R. v. Murphy, 2021 NLCA 3

Her Majesty the Queen (appellant) v. Nicholas Daniel Murphy (respondent) (18/107) Indexed As: R. v. Murphy 2021 NLCA 3 6 C.A.N.L.R. 306 Court of Appeal of Newfoundland and Labrador White, Hoegg and Butler JJ.A. January 8, 2021

Summary: Nicholas Murphy pleaded guilty to possession of cannabis for the purposes of trafficking contrary to section 5(2) of the Controlled Drugs and Substances Act . At the sentencing hearing, the Crown sought a period of imprisonment between 18 and 24 months; Mr. Murphy sought a suspended sentence and probation. The sentencing judge imposed a suspended sentence pursuant to section 731(1) (

a) of the Criminal Code and two years probation pursuant to

section 732.1 of the Criminal Code . In crafting this sentence, the judge referred to the recent passage of the Cannabis Act as a factor impacting the sentence. The Crown appealed the sentence. Held: Appeal dismissed (Hoegg J.A. dissenting). Butler J.A. (White J.A. concurring): Leave to appeal was granted (paragraph 5). Parliament’s decision to reduce the maximum sentence under the Cannabis Act for an offence equivalent to that for which Mr. Murphy was convicted, reflects a diminution of the objective seriousness of the offence of possession for the purposes of trafficking in cannabis (paragraphs 8-23).

Three different “eras” were reviewed to determine the range of sentence (paragraph 24-40). The sentencing judge considered the required principles of sentencing and weighed all relevant factors in his analysis (paragraph 41-49). It was not established that the sentence imposed was a marked departure from sentences customarily imposed for similar offenders committing similar crimes (paragraphs 50-55). Mr. Murphy’s personal circumstances were not “exceptional circumstances” under the common law sentencing principle (paragraphs 56- 64).

Hoegg J.A., dissenting: The passage of the Cannabis Act did not alter the application of the principles of sentencing with respect to trafficking large amounts of illicit cannabis. Trafficking or distributing large amounts of illicit cannabis remains a criminal offence carrying a penalty of up to 14 years imprisonment. The reduction in the maximum sentence for distributing cannabis from life to 14 years and the lack of reference to mandatory minimum sentences for doing so are not meaningful differences respecting the sentencing of trafficking offences like that of Mr. Murphy.

The sentencing judge’s reasoning constitutes legal error which impacted the sentence imposed (paragraphs 86- 102).

The sentencing judge erred in principle by failing to consider deterrence and denunciation, the gravity of the offence, Mr. Murphy’sdegree of responsibility, and the sentencing principles of proportionality and parity, as factors in sentencing (paragraphs 103-111). A fit sentence, in the circumstances, although it is on the low end of the range, would be one year imprisonment (paragraphs 112-118). Cases cited: Butler J.A.: R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206 R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089 R. v. Friesen, 2020 SCC 9 R. v. Neary, 2017 SKCA 29 R. v. Sanon, 2018 QCCA 892 R. v.

Strong, 2019 ONCA 15 R. v. Provost, 2006 NLCA 30, 256 Nfld. & P.E.I.R. 205 R. v. Gendron, 2012 NLTD(G) 35, 320 Nfld. & P.E.I.R. 75 R. v. Sullivan, (NL SC), 2012 NLTD(G) 88, 325 Nfld. & P.E.I.R. 158 R. v. Roach, 2012 NLTD(G) 153, 328 Nfld. & P.E.I.R. 334 R. v. Voong, 2015 BCCA 285 R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61 R. v. Brenton, 2016 NLTD(G) 121 R. v. Brenton, 2016 NLCA 66 R. v. Vesalpour, [2018] O.J. No. 5439, 150 W.C.B. (2d) 322 (Ont. Ct. J.) R. v. Thompson, 2018 ONCJ 310 R. v. Bentley, 2017 ONCA 982 R. v. Parsons, 2017 NLCA 64 R. v. Owens, 2014 BCSC 32 R. v.

