 ; R. v. Bentley , 2017 ONCA 982 ; R. v. Vesalpour , [2018] O.J.

No. 5439 , 150 W.C.B. (2d) 322 (Ct. J.) ; R. v. Thompson , 2018 ONCJ 310 ; R. v. R.C., 2005 SCC 61 STATUTES CONSIDERED: Controlled Drugs and Substances Act, S.C. 1996, c. 19; Canadian Charter of Rights and Freedoms ,

Part I of the Constitution Act, 1982 , being

Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11; Cannabis Act , S.C. 2018, c. 16; Safe Streets and Communities Act , S.C. 2012, c. 1 TEXTS CONSIDERED: Emily F.

Murphy, The Black Candle (Toronto, 1922) at 332-333 REASONS FOR JUDGMENT Burrage, J. : introduction [ 1 ] In 1922 an Edmonton Magistrate warned that those under the influence of cannabis “los[e] all sense of moral responsibility. … are immune to pain … becom[ing] raving maniacs … liable to kill using the most savage methods of cruelty.” [1] [ 2 ] In 1964 singer/songwriter, and now Nobel Prize in Literature recipient, Bob Dylan, released his iconic song “The Times They Are A Changin’.” [ 3 ] This decision concerns a just and appropriate sentence for Nicholas Murphy for possession of cannabis for the purpose of trafficking, in these changing times. background [ 4 ] Nicholas Murphy entered a plea of guilty and on 23 November 2018, based on an Agreed Statement of Facts, was convicted of a single count of possession of cannabis marijuana (hereinafter “cannabis”) in excess of three kilograms, for the purpose of trafficking, contrary to subsection 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (“ CDSA ”).

The formal Indictment reads, as follows: On or between the 6 th day of January, A.D., 2017, and the 10 th day of January, AD., 2017, at or near Mt. Pearl, in the Province of Newfoundland and Labrador, and Dieppe, in the province of New Brunswick, did unlawfully have in his possession, for the purpose of trafficking, in excess of three kilograms of cannabis marihuana, a substance included in

Schedule II of the Controlled Drugs and Substances Act , c.19, and did thereby commit an offence, contrary to Section 5(2) of the said Act. [ 5 ] Following a sentencing hearing, during which the Court heard from Mr. Murphy, as well as members of his family, followed by submissions from the Crown and defence, I suspended the passing of Mr. Murphy’s sentence and imposed a two year period of

probation. There was also an Order for forfeiture, a mandatory

section 109 firearms’ prohibition and $200 victim fine surcharge [2] . I declined the Crown’s request for a discretionary DNA Order. As Mr. Murphy was scheduled to return to work in Alberta the following week, the foregoing sentence was imposed with written reasons to follow. These are those reasons. circumstances of the offence [ 6 ] The Agreed Statement of Facts upon which Mr. Murphy was convicted read, as follows: 1. On January 6, 2017, RCMP Federal Policing Operations East in St.

John’s, NL were contacted by Codiac RCMP in Moncton, NB, regarding a suspicious parcel that was intercepted at the UPS shipping station, Dieppe Airport, Dieppe, NB. 2. UPS staff were loading shipping containers when an employee noted an odour consistent with Cannabis marihuana. The employee notified their supervisor and the parcel was opened by UPS and found to contain a quantity of Cannabis marihuana. 3. Codiac RCMP attended to the scene and seized the parcel. The Cannabis marihuana was contained in 11 vacuum sealed bags and the total weight was 11, 240g (24.8 pounds).

The parcel and contents originated in Langley, BC, and was shipped from a UPS store. The destination address was Matt Baker, 22A Westminster Drive, Mount Pearl, NL. 4. A controlled delivery was planned by the RCMP Federal policing Operations East. The seized parcel was replicated to appear to be the same as the original seized parcel from Dieppe, NB, and General Warrant and Tracking Warrant were obtained on January 9, 2017, to allow the controlled delivery to take place. 5.

On January 10, 2017, the replicated parcel was delivered by an undercover police officer posing as a UPS employee to 22A Westminster Drive, Mount Pearl. A male who identified himself as Matt Baker to the undercover police officer accepted the parcel. 6. Half an hour later an unidentified male arrived at the residence at 22A Westminster Drive and went inside. Four minutes later the same male exited the residence with the parcel and walked back to his vehicle. This male was arrested at the scene for possession for the purpose of trafficking and identified as Nicholas Murphy.

Nicholas Murphy had two iPhones on his person at the time of his arrest and they were seized by police. Police subsequently arrested Matt Baker and obtained a Warrant to search 22A Westminster Drive. 7. Matt Baker provided a cautioned statement to the police. Matt Baker advised that he had been approached by Nicholas Murphy and asked if he would be willing to have parcels dropped at his house for $400.00 each time. Matt Baker was advised that he would not have to touch the parcels and Nicholas Murphy would pick them up.

Matt Baker would ensure that he would be home when the parcels were delivered and the money would be left in a hiding spot on his porch. Matt Baker was aware that the parcels would contain Cannabis marihuana. Matt Baker explained that on January 10, 2017, the UPS delivery person came to his house and delivered the parcel. Soon after Nicholas Murphy came to his home to get the parcel and paid him $800.00 for accepting the parcel. Matt Baker advised that he had followed four to five previous shipments to come to his house and that he made about $2000.00 total on those shipments. 8.

Nicholas Murphy also provided a cautioned statement to police on January 10, 2017, after having exercised his right to counsel and while under police caution, that the parcel would not have anything more than marihuana inside and that he was taking the parcel to another location for someone else, but would not elaborate further. 9. Nicholas Murphy was released on a Promise to Appear with an attached Undertaking before an Officer in Charge. 10. Samples of the seized substance was sent to Health Canada for analysis and was found to be Cannabis marihuana. (See Certificates attached). 11.

The street value of the Cannabis marihuana seized if sold at the gram level would be $168,600 - $224,800 (based on a value of $2800-3000 per pound). (See Opinion Report of Cst. David Emberley attached) 12. A s. 287 Search Warrant was obtained to search the cell phones seized from Nicholas Murphy. The contents were subsequently analyzed and were found to contain some contact between Matt Baker and Nicholas Murphy and limited messages about drugs and being

caught with the parcel. [ 7 ] The Crown concedes that there is no evidence that Mr. Murphy was engaged in the sale of cannabis, either to a dealer, or to end users of the product. Rather, Mr. Murphy acted as an intermediary, transporting the cannabis from the home of Matt Baker to “someone else” (Agreed Statement of Facts, paragraph 8). While the street value of the cannabis, if sold at the gram level, was estimated to be as high as $225,000, there is no evidence before me on how much Mr. Murphy was paid for its transport. circumstances of the OFFENDER [ 8 ] Mr.

Murphy presents to the Court as a first time offender, who was 26 years old at the time of the offence. He testified at his sentencing hearing, albeit with considerable difficulty at times, such is his profound regret over having “let his parents down”. Mr. Murphy admitted his involvement in a cautioned statement to police at the time of his arrest. He subsequently entered a guilty plea and took responsibility for his behavior. I accept his remorse as genuine. [ 9 ] Mr. Murphy is in his third year as a millwright apprentice. He explained that he had been working up until a month or so prior to the offence.

Due to his loss of employment, he found that he was “barely able” to pay his bills. It was at this time that he was approached by someone in downtown St. John’s with a proposition for quick cash. He was feeling vulnerable at the time and much to his everlasting regret availed of the opportunity. As the saying goes, the rest is history. Mr. Murphy related this circumstance, not as an excuse for his behavior, but rather by way of explanation for what he now recognizes as a poor decision on his part. [ 10 ] Following his arrest Mr. Murphy was released on his own recognizance.

He has since fully complied with the terms of that release. In July 2017, he moved to Calgary, Alberta, where from August of that year to January 2018, he trained for a job with a life insurance company. He wrote and passed four provincial exams, only to be told that due to his outstanding charge, the company would not employ him after all. [ 11 ] He then moved to Edmonton, Alberta, where he pursued employment in car sales.

