R v Smith, 2023 NBPC 7

Citation: R v Smith , 2023 NBPC07 Docket: 34949601 IN THE PROVINCIAL COURT OF NEW BRUNSWICK JUDICIAL DISTRICT OF MONCTON BETWEEN: HIS MAJESTY THE KING - and – BAILEY ROSS SMITH Charge pursuant to subsection 5(2) of the Controlled Drug and Substances Act SENTENCING DECISION Before: The Honourable Anne M Richard Date of Hearing: January 25, 2023 Date of Decision: March 16, 2023 Appearances: Christian Girouard for His Majesty the King

Christian Libotte for the Accused, Bailey Ross Smith orally 1 . I have my decision on sentencing. I am going to deliver my reasons orally, and that will take some time. Mr. Smith can remain seated. I have cited a few cases, all of which I believe were cited by counsel. I will give the court stenographer the spellings and citations, as well as the spellings of the various names that come up in this case. 2 .

I will begin by giving an overview of the case and then I will set out some legal principles before I turn to my assessment of the evidence and finally, I will proceed with the imposition of the appropriate sentence given all the circumstances of this matter. 3 . I turn now to the overview. OVERVIEW 4 . Bailey Ross Smith plead guilty on August 27, 2021, to one count of unlawful possession for the purpose of trafficking, cocaine, a substance listed in

Schedule 1 of the Controlled Drugs and Substances Act (the « Act» ) - which is an indictable offence contrary to subsection 5(2) of the Act . This offence occurred on January 5, 2020, in the town of Riverview, New Brunswick. 5 . The relevant facts setting out the essential elements of this offence are that on January 5, 2020, at approximately 1h13 am in Riverview, New Brunswick, member of the RCMP while conducting highway patrols noticed a vehicle driving erratically. Bizarre driving maneuvers were observed. The vehicle was intercepted.

Two people were in the vehicle – one was Bailey Ross Smith who was the passenger. It was later learned that he was wanted on another matter. 6 . During the interaction with the RCMP, Mr. Smith was arrested and found to have on him $ 390 cash set out in $ 20 denominations and $ 50 denomination, a small plastic bag containing 1 gram of cocaine, another bag with 17 grams of cocaine for a total 18, additional small empty plastic bags and a small portable electronic scale. 7 . As already mentioned, Mr. Smith has plead guilty to possession of cocaine for the purpose of trafficking contrary to s. 5(2) of the CDSA. 8 .

The crown is seeking 2 years of incarceration. Defense on the other hand is seeking a conditional sentence order with conditions for a period of 18 months – was commonly referred as house arrest . The issue is what is a fit and appropriate sentence for Mr. Smith given all of the circumstances of this case. LEGAL PRINCIPLES 9 . I turn now to set out some important legal principles. First, P arliament has determined the goals that sentencing must generally attain. These found in sections 718 and 718.2 of the Criminal Code of Canada (the « Code » ).

Briefly, the Court’s tasks when imposing of a particular sentence to an offender are varied. For instance, a sentence must serve to denounce unlawful conduct. It should deter other offenders from committing similar offences. It should also separate this offender from society where necessary. A sentence should furthermore assist in his or her rehabilitation but also promote a sense of responsibility and acknowledgement of the harm done. Finally, the exercise of imposing sentence must serve to provide the possibility of reparations for harm done. 10 . In addition,

section 718.1 of the Code dictates that a fundamental principle of sentencing is that it be proportionate to the gravity of

the offence and the degree of responsibility of the offender. As stated in R v Lacasse, 2015 SCC 64 at paragraph 12: ...proportionality is the cardinal principle that must guide appellate courts in considering the fitness of a sentence imposed on anoffender. The more serious the crime and its consequences, or the greater the offender’s degree of responsibility, the heavierthe sentence will be. In other words, the severity of a sentence depends not only on the seriousness of the crime’s consequences, butalso on the moral blameworthiness of the offender. 11.