R.G., 2003 NLCA 73, 232 Nfld. & P.E.I.R. 273 R. v. Butler, 2019 NLCA 21 R. v. M.(C.A.), (SCC), [1996] 1 S.C.R. 500 (S.C.C.) R. v. Burnett, 2017 MBCA 122 Hoegg J.A. (dissenting): R. v. Friesen, 2020 SCC 9 R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089 R. v. Hanse, 2019 ONSC 1640 R. v. Lloyd, 2016 SCC 13, [2016] 1 S.C.R. 130 R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773

R. v. Neary, 2017 SKCA 29 R. v. Sanon, 2018 QCCA 892 R. v. Clement, 2019 QCCQ 3101 R. v. Strong, 2019 ONCA 15 R. v. Noseworthy, 2019 NLSC 23 R. v. Mack, (SCC), [1988] 2 S.C.R. 903, at 978 (S.C.C.) R. v. Oates (1992), (NL CA), 100 Nfld. & P.E.I.R. 289 (Nfld. C.A.) R. v. Smith, (SCC), [1987] 1 S.C.R. 1045, at 1090 (S.C.C.) R. v. Pearson, (SCC), [1992] 3 S.C.R. 665, at 698-699 (S.C.C.) R. v. Provost, 2006 NLCA 30, 256 Nfld. & P.E.I.R. 205 R. v. Kane, 2012 NLCA 53, 325 Nfld. & P.E.I.R. 78 R. v. Parsons, 2017 NLCA 64 R. v. Burnett, 2017 MBCA 122 R. v. J.J.W., 2012 NSCA 96 R. v.

Hunt, 2012 NLCA 5, 317 Nfld. & P.E.I.R. 244 R. v. Owens, 2014 BCSC 32 R. v. Blanchard, 2010 NLTD(G) 123, 300 Nfld. & P.E.I.R. 53 R. v. Barrett, 2008 NLCA 23 Statutes considered: Cannabis Act, S.C. 2018, c. 16 Controlled Drugs and Substances Act, section 5(2) Criminal Code, sections 676(1)(d),

Part XXIII Counsel: Neil R. Smith, for the appellant; Randolph J. Piercey Q.C., for the respondent. The appeal was heard on May 22, 2020 before White, Hoegg and Butler JJ.A. The following judgment was filed on January 8, 2021 by Butler J.A. (White J.A. concurring), with dissenting reasons by Hoegg J.A. ______________________________________________________________ Butler J.A.: INTRODUCTION [1] The Cannabis Act, S.C. 2018, c. 16, received Royal Assent on June 21, 2018. As a consequential amendment, on October 17,2018, cannabis was removed from

Schedule II of the Controlled Drugs and Substances Act, S.C. 1996, c.19, as amended (the “CDSA”).The Cannibis Act came into effect on the same date. The combined effect of these legislative changes was to decriminalize the offenceof possession of cannabis marihuana (hereinafter “cannabis”), provide a mechanism for authorized distribution and sale of the product,and make unauthorized distribution and sale regulated offences. This appeal addresses, in part, whether the passage of the Cannabis Actshould affect the range of sentence for the offence of possession for the purposes of trafficking in cannabis under the CDSA. FACTS

[2] On November 23, 2018, Mr. Murphy pleaded guilty to possession for the purposes of trafficking in cannabis contrary to section5(2) of the CDSA. His conviction was based upon an Agreed Statement of Facts, the key features of which I would summarize asfollows: • Mr. Murphy’s role in the operation was to retrieve parcels which he knew contained cannabis from a residential dwelling in MountPearl and to deliver them to someone else. Mr.

Murphy had recruited a person who agreed to receive the product from UPS and paidhim $400 for each shipment. • Four or five shipments of this nature had been made. • 24.8 pounds of cannabis were seized from Mr. Murphy on January 10, 2017 having a street value between $168,600 and $224,800. [3] At the sentencing hearing, the Crown sought a period of imprisonment between eighteen and twenty-four months; the defencesought a suspended sentence and probation. The sentencing judge concluded that a just and appropriate sentence for Mr. Murphy was asuspended sentence pursuant to section 731(1)(

a) and two years’ probation pursuant to

section 732.1 of the Criminal Code. The Crownappeals the sentence. [4] For the reasons stated herein I would dismiss the appeal. LEAVE TO APPEAL [5] While an appeal by the Crown as to sentence requires leave of the Court to proceed pursuant to section 676(1)(

d) of theCriminal Code, Mr. Murphy conceded that leave was appropriate and leave was granted at the commencement of the appeal. STANDARD OF REVIEW [6] The applicable standard of review on sentence appeals was summarized in both R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R.206, and R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089. In Nasogaluak the Court explained: [46] Appellate courts grant sentencing judges considerable deference when reviewing the fitness of a sentence.

