HER MAJESTY THE QUEEN — v. —, 2018 ONCJ 631

CITATION : R. v. Zachar , 2018 ONCJ 631 DATE : September 18, 2018 ONTARIO COURT OF JUSTICE Old City Hall - Toronto BETWEEN: HER MAJESTY THE QUEEN — AND — TIANNA ZACHAR ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) I. Glasner For the Crown P. Scully For the Defendant Heard: May 11, 2018 REASONS for SENTENCE TABLE OF CONTENTS Paragraph A. INTRODUCTION ........................................................................................................... 1 B. SENTENCING: THE LEGAL FRAMEWORK ........................................................ 8 (

a) Introduction.......................................................................................................... 8 (

b) Objectives and Principles of Sentencing.......................................................... 12

(

c) Range Sentencing.............................................................................................. 14 (

d) Exceptionalism.................................................................................................. 35 (

e) Suspended Sentences........................................................................................ 43 (

f) Exceptionalism, Revisited................................................................................ 47...... C. THE FACTS ................................................................................................................... 51 (

a) Introduction........................................................................................................ 51 (

b) The Offences...................................................................................................... 52 (

c) The Offender...................................................................................................... 58 D. ANALYSIS ..................................................................................................................... 66 (

a) Introduction........................................................................................................ 66...... (

b) Applying Proportionality, The Fundamental Principle…............................... 68 (

i) Introduction........................................................................................... 68 (ii) “Gravity of the Offence”...................................................................... 69 (iii) “Degree of Responsibility of the Offender”..................................... 70 1. Introduction.................................................................................... 70 2. The Offender’s “Role”................................................................... 71 3. The Offender’s “Moral Blameworthiness”.................................. 73 4. Youthful Offenders and the Principle of Restraint..................... 76 (

c) Applying the Purpose and Goals of Sentencing ............................................. 79 (

i) Introduction........................................................................................... 79

(ii) Deterrence: Specific and General...................................................... 84 1. Introduction.................................................................................... 84 2. Specific Deterrence....................................................................... 85 3. General Deterrence........................................................................ 89 (iii) Denunciation and Rehabilitation....................................................... 92 E.

CONCLUSION.............................................................................................................. 98 REASONS for SENTENCE MELVYN GREEN, J.: A. INTRODUCTION Each case must be considered in the light of its own circumstances and if those circumstances are extraordinary or rare, and suggest thata jail sentence is not appropriate, then a jail sentence should not be imposed. Gale, C.J.O. R. v. Doherty (1972), (ON CA), 9 C.C.C. (2d) 115 [1] The appeal in R. v. Doherty was heard in an era when very few persons convicted of drug trafficking avoided a sentence ofimprisonment.

The trial judge effectively said as much, lamenting the absence of “guidelines as to what constitutes exceptionalcircumstances” justifying a departure from this rule. The Court of Appeal demurred: “[I]t would not only be unwise, but dangerous toattempt any such exercise”. Individual circumstances, the Chief Justice was saying, matter. Whatever the rule, if “a jail sentence is notappropriate, then a jail sentence should not be imposed”. [2] Following a trial, I found Tianna Zachar guilty of trafficking in close to an ounce of both heroin and cocaine in October 2016.She was barely 18 at the time of the offence.

She is the product of a broken home, presents as immature and vulnerable, and turned herlife around in the nearly two years since her arrest. Crown counsel allows that the offender’s role in the criminal enterprise was nogreater than that of a courier and that she was likely exploited by others. Nonetheless, he commends a penitentiary sentence of three years– the lower end of what he says is the appropriate sentencing range of three to five years of imprisonment. The defence position is verydifferent.

Relying on the purported “exceptionality” of the circumstances surrounding the offence and the offender, defence counselurges that passage of his client’s sentence be suspended and she be placed on a lengthy period of probation. [3] This case, as do many, invites consideration of the appropriate role and application of sentencing “ranges” in achieving aproportionate disposition. The matter is a source of recurrent judicial debate. [4] Until modified by the Supreme Court’s 2015 judgement in R. v.

Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, the conventionalapproach to sentencing assumed a trial court’s close adherence to quantitative sentencing ranges for sub-categories of offences asdelineated by provincial courts of appeal. Lacasse authoritatively recast the role of court-endorsed ranges, defining them as but one ofvarious aids available to trial judges, rather than as the first and fundamental building blocks to the crafting of just sentences.

Althoughhardly a radical proposition, Lacasse emphasized the importance of individualized proportionality grounded in the consistent applicationof principle rather than result, with comparative reference, not obeisance, to the ranges proposed by appellate authorities in factuallyproximate circumstances. These predecessor comparators served merely as historical guides to a fit disposition. As said in a nowhackneyed metaphor, they are but one tool among many in the calculus of sentencing. [5] The Supreme Court’s most recent discussion of sentencing protocols suggests a further readjustment.

To the degree that acourt’s practice is a reliable indicator of its theory, the Supreme Court is now signaling a return to analytical dominance of a range-driven paradigm. As modeled in R. v. Suter, 2018 SCC 34, a trial judge first focuses on the nature of the offence, then determines thejudicially sanctioned range of sentence for the identified offence category and, finally, applies established goals and principles ofsentencing to locate the offender along the prescribed penal range.

Absent sufficiently exceptional circumstances, there is no lawfulescape, to use a different metaphor, from the gravitational pull of a judicially endorsed range. [6] Irrespective of its precise duration, the prosecution’s view is that a penitentiary-length custodial disposition is necessary to meetthe here-relevant objectives of sentencing. The Crown position tracks long settled recognition, as reflected in judicially sanctionedranges, that trafficking in addictive drugs should be met with a severe sentence intended to advance the goals of deterrence and

denunciation. On the other hand, the principles of rehabilitation and restraint are generally paramount in sentencing youthful first offenders. Fairly resolving this tension is a familiar challenge. A s Schreck O.C.J. (as he then was) said in R. v. Fernandez , [2018] O.J. No. 2213 , at para. 22 , It is one faced by most sentencing judges. There is ultimately no one correct way to achieve this balance, which is why courts are usually given a wide latitude in determining the appropriate sentence in any given case. [ 7 ] I surveyed several of the issues that arise in the instant prosecution in R. v.

McGill , 2016 ONCJ 138 . Rather than reinventing the wheel, in the reasons that follow I liberally draw, from among many precedents, on my decision in McGill . B. SENTENCING: THE LEGAL FRAMEWORK (

a) Introduction [ 8 ] Over ninety percent of criminal charges that are neither withdrawn nor stayed result in findings of guilt. Overwhelmingly, sentencing is what trial court judges do. A judge’s discretion is broad and subject to appellate deference, but it is not absolute. For every criminal offence, Parliament prescribes the variety and range of sentences following a guilty verdict. For each offence or category of offences, Parliament fixes both the floor and the ceiling for the exercise of judicial sentencing discretion. [ 9 ] For most, but not all offences, no floor, or minimum sentence, is prescribed.

Some, however, carry minimum fines or, more commonly, minimum terms of imprisonment. Absent certain aggravating circumstances (none of which here obtain), there is no minimum sentence for the drug trafficking committed in this case and therefore no statutory impediment to a trial judge determining the brevity of an appropriate custodial disposition. [ 10 ] All criminal law statutes prescribe a sentencing ceiling for each offence.

As dictated by s. 5(3) of the Controlled Drugs and Substances Act ( CDSA ), a person, as here, convicted of trafficking in heroin or cocaine is “liable to imprisonment for life” – the most severe sentence known to Canadian law. The statutory ceiling undoubtedly reflects the gravity with which Parliament views the commercial distribution of addictive and otherwise personally and socially harmful drugs.

By operation of law, a maximum penalty of life imprisonment precludes access to certain alternative sentences, in particular “discharges” (non-custodial dispositions that avoid a record of “conviction”) and “conditional sentences” (whereby an offender ordered imprisoned for less than two years may be directed to serve her or his sentence in the community, including, typically, a period of “house arrest”).