See also more recently the Supreme Court of Canada pronouncement in R v Hills, 2023 SCC 2 at paragraphs 56-57. 12. Parliament has also legislated specifically as it relates to drug offences. Section 5(3)

a) of the Act reads that: Every person who contravenes subsection (1) or (2) (

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

Schedule I or II, is guilty of an indictable offence and liable toimprisonment for life. 13. As well, section 10 (1) states: 10

(1) Without restricting the generality of the Criminal Code, the fundamental purpose of any sentence for an offence under thisPart is to contribute to the respect for the law and the maintenance of a just, peaceful and safe society while encouragingrehabilitation, and treatment in appropriate circumstances, of offenders and acknowledging the harm done to victims and to thecommunity. 14. Cocaine is considered a hard drug given that it is highly addictive, dangerous to one health and a strong stimulant.

Recently, in R vParranto, 2021 SCC 46 Justice Moldaver sent a crystal-clear message to trial judges that sentencing must reflect society’s understandingof the gravity of drug offences. Paragraphs 88 to 92 are forceful on this point when he discusses the dangers posed by trafficking in harddrugs in a drug importation case. They are relevant in my view to the case of trafficking and are worth quoting here. Trafficking in such substances causes both direct and indirect harms to society.

Directly, the distribution and abuse of hard drugsleads to addiction, debilitating adverse health effects, and, all too frequently, death by overdose. As Lamer J. (as he then was) astutelyobserved, where addiction and death occur — as they so often do — those who oversee the distribution of these drugs are personally“responsible for the gradual but inexorable degeneration of many of their fellow human beings” (R. v.

Smith, (SCC),[1987] 1 S.C.R. 1045, at p. 1053). [89] Trafficking also leads indirectly to a host of other ills, including an increase in all manner of crime, committed by thoseseeking to finance their addiction, as well as by organized crime syndicates (Pushpanathan v. Canada (Minister of Citizenship andImmigration), (SCC), [1998] 1 S.C.R. 982, at paras. 85-87, per Cory J., dissenting, but not on this point; R. v.Kang-Brown, 2008 SCC 18, [2008] 1 S.C.R. 456, at para. 184, per Deschamps J., dissenting, but not on this point).

Given that muchof this criminal activity is violent, trafficking has come to be understood as an offence of violence, even beyond the ruinousconsequences it has for those who abuse drugs and in the process, destroy themselves and others. Indeed, as Doherty J.A. hasexplained, violence is such a predictable consequence of the illicit drug trade that it cannot be dissociated from it: Cocaine sale and use is closely and strongly associated with violent crime.

Cocaine importation begets a multiplicity of violent acts.Viewed in isolation from the conduct which inevitably follows the importation of cocaine, the act itself is not a violent one in the strictsense. It cannot, however, be disassociated from its inevitable consequences. [Emphasis added.] (R. v. Hamilton (2004), (ON CA), 72 O.R. (3d) 1 (C.A), at para. 104) See also, R. v.

Pearson, (SCC), [1992] 3 S.C.R. 665, at pp. 694-95, where the Court relied on the Groupe de travailsur la lutte contre la drogue (1990), Rapport du groupe de travail sur la lutte contre la drogue, at pp. 18-19, which noted that it is amistake to view drug trafficking under the control of organized crime as less serious than more openly violent crimes. [90] A further and perhaps even more devastating consequence of the hard drug trade is its impact on families and theintergenerational trauma it causes: Trafficking in drugs, and in particular hard drugs such as cocaine, is a crime whose victims can be found far beyond the individualswho become addicted to the drugs.

Families can be torn apart by either the loss of the individual to the addiction itself or to theviolence that all too often accompanies the drug trade. . . . Children suffer immense harm from the effects of addiction in their home, whether this addiction be from pre-natal impact or fromphysical and/or emotional violence in the homes that they should be safe in. The future of these children and their families isdamaged and all of society pays the price. (R. v. Profeit, 2009 YKTC 39, at paras. 25-26 ) See also M.

Barnard, Drug Addiction and Families (2007), at pp. 14-17, explaining that children whose parents abuse drugs are at anincreased risk of physical abuse, emotional abuse, and neglect.

[91] Finally, the trafficking of hard drugs leads to “significant if not staggering” costs to society in terms of health care and law enforcement expenses, as well as lost productivity ( Pushpanathan , at para. 89 ; see also R. v. Lloyd, 2016 SCC 13 , [2016] 1 S.C.R. 130 , at para. 82 ).