In M. (C.A.), LamerC.J. cautioned that a sentence could only be interfered with if it was “demonstrably unfit” or if it reflected an error in principle, thefailure to consider a relevant factor, or the over-emphasis of a relevant factor (para. 90; see also R. v. L.M., 2008 SCC 31, [2008] 2 S.C.R.163, at paras. 14-15; R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at paras. 123-26; R. v. McDonnell, (SCC), [1997] 1S.C.R. 948, at paras. 14-17; R. v. Shropshire, (SCC), [1995] 4 S.C.R. 227). As Laskin J.A. explained in R. v. McKnight(1999), (ON CA), 135 C.C.C. (3d) 41 (Ont.

C.A.), at para. 35, however, this does not mean that appellate courts caninterfere with a sentence simply because they would have weighed the relevant factors differently: To suggest that a trial judge commits an error in principle because in an appellate court’s opinion the trial judge gave too much weight toone relevant factor or not enough weight to another is to abandon deference altogether. The weighing of relevant factors, the balancingprocess is what the exercise of discretion is all about.

To maintain deference to the trial judge’s exercise of discretion, the weighing orbalancing of relevant factors must be assessed against the reasonableness standard of review. Only if by emphasizing one factor or bynot giving enough weight to another, the trial judge exercises his or her discretion unreasonably should an appellate court interfere withthe sentence on the ground the trial judge erred in principle. ISSUES [7] The Crown asserts that the sentence imposed represented a substantial and marked departure from sentences imposed on similaroffenders for similar offences.

Specifically the Crown alleges that the sentencing judge erred in principle: - in finding that the Cannabis Act justified a change in the judicially approved range of sentence; and/or - in implicitly relying upon exceptional circumstances to support a departure from the otherwise judicially approved range ofsentence.

ISSUE ONE Effect of the Cannabis Act [8] The sentencing judge made several references to the Cannabis Act as justification for a modified range of judicially approvedsentence for the offence of trafficking in cannabis and his conclusion that, with the passage of the legislation, the principles of generaldeterrence and denunciation, while still relevant, now had less prominence. [9] The sentencing judge supported these findings on a very broad and generalized basis (that society’s values towards cannabis hadchanged and that it followed that sentencing ranges for cannabis-related offences must change).

However, it does not follow thatconsidering the impact of the Cannabis Act in crafting an appropriate sentence for Mr. Murphy was an error in principle. [10] The Cannabis Act permits the distribution and sale of cannabis by authorized persons. “Illicit cannabis” is defined in section 2(1)as cannabis “sold, produced or distributed by a person prohibited from doing so under this Act or any provincial Act or that was importedby a person prohibited from doing so under this Act”. Any authorization is provided by the Minister in the form of a license or permitunder

Part 3 of the Cannabis Act. [11] Unless authorized under the Cannabis Act, section 9(1)(

a) prohibits an individual who is 18 years of age or older: (

i) to distribute cannabis … the total amount of which is equivalent … to more than 30 g of dried cannabis;

… or (iv) to distribute cannabis that they know is illicit cannabis. [12] As prescribed in section 9(2), unless authorized under the Cannabis Act “it is prohibited to possess cannabis for the purpose ofdistributing it contrary to subsection (1)” and similarly,

section 10 specifies that unless authorized, sales are prohibited. Available Penalties and Maximum Penalty [13] Society’s values towards the use of cannabis are relevant and reflected in the legislation.