Despite the onerous maximum penalty, the suite of available sentencing options includes one that does not compel the imposition of a term of imprisonment: absent, as here, any minimum sentence requirement, nothing in the CDSA or the Criminal Code forecloses a court from declining to impose a carceral disposition for drug trafficking and, instead, suspending the passing of an offender’s sentence and subjecting her or him to a period of probation. [ 11 ] In

summary, there are here two realistic sentencing alternatives: a sentence of imprisonment of fit duration (followed, if no longer than two years and where deemed appropriate, by a term of probation) or a non-custodial disposition by way of suspended sentence and probation. Probation, in essence, involves the state-supervised monitoring and, ideally, rehabilitation of an offender in the community for up to three years, subject to conditions tailored and enforced by the court. As prescribed by the Criminal Code , a term of probation may not be added to a carceral sentence that is greater than two years.

Translated to the immediate context: ratifying the Crown position of three years’ imprisonment (or, indeed, anything greater than two years) would necessarily mean that the offender, Tianna Zachar, could not be placed on probation. (

b) Objectives and Principles of Sentencing [ 12 ] While the available compass of sentencing discretion is expansive, its judicial exercise is subject to both statutory direction and appellate governance. As to the former, s. 718 of the Criminal Code requires a sentencing court, through the sanction it imposes, to achieve “one or more” of the identified sentencing objectives of denunciation, specific and general deterrence, societal separation (“where necessary”), rehabilitation, reparation for harm done, and promotion of a sense of responsibility.

Further, any sentence must reflect a collection of guiding principles set out in the Code and, in particular, the “fundamental principle” of sentencing, as prescribed in s. 718.1: “A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender”.

Sentencing jurisprudence uniformly treats the phrase “degree of responsibility” interchangeably with “moral blameworthiness”, a locution that more transparently captures the full compass and complexity of relative personal fault. [ 13 ] Judicial attention must also be paid to those supplementary sentencing principles set out in s. 718.2. These include “aggravating circumstances” (effectively restricted, in the case at bar, to the gravity of the offender’s crimes) and other considerations, arguably more mitigating, such as those captured by the principles of parity, totality and restraint.

Further, and “[w]ithout restricting the generality of the Criminal Code ”, s. 10(1) of the CDSA adds that the “fundamental purpose” of sentencing for drug-related offences, 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.

Unlike the “fundamental purpose of sentencing” proclaimed in the Criminal Code , that set out in the CDSA does not expressly reference the objectives of denunciation or deterrence, while positively “encouraging rehabilitation”. (

c) Range Sentencing [ 14 ] The meaning and application of the codified purposes and principles of sentencing have been left to the judiciary and, in particular, appellate courts engaged in the review of the legal correctness of sentencing decisions. As very few such cases ever reach the Supreme Court, the task of passing on the propriety of trial-level sentencing predominantly falls to provincial courts of appeal.

[ 15 ] In exercising their supervisory jurisdiction, appellate courts have commonly held that certain offences or identified sub-classes should ordinarily attract custodial dispositions. The judicial construction of quantified sentencing ranges is an extension of this practice – that is, the creation of tiered sentencing brackets intended to reflect the relative gravity of criminal conduct within the same offence category. Fraud, for example, is typically the subject of a judge-made sentencing regime in which each step up the penal ladder is tied to an escalating level of quantified loss or defalcation.

A sentencing judge, in applying this construct, is to appropriately credit any aggravating or mitigating factors bearing on the offence or the offender so as to fine-tune a fraudster’s sentence within the parameters of the dollar-appropriate range fixed by an appellate court. [ 16 ] The approach taken by courts of appeal to drug trafficking offences is much the same. The CDSA assigns identical penal discretion to judges sentencing persons convicted of trafficking in

Schedule I drugs (basically, opioids, cocaine and amphetamines) – irrespective of the nature, amount, value, purity, addictiveness or other dangers of the drug, and irrespective of the sophistication or profitability of the enterprise or the motive, role, criminal history or other antecedents of the offender. Appellate courts have, in effect, layered their own quantitative sentencing grid on top of the broad latitude delegated trial judges by Parliament. Unlawful drugs are ranked by the personal and social harm appellate courts generically assign to each.

Heroin, for example, is treated more seriously than powder cocaine. Based exclusively on weight-based divisions of the drug at issue, these same courts then attribute a step-ladder of penal severity to each drug or drug category. The graduated range of sentence assigned to commercial transactions involving ounces of either heroin or cocaine is harsher than that prescribed for gram- or multi-gram-level sales of the same substance.

To be very clear, a single feature of the offence – the weight of the substance at issue – grounds, defines and governs range sentencing in the realm of drug trafficking. [ 17 ] But for, as said in R. v. Doherty , “ extraordinary or rare” scenarios (for which, historically, a high bar was erected), sentencing judges, to avoid the risk of reversible legal error, were generally expected to confine themselves to the case-appropriate penal range directed by their supervisory courts of appeal. Indeed, until R. v.

Lacasse , supra , mere departure from a court-prescribed sentencing range was not infrequently treated as cause for appellate intervention. As noted, this sentencing model accommodates the occurrence of “exceptional” circumstances – that is, those affording an exception to, or exemption from, a court-endorsed range. Such exceptional circumstances, when established, are not necessarily extenuating.

They may, depending on their forensic characterization as aggravating or mitigating, justify relief in either direction from the strictures of the sanctioned range – above, as in Lacasse , or below, as in Suter . [ 18 ] R. v. Lacasse is a compendious restatement of the sentencing guidance incrementally developed by the Supreme Court in a number of antecedent judgements. Lacasse affirms that it is Parliament’s job, not that of appellate courts, to create offence categories and, thereby, the parameters and compass of a trial judge’s sentencing discretion.

Sentencing “ranges”, the Court held, are no more than appellate “guidelines”, the departure from which does not itself constitute legal error. Indeed, unless a sentence is demonstrably unfit or the product of an impactful error of principle or failure to properly consider a relevant factor, an appellate court is to accord deference to the sentence imposed at trial rather than substitute its own view as to the appropriate disposition.

In the end, and most importantly, sentencing is a wholistic exercise in individualized justice, one that must respond proportionately to both the unique circumstances of each offender and the offence or offences of which she or he has been found guilty. [ 19 ] The doctrine of sentencing ranges is subject to a number of reservations grounded in law and policy. I touch on these in R. v. McGill , supra , at paras. 55-58 . One persistent misgiving is that the offencentric nature of range-framed sentencing may distort the principle of individualized proportionality that defines and legitimates each sentencing project.

As I wrote, at para. 56: A sentencing levy based on the weight or amount of a drug inevitably prioritizes the gravity of the offence over the moral culpability of the offender. … It is this offence-weighted bias that led Lamer C.J., on behalf of the full Supreme Court in R. v. Proulx, [2000 SCC 5 , [2000] 1 S.C.R. 61 ], at para. 83, to caution that, … such an approach focuses inordinately on the gravity of the offence and insufficiently on the moral blameworthiness of the offender. This fundamentally misconstrues the nature of the [fundamental sentencing] principle.

Proportionality requires that full consideration be given to both factors. [Emphasis in original.] Similarly, in R. v. Wells, [2000 SCC 10 , [2000], 1 S.C.R. 207 ] , at para. 46, Iacobbuci J., again speaking for a unanimous Supreme Court, re-affirmed that an offence-based “categorical approach represents only a partial, and therefore unbalanced, application of the fundamental sentencing principle of proportionality … ”. [ 20 ] The recent case of R. v. Sharma , 2018 ONSC 114 , voices a similar note of caution respecting reliance on range-based sentencing.

Hill J., drawing on his “over 20 years of conducting sentencings”, expressed his “concern”, at para. 83, that “Ontario Court of Appeal starting point ranges have become less flexible guidelines and more prescriptive constraints of judicial discretion”. “Individualized sentencing”, he warned, “cannot become an exercise of sentencing by the pound”. (See, also, the thorough review of the Australian position on the same point in R. v.

Parente , [2017] NSWCCA 284, as extensively quoted in Sharma , supra , at para. 92 .) [ 21 ] Lacasse , on its face, reads as an authoritative corrective to the mechanical application of range-predicated sentencing. Wagner J., as he then was, wrote for the majority. He said, at paras. 57 and 58: Sentencing ranges are nothing more than summaries of the minimum and maximum sentences imposed in the past, which serve in any given case as guides for the application of all the relevant principles and objectives.

