R. v. Dick, 2021 NLSC 15

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Dick , 2021 NLSC 15 Date : January 29, 2021 Docket : 201901G2181 Her Majesty The Queen v. Anthony Luke Dick Before: Justice Frances J. Knickle Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: January 7, 2021

Summary: The Offender pleaded guilty to two counts of possession of marijuana and hashish, respectively. He had a related prior criminal history. He was sentenced to 14 months imprisonment and 18 months probation. A forfeiture order, firearms prohibition and DNA order were also imposed. Appearances:

R. Neil Smith Appearing on behalf of the Crown Timothy P. O'Brien Appearing on behalf of the Offender Authorities Cited: CASES CONSIDERED: R. v. Dick , 2020 NLSC 104 ; R. v. Dick , 2020 NLSC 122 ; R. v. Lacasse , 2015 SCC 64 ; R. v. Provost, 2006 NLCA 30 ; R . v . Roach , 2012 NLTD(G)153; R. v . Baker , 2017 NLTD(G) 90; R . v. Bailey , 2018 NLSC 62 ; R . v . Brenton , 2016 NLCA 66 ; R. v. Brenton , 2016 NLTD(G) 121; R . v . Noseworthy , NLCA 2; R . v . Strong , 2019 ONCA 15 ; R . v . Coffey , 2020 BCCA 195 (leave to appeal to SCC refused); R . v . Kryz , 2018 BCSC 2363 ; R. v. Murphy, 2021 NLCA 3 ; R. v.

Friesen , 2020 SCC 9 ; R. v. Thompson , 2018 ONCJ 310 ; R. v. Owens , 2014 BCSC 32 . STATUTES CONSIDERED: Controlled Drugs and Substances Act , S.C. 1996, c.19 ; Charter of Rights and Freedoms ,

Part I of the Constitution Act , 1982 , being

schedule B of the Canada Act 1982 (U.K.), 1982, c. 11; Criminal Code of Canada , R.S.C. 1985, c. C-46 ; Cannabis Act, S.C. 2018, c. 16 . REASONS FOR JUDGMENT Knickle, J. : INTRODUCTION [ 1 ] Anthony Dick has pleaded guilty to two counts of possession of an illegal substance (cannabis and cannabis resin) for the purposes of trafficking, contrary to section 5(2) of the Controlled Drugs and Substances Act , S.C. 1996, c.19 (the “ CDSA ” ). This is the decision on sentence. THE CIRCUMSTANCES OF THE OFFENCES [ 2 ] The facts are described in detail in the previous written decisions in R. v.

Dick , 2020 NLSC 104 and R. v. Dick , 2020 NLSC 122 regarding Mr. Dick’s application pursuant to the Charter of Rights and Freedoms ,

Part I of the Constitution Act , 1982 , being

schedule B of the Canada Act 1982 (U.K.), 1982, c. 11 on the admissibility of the substances seized by the police. In

summary, the circumstances are that upon receiving an anonymous tip, the police conducted a search of Mr. Dick’s luggage at the airport in St. John’s, Newfoundland and Labrador. Mr. Dick had just arrived on a flight from Vancouver after having traveled there only two days earlier. Upon searching the luggage the police located two separate bundles of packages of marijuana. There were 15 separately sealed packages whose total weight was 15.59 kilograms. A second suitcase also contained 15 separately sealed packages whose total weight was 12.83 kilograms.

Another 990 grams of cannabis resin was also located. [ 3 ] The Crown advised that the value of the drugs if sold between dealers would be approximately $200,000. However, the “street” value of this amount of drugs would be approximately double that amount at $400,000. Mr. Dick did not dispute this estimation of their value. [ 4 ] Mr. Dick was arrested without issue and was co-operative. He was released on an Undertaking, and has been bound by the conditions of that Undertaking since his release without issue.