Relative to this appeal, a key feature ofthe new legislation was Parliament’s decision to set the maximum penalty (for the post-Cannabis Act equivalent of possession for thepurpose of trafficking in cannabis under the CDSA) below what had existed under the CDSA provisions which were in effect when Mr.Murphy was charged. [14] To explain, prior to the enactment of the Cannabis Act: • The range of sentence available for the offence with which Mr. Murphy was charged ran from a suspended sentence to lifeimprisonment (both of which counsel agree were rarely given); • Until 2012 (by the amendment to

section 742.1(

c) of the Criminal Code) a conditional sentence order (“CSO”) was available; and • If either of the conditions in section 5(3)(a)(

i) or (ii) of the CDSA applied, a conviction would require a mandatory minimumsentence of either one or two years imprisonment. [15] In comparison, with the proclamation of the Cannabis Act: • The legislated range of sentence for possession of cannabis for the purpose of illicit distribution (section 9(2)) became asuspended sentence to fourteen years imprisonment; • A CSO remained unavailable; • No mandatory minimum terms of imprisonment were prescribed but the circumstances outlined in section 5(3)(a)(ii) of the CDSAbecame aggravating factors under section 15(2) of the Cannabis Act; and • There is no graduated sentence based on the quantity of cannabis involved. [16] The sentencing judge did not err in concluding that the Cannabis Act “leaves the door open for a disposition which does notinclude imprisonment, even where one or more of the deemed aggravating factors are present” (para. 41). [17] Further, “maximum sentences help determine the gravity of the offence and thus the appropriate sentence” (R. v.

Friesen, 2020SCC 9, at para. 96). As the Supreme Court explained therein: [96] Maximum sentences help determine the gravity of the offence and thus the proportionate sentence. The gravity of the offenceincludes both subjective gravity, namely the circumstances that surround the commission of the offence, and objective gravity (L.M., atparas. 24-25). The maximum sentence the Criminal Code provides for offences determines objective gravity by indicating the “relativeseverity of each crime” (M. (C.A.), at para. 36; see also H. Parent and J. Desrosiers, Traité de droit criminel, t.

III, La peine (2nd ed.2016), at pp. 51-52). Maximum penalties are one of Parliament’s principal tools to determine the gravity of the offence (C. C. Ruby etal., Sentencing (9th ed. 2017), at § 2.18; R. v. Sanatkar (1981), (ON CA), 64 C.C.C. (2d) 325 (Ont. C.A.), at p. 327;Hajar, at para. 75). [97] Accordingly, a decision by Parliament to increase maximum sentences for certain offences shows that Parliament “wanted suchoffences to be punished more harshly” (Lacasse, at para. 7).

An increase in the maximum sentence should thus be understood as shiftingthe distribution of proportionate sentences for an offence. [18] With this recent guidance from the Supreme Court I conclude that Parliament’s decision to reduce the maximum sentence for theCannabis Act equivalent of the offence with which Mr. Murphy was convicted, reflects a diminution of the objective seriousness of theoffence of possession for the purposes of trafficking in cannabis.

Jurisprudence [19] Regarding the three Canadian appellate decisions to which the Court was referred and which commented upon the effect of theCannabis Act on sentencing under the CDSA, I would note as follows. [20] R. v. Neary, 2017 SKCA 29, and R. v. Sanon, 2018 QCCA 892, were decided 7 and 4 months (respectively) prior to the date onwhich cannabis was removed from

Schedule II of the CDSA (October 17, 2018). Thus, the Saskatchewan Court of Appeal in Neary heldthat “[j]udges are bound to apply the law as it exists not as it might be in the future especially when, as here, it is unknown when the lawwill be changed, what the terms of it will be and how it will affect the offences of trafficking drugs or possession for the purpose …”(para. 51). [21] The Quebec Court of Appeal in Sanon suggested similarly that the asserted change in the social consensus of the country(towards cannabis-marihuana) had not been demonstrated.

I conclude that it was because the Cannabis Act was still in the form of a Bill,that the court concluded that reflection of such asserted changes remained in the hands of the legislature (para. 14). [22] R. v. Strong, 2019 ONCA 15, was decided three months after the Cannabis Act was proclaimed, and two months after thesentencing judge’s decision in this case. It was therefore unavailable to the sentencing judge. While the Ontario Court of Appeal did

conclude: [4] Parliament has not significantly altered the applicable penalty. Nor, in our view, can one assume that a large scale, prolongedtrafficking for profit in marihuana is somehow viewed as less serious because of the legislative changes in respect of personal possessionand use. The sentence was within the established range.

We would dismiss the appeal. the decision was merely a four paragraph endorsement. [23] In comparison, the argument presented in the within case (for a modified range of sentence) was based upon a comprehensivecomparison of the relevant provisions of the CDSA and the Cannabis Act and how Parliament’s decision to reduce the maximum penaltyreflected a diminution in the objective seriousness of the equivalent offence. This argument is not reflected in Neary, Sanon or Strong.