However, they should not be considered “averages”, let alone straitjackets, but should instead be seen as historical portraits for the use of sentencing judges, who must still exercise their discretion in each case. … There will always be situations that call for a sentence outside a particular range: although ensuring parity in sentencing is in itself a desirable objective, the fact that each crime is committed in unique circumstances by an offender with a unique profile cannot be disregarded.

The determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purely mathematical calculation. … Once again, everything depends on the gravity of the offence, the offender’s degree of responsibility and the specific circumstances of each case.

[ 22 ] As clear from this passage, parity – the core rationale for range sentencing – is not only a prescribed goal but “a desirable objective”. However, the reconciliation of individualization and parity must be conducted in a manner that does not sacrifice individual proportionality for categorical equivalence. As the Court makes patent, at para. 54, “ [t]he principle of parity of sentences … is secondary to the fundamental principle of proportionality ” (emphasis added). [ 23 ] The preeminence afforded individualized proportionality is consistent with earlier Supreme Court judgements such as R. v.

L.M ., 2008 SCC 3 , [2008] 2 S.C.R. 163 and R. v. Pham , 2013 SCC 15 , [2013] 1 S.C.R. 739 . In Pham , at para. 9 , Wagner, J., spoke for a unanimous Court: As a corollary to sentence individualization, the parity principle requires that a sentence be similar to those imposed on similar offenders for similar offences committed in similar circumstances … . In other words, “ if the personal circumstances of the offender are different, different sentences will be justified ” (C. C. Ruby, G. J. Chan and N. R.

Hasan, Sentencing (8th ed. 2012), at §2.41). [Emphasis added.] Or as I endeavoured to explain in McGill , supra , at para. 81 : [I]ndividual differences justify different sentences. The more substantial the differences, and the more salient they are to the recognized objectives and principles of sentencing, the greater the justification for principled disparity [from an endorsed range]. What the principle of proportionality demands is individualized parity, not class parity. ( See also R. v.

Chaloner , 2018 ONCJ 577 , esp. at para. 31.) [ 24 ] Proportionality remains firmly entrenched as the “fundamental principle of sentencing”. However, the strong emphasis in Lacasse on case-specific individualization and its de-emphasis of strict fidelity to sentencing brackets appears muted by the Supreme Court’s recent deployment of offence-focused ranges as the foundational analytical tool in sentencing. The decision in question, R. v. Suter , supra , is primarily concerned with refining the meaning of the “collateral consequences” of an offence and their potentially attenuating role in sentencing.

However, Suter ’s analytical syntax affords an authoritative exemplification of the continuing organizing centrality of ranges to the tailoring of a just sentence. Suter is also a sobering reminder of the high standard that must be met before departing from appellate “guidelines” for identified offence categories. [ 25 ] In Suter , the Supreme Court expressly endorsed a substantial penitentiary-length sentencing range of between two and ten years for fatality-associated drinking and driving-related offences. The offender was a retired man with no criminal record.

While bickering with his wife, he mistakenly pressed the gas rather than brake pedal, accelerating his vehicle onto a restaurant patio in South Edmonton and tragically killing a two-year-old child and injuring others. [ 26 ] The offender was arrested while being beaten at the scene. He was charged with impaired driving causing death and impaired driving causing bodily harm. Following a lawful breath demand, he was afforded telephone access to duty counsel who used confusing legal jargon, never inquired as to the offender’s alcohol consumption, and expressly advised him to decline to provide a breath sample.

The offender followed this erroneous advice. As a result, he was also charged with refusing to provide a breath sample after causing an accident resulting in death. The maximum penalty for each of these offences is life imprisonment and, as the Supreme Court observed, at para. 2, “for sentencing purposes, these three offences will typically be treated alike”. [ 27 ] Sometime after his release on bail, hooded men abducted the offender, covered his head with a canvas bag, drove him to a secluded area, amputated his thumb with pruning shears, and left him unconscious in the snow.

His wife was attacked in a separate incident, resulting in her teeth and nose being broken. In the course of the offender’s sentencing proceedings, it was determined that he had been “sober” at the time of his errant driving. The tragic “fatal accident”, said the Supreme Court, at para. 3, “was caused by a non- impaired driving error”. Further, his refusal to comply with the police breath demand was “because”, the Court held, “he received bad legal advice”. [ 28 ] The offender pled guilty solely to the offence of refusing to provide a breath sample after causing an accident resulting in death.

The other charges were withdrawn. He was sentenced to four months of incarceration. The Alberta Court of Appeal increased the sentence to 26 months, one within the customary range assigned the offence.

Upon consideration of the circumstances of the offence and the appellant offender (including, by way of collateral consequences, the brutal assaults he and his wife suffered at the hands of vigilantes), all but one of the Supreme Court panel reduced the sentence to, in effect, “time served” – the equivalent of 15 to 18 months, about midway between those sentences imposed by the trial and intermediate appellate courts. [ 29 ] The majority, at para. 25, repeated its holding in Lacasse that “sentencing ranges must in all cases remain only one tool among others that are intended to aid trial judges in their work”.

Nonetheless, an analytic based on a fixed sentencing range is the first tool employed by the majority in Suter and the one that frames the inquiry that follows. Moldaver J. writes for the majority. His acknowledgement, at para. 4, that “[s]entencing is a highly individualized process” serves to affirm the continuing authority of the range sentencing that follows: Accordingly, there will be cases where the particular circumstances of the offence and/or the offender call for a sentence that falls outside of the normal sentencing range.

Consistent with the analytical steps directed by this approach, Moldaver J. first defines the offence category. Then, after agreeing that the appropriate “sentencing range” is one of two to ten years, he, at para. 90, effectively re-asserts the conventional rule: In unique cases, mitigating factors, collateral consequences, or other attenuating circumstances relating to the offence or offender may warrant the imposition of a sentence that falls below this broad range. Finally, at para. 94, the majority opinion concludes that, “the various attenuating factors in this case operate to remove Mr.

Suter’s sentence from the normal range for [the] offence”. [ 30 ] But for the dissenting opinion of Gascon J., the Court’s judgement conspicuously eschews the word “exceptional”, substituting

“unique” throughout. There is no doubt that the particular constellation of extenuating circumstances in Suter is both unprecedented andclose to unconceivable. On reviewing the broad compass of comparable authorities, Gascon J. notes, at para. 190, that, There are no reported decisions where someone convicted of refusing a breath sample after a fatal accident was found factually sober andwas expressly instructed by a state-provided lawyer to refuse to provide that sample. [Nor is there] … any such case where the individualconvicted, and his wife, both suffered appalling vigilante attacks.

Professor Tim Quigley’s annotation accompanying the publication of R. v. Suter in the Criminal Reports is to identical effect.

The“facts”, he writes, “are so unusual that it is difficult to imagine that the case will have a great deal of precedential effect”. [31] What is of precedential or, inevitably, persuasive effect is not the sentence imposed but the Court’s sentencing methodology.Irrespective of the language it uses to describe the distinguishing features of the factual scenario, and despite the qualifications andreservations expressed in Lacasse, the majority opinion in Suter applies an analytical template anchored in judge-made sentencingranges.

There is no escape, says Suter, from their “straightjackets” (as disparagingly characterized in Lacasse) absent the identificationof sufficiently compelling “exceptional”, “unique” or otherwise “unusual” circumstances. With respect, the majority’s approach againrisks preferencing parity over individualized proportionality. [32] Subject to further clarification from the Court, Suter appears to re-elevate sentencing ranges from “mere guidelines” to rules, thelegal grip of which cannot be avoided without first clearing a hurdle of exceptionality.

This approach, as already noted, is difficult toreconcile with that expressed in earlier judgements such as Lacasse and R. v. Nasogaluak, supra, at para. 44, where LeBel J., speakingfor the entire Supreme Court, reminded trial judges that, while they … should pay heed to these ranges, they are guidelines rather than hard and fast rules.

A judge can order a sentence outside that rangeas long as it is in accordance with the principles and objectives of sentencing. [Emphasis added.] With respect, “pay[ing] heed” to malleable “guidelines” is a very different instruction to trial judges than one that commands not only theidentification and application of an offence-dictated range but, as well, adherence to that sentencing bracket absent sufficientlyextenuating conditions. [33] By way of international comparison, the methodology sanctioned in Suter does not fit comfortably with that developed incomparable common law jurisdictions such as the United States (see Gall v.

