R. v. Leonard, 2023 NLSC 27

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Leonard , 2023 NLSC 27 Date : February 23, 2023 Docket : 201801G3194 his majesty the king v. Shane Peter Leonard Before: Justice Vikas Khaladkar Edited Transcript of Oral Reasons for Judgment Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: February 1, 2023 Date of Oral Judgment: February 23, 2023

Summary: The Offender was convicted of trafficking in a controlled substance, namely Oxycodone, contrary to the Controlled Drugs and Substances Act and sentenced to a conditional sentence of 16 months. A number of ancillary orders were also made. Appearances:

Brenda P. Boyd, K.C. & Karen E. Rehner Appearing on behalf of the Crown Robert W. Buckingham Appearing on behalf of the Offender Authorities Cited: CASES CONSIDERED: R. v. Patton , 2020 NLSC 118 ; R. v. Palmer , 2019 NLSC 175 ; R. v. Roper , 2019 NLSC 163 ; R. v. Cuff , 2019 NLSC 112 ; R. v. Hepditch , 2018 NLSC 55 ; R. v. Ivey , 2018 NLSC 58 ; R. v. Nasogaluak , 2010 SCC 6 ; R. v. Ipeelee , 2012 SCC 13 STATUTES CONSIDERED: Criminal Code , R.S.C. 1985, c. C-46 ; Controlled Drugs and Substances Act , S.C. 1996, c. 19 REASONS FOR JUDGMENT Khaladkar J. : INTRODUCTION [ 1 ] The facts are not in dispute.

The Offender was involved in the sales of Percocet, a prescription drug containing Oxycodone, which were prescribed to him by a doctor. During the period of time indicated in the Indictment, namely May 13 to August 19, both in 2015, the Offender was involved, according to the Agreed Statement of Facts filed in this matter, in transactions totaling $480.

In addition, there was reference, in the Agreed Statement of Facts, to the Offender wanting to move 300 pills worth $2,000 according to the advice that the Offender had received from his father, Vincent Leonard Sr., who was also involved in the sales of the same drugs. [ 2 ] The Offender was acquitted at trial but, on appeal, the Court of Appeal of Newfoundland and Labrador set aside the acquittal. The Court of Appeal held that the Offender was labouring under a mistake of fact because he thought that he was selling Percocet. He did not know that Percocet contained Oxycodone.

The Court of Appeal held, however, that the Offender was willfully blind, that he deliberately chose not to make the necessary inquiries concerning the legality of his enterprise. [ 3 ] In the result the Court of Appeal remitted the case back to this Court for the purpose of sentencing. crown argued [ 4 ] The Crown indicated that the Offender was not involved in a single transaction. He was involved in the sales of a

Schedule I drug and the maximum sentence is life imprisonment. There is no minimum sentence. The Crown indicated that the Offender was supplying Percocet pills to users and to other persons.

The nature of the drugs and the ongoing nature of the Offender’s dealings in them constituted, in the Crown’s estimation, aggravating factors that supported a sentence in the range of 24 months’ incarceration. [ 5 ] The Crown characterized the Offender as a mid-level supplier. [ 6 ] The Crown took the view that if the Court was inclined to grant a Conditional Sentence Order, that there should be strict house arrest with well-defined exceptions to confinement in his dwelling. [ 7 ] The Crown requested a Victim Fine Surcharge, a firearms prohibition for 10 years and that the Offender supply sufficient samples of his Deoxyribonucleic Acid (“DNA”) for inclusion in the National DNA Databank. defence argued [ 8 ] At the time of the requisite offence, the Offender was 32 years of age.

He completed his grade IX education. He suffers from Attention-Deficit Hyper Activity Disorder (“ADHD”) and is dyslexic. He sustained a work injury and was involved in a motor vehicle accident, as a result of which he was prescribed Percocet. [ 9 ] The Defence indicated that the Offender was not aware that Percocet contained the

Schedule I drug Oxycodone. The Defence indicated that the Crown’s drug expert also did not know that Percocet contained Oxycodone until he became involved in drug investigations.

[ 10 ] The Defence indicated that the Pre-Sentence Report was favourable to the Offender. He has no criminal record. He is said to have a positive relationship with his employees and his customers. The Pre-Sentence Report indicated that the Offender has a positive work ethic, is honest, polite and respectful to others.

The Offender accepts responsibility for what he has done and has communicated remorse for his behaviour. [ 11 ] The Offender will lose his business if he is incarcerated, and that will put his common law spouse and two young daughters in a precarious financial situation. [ 12 ] The Defence asked me to consider a Conditional Sentence Order and, if that was not feasible, an intermittent sentence that would allow him to continue with the conduct of his construction business. [ 13 ] The Defence tendered a number of character references and letters of support. They all attest to the Offender’s character.