Judicially Approved Range of Sentence / Parity Principle [24] Sentencing ranges (in the context of the fitness of a sentence) were described in Nasogaluak as a guideline as opposed to a hardand fast rule. LeBel J. stressed that: [44] … A judge can order a sentence outside that range as long as it is in accordance with the principles and objectives of sentencing. Thus, a sentence falling outside the regular range of appropriate sentences is not necessarily unfit.

Regard must be had to all thecircumstances of the offence and the offender, and to the needs of the community in which the offence occurred. [25] The sentencing judge was aware of the need to consider the general range of sentence for the offence in accordance with theprinciple of parity enshrined in the Criminal Code. [26] The sentencing judge reviewed three different sentencing “eras”; the first being when a conditional sentence remained an optionfor the offence, the second being the post-conditional sentence era, and the third being sentencing decisions given in anticipation oflegalization of cannabis possession under the Cannabis Act (see paras. 63-120).

The First Sentencing Era [27] Respecting cases decided in the first era and, relying upon this Court in R. v.

Provost, 2006 NLCA 30, 256 Nfld. & P.E.I.R. 205,at para. 57, the sentencing judge accepted that “the ‘normal maximum’ for trafficking in marihuana (other than large quantities) [was]around 24 months” (para. 67). [28] The sentencing judge’s conclusion that a conditional sentence (when it was available) “was very much the norm for the offenceof possession of cannabis for the purpose of trafficking” (para. 81), even when large quantities were involved (30-48 pounds), wassupported by decisions from this jurisdiction (R. v. Gendron, 2012 NLTD(G) 35, 320 Nfld. & P.E.I.R. 75; R. v.

Sullivan, (NL SC), 2012 NLTD(G) 88, 325 Nfld. & P.E.I.R. 158; and R. v. Roach, 2012 NLTD(G) 153, 328 Nfld. & P.E.I.R. 334). The Second Sentencing Era [29] Turning to the second sentencing “era”, the sentencing judge explained that the Safe Streets and Communities Act, S.C. 2012, c.1, s. 34, had amended the Criminal Code to provide that CSOs were no longer available where an offence had a maximum term ofimprisonment of 14 years or life (section 742.1(c)) or where an offence involved trafficking of drugs for which the maximum term ofimprisonment was 10 years (section 742.1(e)(ii)). [30] R. v.

Voong, 2015 BCCA 285, addressed the effect of these amendments on sentencing for the offence of possession for thepurposes of trafficking. [31] As explained in Voong, there are significant differences between CSOs and probation orders. Referencing R. v. Proulx, 2000SCC 5, [2000] 1 S.C.R. 61, at paras. 23-27, the British Columbia Court of Appeal stated as follows: [24] In R. v. Proulx, 2000 SCC 5 Chief Justice Lamer discussed the differences between CSOs and probation orders. He noted that inmost respects, they appear very similar (para. 23).

He also observed that the penalty for breach of a probation order could be more severethan a breach of a CSO (para. 27). In the case of a breach of probation, the suspended sentence can be revoked and the offender may besentenced for the original offence.

By contrast, in the case of a breach of conditional sentence, the maximum punishment available isincarceration for the time remaining in the original sentence. [25] Lamer, C.J.C. said, however, that there is one important distinction between the two: that the probation order is primarilyrehabilitative in nature, while a CSO addresses both rehabilitative and punitive objectives of sentencing (para. 23). … [32] Relying again on Proulx, the British Columbia Court of Appeal concluded that: [33] In essence, the CSO is a sentence that has a more punitive aspect to it than a probation order, whereas the focus of the probationorder is rehabilitation.

This is supported when one examines the origins of a suspended sentence, and probation, between 1889 and 1955,which was initially available only for first offenders. [34] The Court concluded that a CSO is, by statutory definition, a sentence of imprisonment (para. 40), and provides denunciatoryand deterrent effect (para. 41).

The CSO was introduced to relieve the high incarceration rates in this country, and to permit those whowere sentenced to less than two years, and are no danger to the public, to serve the sentence in the community under “tight controls”(para. 36). [35] Thus, despite the wording of the optional provisions being identical for probation orders pre-1996 and for the CSO, the Courtfound, that in the context of the entire amendment, the difference between the two provisions is that the CSO engaged the punishmentprinciple of sentencing, and the suspended sentence with probation did not.