U.S., 128 S. Ct. 586, 595-596 (2007)) and Australia (seeRobinson v. R. [2017] NSWCCA 205, esp. at paras. 69-71, and R. v. Parente, supra). [34] In R. v. Sharma, supra, at para. 90, Hill J. cautioned that, “[t]here is a risk that the search for exceptional circumstances willconvert judicially identified guideline ranges of sentence into presumptive restraints upon discretion to impose a proportionate sentence”.This is a well-founded concern. I do note, however, that Suter does not expressly assign a burden respecting proof of unique or otherwiseexceptional circumstances.

And although chiefly intended to curb retrospective appellate intervention, I note as well that Suter confirms,at para. 27, that, As long as the sentence meets the sentencing principles and objectives codified in ss. 718 to 718.2 of the Criminal Code, and isproportionate to the gravity of the offence and the level of moral blameworthiness of the offender, it will be a fit sentence. (

d) Exceptionalism [35] As Suter implicitly re-affirms, departures in either direction from approved sentencing ranges are generally rationalized throughthe doctrine of exceptional circumstances. I more fully addressed this construct in McGill, at paras. 69 and 78: … “exceptional circumstances” is the analytical device by which sentences below an approved range find lawful purchase.

Functionally,the doctrine serves as a means for preserving the continuing authority of the sanctioned range while allowing for more lenient treatmentof “exceptional”, “rare”, “unusual” or “extraordinary” cases that, through such legal characterizations, can be fairly and sympatheticallyaddressed without jeopardizing the sentencing norm for any given class of cases. “Exceptional circumstances” … seems rooted as muchin equity as settled legal principle. The elasticity of the doctrine’s boundaries is understandable given the vicissitudes of humanexperience.

Said otherwise, the categories of cognizable “exceptional circumstances” are far from closed. … Canadian sentencing jurisprudence treats “exceptional circumstances” as rare occurrences, perhaps exceedingly rare. To acknowledgeany greater frequency would, of course, risk the exception swallowing the rule … . Too many exceptions threaten boundarymaintenance. [36] In the end, as said by Watt J.A. for the Court of Appeal, court-endorsed “sentencing ‘ranges’ … are not immovable orimmutable”: R. v. Jacko (2010), 2010 ONCA 452 , 101 O.R. (3d) 1, at para. 90.

In cases of domestic violence and child sexualabuse, for example, the ceilings of the customary ranges have been judicially elevated over the past 20 years to reinforce deterrent anddenunciatory goals while channeling enhanced public condemnation of these offences.

On the other hand, the severity of the appellateresponse to the production and commercial distribution of cannabis attenuated long before the government’s recent legalizationinitiatives. [37] The focus must remain on the combined force of the presenting circumstances of the offence and the offender in each case.Nonetheless, courts identify categories of law-breakers who share features that may diminish individual members’ moral culpability.Said otherwise: while the ultimate proportionality assessment must always be individualized, there is broad recognition of mitigatingcircumstances that forensically define sub-populations of offenders. [38] The stance adopted by various appellate courts to “addict traffickers” (that is, persons whose primary motivation to sell drugs isto fund their own dependencies) affords one illustration.

In R. v. Farizeh, , for example, the Ontario Court of Appeal

“stress[ed]” that, absent “exceptional circumstances”, the “sale of heroin even in small amounts by first offenders who are addicts willcall for a penitentiary sentence” (emphasis added). Crown counsel relies on Farizeh as authority for the penitentiary-length sanctionsought in the present case. While I am sensitive to its continuing precedential invocation (see, for example, R. v. Banovac, 2018 ONCA737, at para. 5), Farizeh is factually removed from the case before me.

Further, as any observer of routine drug prosecutions in thiscourthouse will attest, “first offenders” who plead guilty to trafficking in the same small, street-level quantities of cocaine or heroininvolved in Farizeh generally attract, at harshest, sentences measured in single-digit months – not the years prescribed by cases likeFarizeh. [39] Of greater immediate relevance, however, is the judicial re-orientation to the sentencing of drug dependent offenders.

While re-affirming the propriety of significant custodial dispositions for “hard drug” trafficking, courts increasingly extend lenient considerationto those “addict traffickers” whose personal circumstances warrant a relaxation of the general rule.

In recognition of the physical tenacityof drug dependency and the value of rehabilitation over punishment as a means of effectively redressing the personal and social problemsof addiction, trial courts not infrequently impose relatively brief or non-custodial sentences on addict traffickers who demonstrate theirtherapeutic resolve and amenability to continued counseling under state supervision. For example, in R. v. Lazo, 2012 ONCA 389, atpara. 8, the Court of Appeal commented that, Successful treatment of addiction is the best means of addressing drug crime.

The public interest is served by diverting individuals in theappellant's situation into drug treatment programs that address the addictions which fuel their criminal activity. (See also, R. v. Dzienis, 2012 ONCJ 442, at paras. 24-34 and R. v. Azeez, 2014 ONCJ 311, at paras. 25-30.) [40] To be clear, the offender Tianna Zachar, while an historical consumer of marijuana, is not an “addict trafficker” of hard drugs.

Tobe equally clear, and Farizeh aside, there remains ample appellate authority for the proposition that, absent exceptional circumstances,trafficking in near ounce-level quantities of either heroin or cocaine should ordinarily result in a substantial sentence of imprisonment.The point I draw from the preceding review is that trial and appellate courts have developed a more flexible approach to certainrecognizable complexes of “exceptional circumstances”.

They serve, in appropriate cases, as mitigative shortcuts that rescue individuallyproportionate justice from the onerous consequences of strict application of fixed sentencing ranges. The more lenient treatmentaccorded some addict traffickers is but one illustration of judicial recognition that the members of certain definable classes of offendersshare characteristics of such extenuating value that they may amount to exceptional circumstances upon individual assessment. [41] The application of “Gladue principles” is another example of this redirection.

In McGill, the circumstances that effectivelyremoved the offender from the compass of a range-based custodial disposition for constructive trafficking in approximately a third of akilogram of cocaine was the close relationship between his Indigenous heritage and both the determinants of his criminal conduct and therestorative value of his post-arrest efforts to reclaim his identity and self-worth. Put otherwise, the sentence crafted in McGill was largelyinformed by the rationale for and purpose of the principles enshrined in R. v. Gladue, (SCC), [1999] SCJ No 19,[1999] 1 S.C.R. 688 and R. v.

Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433. The Manitoba Court of Appeal’s judgement in R. v. Peters,2015 MBCA 119, 323 Man. R. (2d) 237, is to similar effect.

To state the obvious, Indigeniety and a capacity for restorative justice arebut some of many acknowledged circumstances, defining the offender or the offence, that may justify, on grounds of individualizedproportionality, a fit sentence that falls outside an approved range. [42] Another widely acknowledged category of potential extenuation, and one much closer to the offender Tianna Zachar’s forensicprofile, pertains to relatively low-level cocaine and heroin traffickers who exhibit sustained rehabilitation, normative reintegration andlittle if any risk of recidivism.

When the mitigative force of these and other individually attenuating factors amount to exceptionalcircumstances, there is a growing body of jurisprudence (referenced below) countenancing the imposition of non-custodial dispositions,by way of suspended sentences, for qualifying members of this demographic. (

e) Suspended Sentences [43] “Conditional sentences”, as already noted, are fixed-length sentences of imprisonment of less than two years that, where otherstatutory pre-conditions are met, are served in the community rather than a bricks-and-mortar reformatory. Some “hard drug” dealerswere sentenced to this mode of non-custodial disposition prior to the late-2012 amendments foreclosing access to conditional sentencesfor trafficking in

Schedule 1 drugs. (See, by way of several examples, R. v. Kerr, (ON CA), [2001] O.J. No. 5085,153 OAC 159, the various appellate decisions cited therein, at para. 14, and the additional Ontario-based cases referenced in R. v.McGill, supra, at para. 60.) Where the principle of proportionality can be honoured without resort to imprisonment, various trial andappellate courts have since relied on suspended sentences and substantial terms of probation to achieve a similarly just non-custodialresult. [44] Several observations as to the meaning and implications of a suspended sentence are here apposite.