However, once again the outstanding charge stood as a roadblock, and his sales license was revoked. [ 12 ] Undaunted, in January 2018 he managed to secure employment with a construction company. He was employed with this company until September of this year, when he commenced his current employment, laying pipeline at a camp known as Horizon North, in Alberta. Prior to attending Court for his sentencing hearing, he stayed at that camp for 40 days straight, working 60 hours a week on average. The camp is “dry”, such that neither alcohol, nor recreational drug (cannabis) use is permitted.

Since starting at the camp, Mr. Murphy has passed three random drug screening tests, one of which, dated 3 October 2018, was entered in evidence. [ 13 ] At the time of his sentencing hearing Mr. Murphy was scheduled to return to Horizon North the following week. The Court’s disposition on 23 November 2018 permitted him to do so. [ 14 ] It is a testament to Mr. Murphy’s character that when twice denied an employment opportunity due to the charge before this Court, he continued to forge ahead.

In the case of life insurance, in particular, he had invested considerable time and effort. [ 15 ] In terms of his future, Mr. Murphy’s career prospects look bright. In January 2019, he has an employment opportunity in Surrey, British Columbia, with the AMEX Group, providing maintenance on vessels. This employment provides good long-term prospects, including the opportunity to advance in his trade as a millwright. Specifically, in this position he has the opportunity to progress from an apprentice to a journeyman. [ 16 ] Members of Mr.

Murphy’s family, his father, sister and four of his aunts, all testified regarding his character. What emerges from their collective testimony is the image of a close knit, law-abiding family, of which Mr. Murphy is an integral part. He was variously described as a “good kid”, who “played by the rules,” “not selfish,” “independent,” “kind and compassionate” and one who was “never in trouble.” Understandably, they were both surprised and disappointed by his lapse of judgment. [ 17 ] Mr.

Murphy’s family support remains strong, however, and I am confident that the passage of time will heal these wounds. position of the Crown and Defence [ 18 ] The Crown argues for a period of imprisonment in the range of 18 to 24 months. [ 19 ] The Crown observes that Mr. Murphy’s conduct was prior to the legalization of cannabis, on 17 October 2018, and, in any event, what he did remains a criminal offence under the Cannabis Act , S.C. 2018, c. 16. As such, the Crown rejects any suggestion that Mr.

Murphy’s sentence should be more lenient as a consequence of legalization. [ 20 ] While the offence is a secondary designated offence, for which a DNA Order is discretionary, the Crown submits that such an Order should nevertheless be made. [ 21 ] Finally, the Crown seeks an Order for forfeiture and notes the mandatory firearms’ prohibition in

section 109 of the Criminal Code , R.S.C. 1985, c. C-46. [ 22 ] The defence seeks a suspended sentence and probation. While acknowledging that Mr. Murphy’s behavior remains illegal, the defence argues that society’s attitude towards cannabis is such that the principles of general deterrence and denunciation are of less import than in the past, at least as they apply in this case. [ 23 ] In the alternative, the defence submits that regardless of whether or not the foregoing argument were accepted, Mr.

Murphy’s antecedents are such that the Court should suspend the passing of sentence and order a period of probation in any event. [ 24 ] The defence submits that the interests of justice do not warrant a DNA Order.

[ 25 ] Finally, the defence agrees to a forfeiture Order and acknowledges the mandatory nature of

section 109 of the Criminal Code . the statutory regime The CDSA and Criminal Code [ 26 ] As noted, Mr. Murphy was convicted of having in excess of three kilograms of cannabis in his possession, for the purpose of trafficking, contrary to subsection 5(2) of the CDSA . The offence dates from early January 2017 and for sentencing purposes the applicable statutory regime is that which was in place at the time. [ 27 ] In 2017 cannabis was listed under Item 1 in

Schedule II to the CDSA . The significance of the quantity of cannabis involved lies in the combined application of subsection 5(3) ( a.1 ) and the

Schedule VII of the CDSA . If the quantity of cannabis is three kilograms or less, the maximum term of imprisonment is five years less a day. If in excess of three kilograms, as in this case, the offence attracts a maximum penalty of imprisonment for life. [ 28 ] As well, in certain circumstances, as enumerated in subsection 5(3) (

a) of the CDSA , the offence attracts a minimum period of either one or two years’ imprisonment. Specifically, subsection 5(3)(a)(i)(ii) of the CDSA reads, as follows: 5

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

a) if the subject matter of the offence is a substance included in

Schedule I or II, is guilty of an indictable offence and liable to imprisonment for life, and (

i) to a minimum punishment of imprisonment for a term of one year if (

A) the person committed the offence for the benefit of, at the direction of or in association with a criminal organization, as defined in subsection 467.1(1) of the Criminal Code , (

B) the person used or threatened to use violence in committing the offence, (

C) the person carried, used or threatened to use a weapon in committing the offence, or (

D) the person was convicted of a designated substance offence, or had served a term of imprisonment for a designated substance offence, within the previous 10 years, or (ii) to a minimum punishment of imprisonment for a term of two years if (

A) the person committed the offence in or near a school, on or near school grounds or in or near any other public place usually frequented by persons under the age of 18 years, (

B) the person committed the offence in a prison, as defined in

section 2 of the Criminal Code , or on its grounds, or (

C) the person used the services of a person under the age of 18 years, or involved such a person, in committing the offence; [ 29 ] None of the foregoing mandatory minimum sentences are applicable to the sentencing of Mr. Murphy. [ 30 ] As the maximum penalty for Mr. Murphy’s crime is life imprisonment, pursuant to

section 730 of the Criminal Code , Mr. Murphy is not eligible for an absolute or conditional discharge. [3] [ 31 ] Nor is Mr. Murphy eligible for a conditional sentence, commonly referred to as “house arrest”, pursuant to

section 742.1 of the Criminal Code . The Safe Streets and Communities Act , S.C. 2012, c. 1 enacted several changes to this provision, including adding a prohibition against the imposition of a conditional sentence for any offence in “which the maximum term of imprisonment is 14 years or life” (see subsection 742.1(c)). These changes came into effect on 20 November 2012. [ 32 ] Pursuant to

section 731 of the Criminal Code , as there is no mandatory minimum sentence applicable to Mr. Murphy, the Court may suspend the passing of sentence and order a period of probation. In making such an order the Court shall have regard to the age and character of the offender, the nature of the offence and the circumstances surrounding its commission.

[ 33 ] An offence under

section 5 of the CDSA is a secondary designated offence, as defined in

section 487.04 of the Criminal Code . As such, pursuant to subsection 487.051(3) of the Criminal Code , the Court has a discretion to order the taking of a DNA sample from Mr. Murphy, depending on whether or not it is in the best interests of justice to do so. [ 34 ] As this is Mr. Murphy’s first offence, and since it is a violation of subsection 5(2) of the CDSA ,

section 109 of the Criminal Code imposes a mandatory lifetime ban from possessing any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition. There is also a minimum 10-year prohibition on possessing any firearm, crossbow, ammunition or explosive substance. [ 35 ] Finally, pursuant to

section 737 of the Criminal Code , at the time of sentencing, Mr. Murphy was liable to pay a mandatory minimum $200 victim fine surcharge. The Cannabis Act [ 36 ] The Cannabis Act was passed on 21 June 2018. As a consequential amendment, Item 1 (cannabis), was removed from

Schedule II of the CDSA . Subject to the terms of the Cannabis Act , the possession, use and distribution of cannabis became legal in Canada on 17 October 2018. While Mr. Murphy is not being sentenced for an offence under the Cannabis Act , the Court was nevertheless referred to this legislation by both the Crown and defence, as possibly offering some insight into the current attitude of Parliament, and indeed Canadian society, towards cannabis related offences. [ 37 ] The Crown correctly observes that the conduct for which Mr. Murphy was convicted remains a criminal offence under the Cannabis Act .