He has been at large on conditions since his arrest. [ 5 ] The circumstances of the offence are serious, in that the amount of contraband is significant. This is not a situation of a high school student illegally selling a few joints to her friends. This was a substantial quantity of drugs found in Mr. Dick’s possession and was clearly destined to be resold either by Mr. Dick, or to someone who would sell it elsewhere. THE CIRCUMSTANCES OF THE OFFENDER [ 6 ] At the time of the sentencing hearing, Mr. Dick was 36 years old. According to the pre-sentence report (the “PSR”), Mr.

Dick was born and raised in the Province of Manitoba. He has one brother. His parents separated when he was seventeen due to his father’s issues with substance abuse. Mr. Dick described his childhood as “rough” and that the family experienced poverty, moving often, and sometimes living out of a van. However, he did complete Grade 11 in high school.

[ 7 ] Mr. Dick was in a relationship for 6 years, but it has since ended. From that relationship Mr. Dick has three children, ages seven, four and one. The children live with their mother, and he has regular contact arranged through the Department of Children, Senior and Social Development (CSSD). [ 8 ] Mr. Dick described that he began consuming alcohol as a young teenager, and continued to use alcohol and marijuana frequently. He also used LSD and cocaine, but his “drug” of choice was marijuana. He explained he used marijuana almost daily. Mr.

Dick explained that it was because CSSD became involved with his children that he decided he may need to address his consumption of alcohol and marijuana. In both the PSR and during the sentencing hearing, Mr. Dick expressed concern that the children may be relocated with their mother to another province. He was concerned that he would no longer be able to see his children. Mr. Dick became emotional in expressing this concern to the Court. [ 9 ] Mr. Dick is currently unemployed but has held several different positions related to manual labour, construction and the fast food industry.

At present he resides with his brother in St. John’s, and receives income support. Mr. Dick also stated that he has a poor credit rating due to several unpaid fines. Mr. Dick recognized that until he paid these fines, his options in securing employment were limited as he was unable to obtain insurance to drive a motor vehicle. [ 10 ] Mr. Dick has also availed of programming in relation to his family with Waypoints Family Support Programme, between September 2019 and February 2020. He was described by managers from that programme: “Mr.

Dick took direction well regarding education and Mental Health and Addictions Services” . Mr. Dick also availed of services from the “Gathering Place”. The author of the report stated that Mr. Dick might benefit from further similar programming as part of his sentence. [ 11 ] Although Mr. Dick has no convictions for criminal offences in this province, apart from the matter for which he is to be sentenced, as described in the PSR and as established by the Crown, he does possess a previous criminal history from the Province of British Columbia.

According to the Canadian Police Information Report (“CPIC”) filed by the Crown, Mr. Dick was convicted of trafficking in a controlled substance under section 5(1) of the CDSA , for which he received a 12 month conditional sentence, as well as breaching his Undertaking, on June 15, 2009. One year later, on August 17, 2010 he was convicted of possession of a scheduled substance under section 4(1) of the CDSA and received a suspended sentence and 12 months probation.

The following year, he was convicted of breaching probation for which he received one day imprisonment. [ 12 ] The PSR refers to further convictions not listed in the CPIC; in particular a conviction for possession of stolen property, possession for the purposes of trafficking, as well as breaching a conditional sentence order. Mr. Dick admits these further convictions. [ 13 ] The convictions for previous possession and trafficking in controlled substances, while related to the current offences, are dated. I take into account that it has been 9 years since the previous related offences. This supports that Mr.

Dick is capable of living a life free of criminal behavior. However, I also find the existence of previous related convictions is aggravating on sentence. Mr. Dick cannot be considered a first time offender and while I recognize that there are several years between this offence and his most recent related conviction, the fact that he has continued to engage in this kind of criminal conduct supports that Mr. Dick has not been deterred by the penalties previously imposed.

While not as aggravating as a more recent criminal history, I do take into account his criminal history as aggravating. [ 14 ] Mitigating sentence is the fact that Mr. Dick expressed remorse and accepted responsibility for the offences, not only by way of his guilty plea, but explicitly when asked by the author of the PSR, and again during the sentencing hearing. Mr.