First, Parliament, with anidentical pen-stroke, could have as readily precluded the availability of suspended sentences for

Schedule I drug traffickers as it didconditional sentences in the 2012 amendments. Instead, it elected to preserve this non-custodial sentencing option. And second, asuspended sentence and probation, while often viewed as a lenient disposition, carries a potent, if under-underutilized, mechanism ofdeterrence.

My earlier comments in McGill, at paras. 47-51 and here abbreviated, remain apt: … [A] suspended sentence is not a lawful substitute for a conditional sentence. … A suspended sentence is not a sentence ofimprisonment. … Accordingly, the threshold question that must be addressed by any judge charged with sentencing a person convictedof trafficking in cocaine [or heroin] is whether the gravity of the offence and the moral responsibility and individual circumstances of theoffender are such that, in the language of Proulx, supra, at para. 36, “no other sanction … is appropriate” other than a sentence ofimprisonment.

If so, … a suspended sentence cannot be substituted for a conditional sentence where imprisonment is the only fitsanction. Conversely (and fines aside), where imprisonment is not warranted, there is but one correct alternative: a suspended sentenceand associated period of probation: R. v. Wu, 2003 SCC 73, [2003] 3 S.C.R. 530. [See also, R. v Proulx, supra, at para. 37.] … [S]uspended sentences are recognized as having a very significant deterrent element. … As s. 731(1)(

a) of the Code makes clear, a “suspended sentence” is one in which it is “the passing of sentence” that is suspended –

not [the sentence or] service of the sentence itself. Where a person bound by a probation order attaching to a suspended sentence isconvicted of a breach of his or her probation order or … any other offence, a court may, as with breaches of … a conditional sentence,amend the optional conditions of the order.

However, unlike the case of conditional sentences, the court may instead extend the durationof the order for up to an additional year [or] … revoke the suspended sentence initially imposed and levy any sentence it could haveimposed in the first instance [as] “if the passing of sentence had not been suspended”. … ... In R. v.

Voong, 2015 BCCA 285, 325 C.C.C. (3d) 267, the Court, at para. 39, added: Because a breach of the probation order can result in a revocation and sentencing on the original offence, it has been referred to as the“Sword of Damocles” hanging over the offender’s head. [45] The Ontario Court of Appeal has long recognized the same principle. For example, in R. v. Richards, (ONCA), [1979] O.J.

No. 1030 (C.A.), 49 C.C.C. (2d) 517, at para. 35, Howland, C.J.O., speaking for a five-person panel, noted that, [A] person released on suspended sentence and probation does not go scot free. … Any wilful failure to comply with the terms of theprobation order is a punishable offence …, and the court, in those circumstances, in addition to imposing punishment for the breach ofthe probation order, is empowered to revoke the probation order and impose any punishment that could have been imposed if the passingof sentence had not been suspended. [46] The deterrent value of the suspended sentence regime rests not only in its potential for resentencing in case of non-compliance orfresh criminality but, as well, on the grant of a very broad judicial discretion to impose not only terms of community supervision but,pursuant to s. 732.1(3)(

h) of the Code, “such other reasonable conditions as the court considers desirable … for protecting society”(emphasis added). Bennett J.A., writing for the Court in R. v. Voong, supra, at para. 43. explained: [I]mposing conditions for the protection of the community may have a deterrent and denunciatory effect in addition to a rehabilitativeeffect. Put another way, a condition need not be punitive in nature in order to achieve deterrence or denunciation. (See also paras. 40-42, for additional appellate authorities supporting the potential deterrent impact of the terms of a probation orderattached to a suspended sentence.) (

f) Exceptionalism, Revisited [47] Suspended sentences aside, there remains the vexing questions of what constitutes such “exceptional circumstances” as to justifyany departure from a judicially approved sentencing range. In R. v. Tran, 2015 MBCA 120, 323 Man. R. (2d) 293, at para. 17, theManitoba Court of Appeal allowed that the concept “remains somewhat nebulous and devoid of a precise definition”. Speaking throughMonnin J.A., the Court approvingly cited its earlier drug trafficking decisions in R. v. M.F.D. (1991), (MB CA), 75Man. R. (2d) 21 (CA) and R. v. Scanlon (1995), (MB CA), 107 Man. R. (2d) 190 (CA).

In the first, Twaddle J.A.wrote, at para. 16: It is not this circumstance or that which justifies a departure from the normal sentencing pattern, but the totality of the circumstances. For this reason, the circumstances which may be regarded as “special” are not susceptible of definition. The best we can do is torecognize that there will be exceptional cases in which the interests of society, or those of the victim and her family, will be better servedby a sentence which gives more weight to rehabilitation than to the other sentencing aims.

The identification of those cases must then beleft to judges exercising their discretion judicially. In the second, Twaddle J.A., again writing for the Court, stated, at paras. 12-13: The general rule does not mandate a penitentiary term in every case.

Sentencing judges retain a discretion to impose a lesser term, oreven a non-incarcetory one, where the circumstances justify the chosen penalty. … This court has frequently referred to such circumstances as “ex​ceptional” (or sometimes “extraordinary”). … [H]owever, … thecircumstances of an offence and an offender are of such infinite variety that it is next to impossible to say in the abstract which are usualand which exceptional.

The best this court can do is to refer to earlier cases in which exceptional circumstances have been recognized asjustifying departure from the general rule. [48] The common element identified by the Manitoba Court of Appeal in Tran, at para. 24, “is that ‘exceptional circumstances’invariably involve multiple mitigating factors”. The authority invoked in support of this proposition is, again, that of R. v.

Voong, supra,at para. 59: Exceptional circumstances may include a combination of no criminal record, significant and objectively identifiable steps towardsrehabilitation for the drug addict, gainful employment, remorse and acknowledgement of the harm done to society as a result of theoffences, as opposed to harm done to the offender as a result of being caught. This is a non-exhaustive list, but at the end of the day,there must be circumstances that are above and beyond the norm to justify a non-custodial sentence.

There must be something thatwould lead a sentencing judge to conclude that the offender had truly turned his or her life around, and that the protection of the publicwas subsequently better served by a non-custodial sentence.

In the end, Monnin J.A. concluded, at para. 27, that “in this canvass of factors warranting a consideration of ‘exceptionalcircumstances’, the aspect of demonstrated rehabilitation over a period of time might be the most persuasive of those factors” (emphasesadded). [49] Monnin J.A., like the British Columbia Court of Appeal in Voong, was focused on the meaning of exceptional circumstances inthe context of sentencing offenders convicted of hard drug trafficking. The Supreme Court, speaking more generally in Suter, affirmed, as

noted earlier, an imprecise but broadly applicable, multifactorial window of relief from the confines of an approved sentencing range:“mitigating factors, collateral consequences, or other attenuating circumstances”. Of course, the Suter methodology commands, as thefirst order of analytical business, regard for the nature of the offence and its corresponding sentencing range which, in effect, is to betreated as presumptively correct.

And little if any assistance is provided as to the nature or height of the hurdle of exceptionality or“unique”-ness that must be cleared “to remove [an offender’s] sentence from the normal range for [the] offence”. However, as JusticeMoldaver wrote for the Court of Appeal before his elevation, ranges “are not meant to be fixed or inflexible”: R. v. D. (D.), , 163 C.C.C. 471 (Ont.

C.A.), at para. 33. “On the contrary,” he continued, “sentencing is not an exact science and trial judgesmust retain the flexibility needed to do justice in individual cases”. (The Court of Appeal employs identical language, if unattributed, inR. v. Sidhu, 2009 ONCA 81, 242 C.C.C. (3d) 273.) [50] This review of the critical legal scaffolding – ranges, proportionality, individualization, parity and exceptionality – analyticallyframes the case at bar.