The unauthorized possession, distribution and sale of cannabis remains a criminal offence under sections 8, 9 and 10 of that Act . In the case of the unauthorized possession of cannabis for distribution (section 9), or sale (section 10), when prosecuted by way of indictment, the maximum penalty for an individual 18 years of age or older, is 14 years’ imprisonment. This may be compared with life imprisonment under the CDSA . When prosecuted summarily the maximum penalty for an individual of that age is a fine of $15,000, or a term of imprisonment of 18 months, or both.

Time will tell whether the crime for which Mr. Murphy is now convicted will be prosecuted by way of indictment, or summarily, in the future. [ 38 ] For an individual 18 years of age or older, possession of cannabis up to 30 grams [4] is lawful (subsection 8(1)(a)) as is the distribution of cannabis up to this amount (subsection 9(1)(a)(i)). For sentencing purposes, unlike the CDSA , the Cannabis Act does not specify a graduated sentence above the 30-gram limit, based on the quantity of cannabis involved.

The three-kilogram distinction in the CDSA does not appear in the Cannabis Act . [ 39 ] Also, unlike the CDSA , the Cannabis Act contains no mandatory minimum term of incarceration. Rather, the circumstances outlined in subsection 5(3) (a)(i)(ii) of the CDSA which, if present, result in a minimum period of one or two years’ imprisonment, are listed as aggravating factors under the Cannabis Act . [ 40 ] In this regard, section 15(2) of the Cannabis Act reads, as follows: 15(2).

If an individual is convicted of a designated offence, the court imposing sentence on the individual must consider any relevant aggravating factors, including that the individual (

a) in relation to the commission of the offence, (

i) carried, used or threatened to use a weapon, (ii) used or threatened to use violence, or (iii) sold or distributed cannabis or possessed it for the purpose of sale or distribution, in or near a school, on or near school grounds or in or near any other public place usually frequented by young persons; and (

b) was previously convicted of a designated offence , as defined in subsection 2(1) of this Act, or a designated substance offence , as defined in subsection 2(1) of the Controlled Drugs and Substances Act .

(3) If, in the case of an individual who is convicted of a designated offence, the court is satisfied of the existence of one or more of the aggravating factors enumerated in paragraphs (2)(

a) and (b), but decides not to sentence the individual to imprisonment, the court must give reasons for that decision.

(4) A court sentencing an individual who is convicted of an offence under this Division may delay sentencing to enable the individual

(

a) to participate in a drug treatment court program approved by the Attorney General; or (

b) to attend a treatment program under subsection 720(2) of the Criminal Code . [ 41 ] Where the aggravating factors are present, but the Court decides not to sentence the offender to a term of imprisonment, the Court must give reasons for that decision. The Cannabis Act thus leaves the door open for a disposition which does not include imprisonment, even where one or more of the deemed aggravating factors are present. [5] [ 42 ] Under the combined operation of the Criminal Code and Cannabis Act , a conditional sentence remains unavailable in the circumstances faced by Mr. Murphy. The current

section 109 firearms’ prohibition continues to apply and the offence remains a secondary designated offence for DNA purposes. When prosecuted by way of indictment, the maximum term of imprisonment of 14 years means that an absolute or conditional discharge is also unavailable. [ 43 ] While continuing to treat the unauthorized possession of cannabis for distribution and sale of cannabis as a criminal offence, at its more serious level there are three noteable changes between the CDSA and the Cannabis Act : (

a) The maximum period of imprisonment is reduced from life to 14 years; (

b) The elimination of mandatory minimum terms of imprisonment; and (

c) The lack of a graduated sentence based on the quantity of cannabis involved. [ 44 ] In circumstances, such as those faced by Mr. Murphy, there is no change in relation to the unavailability of a conditional sentence, or a discharge, the

section 109 firearms’ prohibition and discretionary DNA order. principles of sentencing The CDSA [ 45 ] Section 10(1) of the CDSA provides that the fundamental purpose of any sentence for an offence “is to contribute to the respect for law and the maintenance of a just, peaceful and safe society while encouraging rehabilitation and treatment in appropriate circumstances, of offenders and acknowledging the harm done to victims and to the community.” [ 46 ] In circumstances where the Court is not obliged to impose a minimum period of imprisonment, section 10(2) of the CDSA sets out a number of deemed aggravating factors which the Court must take into consideration in imposing a sentence.

It reads: 10

(2) If a person is convicted of a designated substance offence for which the court is not required to impose a minimum punishment, the court imposing sentence on the person shall consider any relevant aggravating factors including that the person (

a) in relation to the commission of the offence, (

i) carried, used or threatened to use a weapon, (ii) used or threatened to use violence, (iii) trafficked in a substance included in

Schedule I, II, III, IV or V, or possessed such a substance for the purpose of trafficking, in or near a school, on or near school grounds or in or near any other public place usually frequented by persons under the age of 18 years, or (iv) trafficked in a substance included in

Schedule I, II, III, IV or V, or possessed such a substance for the purpose of trafficking, to a person under the age of 18 years; (

b) was previously convicted of a designated substance offence; or (

c) used the services of a person under the age of eighteen years to commit, or involved such a person in the commission of, a designated substance offence.

[ 47 ] None of these aggravating factors apply to the sentencing of Mr. Murphy. The Criminal Code [ 48 ] In addition to the CDSA , the Court’s decision on a just and appropriate sentence for Mr. Murphy must, of course, be guided by the principles codified in sections 718 to 718.2 of the Criminal Code . [ 49 ]

Section 718 of the Criminal Code provides that the fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society, by imposing sanctions having one or more of the objectives set forth in that section.

These objectives are to denounce unlawful conduct and the harm done to victims, or to the community that is caused by unlawful conduct; deter the offender and other persons from committing offences; separate offenders from society, where necessary; assist in rehabilitating offenders; provide reparations for harm done to victims, or to the community; and promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims, or to the community. [ 50 ]

Section 718.1 of the Criminal Code provides that the fundamental principle of sentencing is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. It is an expression of the principle that a fit sentence is one that takes into account the circumstances of the offence(

s) and of the offender ( R. v. Lundrigan , 2012 NLCA 43 ). [ 51 ] Proportionality is central to the sentencing process, as a sentence which properly respects this principle will at the same time ensure that the secondary goals of denunciation, restraint, promotion of justice for victims, and the maintenance of public confidence in the administration of justice are met. The principle of proportionality applies to sentencing for all criminal offences ( R. v. Cluney , 2013 NLCA 46 ). [ 52 ] Subsection 718.2 (

a) of the Criminal Code provides that a sentence should be increased, or reduced, to account for any relevant aggravating or mitigating circumstances relating to the offence, or the offender. In R. v. Briand , 2010 NLCA 67 our Court of Appeal stressed the importance of the offender’s personal circumstances in the application of this provision. None of the deemed aggravating circumstances in that provision are applicable to the sentencing of Mr. Murphy. [ 53 ] Subsection 718.2(

b) is an expression of the principle of parity, that “a sentence should be similar to sentences imposed on similar offenders for similar offences in similar circumstances.” [ 54 ] As it relates to parity, in sentencing I am first of all obliged to determine if a “prescriptive” or “descriptive” range of sentence applies ( R. v. Johnston , 2011 NLCA 56 ) . In this regard, I do not regard our Court of Appeal decisions [6] as establishing a prescriptive range for possession of cannabis for the purpose of trafficking. Rather, they stand as guidelines, rather than hard and fast rules.