In 2017, for example, it is estimated that abuse of opioids and cocaine in Canada resulted in total costs of $9.6 billion (Canadian Substance Use Costs and Harms Scientific Working Group, Canadian Substance Use Costs and Harms (2015-2017) (2020), at p. 1). [92] Trafficking in hard drugs is thus a “crime with such grievous consequences that it tears at the very fabric of society”. 15 . Crown argues for its part that the fit and appropriate sentence in the present instance is 2 years’ incarceration. It cites the recent precedent from the Court of King’s Bench, R v Allen 2022 NBQB 143 to that end.

In the Allen case, Justice Robert Dysart reviewed the relevant caselaw from the New Brunswick Court of Appeal that refers to the longstanding direction that a relatively lengthy prison term must be imposed in cases of drug trafficking of what is often referred to as hard drugs. The Court of Appeal has consistently approached such cases in that manner such as illustrated in R v Frost , 2012 NBCA 94 and R v Cormier , 2018 NBCA 38 . 16 . Essentially, barring exceptional circumstances, the jurisprudence and the clear directions from our Court of Appeal dictate a prison term. What are exceptional circumstances?

Justice Quigg in the Frost case at paragraph 20 sets out some indicia when referring to soft drugs: Those convicted of possession for the purpose of trafficking or trafficking so called « soft drugs » should, where the quantity of drugs is significant, where there is evidence of long-term criminal activity, or where there is evidence of significant profit, face incarceration absent exceptional circumstances.

Sentencing judges should keep in mind the following: * circumstances which are exceptional enough to forego a sentence of incarceration and impose a conditional sentence will be rare; * they should clearly identify the exceptional circumstances relied upon; and * low level or single transaction instances involving trafficking of so-called «soft drugs» may, in appropriate cases, constitute exceptional circumstances. In this case, we are faced with a large scale, long term, for-profit enterprise. It does not in any way involve exceptional circumstances. 17 . However, defence Counsel argued that Mr.

Smith’s situation and particularities is clearly what was intended by Justice Quigg in the Frost case. Specifically, he is a young man who is 23 years old, is employed, has the support of his family and respect of his employers, has no criminal record and has accepted responsibility for his actions and is remorseful. The amount of drugs found on Mr. Smith was not in any great quantity. This is considered to be a low-level trafficker. Accordingly, Mr. Smith could be a prime candidate for a conditional sentence order. 18 .

It is argued that there are in fact exceptional circumstances in the present matter like those found in R v Grant , 2021 ONCJ 507 . Letters from employers and family members were submitted into evidence to support this. Like Grant , were Justice Ann-Marie Calsavara recognized as exceptional circumstances the fact that the offence was « an isolated foray by an 18-year-old person otherwise good character who had a challenging upbringing and difficult life event that led to a familial bond to bad influences .

Since then, the offender has matured and in the two years since has many achievements and has shown he is re-committed to the right path » (paragraph 30). She ruled that a CSO for a term of two years less a day was accordingly fit and proper. Other caselaw from Ontario and Nova Scotia were cited by defence counsel in support of a CSO.

I have reviewed them all ( R v Cowan , 2021 ONCA 729 – 9 months sentence overturned on appeal to CSO because of mental disabilities, drug primarily used for personal use and accused status in Canada; R v Kebede 2021 ONCA 283 – CSO – 9 months; R v Livingstone ; R v Lungal and R v Terris 2020 NSCA 5 – all low-level traffickers with either suspended sentence or 18 months sentences which were stayed) 19 . As already stated, defense argues for an 18-month conditional sentence order for Mr. Smith.

A conditional sentence is a type of incarceration which permits an offender to serve it in the community under strict conditions pursuant to

section 742.1 of the Code . It has both punitive and rehabilitative components ( see R v Proulx 2000 SCC 5 ). As preconditions, such a sentence should not endanger the safety of the community and cannot be longer than a duration of 2 years less a day. Given recent legislative amendments, such a sentence is available to Mr. Smith. 20 . Where the prerequisites mentioned are met, the Court must then consider whether a CSO is appropriate, having regard to the fundamental purposes and principles of sentencing already set out in sections 718 to 718.2 of the CCC. 21 . Crown takes issue with the characterization of Mr.