I move now to the circumstances of the offender, her offences, and the application of the governing sentencingprinciples to these and other considerations bearing on a fit disposition. C. THE FACTS (

a) Introduction [51] The trial decision in this matter is reported as R. v. Zachar, 2018 ONCJ 149. The following review of the offence-related facts, asI found them, is drawn from these reasons. As the defence called no evidence at her trial, the information pertaining to the offenderTianna Zachar – her antecedents, character, personal circumstances and post-offence conduct and prospects – is derived from a positivepre-sentence report, letters of attestation filed on her behalf and, of course, the supplementary submissions of counsel. (

b) The Offences [52] The Guns and Gangs Task Force of the Toronto Police Service (TPS) had been investigating one Sharla Turnbull. Undercoverofficers surveilled the human traffic in and out of Turnbull’s apartment building on October 21, 2016. The police followed Turnbull laterthat afternoon as she boarded a Mazda, was driven to a nearby industrial mall, and there entered an automotive body shop. Anunidentified woman arrived in a taxi while Turnbull was still in the shop. The woman carried a black duffel bag from the taxi to thebackseat of the Mazda. A Honda pulled up nearby.

Its female driver briefly entered the Mazda before returning to the Honda.Surveillance officers did not observe this woman carry anything into or out of the Mazda. Turnbull left the body shop and entered thefront passenger seat in the Honda. She too was not carrying anything. [53] The police closely followed the Honda, boxing it in some ten minutes after it left the plaza. Tianna Zachar, the offender beforeme, was behind the wheel of the Honda. A couple of buds of marijuana rested in “plain view” between the two front seats.

Two baggiesfound in a sports bag in the back seat of the Honda contained 23 grams of heroin and 26 grams of crack cocaine, respectively. Some $350cash was also seized, along with a digital hand scale located in a second bag. Expert evidence valued the seized cocaine at between$1,300 and $1,700 (if sold at the “ounce” level) and $5,100 if trafficked through street sales.

The heroin was estimated to be worth about$4,500 if sold as a single unit and between $6,900 and $11,500 in retail street sales. [54] The TPS executed a search warrant at Turnbull’s apartment while she and the offender were being investigated and processed.An ammunition magazine, crack cocaine and digital scales were among the items seized at the apartment. [55] Tianna Zachar was not the target of the police investigation. At highest, she was incidental by-catch who first drifted onto thepolice radar less than twenty minutes before she was apprehended.

There no evidence of her association with any larger or other criminalenterprise. There is no evidence of her prior association with the Honda, Turnbull, Turnbull’s apartment or any other participants in thecriminality that led to police take-downs later that day. No evidence was led as to the offender’s knowledge of the quantum or value ofthe seized drugs found in the Honda, or of her remuneration, if any, for her service.

Nor was there any evidence as to the purity of eitherdrug. [56] Tianna Zachar was charged with possession for the purpose of trafficking of the cocaine and heroin found in the Honda.Assuming possession was established, the defence took no issue with the impugned purpose of that possession. Irrespective ofcommercial intent, mere “transport” of a

Schedule I drug falls within the CDSA definition of “traffic”. The prosecution’s case against theoffender was entirely circumstantial. For the reasons set out in my earlier judgement in this matter, I found her guilty of the twoconstructive trafficking offences. She was also charged with possession of criminal proceeds – the $350 found near the drugs. Asexplained at para. 39 of my Reasons for Judgement at trial, I was not satisfied that the Crown had proven an essential element of theactus reus – that the seized cash was in fact the proceeds of a criminal offence.

Accordingly, and without needing to address the questionof Ms. Zachar’s control of the money or knowledge of its existence or illicit origins, I found her not guilty of this third charge. [57] It is of some irony that Ms. Zachar’s acquittal of the least serious of her three charges precludes her from even consideration ofone lawful path to a non-custodial disposition. Unlike

Schedule I drug trafficking, a conditional sentence is an available sentencingoption following a conviction for the Criminal Code offence of possession of criminal proceeds. As said by the Supreme Court in R. v.Wu, supra, at para. 25, A conditional sentence is a sentence of imprisonment, albeit the sentence is served in the community. It is imprisonment withoutincarceration.

If the offender had been convicted of all three offences with which she was charged, and if imprisonment was the fit result in theimmediate case, and if the length of that sentence did not exceed two years less a day, and if consistent with application of the totalityprinciple, a just non-carceral sentence could be lawfully fashioned by imposing a conditional sentence for the proceeds offence withconcurrent suspended sentences and probation for the two CDSA offences.

This hypothetical exercise still begs the threshold question ofwhether a sentence of imprisonment is the only proportionate disposition in the circumstances of this case. The same question presents inlight of the two convictions actually registered. There is, however, a critical difference. In the real-world scenario that reflects the verdictat trial, a sentence of imprisonment, if appropriate, necessarily means a carceral disposition: even if under two years, a sentence of

imprisonment for

Schedule I drug trafficking cannot be served in the community. (

c) The Offender [ 58 ] The offender turned 18 a week before her arrest. (In my Reasons for Judgement, I mistakenly described her as 19 at the time of the offence.) Had the events at issue occurred only slightly earlier than they did, she would, in law, be treated as a “young person” governed by the Youth Criminal Justice Act ( YCJA ), rather than the CDSA and the Criminal Code . Nonetheless, she could hardly be a younger adult offender. Although she had a single prior conviction under the YCJA for simple possession of an unidentified drug , I adopt Crown counsel’s fair recommendation that I characterize Ms.

Zachar as a “youthful first offender” for purposes of sentencing. Before being granted bail, Ms. Zachar was detained for four days – which, pursuant to R. v. Summers , 2014 SCC 26 , [2014] 1 S.C.R. 575 , Crown counsel agrees should be treated as the equivalent of six days for sentence computation. The offender was subject to a very strict curfew (from 8pm to 6am, daily) for the first seven months of her judicial interim release. This condition was amended, with consent of the Crown, on May 25, 2017 to permit her to fulfil her employment obligations.

There is no suggestion that the offender has done other than fully comply with the terms of her recognizance over the past 23 months. [ 59 ] The offender’s parents separated when she was only three. She has since lived with her mother. She has had only minimal contact with her absent father. The author of her pre-sentence report (PSR) notes that the offender’s school attendance and performance were poor and that she began associating with a negative peer group.

A Youth Risk Need Assessment prepared at the time of the offender’s YCJA disposition speaks to “inadequate supervision” and “overly permissive parent practices with little direction and structure” during her high school years. [ 60 ] The offender, as confirmed by her mother, reported being harassed and threatened by persons involved in the criminal enterprise that led to her arrest. The intimidation caused the offender and her mother to move from Toronto to Barrie in 2017. The PSR notes that the offender “seems to have thrived since relocating”.

Her mother, who is described as a “big support”, works fulltime from home and provides “a stable household”. [ 61 ] Ms. Zachar secured employment in November 2016, within a month of her release on bail. She continues to work for the same company and, as well, part-time for a second employer in the same trade whose clientele includes non-profit organizations and “several housing communities for the less fortunate”. The work is not easy.

Both of her employers provide clean-up and recovery services in response to emergency and catastrophic events such as flooding, sewage backup, mold, bed bugs, trauma scenes, and water and fire damage. As one of her bosses explains, the labour “can be rigorous and at times very disagreeable as workers are often dealing with gross filth contamination [while] wearing heavy personal protective equipment”. After checking with the companies, the PSR writer advises that the offender had amassed “an exemplary work record” and is “considered a highly valuable employee”.

One of her managers describes the offender as a hard and tireless worker, “sometimes putting in 10 and 11-hour days”. The owner of the second company attests to Ms. Zachar’s professionalism, punctuality, work ethic and customer service skills. She has attended a number of training courses, earned several industry-recognized certificates, been granted one promotion and is being considered for a second. [ 62 ] The offender’s academic performance has also recovered.

While she had earlier repeatedly dropped out of school, the offender has earned eight credits through an alternative school program since her release on bail. As of December 2017, she was only eight short of the thirty credits needed to graduate with a full high school diploma. The offender’s post-arrest academic achievement is rightfully a source of pride, and she intends to complete her high school education in the near future. [ 63 ] The PSR notes the offender’s reports of ADHD and OCD diagnoses. She self-medicated with marijuana before her arrest.