They support the Defence’s submission that the Offender has, in the past eight years, turned his life around and is now a contributing member of society. [ 14 ] In summation, counsel indicated that the Offender has abided by all of the terms and conditions of his Recognizance for the past eight years without breach. If the Court is inclined to grant a Conditional Sentence Order, it is the Defence’s position that strict conditions are unnecessary. [ 15 ] The Offender addressed the Court and apologized.

He indicated that upon his arrest the Department of Child Youth and Family Services were going to remove his children from their home. He voluntarily left his home so that the children would not be taken into care and he was not allowed any visitations with them for a period of six months. He was not allowed to visit with his parents or siblings for a period of three years as a condition of his release. [ 16 ] When he was reunited with his common law spouse and children, the Offender said that he promised them that he would turn his life around.

He indicated to the Court that he has done so, and has not breached the conditions of his release. He said that he has maintained steady employment so that he can look after the needs of his family. He apologized to the Court for taking up its time. ANALYSIS [ 17 ] I was referred by the Crown and Defence to a number of sentencing cases. Before I embark upon an analysis of the case law, let me first set out the purposes and principles of sentencing in sections 718 to 718.2 of the Criminal Code , R.S.C. 1985, c.

C-46 that specifically relate to the case that is now before me: Purpose 718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. Fundamental principle 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

Other sentencing principles 718.2 A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender … ; (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (

c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders. [ 18 ] I specifically find that the aggravating circumstances set out in subsections (

i) to (vi) of this subsection (

a) have no application to the case currently before me. CIRCUMSTANCES OF THE OFFENDER [ 19 ] The Offender is 36 years of age and the youngest of three children. He had a positive upbringing and is close to his parents and siblings. One of his brothers works full time for him in his construction business, the other helps out on occasion as required. [ 20 ] The Offender has been living in a common law relationship for 10 years. They have two children aged 12 and seven.

He has a close relationship with his spouse and children, and they all live together in the same dwelling. [ 21 ] The Offender has experimented with marijuana and cocaine when younger, but was never a regular user of either drug. His use of alcohol was problematic for some time but, with the help of his common law spouse and other family members he was able to overcome the problem and does not use alcohol at present. [ 22 ] The Offender’s common law spouse corroborated the information provided by the Offender to the writer of the Pre-Sentence Report.

She reported that he is a hard worker and operates a successful contracting company in St. John’s. He works full time and spends most of his spare time at home with his family. She reported that he has changed his life for the better over the last several years. [ 23 ] The Offender has no criminal record. [ 24 ] The Offender was unable to complete high school on account of being afflicted by ADHD and Dyslexia. [ 25 ] The Offender provided the Probation Officer with a number of letters of support and character references.

These were filed with the Court by Defence counsel, and I have had an opportunity to consider them. [ 26 ] Overall the Pre-Sentence Report was positive and identified the Offender as a good candidate for probation or other community supervision, including a Conditional Sentence Order. AGGRAVATING CIRCUMSTANCES [ 27 ] I do not find any aggravating circumstances in this case. MITIGATING CIRCUMSTANCES [ 28 ] The Offender is a young man with no previous criminal history. He has turned his life around and has become a productive, self-supporting member of society.

He is responsible for the livelihood of three employees in his business and, as well, supports his common law spouse and their two children. [ 29 ] The Offender has been the subject of some very stringent release conditions – including an Order to dissociate himself from his parents and siblings for three years. The charge that was brought against him had the effect of causing him to be estranged from his family for a period of six months. These prohibitions were difficult for him, but he has emerged without any breaches since 2015.

WHAT SENTENCE IS APPROPRIATE IN THE CIRCUMSTANCES? [ 30 ] On November 17, 2022 Bill C-5 received Royal Assent in the Parliament of Canada. As a result, the minimum period of

imprisonment mandated by section 5(3) (

a) of the Controlled Drugs and Substances Act , S.C. 1996, c. 19 was abolished. The practical effect, for the case before me today, is that conditional sentences are, once again, available for use by the Court in appropriate circumstances. [ 31 ] The Crown referred to the case of R. v. Patton , 2020 NLSC 118 , a sentencing decision of mine from September 3, 2020. In that case the offender was sentenced to a term of incarceration of 900 days, in total. However, the case is distinguishable on the basis that it involved possession for the purposes of trafficking of cocaine, cannabis resin and cannabis marijuana.

The offender there had paraphernalia in his possession, such as digital scales, cellular telephones, firearms and ammunition. The cocaine seized had a street value of $63,100. The cannabis resin and marijuana had a joint value of $42,000. [ 32 ] While I sentenced the offender to 730 days for trafficking in Oxycodone, it must be remembered that it was a concurrent sentence to a number of other sentences – some of which were well in excess of 730 days. Had the offender been charged only with trafficking in Oxycodone, the sentence might well have been different.