[33] As to the deterrent effect of probation, the British Columbia Court of Appeal agreed that: [39] A suspended sentence has been found to have a deterrent effect in some cases. 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. For example, in R. v. Saunders , [1993] B.C.J.

No. 2887 (C.A.) at para. 11 , Southin J.A. said: Deterrence is an important part of the public interest but there are other ways of deterring some sorts of crime than putting someone in prison who has no criminal record as this appellant did not.

The learned trial judge did not turn her mind to whether the deterrence which is important might be effected by certain terms of a discharge or a suspended sentence such as a lengthy period of community service. [34] It was a relevant consideration for the sentencing judge in his assessment of the parity principle that the removal of the CSO from the sentencing options available on conviction of the offence of possession for the purposes of trafficking left sentencing judges with: - incarceration as the primary option where deterrence and denunciation needed to be stressed, and - the suspended sentence with probation where deterrence might be effected by this alternate means and where rehabilitation was the primary focus. [35] While discussing this second sentencing “era”, the sentencing judge referenced four authorities.

R. v. Brenton , 2016 NLTD(G) 121, was the closest on its facts as Mr. Brenton was a first time offender convicted of possession of 39.5 pounds of cannabis for the purpose of trafficking. [ 36 ] Mr. Brenton was sentenced to 21 months imprisonment, less credit for 86 days spent in pre-sentence custody. However, the sentencing judge noted that Mr. Brenton accepted no responsibility for his crime. [ 37 ] This Court denied an extension of time for Mr. Brenton to file his appeal, concluding that it would “…waste the justice system’s valuable time and resources to the prejudice of its legitimate participants” ( R. v.

Brenton , 2016 NLCA 66 , at para. 16 ). From this it can reasonably be inferred that this Court considered the sentence to have been appropriate. The Final Sentencing Era [ 38 ] In the final sentencing “era” reviewed by the sentencing judge, he noted that R. v. Vesalpour, [2018] O.J. No. 5439 , 150 W.C.B. (2d) 322 (Ont. Ct. J.) , had been decided one month prior to the legalization of cannabis .

In that case, notwithstanding the quantity of product (165 pounds), and that the offender had a prior conviction for the same offence, the court accepted a joint submission for a $5,000 fine, probation and a forfeiture order. The sentencing judge rightly concluded that Vesalpour should be approached with a degree of caution (para. 114). [ 39 ] The sentencing judge also referenced R. v. Thompson , 2018 ONCJ 310 , where a 45-day intermittent sentence was given and which he correctly distinguished on the basis that it involved an aboriginal offender.

He also distinguished Neary on the basis that the conviction had included offences of trafficking, possession of proceeds of crime and possession of psilocybin (para. 101) and that the law at the time of the sentencing was merely anticipated to change (para. 108). He distinguished R. v. Bentley , 2017 ONCA 982 , on a similar basis (prospect of legislative reform) and, noted that the Ontario Court of Appeal had ordered a stay of the substituted sentence to avoid reincarceration of the respondent (paras. 110-112).

The sentencing judge also noted the observation of Parry J. in Thompson , whereby Parry J. observed that the passage of the Cannabis Act between Mr. Bentley’s sentence and the Ontario Court of Appeal’s decision may have been a factor in the stay of the sentence in Bentley (para. 119 ). [ 40 ] The sentencing judge’s review of the jurisprudence from the three sentencing “eras” reflects an appreciation for sentences imposed on similar offenders for similar offences in similar circumstances. The Principles of Sentencing [ 41 ]

Part XXIII of the Criminal Code enshrines general sentencing principles and objectives and, as discussed above, the sentencing judge recognized that related legislation restricts the availability of certain sanctions for certain offences. A sentencing judge’s broad discretion to craft a sentence tailored to the nature of the offence and the circumstances of the offender must reflect these principles and objectives.

I conclude that they were considered in this case. [ 42 ] The sentencing judge’s decision reflects a comprehensive review of the circumstances of the offence and the offender, the statutory regime under both the CDSA and the Criminal Code , and the consequential effects of the Cannabis Act which I have addressed earlier. [ 43 ] The sentencing judge specified the aggravating factors which a court must take into consideration in circumstances where a minimum term of imprisonment is not a requirement (paras. 46-47). Neither of them applied to Mr.