She has since abstained from the use of any unlawful substance despite a “high level of anxiety” arising from the uncertainty surrounding her prosecution and ultimate disposition. There is no indication of regular consumption of alcohol. [ 64 ] The offender appeared attentive but emotionally wrought throughout her trial and sentencing proceedings. By way of a teary-eyed allocution, she expressed earnest remorse for “what [she] did” and for the impact it had on her family. The author of the PSR confirms that the offender “shows remorse for her involvement in the present offence”.

Her mother reports that she was “badly frightened by [her] criminal peers long after she was charged”. As summarized in the PSR, the offender “appears to have changed her lifestyle to aid in her rehabilitation” and is agreeable to “counselling to assist her with abandonment issues and depression associated with the offence”. [ 65 ] Jurists familiar with the conventions of pre-sentence reports know that their authors typically couch their closing “recommendations” in cautious language that properly avoids advocating for a particular sanction.

The focus, instead, is on assessing an offender’s amenability to and suitability for community supervision lest the court be minded to consider probation or its equivalent as part of the sentence it ultimately imposes. While careful not to expressly direct or otherwise intrude on the exercise of my sentencing discretion, the PSR here concludes that, “It is questionable whether a jail sentence would benefit this offender”. Equally unusual, the officer in charge of the case, as reported in the PSR, volunteered that the offender was “not completely involved in the incident”. D. ANALYSIS (

a) Introduction [ 66 ] Said again: appellate authorities routinely confirm that, absent exceptional circumstances, a custodial disposition, not infrequently one of greater than two years, is an appropriate sentence for persons who traffic in

Schedule I drugs in quantities akin to those transported by the offender. Consistent with this tariff, Crown counsel urges that Ms. Zachar be sentenced to three years of imprisonment in a penitentiary. With respect, the Crown position, if endorsed, would effectively sentence the offence rather than the offender.

As said by LeBel J. on behalf of all but one member of the Supreme Court in Ipeelee , supra , at para. 75 , a “fundamental duty” of sentencing judges is, [T]he requirement that [they] engage in an individualized assessment of all of the relevant factors and circumstances, including the status and life experiences, of the person standing before them . [Emphasis added.] It is the offender and not the offence on whom any penal sanction is visited. It is also the individual offender, not a representation or

composite borrowed from other cases, who is subject to a court’s adjudicative scrutiny. As asked, if rhetorically, by LeBel J. at para. 86,“Who are courts sentencing if not the offender standing in front of them?” Or as approvingly adopted by the Supreme Court in Lacasse,at para. 128: If a judge fails to individualize a sentence and to consider the relevant mitigating factors while placing undue emphasis on thecircumstances of the offence and the objectives of denunciation and deterrence, all that is done is to punish the crime. [R. v.

R. (M.),2010 QCCA 16, 73 C.R. (6th) 136, at para. 49.] [67] I do not here attempt to delineate the precise parameters of the conventional range for the offence at issue. Without weighing themitigative impact of any factors other than her extreme youth, my review of the authorities suggests that Ms. Zachar’s exposure to penalliability would most likely not extend beyond that of a reformatory-length disposition of under two years.

I do not endeavour to moreexactly define the boundaries of any range because, in my view and in the totality of considerations that here informs a fit disposition, itis an unnecessary exercise. To be clear, I have concluded that “No” is the just answer to what I earlier styled the “threshold question” –the question of whether a sentence of imprisonment is the only proportionate disposition in all the circumstances of this case.

For thereasons that follow, I find the circumstances of the offence and the offender are here sufficiently exceptional that the purpose, principlesand objectives of sentencing are best met by the imposition of non-carceral disposition. In the result, Ms. Zachar’s sentence will besuspended and she will be placed on concurrent terms of probation for the next two years. (

b) Applying Proportionality, The Fundamental Principle (

i) Introduction [68] Judicial restatements of the “fundamental” sentencing principle are legion. I have already recited several. As framed by theSupreme Court in R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773, at para. 43, "imposing a proportionate sentence is a highlyindividualized exercise, tailored to the gravity of the offence, the blameworthiness of the offender, and the harm caused by the crime." InR. v. Hamilton and Mason, , 186 C.C.C. (3d) 129 (Ont.

C.A.), at para. 87, Doherty J.A. said that, "the fixing of a fitsentence is the product of the combined effects of the circumstances of the specific offence with the unique attributes of the specificoffender." However defined, proper application of the principle compels close and balanced attention to the case-specific features of boththe offence and the offender. (ii) “Gravity of the Offence” [69] There is here no doubt as to the serious “gravity of the offence”. Heroin is often judicially described as the most “pernicious” ofhard drugs, and its trafficking as “despicable”. (See, for but one example, R. v.

Sidhu, supra, at paras. 10 and 11.) Trafficking in cocaineis viewed as only marginally less insidious. (See the authorities collected in R. v. Acorn, 2010 ONCJ 142, at para. 10.) The amountsinvolved – nearly an ounce of cocaine and three-quarters of an ounce of heroin – are clearly indicative of a level of distribution at leastone step removed from the street, and the value of the drugs (estimated as between $12,000 and $16,000 if parceled out in hand-to-handstreet sales) speaks to the commercial nature of the larger enterprise.

On the other hand, the offences do not reflect the aggravatingfeatures of the most serious drug trafficking cases. The amounts involved, although far from trifling, are under an ounce, and there ishere no allegation of importation – unlike, for example, the earlier-noted cases of R. v. Sharma and R. v. Sidhu where multi-pounds ofSchedule 1 drugs were being smuggled into the country when intercepted by customs authorities. There are gradations in the gravity ofheroin and cocaine trafficking offences.

Those at issue in the case before me are not at the very bottom of a long ladder of relativeseverity, but they are only one or two rungs removed. (iii) “Degree of Responsibility of the Offender” 1. Introduction [70] The second half of the s. 718.1 proportionality equation – the “degree of responsibility of the offender” – commands attention totwo distinct dimensions of relative liability impinging on the determination of a fit sentence. One involves an assessment of the natureand degree of the offender’s participation – her or his role or involvement – in the criminal conduct.

The second concerns the offender’smoral blameworthiness other than that arising from her or his physical or instrumental role in the commission of the offence. These twofacets of “responsibility” are often analytically conflated. They benefit from independent consideration in the immediate proceedings. Byway of a simple, and factually unrelated, hypothetical: the moral fault of someone who is the primary perpetrator of a serious offencemay well be diminished if she or he was acting under extreme duress falling short of a cognizable defence.

Similarly, theblameworthiness of First Nations offenders is assessed not only by reference to their role in the crime under consideration but, as well, bytheir nexus to the intergenerational trauma attributable to colonialism. As said by the Supreme Court in R. v. Ipeelee, supra, at para. 73, [S]ystemic and background factors may bear on the culpability of the offender, to the extent that they shed light on his or her level ofmoral blameworthiness.

This is perhaps more evident in Wells, [supra,] where Iacobucci J., [at para. 38,] described these circumstancesas “the unique systemic or background factors that are mitigating in nature in that they may have played a

part in the aboriginaloffender’s conduct” … [T]he reality is that [the] constrained circumstances of [Indigenous offenders] may diminish their moralculpability. [Emphasis added in Ipeelee.] 2. The Offender’s “Role” [71] As conceded by the Crown, the offender’s role in the two offences was no higher than that of a courier. Her culpability fortrafficking is premised on her involvement in the local transport of the drugs, nothing more. I do not mean to suggest that herparticipation was immaterial to the larger enterprise, but that she was not the mastermind, the instigator, the orchestrator, or otherwise aprincipal.

Nor was she someone who was likely to be involved in the sale or further distribution of the drugs or who would otherwisebenefit from such transactions. [72] There is, as I have already noted, no evidence that she had any prior association with the criminal operation or its members, thatshe had any knowledge of the quantum or value of the seized drugs, or that she was provided, or even offered, financial remuneration for

her service. I appreciate, as summarized by Durno J. in R. v. Vu, 2015 ONSC 5834, at para. 116, that, an “offender is not entitled to besentenced on the most favourable set of facts imaginable”. (See also, R. v. Holt (1993), 4 C.C.C. (3d) 42 (Ont. C.A.) and R.v. Smickle (2013), 2013 ONCA 678, 304 C.C.C. (3d) 371.) Nonetheless, I think it a reasonable inference, and one consistent with herextreme youth and the Crown’s fair concessions (including that she was “likely exploited”), that Ms.