That said, a judge ordering a sentence outside the range should explain how it is in accordance with the principles and objectives of sentencing (see, Cluney ). [ 55 ] Pursuant to subsection 718.2 (

d) of the Criminal Code , the offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances. Pursuant to subsection 718.2(

e) of the Criminal Code , all non-custodial sentences should be considered provided they are reasonable in the circumstances and consistent with the harm done to victims, or to the community, with particular attention to the circumstances of Aboriginal offenders. The Cannabis Act [ 56 ] Once again, I was referred to the Cannabis Act , not because it is directly applicable to the sentencing of Mr. Murphy, but in an effort to discern whether there has been any shift in the principles of sentencing as a consequence of legalization. [ 57 ] The purpose of the Cannabis Act is set forth in

section 7 , as follows: 7. The purpose of this Act is to protect public health and public safety and, in particular, to (

a) protect the health of young persons by restricting their access to cannabis; (

b) protect young persons and others from inducements to use cannabis; (

c) provide for the licit production of cannabis to reduce illicit activities in relation to cannabis; (

d) deter illicit activities in relation to cannabis through appropriate sanctions and enforcement measures; (

e) reduce the burden on the criminal justice system in relation to cannabis; (

f) provide access to a quality-controlled supply of cannabis; and

(

g) enhance public awareness of the health risks associated with cannabis use. [ 58 ] There are undeniable parallels between Parliament’s rationale in regulating the use of cannabis and government’s control over the production, sale, and distribution of two other legal drugs; alcohol and tobacco. Broadly speaking, the protection of young persons, control over quality and the enhancement of public awareness. For these reasons, the Crown correctly observes that, pursuant to subsection 7 (

d) of the Cannabis Act , deterrence of illicit activities remains a relevant consideration, through “appropriate sanctions and enforcement measures.” [ 59 ] Section 15(1) of the Cannabis Act addresses the purpose of sentencing, as follows: 15

(1) Without restricting the generality of the Criminal Code , the fundamental purpose of any sentence for an offence under this Division is to contribute to the respect for the law and the maintenance of a just, peaceful and safe society while encouraging rehabilitation, and treatment in appropriate circumstances, of offenders and acknowledging the harm done to victims and to the community. [ 60 ] As previously noted, subsection 15(2) goes on to enumerate certain deemed aggravating circumstances, none of which would have been applicable to Mr. Murphy. [ 61 ] The language of

section 15 of the Cannabis Act closely approximates that of

section 10 of the CDSA as it existed at the time of Mr. Murphy’s offence. [ 62 ] As the language of the Cannabis Act closely approximates

section 10 of the CDSA , and section 15(1) of the Cannabis Act is prefaced with the language “Without restricting the generality of the Criminal Code …”, I do not discern any appreciable change in the principles of sentencing for cannabis related offences post legalization. As we shall see, the relative weight to be attributed to these principles, in particular those of denunciation and deterrence, may be another matter. What will now constitute “appropriate sanctions” directed towards deterrence?

Previous Decisions [ 63 ] The principle of parity, that like cases should be decided alike, is a fundamental principle of sentencing ( R. v. Kane , 2012 NLCA 53 ). Accordingly, the Court was referred by the Crown and defence to a number of prior sentencing decisions for possession of cannabis for the purpose of trafficking. [ 64 ] Temporally, the decisions referenced span three general periods in the sentencing for this crime. The first dates from the early years of this decade, when a conditional sentence remained an option for this offence.

The second after passage of the Safe Streets and Communities Act , with its removal of the conditional sentence option. The third is still in its embryotic stage, as sentencing judges prior to passage of the Cannabis Act grappled with what was then an anticipated change in the law respecting cannabis. The Conditional Sentence Era [ 65 ] Turning first to those decisions at a time when a conditional sentence remained an option. [ 66 ] R. v. Provost , 2006 NLCA 30 .

In this case, based on totality, our Court of Appeal reduced an overall sentence of 43 months, to 34 months, for two counts of possession of approximately 7 lbs. of cannabis resin for the purpose of trafficking and breach of recognizance.

For each of the drug offences, the court imposed a sentence of 15 months consecutive, and for the breach of recognizance, four months consecutive. [ 67 ] This decision is often quoted for the distinction drawn between “hard” (e.g. cocaine) and “soft” (e.g. cannabis) drugs and the statement “that the ‘normal maximum’ for trafficking in marijuana (other than large quantities) would be around 24 months” (at paragraph 57). [ 68 ] In addition to being decided some 12 years ago, the facts in Provost are themselves somewhat unique and distinguishable from the case before me. Mr.

Provost had two prior convictions for drug offences, arising in 1994 and 1997. Furthermore, in the case before the Court of Appeal, he was convicted of two back-to-back offences committed within one week. The second offence occurred while Mr. Provost was on recognizance following his arrest on the first charge. [ 69 ] R. v. Hunt , 2012 NLCA 5 . Our Court of Appeal reduced a 12-month term of imprisonment for possession of 39 grams of cannabis for the purpose of trafficking to time served (126 days). Mr. Hunt was 24 years old. At the time of the offence he was unemployed and on social assistance.

He had a prior criminal record which included theft, mischief, causing a disturbance and possession of cannabis for the purpose of trafficking. After a review of previous decisions, Barry, J.A. (for a unanimous court) wrote (at paragraph 18): 18. …. Considering Quilty and other cases cited, the lower end of the range of sentence for possession for the purpose of trafficking by street level dealers of small amounts of marijuana would be three months' incarceration. However, where a youthful offender has a criminal record, the sentencing range would more appropriately be increased to four to six months.

In the particular circumstances of this case, time served (126 days) is sufficient to achieve the appropriate level of specific and general deterrence (see paragraph 19, below). The 12-month sentence was unnecessary in the circumstances and, with respect, demonstrably unfit. It failed to sufficiently recognize the relatively small quantities involved, the guilty plea (though after a preliminary inquiry) and the potential for rehabilitation (despite the somewhat dated record).

In light of this determination, it is unnecessary to consider whether the sentence for possession for the purpose of trafficking should be served conditionally.

[ 70 ] R. v. Tatchell , 2011 NLTD(G) 87. Following a guilty plea, Goodridge, J., accepted a joint submission for a 9-month conditional sentence, followed by 2 years’ probation, for possession of cannabis for the purpose of trafficking. The offender was 38 years old, with a relatively small role, serving as a postal address for the shipment of cannabis. [ 71 ] R. v. Martin , 2011 NLTD(G) 142. Following a guilty plea, Adams, J., sentenced the offender to a conditional sentence of 24 months less a day, followed by two years’ probation, for possession of 16.6 lbs. of cannabis for the purpose of trafficking.

The offender was 47 years of age, employed and on methadone for his drug addiction. He had a prior criminal record for drug trafficking in 1992, 1996 and 2002. [ 72 ] R. v. Gendron , 2012 NLTD(G) 35. Following a guilty plea, Seaborn, J., accepted a joint submission for an 18-month conditional sentence and one year’s probation for the possession of 30 lbs. of cannabis for the purpose of trafficking. The 60-year-old offender, on social assistance, suffered from alcohol abuse and emotional issues.

He had a prior criminal record which was “dated and sporadic” (at paragraph 11), but which included a conviction for possession of cocaine in 2005. [ 73 ] R. v. Sullivan , 2012 NLTD(G) 88. After a trial, Goodridge, J., convicted the offender of possession of 48.94 lbs. of cannabis for the purpose of trafficking. He accepted a joint submission of three years’ imprisonment. The offender was 49 years old with four prior convictions for trafficking and three for possession of an illegal drug, spanning the period 1981-2003. [ 74 ] R. v. Martin , 2012 NLTD(G) 128.

Following guilty pleas, Faour, J., imposed 20-month conditional sentences on two offenders for possession and trafficking in a total of 16.5 lbs. of cannabis (the sentences to be served concurrently). The offenders were 57 and 43 years of age. Both offenders had criminal records. In the case of one offender, the record was extensive, and while it would normally have attracted a higher sentence, Faour, J., observed that the offender’s last conviction was eight years ago and that he had made efforts toward rehabilitation. [ 75 ] R. v. Roach , 2012 NLTD(G) 153.

Following a guilty plea, Goodridge, J., sentenced the offender to a 21-month conditional sentence, followed by 12 months’ probation, for trafficking in 35 lbs. of cannabis. The offender was 57 years of age with an unrelated criminal record arising from a confrontation with his estranged wife. [ 76 ] R. v. Parsons , 2012 NLTD(G) 192. Following a guilty plea, Goulding, J., accepted a joint submission for a 20-month conditional sentence followed by 12 months’ probation, for possession of 9.5 lbs. of cannabis for the purpose of trafficking.