Dick described the decision to bring the drugs to Newfoundland and Labrador as impulsive and to support his own drug use. [ 15 ] The Crown submitted that the guilty plea was not at the earliest opportunity, but the guilty plea was forthcoming as soon as the ruling on the Charter issue resulted in the admission of the evidence and that there was sufficient evidence to establish guilt on both offences. In these circumstances, I am satisfied Mr. Dick’s guilty plea was provided to the Court with full acceptance of his responsibility and should be given due weight. I accept his expression of remorse as genuine.

I consider it mitigating in imposing the fit sentence. Mr. Dick stated he wants to address his personal use of marijuana. PRINCIPLES OF SENTENCING [ 16 ] The principles of sentencing are codified under the Criminal Code of Canada , R.S.C. 1985, c. C-46 (the “ Code ”), at sections 718 to 718.2 . [ 17 ] First and foremost, under

section 718.1, a sentence must be commensurate with the gravity of the offence and the degree of responsibility of the offender. This is sometimes referred to as the level of “moral blameworthiness” or the “proportionality principle”. Wagner, C. J. in R. v. Lacasse , 2015 SCC 64 , explained the relationship between the proportionality principle to its subset the “parity principle” in sentencing, at paragraph 12: In such cases, proportionality is the cardinal principle that must guide appellate courts in considering the fitness of a sentence imposed on an offender.

The more serious the crime and its consequences, or the greater the offender’s degree of responsibility, the heavier the sentence will be. In other words, the severity of a sentence depends not only on the seriousness of the crime’s consequences, but also on the moral blameworthiness of the offender. Determining a proportionate sentence is a delicate task. … [ 18 ] The fit or proportionate sentence must serve the fundamental principles under

section 718: 718. Purpose 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 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. [ 19 ]

Section 718.2 provides further guidance in determining whether particular circumstances may be aggravating or mitigating on sentence.

Section 718.2(

b) is a codification of the parity principle, and states that a sentence “should be similar to sentences imposed on similar offenders for similar circumstances”. Under subsection (d), an offender should not be deprived of his or her liberty if less severe sanctions may be appropriate. [ 20 ] In relation to the possession of illegal substances for the purposes of trafficking,

section 10 of the CDSA also provides guidance describing factors that may be considered as aggravating when sentencing an offender. THE POSITION OF THE PARTIES [ 21 ] The Crown submits that the appropriate sentence in these circumstances is at the upper range of 18 to 24 months imprisonment; seeking specifically a sentence of 24 months, or two years.

The Crown submits that despite the enactment of the reduction in the maximum sentence from life to 14 years under the Cannabis Act , S.C. 2018, c. 16 , the emphasis on deterrence and denunciation is still the primary consideration in sentencing for this kind of offence. Given this, the jurisprudence establishing range of sentences imposed under the CDSA are still applicable. The Crown submits there are aggravating factors in these circumstances that warrant an emphasis on deterrence and denunciation including the quantity of the illegal substance possessed by Mr.

Dick, and his previous related convictions. [ 22 ] Counsel for Mr. Dick submits that a more appropriate sentence in these circumstances is a sentence that could be served intermittently. Counsel submits there are mitigating factors, in particular Mr. Dick’s guilty plea. THE RANGE OF SENTENCE [ 23 ] For the offences in question here, the maximum available punishment is life imprisonment.

A conditional sentence is not available. [ 24 ] In sentencing for this type of offence the emphasis is on general deterrence and denunciation. [ 25 ] In determining the appropriate range of sentence, the seriousness of the nature of the substances found in possession is also relevant. The Court must take into account whether the drugs were of the “hard” type, (e.g. cocaine, heroin), or the “soft” type, (e.g. marijuana or cannabis derivatives), (see R. v.