Zachar’s participation was aproduct of her manipulation by others, persons older and certainly more criminally sophisticated than her. Nor do I see any reason toinfer (nor am I urged to do so), that she was involved on any day other than the one during which she was arrested. In short, theoffender’s role in the trafficking was temporally and functionally narrow. She was a very small cog in a much larger wheel. 3.

The Offender’s “Moral Blameworthiness” [73] As to the second dimension of the analysis: an assessment of the offender’s moral culpability necessarily draws on her age,immaturity, vulnerability, “first offender” status and, by way of rehabilitative potential, the encouraging features of her occupational andeducational pursuits since the occasion of the offence. [74] Consideration of the influence of this offender’s individual circumstances on the determination of a fit sentence must begin withher age, barely 18, at the time of the offence.

As already noted, the provisions of the Youth Criminal Justice Act (YCJA) would governthe disposition of this prosecution had she then been but a week younger. Sentencing under the YCJA is far less punitive than thatprescribed by the CDSA. For example, the offences of which the offender was here convicted carry a maximum sentence of three yearsunder the YCJA (see s. 42(2)(n)) as opposed to life imprisonment under the CDSA. As well, the aims of sentencing under the YCJAreflect a very different correctional emphasis than that projected through the Criminal Code.

As directed by s. 38(1), the “purpose” ofsentencing under the YCJA is twofold: first, to hold “young persons” (that is, those under 18) meaningfully accountable for their offencesand, second, to “promote [their] rehabilitation and reintegration into society”. These objectives mirror the principles enunciated in theAct’s “Preamble” and its “Declaration of Principle”. Section 3(1)(

b) of the latter “Policy” statement declares, inter alia, that “thecriminal justice system for young persons … must be based on the principle of diminished moral blameworthiness or culpability”(emphasis added). [75] Of course, Tianna Zachar, having reached the age of legal adulthood, is subject to the penalties and sentencing principles anddirectives prescribed in the CDSA and the Code. Nonetheless, the rationale for the prominence given rehabilitative and ameliorativeobjectives in the YCJA affords transitional guidance.

While acceptance of “the principle of diminished moral blameworthiness orculpability” is no longer a statutory imperative, the inherent immaturity, formative challenges and still-evolving sense of responsibilityand judgement of older adolescents remain relevant mitigative considerations. As put by the Supreme Court in R. v. D.B., 2008 SCC 25,[2008] 2 S.C.R. 3, at para. 41, “because of their age, young people have heightened vulnerability, less maturity and areduced capacity for moral judgment”. Addressing here-analogous circumstances, the Saskatchewan Court of Appeal, in R. v.

B.F., 2009SKCA 136, 249 C.C.C. (3d) 366, at para. 38, commented that, [T]he sentencing judge recognized youthfulness did not cease to be a mitigating factor [on adult sentencing] and in fact ruled theopposite to be true. As stated earlier she said “[t]he younger the individual, the more heightened become the factors of youth and thepotential for rehabilitation.” [Emphasis added.] And as said by the Manitoba Court of Appeal in R. v. Leask (1996), (MB CA), 113 Man.

R. (2d) 265, at para. 3, [T]he transition from statutorily defined young person to adult should not be marked by an immediate abandonment of rehabilitation asthe primary goal in cases where the prospect of successful rehabilitation is real.” [Emphasis added.] The Supreme Court approvingly quoted this passage in Lacasse, supra, at para. 134. 4. Youthful Offenders and the Principle of Restraint [76] Although hardly exclusive to youthful offenders, the principle of restraint, as set out s. 718.2(

d) and (

e) of the Code, is hereparticularly germane. The provisions read: (

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 tovictims or to the community should be considered for all offenders … . As made clear by the Supreme Court in R. v. Gladue, supra, at para. 36, the principle of restraint, applies to all offenders, and states that imprisonment should be the penal sanction of last resort.

Prison is to be used only where no othersanction or combination of sanctions is appropriate to the offence and the offender. [Emphasis added.] [77] Well before Gladue, the Court of Appeal affirmed the importance of conscientious application of the principle of restraint toyouthful offenders. In the influential case of R. v. Priest, , 110 C.C.C. (3d) 28, the Court dealt with an appeal from thecustodial disposition imposed on a 19-year old first offender.

In granting the appeal, Rosenberg J., speaking for the Court, observed, atparas. 18 and 20-22, that even before the amendments codifying the principle of restraint, it has been an important principle of sentencing in this province that the sentence should constitute the minimum necessary interventionthat is adequate in the particular circumstances.

This principle implies that trial judges consider community-based dispositions first andimpose more serious forms of punishment only when necessary. … The duty to explore other dispositions for a first offender before imposing a custodial sentence is not an empty formalism which can beavoided merely by invoking the objective of general deterrence….

… [T]he term "youthful offender" refers not simply to chronological age and must include some consideration of the offender'smaturity. … The rule laid down by this court is that ordinarily for youthful offenders, as for first offenders, the objectives of individual deterrenceand rehabilitation are paramount. These objectives can be realized in the case of a youthful offender committing a nonviolent offenceonly if the trial judge gives proper consideration to alternatives to incarceration. [Emphasis added; citations omitted.] See also R. v.

Batisse, 2009 ONCA 114, 241 C.C.C. (3d) 491, at paras. 32-34. [78] In dealing with a youthful, first offender, I “first”, as instructed by the Court of Appeal in Priest, “consider community-baseddispositions”. I well appreciate that where, as here, the offence at issue ordinarily attracts a sentence of imprisonment, this analyticalstarting point is facially inconsistent with that illustrated, if not effectively directed, by Suter.

However, in my view the principle ofindividualized proportionality here generates the same outcome, that of a non-custodial sentence, whether reached by application of adoctrine of exceptionalism or the primacy granted that of restraint. What matters is not the method but that the result honours theprinciple of proportionality. (

c) Applying the Purpose and Goals of Sentencing (

i) Introduction [79] Proportionality, the “fundamental principle” of sentencing is, as noted earlier, complimented by a “fundamental purpose”, asprescribed in s. 718 of the Criminal Code: the protection of society “by imposing just sanctions” that meet one or more of a number ofidentified “objectives”. Those of immediate concern to the sentencing of drug traffickers include denunciation, deterrence and, whereappropriate, rehabilitation. I addressed the meaning and application of each of these sentencing objectives in McGill, a case involving, ashere, the possession of cocaine for the purpose of trafficking. [80] By way of both brief

summary and modest elaboration of my earlier comments, I begin by noting that deterrence anddenunciation are the rationales for the strict sentencing ranges maintained for trafficking in

Schedule 1 drugs. Deterrence has two facets,specific and general. The first, specific deterrence, reflects the notion that, where not otherwise assured, a sentence needs to besufficiently impactful to inhibit the offender before the court from reoffending.

The second objective, general deterrence, is directed tothe larger community; the severity of the sentence is intended to dissuade others who may be inclined to engage in similar misconduct.The purpose of each is to positively deter persons from trafficking in dangerous drugs. [81] Unlike deterrence, denunciation serves a more symbolic than instrumental sentencing function. Lamer, C.J.C., in R. v. Proulx,supra, at para. 102, observed that, “[d]enunciation is the communication of society's condemnation of the offender's conduct”. (See also,R. v.

M. (C.A.), , [1996] 1 S.C.R. 500, at para. 81.) [82] Like deterrence and denunciation, rehabilitation of offenders is an important sentencing objective. It is also one of principalconsideration in the sentencing, as here, of youthful first offenders. Attention also need be paid to the express inclusion of the objectiveof “encouraging rehabilitation” in the statement of sentencing “purpose” for drug offences set out in s. 10 of the CDSA. In regard to thisprovision, Rosenberg J.A., speaking for the Court in R. v. C.N.H. (2002), , 170 C.C.C. (3d) 253 (Ont.

C.A.), noted, atpara. 31: [T]he importance of s. 10 is to encourage courts to recognize the particular problem that in many cases persons convicted of drugoffences are themselves victims of the drug culture. [Emphasis added.] [83] Rehabilitation, like deterrence, has an instrumental purpose: the repudiation of criminal activity and transition to a

[…]