I do not believe that the 730 days should be regarded with any precedential authority for that reason. [ 33 ] In Patton I referred to a number of other cases that I had considered in arriving at an appropriate sentencing decision. Crown counsel cited these cases to me. Defence counsel sought to distinguish those cases for various reasons, and cited others in which conditional sentence orders had been granted. [ 34 ] The following is my analysis of the cases mentioned in Patton in reference to what I have before me today: • In R. v.

Palmer , 2019 NLSC 175 , I sentenced the offender to 24 months incarceration for possession of morphine for the purposes of trafficking and trafficking in cocaine and Oxycodone. The offender was acting in the capacity of a chauffeur for the ringleader of the enterprise. There were 775 grams of cocaine and 208 Oxycodone pills. The offender’s participation was at a lower level because he was merely chauffeuring his co-offender from one location to another. The case is not helpful because it gives a global sentence for a variety of illicit activities.

A case that dealt with only Oxycodone would be more helpful; • In R. v. Roper , 2019 NLSC 163 , McGrath J. (as she then was) sentenced a 30-year-old offender with three young children to 42 months for possession of cocaine for the purposes of trafficking, 24 months for possession of Oxycodone for the purposes of trafficking and 24 months for possession of proceeds of crime. The sentences were ordered to be served concurrently on account of the principle of totality.

Mitigating factors included a guilty plea, the assumption of a lesser role in the offences, a short duration in the criminal enterprise and an expression of genuine remorse. The police seized 10.5 kilograms of cocaine and 417 20mg Oxycodone pills. The offenders’ residences contained $229,000 in cash and a further $29,000 in cash was found in the vehicle that they had been using. This case, also, is distinguishable on the facts.

The sentence for possession for the purposes of trafficking in Oxycodone has to be related to the sentence for the possession for the purposes of trafficking in cocaine and the possession of substantial proceeds of crime. Like Palmer , the case is not helpful because it is a blended sentence; • In R. v. Cuff , 2019 NLSC 112 , I sentenced the offender to 36 months incarceration for possession of cocaine for the purposes of trafficking and 36 months concurrent for the possession of Oxycodone for the purposes of trafficking.

There was evidence that the offender was involved in a series of transactions and was transporting the drugs for resale from St. John’s, where they were purchased, to Glenwood, where he was resident. The offender was found in possession of 775 grams of cocaine and 208 Oxycodone pills. The offender was a mid-level dealer. The dollar amounts involved in the Cuff case are far in excess of those involved in the case before me. The Cuff case is not helpful as a precedent because of the blended sentence that was imposed; • In R. v.

Hepditch , 2018 NLSC 55 , Chaytor J. sentenced the offender to 16 months’ incarceration for possession of 42 Oxycodone tablets, $670.65 in cash and a small amount of cannabis marijuana. He was also sentenced to 16 months concurrent for two counts of trafficking in Oxycodone (he had sold a few tablets to two different customers) and a suspended sentence with respect to a charge of possession of cannabis marijuana. The offender had a long criminal record dating back to 1989. He had amassed 39 convictions for breaches of Court orders and was bound by three Probation Orders at the time of his conviction.

This resulted in sentences of six months for each breach served concurrently to one another, but served consecutively to the other predicate offences. In the result, the offender was sentenced to 22 months incarceration. This case has some precedential value. It is distinguishable on the basis that the offender had a significant criminal record whereas the Offender in the case before me has no criminal record; and • In R. v. Ivey , 2018 NLSC 58 , the offender was found in possession of 25 Oxycodone pills along with 37 Clonazepam, 57 Temazepam and 37 Seroquel tablets.

Stack J. found that the offender was a small-scale dealer in drugs. The offender was sentenced to 16 months’ imprisonment on account of the trafficking in Oxycodone. All other sentences were made concurrent to the Oxycodone offence. This case has precedential value. [ 35 ]

Section 718 of the Criminal Code outlines that the fundamental purpose of sentencing is to foster respect for the law and the maintenance of a just, peaceful society. In order to reach this goal, the Court must impose a sentence that meets one or more of the following objectives: a. denunciation; b. deterrence of the offender and other persons; c. separation of offenders from society, where necessary;

d. rehabilitation; e. reparations for harm done to victims or to the community; and f. the promotion of a sense of responsibility in offenders and an acknowledgment of the harm done to victims and to the community. [ 36 ] The Supreme Court of Canada has instructed, in R. v. Nasogaluak , 2010 SCC 6 , that none of the sentencing objectives take priority over any of the others. Weight must be accorded to each of the objectives with a view to the unique circumstances of the case before the Court. [ 37 ] In R. v.