Provost , 2006 NLCA 30 at paragraphs 21 to 28 ). [ 26 ] Prior to the enactment of the Cannabis Act there was little dispute that in this province the range of sentence for possession of large quantities of marijuana for the purposes of trafficking has been described as between 18 and 24 months imprisonment (see Provost 30 at paragraph 57 ; R . v . Roach , 2012 NLTD(G)153 at paragraphs 9 to 10; R. v . Baker , 2017 NLTD(G) 90 at paragraph 18; and 9 to 36 months as stated in R . v. Bailey , 2018 NLSC 62 ). [ 27 ] In R . v .

Brenton , 2016 NLCA 66 , while not explicitly discussing the range of sentence, the Court of Appeal of Newfoundland and Labrador dismissed the application for leave to appeal and affirmed the trial judge’s sentence of 21 months. Having been found with a large quantity of marijuana, the trial judge accepted the proposed range was 18 to 24 months for the given circumstances (see R. v. Brenton , 2016 NLTD(G) 121 at paragraph 18). Mr. Brenton’s application for an extension of time to file his notice of appeal from both conviction and sentence was dismissed.

The appeal court found that there was no basis to allege error in the fitness of sentence. At paragraphs 11 and 12, the court stated: 11 Mr. Brenton’s written account of his grounds for his appeal does not identify any possible basis on which this Court could grant an appeal of his conviction or sentence, and his oral argument in this Court did not improve upon his written grounds. In short, Mr.

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. 12 In addition, the Crown submits that it has reviewed the case with a view to discerning any arguable ground of appeal not articulated by Mr. Brenton but which could interest the Court, and has been unable to find one. I would add that I have come to the same conclusion upon my review of the record. Accordingly, I conclude that there is no merit to Mr. Brenton’s appeal. [ 28 ] More recently, in R . v .

Noseworthy , 2021 NLCA 2 , while the Crown’s appeal from the sentence imposed for conspiracy to traffic cocaine was allowed, the concurrent 18 months imprisonment imposed for conspiracy to traffic in marijuana was not challenged, and was also endorsed by the Court (see paragraph 153). [ 29 ] In Baker , a two year sentence was imposed as a result of a joint submission. The offender pleaded guilty and was found in possession of marijuana. The offender in those circumstances sought a federal period of imprisonment so that he could avail of the programming.

The amount of drugs in the circumstances was substantial, and was valued at approximately $500,000. Notwithstanding the sentence was imposed as a result of the joint submission, after having reviewed several sentencing precedents, McGrath, J. noted that the sentence sought was at the high end of the range (see paragraph 22).

[ 30 ] With the advent of the Cannabis Act there has been debate as to the impact on sentences for offences involving this substance (see for example R . v . Strong , 2019 ONCA 15 , R . v . Coffey , 2020 BCCA 195 (leave to appeal to SCC refused), and R . v . Kryz , 2018 BCSC 2363 ).

The thrust of these decisions is that the sentencing principles that applied to trafficking and possession for the purpose of trafficking of large quantities of marijuana previous to the enactment of the Cannabis Act have not been displaced by its enactment; even with the change in the sentences available; in particular the reduction in the maximum period of punishment available from life imprisonment under the CDSA to 14 years under the Cannabis Act . Where the offences involve large quantities, or prolonged or sophisticated enterprises, the emphasis is still on general deterrence and denunciation.

Doherty, J.A., speaking for a unanimous court in Strong , made the point in three succinct paragraphs: 3 The appellant’s main argument rests on the assertion that that the changed societal attitude toward marijuana use warrants a reduction in the established range for this kind of offence.

We cannot accept this submission. 4 While the societal perception of the seriousness or harmfulness of the offender’s conduct has a role to play in considering factors such as denunciation and deterrence, we see no basis to conclude that the conduct involved in this case would be viewed as anything other than serious criminal misconduct. 5 Parliament has not significantly altered the applicable penalty. Nor, in our view, can one assume that a large scale, prolonged trafficking for profit in marijuana is somehow viewed as less serious because of the legislative changes in respect of personal possession and use.