The offender was 41 years of age, employed in the family business and had no criminal record. [ 77 ] R. v. Hawco (2013), 335 Nfld. & P.E.I.R. 318 , 1040 A.P.R. 318 (N.L. Prov. Ct. ) . Following a guilty plea, Gorman, Prov. Ct. J., accepted a joint submission for a 15-month conditional sentence and one year’s probation for possession of 1635 grams of cannabis for the purpose of trafficking. The 21-year-old offender was unemployed and had a prior criminal record, which included uttering threats, evading police, damage to property and possession of a controlled substance. [ 78 ] R. v. Lord , 2013 NLTD(G) 5.

Following a guilty plea, Goodridge, J., accepted a joint submission for a 14-month conditional sentence followed by 12 months of probation, for possession of 11 lbs. of cannabis for the purpose of trafficking. The offender was 24 years of age, employed, in a stable relationship, with no prior criminal record and had received a positive pre-sentence report. [ 79 ] R. v. Giulioni , 2013 NLTD(G) 54. Following a guilty plea, Goodridge, J., imposed a 15-month conditional sentence followed by 15 months’ probation for possession of 24.5 lbs. of cannabis for the purpose of trafficking.

The 35-year-old offender, with no prior criminal record, came from a supportive family and received a positive pre-sentence report. [ 80 ] R. v. Burke (2013), 339 Nfld. & P.E.I.R. 30, 1054 A.P.R. 30 (N.L. Prov. Ct.) . Following a guilty plea, Gorman, Prov. Ct. J., accepted a joint submission for a conditional sentence of two years less a day for possession of 56 lbs. of cannabis for the purpose of trafficking. The offender was 34 years of age, employed, and had no prior convictions. [ 81 ] Two observations are apparent from the foregoing authorities.

First, many involved a guilty plea followed by a joint submission. Plea bargains were commonplace. Second, a conditional sentence was very much the norm for the offence of possession of cannabis for the purpose of trafficking. [ 82 ] The sentencing judges were thus satisfied that the objectives of deterrence and denunciation could be satisfied through the imposition of “house arrest”, albeit with conditions, in preference to incarceration in an institution. [ 83 ] With regard to such sentences, Chief Justice Lamer remarked in R. v. Proulx , 2000 SCC 5 (at paragraph 102 ): ...

Incarceration will usually provide more denunciation than a conditional sentence, as a conditional sentence is generally a more lenient sentence than a jail term of equivalent duration. That said, a conditional sentence can still provide a significant amount of denunciation. This is particularly so when onerous conditions are imposed … . [ 84 ] While onerous conditions may indeed form part of a conditional sentence, I cannot help but observe that in each of the foregoing decisions the offender was granted relief from house arrest to attend to personal matters and to attend at work.

The offender was thus permitted to continue as a productive member of society, albeit with other restrictions on his or her liberty. [ 85 ] In the era of the conditional sentence, the courts were thus satisfied, when the offence was possession of cannabis for the purpose of trafficking, that proportionality could be maintained without the imposition of hard time (i.e. imprisonment in an institution). Such sentences were seen to satisfy society’s need for denunciation and general deterrence, while at the same time recognizing the offender’s prospects for rehabilitation.

The length of the conditional sentence varied depending on the circumstances, but in most cases the sentence ended up being conditional. [ 86 ] While no two cases are alike, of the foregoing decisions I find those of Lord and Giulioni to most closely approximate the case before me. Based on these precedents, were Mr. Murphy to have been sentenced during this era, he might reasonably have expected to

receive a conditional sentence in the range of 15 months followed by 12 months of probation. To be sure, there would be restrictions on his liberty, but not such as to deprive him of a home environment and not such as to deprive him of his livelihood. The Post Conditional Sentence Era [ 87 ] As noted, in November 2012, with the passage of the Safe Streets and Communities Act , Parliament implemented sweeping changes to the Criminal Code , one of which was to remove the option of a conditional sentence for crimes punishable by a term of imprisonment of 14 years, or life. As a consequence, as cannabis remained a CDSA

Schedule II drug, the conditional sentence no longer remained an option for those convicted of possession of cannabis in excess of three kilograms for the purpose of trafficking. [ 88 ] I have thus considered a number of decisions involving possession of cannabis for the purpose of trafficking, which predate the federal government’s commitment to legalize the recreational use of cannabis. [ 89 ] R. v. St. Croix , 2014 CarswellNfld 120 , 1 082 A.P.R. 1 (Prov. Ct.) Gorman, Prov.

J. sentenced the offender to a suspended sentence and 12 months’ probation for possession of 293 grams of cannabis for the purpose of trafficking. The offender was 20 years of age with no prior convictions. He came from a supportive family and was deemed by the author of his Pre Sentence Report to be a low risk to become involved in other criminal activities. Mr. St. Croix was also given an absolute discharge for possession of cannabis and a $2,000 fine for possession of cocaine. [ 90 ] Gorman, Prov. J. observed that while the suspended sentence was at the “very lower end of the range”, in R. v.

Owens , 2014 BCSC 32 a suspended sentence and probation was imposed for the offences of possession of cannabis and cocaine for the purpose of trafficking. [ 91 ] In Owens , Griffin, J., of the British Columbia Supreme Court, suspended the passing of sentence and ordered a two-year period of probation for the offences of possession of cocaine and cannabis for the purpose of trafficking. Mr. Owens pled guilty and was remorseful. When he became financially strapped, he began selling drugs. At the time of his arrest he had approximately 22.1 grams of cocaine and 17 ounces of cannabis in his possession.

He was 21 years old at the time of the offences with no prior criminal record. Mr. Owens graduated from high school and prior to his arrest was seeking to upgrade his skills and obtain employment. He had been under strict bail conditions since his arrest without incident. He was employed full time and considered a hard working employee. Letters of support were provided by his employer, family and friends. [ 92 ] After reviewing the principles of sentencing in

section 718 of the Criminal Code , Griffin, J. writes (at paragraphs 46, 51, 57 and 60): 46. Here, there was no suggestion that a jail sentence would promote rehabilitation or a sense of responsibility for Mr. Owens. I am satisfied that Mr. Owens has taken personal responsibility. He has a far greater chance at rehabilitation if he is to remain working than if he is to have to quit his employment to go to jail. 51. What is similar about this case compared to others shown to me by the defence is that Mr. Owens is a first-time offender and a young man who has shown considerable remorse.

His actions since the offence are consistent with his claim that he knows that what he did was wrong and he feels very badly about it and pledges to never engage in this conduct again. 57. A period of probation with terms is also a serious restriction on the liberty of an offender, and can put the offender to a much longer period of supervision than incarceration. In a case such as this I conclude it has a better prospect of truly re-integrating the offender into lawful society than does incarceration which will expose the offender to more entrenched criminals. 60.

Given the stable and productive life he is now living, I find that the short jail sentence sought by the Crown here will impede and not facilitate rehabilitation of Mr. Owens. [ 93 ] While at age 26, Mr. Murphy may be beyond the age of the youthful offender [7] , he is nevertheless a first time offender with many of the antecedents of Mr. Owens. While the quantity of cannabis is much larger in the case of Mr. Murphy, Mr. Owens was also involved in the trafficking of “the dangerously addictive drug, cocaine” (at paragraph 55). [ 94 ] R. v. Brenton , 2016 NLTD(G) 121.

Following a trial, Handrigan, J., convicted Brenton of possessing 39.5 lbs. of cannabis for the purpose of trafficking. He was sentenced to 21 months’ imprisonment, less credit for 86 days spent in pre-sentence custody. [ 95 ] Mr. Brenton had received delivery of his cannabis via Canada Post from British Columbia. He was a first-time offender who professed to be self-employed, earning some $100,000 annually on a cash basis. His claims of employment were suspect, however, causing the author of his pre-sentence report to suggest that he could benefit from employment counselling. Notably, post-conviction, Mr.