Ipeelee , 2012 SCC 13 , the Supreme Court of Canada stated that the fundamental principle of sentencing is that the sentence must be proportionate to both the gravity of the offence and the degree of responsibility of the offender. The sentence must be fit. In this sense the sentence is both a sword and a shield. On the one hand the public must be satisfied that the offender received the punishment he deserved. On the other hand, the sentence cannot exceed what is appropriate.

A just sentence strikes a balance between these two, sometimes competing, interests. [ 38 ] Courts are mandated to consider the sentencing principles outlined in

section 718.2 of the Criminal Code .

Accordingly, the Court must: a. take into account any relevant aggravating or mitigating circumstances; b. be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; c. refrain from depriving liberty if less restrictive sanctions may be appropriate; and d. consider all available sanctions other than imprisonment if those sanctions are reasonable. [ 39 ] The Offender, and others who might be tempted to engage in similar activities, need to understand that selling narcotic drugs containing Oxycodone causes immeasurable harm to society.

It results in misery, and sometimes death, for the persons who become addicted. It contributes to violence in the community and huge losses from break and enters and thefts. It contributes to the costs that society must pay to treat and rehabilitate the addicted, and prosecute and incarcerate the accused and convicted.

Denunciation, general and specific deterrence are, therefore, significant factors when deciding upon an appropriate sentence. [ 40 ] On the other hand, denunciation and deterrence must be weighed against other factors – such as the offender’s level of involvement, his antecedents and his prospects for rehabilitation. [ 41 ] I note that in each of the cases referred to above there existed a minimum sentence of one year and, therefore, the Courts had no ability to consider conditional sentence orders.

I am not so constrained now that the law has been changed by Parliament. conclusion [ 42 ] I am of the view that a term of 16 months’ incarceration is an appropriate sentence in the circumstances. It is proportional to sentences that have been levied in similar cases. I am mindful of the principle that I should consider less restrictive sanctions where appropriate. [ 43 ] Therefore, I am of the view that justice would be best served if the Offender was allowed to serve his sentence at home. I base that decision on the fact that the Offender has taken some commendable steps in rehabilitating himself.

I base it on the fact that he has no criminal record, and appears sincere in his wish to be completely divorced from the criminal justice system. I base my decision on the relatively small number of drugs that were involved – both in quantity and in value. [ 44 ] There will, therefore, be a Conditional Sentence Order on the following terms: a. keep the peace and be of good behaviour; b. attend Court when required to do so by the Court; c. report to a supervisor;

i. within two working days, or such longer period as the court directs, after the making of the Conditional Sentence Order, and ii. thereafter, when required by the supervisor in the manner directed by the supervisor; d. remain within the jurisdiction of the Court unless written permission to go outside the jurisdiction is obtained from the Court or the supervisor; e. notify the Court or supervisor in advance of any change of name or address, and promptly notify the Court or the supervisor of any change of employment or occupation; f. abstain from owning, possessing or carrying a weapon; g. remain within your dwelling between the hours of 7:00 p.m. and 7:00 a.m. daily from Monday to Friday; h. submit to electronic monitoring if deemed necessary and appropriate by your supervisor and comply with all the rules of electronic monitoring supervision as directed by your supervisor; i. remain within your dwelling from 7:00 p.m.

Friday until 7:00 a.m. on Monday except that you may leave your dwelling for 2 hours on Saturday for the purpose of grocery shopping with your common law spouse, and you may leave your dwelling for two hours on Sunday for the purpose of attending a place of worship.

Times that you intend to be away for the purposes of shopping or worship are to be arranged, in advance, with your supervisor and/or electronic monitoring supervisor; j. attend and participate actively in such awareness and educational or assessment programs or counselling sessions to which you might be referred by your supervisor; k. be available to answer your door for your supervisor or the police within five minutes of a knock at all times that you are required to be in your dwelling; and l. complete 100 hours of community service at such times and places directed by your supervisor. [ 45 ] Under

section 487.051(3) of the Criminal Code , I order that suitable samples of your DNA be provided by you as and when demanded by the police. [ 46 ] A firearm prohibition is mandatory for offences relating to section 5(1) of the Controlled Drugs and Substances Act . An Order will be issued under section 109(1) (

a) of the Criminal Code prohibiting the Offender from having possession of any firearm, ammunition or other item referred to in

section 109 . The prohibition is effective immediately and shall continue for a period of 10 years after his release from imprisonment. The Offender shall immediately arrange surrender of any weapons or ammunition referenced in the Order and shall surrender any related authorizations, licenses and registration certificates. [ 47 ] The Offender will pay a Victim Fine Surcharge in the amount of $200 within 30 days of today’s date. _____________________________ Vikas Khaladkar Justice