The sentence was within the established range.

We would dismiss the appeal. [ 31 ] Observing that Parliament had “altered” the penalties under the Cannabis Act , Doherty, J.A., speaking for the court, was of the view that the alteration was not so significant that the principles to be applied to serious circumstances of the offence were impacted by this alteration. [ 32 ] In Coffey , in dismissing the argument that the enactment of the Cannabis Act had significantly changed the range of sentence for possession for the purposes of trafficking of large quantities of marijuana, Harris, J.A. also speaking for a unanimous court, at paragraphs 37 and 38 stated: 37 Parliament has not significantly altered the applicable penalty.

Nor, in our view, can one assume that a large scale, prolonged trafficking for profit in marijuana is somehow viewed as less serious because of the legislative changes in respect of personal possession and use. 38 I see no error in principle in the judge's conclusion that the type of conduct engaged in by the appellant in the case at bar continues to be serious criminal conduct that warrants the imposition of penalties within established ranges. [ 33 ] The impact of the enactment of the Cannabis Act on the range of sentence for offences for possession for the purpose of trafficking was recently considered by the Court of Appeal in Newfoundland and Labrador in R. v.

Murphy , 2021 NLCA 3 . The majority has taken a different view (Hoegg, J.A. dissenting) than the appellate courts in British Columbia and Ontario, and found that the changes from the sentencing regime under the CDSA to the Cannabis Act reflects a less serious view of this type of offence and accordingly accepted that there would be adjustments to the applicable sentencing ranges. After reviewing the differences between the sentences available under the two Acts , and considering the statements in R. v.

Friesen , 2020 SCC 9 at paragraph 96 , at paragraph 18 Butler, J.A. speaking for the majority stated: 18 With this recent guidance from the Supreme Court I conclude that Parliament's decision to reduce the maximum sentence for the Cannabis Act equivalent of the offence with which Mr.

Murphy was convicted, reflects a diminution of the objective seriousness of the offence of possession for the purposes of trafficking in cannabis. [ 34 ] In upholding the suspended sentence imposed by the sentencing judge in Murphy , at paragraphs 65 and 66 Butler, J. stated: 65 The trial judge did not err in his consideration of the effects of the passage of the Cannabis Act as one of many factors relevant to his crafting of an appropriate sentence for Mr.

Murphy. 66 In reducing the maximum penalty for the equivalent offence in the Cannabis Act from life to fourteen years imprisonment, Parliament signaled a lessening of the objective seriousness of the post- Cannabis Act equivalent to the offence of trafficking in cannabis. This justified an adjustment to the judicially approved range of sentence for the offence to which Mr. Murphy pled guilty. [ 35 ] The Court of Appeal found that a suspended sentence was within range, albeit at the lower end of the range (see paragraph 67 of Murphy ).

In upholding the sentence, the Court of Appeal affirmed the sentencing judge’s emphasis on the particular positive antecedents of Mr.

Murphy (see paragraph 57). [ 36 ] Although the Court of Appeal in Murphy stated that the reduction in the maximum sentence available under the Cannabis Act for the offence of possession for the purpose of trafficking is a “signal” from Parliament for an “adjustment” to the previously approved range of sentence, the court was silent as to what that adjustment to the range might be. [ 37 ] While accepting the guidance from our Court of Appeal that there must be some adjustment, I also agree with the comments in Coffey that the reduction from “life” to 14 years imprisonment is not a “significant” alteration to the applicable penalty for these

offences. The offence of possession for the purposes of trafficking, even with the lesser maximum penalty, is still a serious offence. Given this, while I accept the guidance in Murphy that an adjustment in the range may be warranted, any adjustment is not so significant that the sentence in these circumstances approaches the suspended sentence in Murphy , or even an intermittent sentence as submitted by counsel for Mr. Dick. [ 38 ] Counsel for Mr. Dick filed the decision of R. v. Thompson , 2018 ONCJ 310 in support of their submission for an intermittent sentence.