Brenton continued to maintain that his possession was for pain management purposes, notwithstanding evidence at trial that 39 lbs. of cannabis would supply a heavy user for 23 years. Brenton accepted no responsibility for his crime and maintained that as a “man” and “private citizen”, Canadian criminal law did not apply to him. The antecedents of Mr. Brenton are a far cry from those of Mr. Murphy. [ 96 ] On appeal ( R. v.

Brenton , 2016 NLCA 66 ), Brenton continued to maintain that he was not subject to the law, based on his contention of a distinction between his legal and natural person and violations of his human rights. Hoegg, J.A., concluded that Brenton’s asserted grounds of appeal, “…do not so … much as touch on the legal issues at play in his criminal proceedings, and are otherwise irrelevant and illogical.” (at paragraph 11).

[ 97 ] After reference to Fiander v. Mills , 2015 NLCA 31 , in which Green, C.J., described the “private citizen” claims, such as those made by Mr. Brenton, as “frivolous, vexatious and an abuse of the process”, Hoegg, J.A., concluded that to grant Mr. Brenton’s application for an extension of time to file his appeal would “…waste the justice system's valuable time and resources to the prejudice of its legitimate participants.” (at paragraph 16). [ 98 ] It is true, as the Crown argues, that Hoegg, J.A., also reviewed the record and concluded that there was no merit to Mr. Brenton’s appeal.

This may be taken as a tacit acceptance of the sentence imposed. [ 99 ] However, the foregoing facts in Brenton are sufficiently unique, and Mr. Brenton’s antecedents so different from Mr. Murphy, that I do not understand this case to stand for the proposition that an appropriate range of sentence for Mr. Murphy is between 18 and 24 months’ imprisonment, as suggested by the Crown. Sentencing in Anticipation of Legalization [ 100 ] Finally, I was referred by counsel to a number of sentencing decisions prior to the legalization of cannabis, but when the winds of change were blowing hard from the west. [ 101 ] R. v.

Neary , 2017 SKCA 2 . The Crown appealed a suspended sentence of two years, following Mr. Neary’s convictions for possession of marijuana for the purpose of trafficking, trafficking in marijuana, possession of the proceeds of crime and possession of psilocybin. Mr. Neary was in possession of some 20 lbs. of marijuana. He had no criminal history, performed volunteer work, had a university degree, steady work history and supportive network of family and friends. [ 102 ] In imposing a suspended sentence the trial judge relied, in part, on what was at the time an anticipated change in the law (at paragraph 13): 13.

After observing that the federal government was taking steps to legalize marijuana, he proceeded to sentence Mr. Neary. The trial judge suspended the passing of sentence for two years subject to certain conditions concluding as follows: [37] No larger good is served sentencing Seamus John Neary to jail. He poses no danger to the community. He has conducted himself well as a citizen but for this single unfortunate foray in the mire of the drug world. To be certain, as he attempted to engage in a criminal enterprise, his crimes are deserving of denunciation and deterrence.

However, facing the reality that the product in which he dealt is to become legal, it should be said that the decibel level of such denunciation and deterrence may be less than it otherwise would be. [38] After reflecting upon the excellent insights of both Crown and defence counsel, I conclude that it is appropriate to suspend the passing of sentence upon Seamus John Neary for two years. During that two years, Mr.

Neary shall be subject to and must comply with the following conditions: ... [ 103 ] The Saskatchewan Court of Appeal concluded that the sentence imposed was demonstrably unfit and imposed instead a 15- month period of incarceration for each of trafficking and possession of marijuana, to be served concurrently. In doing so, the Court observed that Mr. Neary “clearly trafficked drugs for profit” and that the principles of denunciation and deterrence are paramount.

As for the argument that the Court should place less weight on these principles based on an anticipated change in the law, the Court stated (at paragraph 44): 44. … This Court cannot give less effect to the existing law because of the possibility or even the probability of a future law that has been promised but which is not law at the moment. This Court is bound to apply the law as it stands at the present time and, in any event, the government has not proposed the decriminalization of trafficking in marijuana. [ 104 ] Later in that same decision the Court stated (at paragraphs 51 and 52): 51.

Judges are bound to apply the law as it exists not as it might be in the future especially when, as here, it is unknown when the law will be changed, what the terms of it will be and how it will affect the offences of trafficking drugs or possession for the purpose. If judges refuse to apply the law or fail to do so substantially, based on their impressions of the likelihood of reform, the rule of law would be seriously undermined. As the Ontario Court of Appeal said in R. v. Song , 2009 ONCA 896 , 249 C.C.C. (3d) 289 (Ont.

C.A.): [10] Judges are entitled to hold personal and political opinions as much as anyone else. But they are not free to permit those views to colour or frame their trial and sentencing decisions. They are bound to apply the law as it stands. ... 52. It appears that the trial judge accepted defence counsel's argument that as a result of the pending change to the law denunciation and deterrence are attenuated. As a result, he said he would not follow the sentencing precedents set forth by this Court.

Despite paying lip service to the necessity of giving priority to denunciation and deterrence, the trial judge did not implement the objectives of the Act . The possible future legalization of possession of marijuana can have no legal effect on the sentencing regime at this time as explained earlier. It is an irrelevant extraneous factor that could, in this case, play no

part in sentencing considerations. The trial judge's reliance on this factor was an error of law which resulted in the imposition of a suspended sentence. [ 105 ] There are undeniable parallels between the facts present in the case of Mr. Neary and Mr. Murphy. Both have positive

antecedents, both involved the possession of a large quantity of marijuana and both did it for the money. [ 106 ] If I were to follow the decision in Neary , a comparable period of incarceration for Mr. Murphy might be warranted. However, with due respect, I decline to do so. The two cases are, in my view, distinguishable. [ 107 ] Mr.

Neary’s convictions included not only possession of cannabis for the purpose of trafficking, but also trafficking, possession of the proceeds of crime and possession of psiloycybin. [ 108 ] Further, the Court in Neary placed considerable emphasis on what was at the time merely an anticipated change in the law (at paragraphs 44 and 51): 44. … This Court cannot give less effect to the existing law because of the possibility or even the probability of a future law that has been promised but which is not law at the moment . … 51.

Judges are bound to apply the law as it exists not as it might be in the future especially when, as here, it is unknown when the law will be changed, what the terms of it will be and how it will affect the offences of trafficking drugs or possession for the purpose. [emphasis added] [ 109 ] Unlike Neary , in the matter before me we are not dealing with a hypothetical. The future is now and the terms are known. [ 110 ] R. v. Bentley , 2017 ONCA 982 . The Crown appealed a 90-day intermittent sentence imposed on Bentley, age 62, for production of marijuana (3,618 plants and 7 lbs.).

At the sentencing hearing the Crown had sought a sentence of four to six years. The Ontario Court of Appeal had the following to say regarding the reasons advanced by the sentencing judge (at paragraphs 6 - 8): 6. The sentencing judge sentenced the respondent to 90 days imprisonment, to be served intermittently.

The reasons for sentence consisted of two paragraphs in which the sentencing judge did not address any of the principles of sentence which should have informed his decision , but rather stated that it was morally and rationally untenable for the federal government to seek to legalize the use of recreational marihuana while at the same time continuing to enforce the existing marihuana laws. In the view of the sentencing judge, the intended change in the law "cuts the legs out from under all of the traditional sentencing rules in this area." 7.

In our view, the sentencing judge erred in principle by failing to give appropriate reasons for sentence, as well as in the fitness of the sentence which he imposed. 8. With respect to the reasons, the sentencing judge focused entirely on his personal views, which he advanced without inviting submissions on them from either party. We adopt the observation of Trotter J., as he then was, in R. v. Tran, 2016 ONSC 3225 (Ont. S.C.J.), where he observed that "the prospect of reform on the horizon" did not entitle the sentencing judge to disregard the rule of law. See also R. v.