Smith current situation has given rise to any exceptional circumstances. The fact that he is young and had no record is not unusual. He was a street level trafficker that got caught. It reiterates that denunciation is the primary and guiding sentencing rule in the caselaw in this province while rehabilitation since the offence was committed is secondary. 22 .

In R v Sharma , 2022 SCC 39 , the majority of the Court allowed a crown appeal and restored an 18-month term of imprisonment imposed at first instance to a 20-year-old woman of Ojibwa ancestry who was charged with importing cocaine on an international flight at Toronto Pearson Airport. The motivation for her crime was that she was 2 months behind in rent and was facing eviction and the prospect of homelessness as a single parent. Ms. Sharma plead guilty and had no prior criminal record.

The Court considered her financial circumstances, the fact that she had little to no support and according to the Gladue pre-sentence report, that she had a difficult and abusive childhood, and her grandmother was a residential school survivor. 23 . While the Sharma decision was based on arguments related to whether

section 742.1 as drafted at that time infringed s. 7 and 15 Charter Rights and Freedoms by not permitting CSO on certain drugs offences, it is worth nothing that the Court considered various mitigating factors related to the offender in imposing the jail term that it did. 24 . I must also give effect to the principle of proportionality that is dictated by

section 718.1 of the Code . In other words, the Court

must impose similar sentences to similar cases. In R v Frenette , 2009 NBQB 81 , Justice Reginald Leger from the Court of King’s Bench sentenced a 59-year-old real estate agent who was active in the community with no previous record to a term of 2 years less a day for trafficking to undercover officers 1 gram of cocaine in exchange for $ 80.00. A mitigating factor appeared to be that the accused there had cardiac health problems. Justice Leger rejected the request for a CSO by defence. 25 . In the present case, I find the fact that Mr. Smith was trafficking in cocaine – a hard drug to be an aggravating factor.

I do not need to reiterate the devastating effect on communities and society that such crimes have. Mr. Smith deliberately choose to engage in such illicit activity knowing full well its risks and consequences. 26 . On the other hand, Mr. Smith has a positive pre-sentence report. I have considered the fact that he plead guilty thus avoiding a trial. His counsel pleaded that he made a mistake. I have also considered his age, employment situation, his potential for rehabilitation and the support that he has from his family and employers. He resides with his grandparents and is close to his siblings and family.

Letters from employers state that he is a responsible and trustworthy employee who performs tasks with professionalism; he is a valued member of the team . I have also considered the fact that he has no prior criminal record. These are all mitigating factors. While he does not appear to have physical or mental health issues, I note that he had in the past an addiction to cocaine. I recognize the steps he has taken since his arrest to better himself and he is to be commended for them. 27 . Mr.

Smith has a partner and family including elderly grandparents that are stepping forward for him because they care about him. The grandparents would allow him to continue to reside with him if a CSO is granted and essentially supervise him. He has employers that appreciate his work. He is very lucky to have them all in his life. But victims of the drug trade are not always so lucky. 28 . While the law in Ontario and Nova Scotia has opened the door to CSO’s without the need to demonstrate exceptional circumstances, this does not appear to be the law in New Brunswick.

Rather, the approach is non equivocal in my view. The emphasis remains for trial judges to favor deterrence and denunciation barring exceptional circumstances. I do not find the accused’s age, plea of guilt, the fact that he is employed and supported by family, friends, and employers to constitute exceptional circumstances as contemplated by Justice Quigg in the Frost case. 29 .

Considering all the factors and circumstances that I have mentioned previously, the positions of the parties and the legal principles I am bound to follow from the SCC and the NBCA, I conclude that the appropriate sentence in this case is a period of incarceration of 2 years. In addition, I make the following ancillary orders: • a section 109(1)

c) of the Code being a weapons prohibition order for 10 years • an order for forfeiture of the drugs, money and other items seized on arrest pursuant to

section 462.37 (1) of the Code • an order for payment of the victim fine surcharge pursuant to section 737(2)

b) ii of the Code in the amount of $ 200. The sheriffs will take Mr. Smith into custody. _________________________ Anne M Richard Judge of the Provincial Court of New Brunswick