The circumstances in Thompson are distinguishable from the present circumstances. Mr. Thompson was operating a dispensary for medical marijuana in anticipation that this would become legal. Mr. Thompson was also aboriginal and a first time offender. Several letters of support were written on his behalf. There was a specific social context at the time the offence occurred and at sentencing. The court took into account that at the time of the offence there was a “relaxed” attitude towards the sale of marijuana for medicinal purposes by not only the community but law enforcement.

The circumstances of both the offence and the offender are distinguishable from the present circumstances. THE FIT SENTENCE [ 39 ] In my view, the aggravating circumstances are the quantity and value of the drugs, and Mr. Dick’s previous and related criminal history (while also noting that the previous convictions are several years removed from the commission of these offences in 2018). The mitigating circumstances are his guilty plea and expression of remorse. His prospects for rehabilitation are not nearly as positive as documented in Murphy or R. v.

Owens , 2014 BCSC; nor are there any ‘contextual’ features to the circumstances that would attenuate his level of moral blameworthiness, as in Thompson . However, I also accept that Mr. Dick’s attitude shows some prospects for his rehabilitation. I take this into account. [ 40 ] I also recognize that as found in Thompson , and as the majority found in Murphy , that there may be circumstances that support a sentence outside the usual range of several months imprisonment. This is not such a case. For example see Owens , where unlike the offender here, Mr.

Owens was a youthful first time offender and his prospects for rehabilitation were excellent. The sentencing court was satisfied a suspended sentence was warranted. Significantly, the amount of marijuana in his possession was only a few ounces. [ 41 ] In my view, applying the principles of sentencing, and given the circumstances, a period of imprisonment is necessary to give effect to the principles of deterrence and denunciation.

Possession of a large quantity of marijuana for the purpose of trafficking is a serious crime; however society’s view of personal consumption may have changed. [ 42 ] However, the period of incarceration does not need to be two years imprisonment. I am satisfied, particularly given the direction from our Court of Appeal in Murphy , that a lesser period is warranted to impose the fit sentence. I am also imposing a sentence that will facilitate Mr. Dick’s rehabilitation. In these circumstances I sentence Mr.

Dick to 14 months imprisonment for both offences to be served concurrently. [ 43 ] A further 18 months supervised probation will follow. Mr. Dick has availed of programming in this context, and has expressed his desire to address his use of marijuana. A probation order may facilitate him giving effect to this desire. Apart from the usual statutory conditions, Mr. Dick will report to a probation officer immediately upon release and thereafter as required. Mr. Dick will engage in such programming for alcohol and substance abuse as recommended by the probation officer.

ANCILLARY ORDERS [ 44 ] As requested by the Crown, a forfeiture order will be imposed under

section 16 of the CDSA . [ 45 ] Further, I impose a DNA order pursuant to

section 487.051(3). This is a discretionary order as the offence for which Mr. Dick is convicted is a “secondary designated offence” under

section 487. 04(b)(

i) of the Code . In my view, it is appropriate to exercise my discretion to impose such an order (see Baker at paragraph 27). Mr. Dick is not a first time offender but has previous related convictions, the circumstances of the offence are serious, and his level of moral blameworthiness is high. Keeping in mind the principle to impose sanctions that are less severe than depriving Mr. Dick of his liberty, if appropriate, the imposition of the DNA order is a less severe sanction than imprisonment, and serves as a deterrent to committing such offences in the future. [ 46 ] Further, a mandatory firearms prohibition under section 109(1) (

c) of the Code is imposed for life. CONCLUSION [ 47 ] In conclusion, for both offences Mr. Dick is sentenced to 14 months imprisonment, followed by 18 months supervised probation; a DNA order; forfeiture order and firearms prohibition. [ 48 ] Judgment accordingly. _____________________________ Frances J. Knickle Justice