Song, 2009 ONCA 896 , 100 O.R. (3d) 23 (Ont. C.A.). [emphasis added] [ 111 ] The Court of Appeal then imposed an 18-month term of incarceration, but ordered that the execution of that sentence be stayed. In doing so the Court stated (at paragraphs 12 – 14): 12. The respondent has tendered fresh evidence on this appeal. He is 62 years old and is now fully employed as an auto mechanic. He has two adult sons, with whom he has a very close relationship; he speaks to them on a regular basis. 13. The respondent is also under the care of a psychiatrist and is being treated for anxiety and depression.

He has completed serving his 90-day intermittent sentence and is fully reintegrated back into his community. 14. In our view, the principles of specific deterrence and rehabilitation have been met in this case. While we agree that in the instant case, the principles of general deterrence and denunciation are of paramount consideration, we are also of the view that those principles are now satisfied with the imposition of a sentence of 18 months incarceration.

It is also our view that to re-incarcerate this respondent would not be in the interests of justice, and would have undue adverse effects on this respondent. [emphasis added] [ 112 ] At the same time, the Court of Appeal endorsed the principle (as the Court did in Neary ) that the sentencing judge could not rely on the prospect of reform which was merely on the horizon.

However, having served his 90-day intermittent sentence, the Court of Appeal found that Bentley was now “fully reintegrated back into his community” and “to re-incarcerate [him] would not be in the interests of justice, and would have undue adverse effects on [him].” [ 113 ] R. v. Vesalpour , [2018] O.J. No. 5439 , 150 W.C.B. (2d) 322 (Ct. J.) . This case was decided less than one month prior to the legalization of marijuana. The Ontario Court of Justice accepted a joint submission of a $5,000 fine, probation and forfeiture of $42,500 for the possession of marijuana for the purpose of trafficking.

The quantity involved was in the order of 165 lbs. Vesalpour was 33 years old, with a prior conviction for possession of marijuana for the purpose of trafficking in 2016, and trafficking as a

Schedule 1 substance some 14 years prior. In accepting the joint submission the sentencing judge stated (at paragraph 50):

50. … I'm not going to canvass again everything said by Crown and defence about the nature of that particular offence, the sea changethat will occur very shortly by already mandated and in force legislation passed by parliament. The other considerations are these. Thereis no evidence of organized crime involvement. There's no evidence as indicated of enforcement involvement, such as guns and so forth.It appears to be something that was organized by two individuals for profit with respect to the drug marijuana which will not be in acriminal situation with respect to involvement very shortly.

It would be regulatory rather than criminal and I note if it hasn't already beensaid that that regulatory regime will not include DNA analysis. There — the aggravating factors are the amount involved. That there's aprior same sentence for a lesser amount within a very short period of time, August of 2016. And there is other dated — there are otherdated criminal offences on the record. The — there is also a large amount of cash seized, some $50,020 along with paraphernaliaindicating that it's likely the operation was in place for sometime in order to generate both the product and the cash on hand.

Themitigating factors are these. Significant change in legislation, decriminalizing the conduct that's being complained of here, an early pleawith acceptance of responsibility. And the result is a joint submission before the court. The joint submission is within the parameters ofreasonability and therefore, it must be accepted by the court. … [114] With due respect, as a precedent, Vesalpour must be approached with a degree of caution.

First, the sentence emanated from ajoint submission and second, the anticipated change in legislation did not in fact “decriminalize” the conduct being complained of in thatcase. [115] R. v. Thompson, 2018 ONCJ 310. The Ontario Court of Justice imposed a 45 day intermittent sentence followed by a year’sprobation for trafficking and two counts of possession for the purpose of trafficking in marijuana (7.7 and 2.5 kilograms). The Crownhad suggested 12 months’ imprisonment, whereas the defence sought a suspended sentence. [116] Mr.

Thompson was an aboriginal offender, with no prior record, who decided to become involved in the dispensing of marijuanafor medical reasons, at a time when law enforcement attitude was in a state of flux. He shut down his dispensary when policeenforcement became apparent, but continued to supply other illegal dispensaries. While Mr. Thompson erroneously believed hismarijuana was being used for medicinal purposes, Parry, J. observed that he “nevertheless flouted the law.” [117] At the time of sentencing, the Cannabis Act was on its way to becoming law, having passed a second reading in the Senate.

Parry J. observed (at paragraphs 28 – 29): 28. The passage of new marijuana legislation also provides evidence of a shift in the societal values towards marijuana. As of the dateof the writing of this judgment, the bill that would legalize the possession and moderate production of marijuana [for personal use] haspassed a second reading in the senate. The Prime Minister has signalled the continued intention to have this bill become law this summer.In making this observation, I do not purport to rely upon a law that has not yet passed.

That law would purport to set a range of sentencesfor traffickers that is similar to the current regime, in any event. However, I view the passage of the bill through the House of Commonsand two senate readings as evidence of the pervasive change in social attitudes towards the illicit drug in question. After all, the bill wastabled by a democratically elected government that campaigned on the promise of its passage. 29. Assessment of communal values by sentencing judges is important, because values change. Sentencing ranges change too.

I couldpoint to many, many examples of the evolution of sentencing ranges, but one will suffice. If you look back twenty years or more ago,sentence ranges for offenders who sexually abused children were significantly lower than they are today. In the case of R. v. D. (D.), (ON CA), [2002] O.J. No. 1061 (Ont. C.A.), Justice Moldaver delivered a forceful judgement, which signalled thebeginning of a significant shift in sentencing ranges for sexual predators of children. Since the release of D.D., the Court of Appeal hasspecifically recognized the "upward trend" in sentences for sexual abusers of children: see R. v.

Y. (W.), [2015] O.J. No. 5230 (Ont.C.A.) ; and R. v. M. (P.), 2012 ONCA 162 , [2012] O.J. No. 1148 (Ont. C.A.) . The D.D . decision effectively supplanted therange suggested by the decision of B.J. released 12 years before D.D: see R. v. B. (J.) (1990), 36 O.A.C. 307 (Ont.

C.A.). [118] With respect to the Crown’s reliance on Bentley, in Thompson Parry, J. observed that Bentley involved the production of a verylarge number of plants and that the sentencing ranges for a grow house are typically higher than for possession offences. [119] Parry, J. further observed that the Court’s decision in Bentley was rendered very shortly after the new legislation was passed bythe House of Commons and could not “help but wonder” if changing attitudes played a role in the Court’s decision to stay the sentence. [120] There are differences between Thompson and the case before me; Mr.

Thompson was an Aboriginal offender (although thesentencing judge found that “the degree to which that heritage bears upon his culpability for the offences is somewhat difficult todiscern” (at paragraph 34), and arguably Mr. Thompson’s motive was not malevolent (providing a medicinal product to dispensaries). Notably, Thompson was decided before the passage of the Cannabis Act. There are also similarities; the quantity of cannabis involvedand the antecedents of both Mr. Thompson and Mr. Murphy. Aggravating and mitigating factors [121] As noted,

section 718.2(

a) of the Criminal Code directs that in sentencing the Court is to consider any mitigating or aggravatingfactors. [122] The mitigating factors in this case are Mr. Murphy’s guilty plea and, expression of remorse, and lack of criminal record. [123] The large quantity of cannabis involved and Mr. Murphy’s purely commercial motive are aggravating factors. Although, like thesituation in Owens, I find this tempered somewhat by Mr. Murphy’s young age and the unsophisticated nature of his crime. ANALYSIS

[ 124 ] Sometimes otherwise good and decent persons, driven by a particular circumstance, make bad choices. Such is the case of Mr. Murphy. [ 125 ] The particular attributes of Mr. Murphy have already been canvassed in detail and need not be repeated. Suffice it to say, I am satisfied that specific deterrence does not play a role in this case. Mr. Murphy does not require rehabilitation, directed towards his reintegration into society. He is already integrated.

What a term of imprisonment will “accomplish” is the removal of a productive individual from society and the replacement of his family supports with a whole new “peer” group. [ 126 ] On a personal level, then, there is absolutely nothing to be gained by taking this young man, with no criminal antecedents, and locking him up in jail. To the contrary, there is a great deal to lose. I find that the observation of Griffin, J. in Owens is of equal application to Mr.

Murphy (at paragraph 46): 46. … He has a far greater chance at rehabilitation if he is to remain working than if he is to have to quit his employment to go to jail. [ 127 ] What, then, of the principles of denunciation and general deterrence? On the facts of this case , does a proportional sentence demand that these principles should take precedence over the antecedents of Mr. Murphy, such that a term in jail is nonetheless warranted? In my view, they do not. [ 128 ] In Thompson the Ontario Court of Justice observed that, “ Assessment of communal values by sentencing judges is important, because values change.

Sentencing ranges change too” (at paragraph 29). [ 129 ] In Provost , our Court of Appeal echoed a similar sentiment: “It is good when judges are mindful of developments in their communities and of patterns of offences that come before the courts,” (at paragraph 14). [ 130 ] At the same time, the Court in Provost cautioned that the preferred course is to provide counsel with an opportunity to comment on any such “developments” of which the judge is mindful before passing sentence.

On this point, I would state simply that the recent changes in the law regarding cannabis and what impact, if any, these changes might have on Mr. Murphy’s sentence, were front and center in the submissions from counsel. Counsel for Mr. Murphy argued that the principles of deterrence and denunciation, while still relevant, are of less importance, at least in Mr. Murphy’s case, than prior to legalization.

For its part, the Crown argued for a steer-the- course approach, based on the state of the sentencing case law as it was historically. [ 131 ] It is axiomatic that the statutory regime applicable to the sentencing of Mr. Murphy is that which was in place at the time the offence was committed.

At the same time, the Court ought not to slavishly follow the sentencing precedents of that time as if nothing has happened in the interim, for “It is good when judges are mindful of developments in their communities … .” [ 132 ] It is true that there remains a societal interest in ensuring that the quality of legalized cannabis is preserved and that this drug does not find its way into the hands of young people. The illegal production, sale and distribution of cannabis runs contrary to this interest.

Hence the continued need for general deterrence through “appropriate sanctions and enforcement measures” ( Cannabis Act ,

section 7(d)). The new Canadian world of legalized cannabis is not a world where anything goes. Of course, the same may be said for two of this country’s other legalized drugs, alcohol and tobacco. [ 133 ] That said, since the Edmonton Magistrate’s warning in 1922 there has been a Copernican [8] shift in society’s attribute towards cannabis.

To suggest otherwise, is to deny reality. [ 134 ] While finding that the principles of general deterrence and denunciation remain primary considerations, the sentencing judge in Thompson concluded that “evolving societal attitudes towards marijuana have dulled the blades of these principles somewhat” (at paragraph 32). I agree.

I also agree that judges are entitled to take stock of changes in social mores when assessing the gravity of an offence. [ 135 ] All things being equal, it is fair to say that the principles of general deterrence and denunciation, while still relevant, have less prominence than prior to legalization. To this I would add an important caveat, for all things are seldom equal. Undoubtedly, there will be circumstances where deterrence and denunciation will merit greater weight than in the case before me. I am thinking, for example, of those cases where one or more of the aggravating circumstances in

section 15 of the Cannabis Act are present. However, the application of the principles of denunciation and deterrence is not a matter of a one size fits all. [ 136 ] None of the aggravating circumstances are present in this case and the Court’s sentence will enable Mr. Murphy to return to his current employment, pursue his career as a millwright and continue forward as a law-abiding member of society. To now send him to prison would be entirely counterproductive and, in my view, contrary to the interests of justice. [ 137 ] Lest I be accused on focusing too highly on the antecedents of Mr.

Murphy, I am satisfied that, on the facts of this case, the imposition of two years’ probation and the suspension of sentence will adequately serve the principles of denunciation and deterrence. This young man, with no criminal antecedents, now has a criminal record. The simple fact of such a record is not without its repercussions. In addition, Mr. Murphy is further subject to a lengthy (two-year) period of probation.

Taken alone, this serves as a restriction on his liberty. [ 138 ] I further observe, that while admittedly on the low end of the available range, a suspended sentence for the possession of cannabis for the purpose of trafficking is not without judicial precedent. [ 139 ] While in Owens the quantity of cannabis was small, Mr. Owens was also convicted of possession of cocaine for the purpose of trafficking. I would further observe that Owens was decided in 2014, well before the legalization of cannabis (see also St .

Croix ). [ 140 ] The Cannabis Act speaks of deterrence through “appropriate sanctions.” The imposition of a suspended sentence on the facts of this case does not mean that suspended sentences are the new norm, as conditional sentences appear to have been treated in the past. It is beyond the scope of this decision to predict what the range of sentences might look like in the future. This decision is about a just and

appropriate sentence for Mr. Murphy, and Mr. Murphy alone, based on the fundamental principle of proportionality and the other principles of sentencing already discussed [ 141 ] In the instant case, we have a repentant young man, with no criminal antecedents and his future ahead of him; a future which includes a career in his chosen field. In the circumstances of this case, I am not satisfied that society’s present need for denunciation and general deterrence is such as to trump these considerations. disposition [ 142 ] For the foregoing reasons a just and appropriate sentence for Mr. Murphy is, as follows: Suspended Sentence [ 143 ] Pursuant to section 731(1) (

a) of the Criminal Code , having regard to the age and character of Mr. Murphy, the nature of his offence and the circumstances surrounding its commission, I suspend the passing of Mr. Murphy’s sentence and direct that he be placed on probation for a period of two years. Probation [ 144 ] The terms of Mr. Murphy’s probation are the compulsory conditions in

section 732.1 of the Criminal Code , namely that he: (

a) Keep the peace and be of good behavior; (

b) Appear before the Court when required to do so by the Court, and (

c) Notify his probation officer in advance of any change of name or address and promptly notify the probation officer of any change of employment or occupation. [ 145 ] In addition, Mr. Murphy’s probation shall also be subject to the following optional conditions pursuant to subsection 732.1(3). That he: 1) Attend and participate in treatment or counselling as required by his probation officer; 2) Report to a probation officer within four days of today’s date (being 23 November 2018, the date sentence was imposed).

Section 109 Firearms’ Prohibition [ 146 ] As a first offence under subsection 5(2) of the CDSA , pursuant to section 109(2) of the Criminal Code , Mr. Murphy is prohibited from: (

a) Possessing any firearm, other than a prohibited firearm or restricted weapon, and any crossbow, restricted weapon, ammunition and explosive substance for a period of ten years; and (

b) Possessing any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life. [ 147 ] While the ten year prohibition is the mandatory minimum under subsection 109(2)(a), given Mr. Murphy’s positive antecedents I can see no reason to extend this period. Forfeiture [ 148 ] It is ordered that the cannabis and all related items (cellphone) seized from Mr. Murphy be forfeited.

Section 737 Victim Surcharge [ 149 ] Pursuant to

section 737 of the Criminal Code Mr. Murphy will pay a victim surcharge of $200 [9] . No DNA Order [ 150 ] As noted, the Crown requested a secondary DNA order as part of the sentencing of Mr. Murphy. Subsection 487.051(1) of the Criminal Code provides that where a person is convicted of a designated offence, the Court: (

a) shall , subject to subsection (2), in the case of a primary designated offence, make an order …; or (

b) may , in the case of a secondary designated offence, make an order … if the court is satisfied that it is in the best interests of the administration of justice to do so.

[ 151 ] In this case, the burden is on the Crown to show that a DNA Order is in the interests of justice ( R. v. R.C ., 2005 SCC 61 ). The public interest in granting such an order lies in the protection of society through the early detection, arrest and conviction of offenders. While the process for obtaining a DNA sample is non-evasive, the impact on a person’s informational privacy is profound, as DNA contains the highest level of private and personal information ( R. v. R.C. ). [ 152 ] Mr. Murphy’s absence of a previous criminal record, the circumstances of his offence and the impact on Mr.

Murphy’s privacy must all be taken into account. Weighing these considerations in the balance, I am satisfied that there will not be a DNA Order. _____________________________ Donald H. Burrage Justice