Murphy. [ 44 ] At paragraphs 48 to 62 of his decision, the sentencing judge reviewed the principles of sentencing codified in sections 718 to 718.2 of the Criminal Code ; with these in mind the sentencing judge addressed the parity principle at paragraphs 63-120. He identified mitigating and aggravating factors at paragraphs 121-123. [ 45 ] The sentencing judge considered Mr. Murphy’s circumstances and concluded that specific deterrence did not play a role. He specified that: [125] … Mr. Murphy does not require rehabilitation, directed towards his reintegration into society. He is already integrated.

What a term of imprisonment will “accomplish” is the removal of a productive individual from society and the replacement of his family supports with a whole new “peer” group.

[46] The sentencing judge addressed denunciation and general deterrence at paragraphs 127-141 and concluded that they had lessrelevance in the case before him (para. 135). This view is supported by Clayton Ruby, Sentencing, 10th ed. (Toronto, ON: LexisNexisCanada Inc., 2020) at 1493, citing R. v.

Cranston (1984), (NS CA), 65 N.S.R. (2d) 46, 147 A.P.R. 46: … Before the enactment of the Cannabis Act, cannabis, the general term for marihuana, hashish and cannabis resin, was regarded by thecourts as a “soft” drug, which was distinguishable in the seriousness of its effects from the harder narcotics such as heroin, cocaine andharder restricted drugs such as speed or methamphetamine. … While sentencing courts tended to give the principle of deterrencecharacteristic importance, much greater weight is afforded to individual characteristics and the potential for rehabilitation than insentencing decisions concerning harder narcotics. [47] The sentencing judge also addressed the concern that he may be “accused of focusing too highly on the antecedents of Mr.Murphy” (at para. 137).

In the course of this the sentencing judge explained that he was: [137] … satisfied that, on the facts of this case, the imposition of two years’ probation and the suspension of sentence will adequatelyserve the principles of denunciation and deterrence. This young man, with no criminal antecedents, now has a criminal record. Thesimple fact of such a record is not without its repercussions. In addition, Mr. Murphy is further subject to a lengthy (two-year) period ofprobation. Taken alone, this serves as a restriction on his liberty. [48] As this Court noted in R. v.

Parsons, 2017 NLCA 64 (in the context of sentencing for the offence of conspiracy to traffic in theharder narcotic of cocaine) “while general deterrence is a paramount consideration” and rehabilitation a “secondary consideration”, thisdoes not “foreclose a focus on rehabilitation were the circumstances warrant”. [49] The reasons as a whole reflect that the sentencing judge considered the required principles of sentencing and weighed all relevantfactors in the exercise of his discretion in crafting an appropriate sentence for Mr. Murphy.

Fit and Just Sentence [50] The sentence crafted was at the lower end of the range supported by the authorities cited by the sentencing judge but, as he noted,a “suspended sentence for the possession of cannabis for the purposes of trafficking” was “not without judicial precedent” (paras. 138-139; see R. v. Owens, 2014 BCSC 32). Further, in light of Vesalpour, the sentence was not outside the range, and even if it had been,that is insufficient to warrant appellate intervention. More is required to establish that a sentence is demonstrably unfit. As stated in R.v.

R.G., 2003 NLCA 73, 232 Nfld. & P.E.I.R. 273: [18] … the mere fact that a sentence imposed is below the range, of itself, does not establish an error on the part of the trial judge … [51] More recently in R. v. Butler, 2019 NLCA 21, this Court held: [39] The above principles do mean that when an appellate court overturns, modifies or otherwise interferes with a sentence on the basisthat it is unfit, the sentence must be something more than "on the high side" or "on the low side" or "outside the range".

Rather, thestandard for appellate intervention is that the sentence must be "demonstrably unfit" (Lacasse at paragraph 52). [52] In Provost, at para. 39, this Court approved the following statement from R. v. M.(C.A.), (SCC), [1996] 1S.C.R. 500 (S.C.C.): [92] … a court of appeal should only intervene to minimize the disparity of sentences where the sentence imposed by the trial judge isin substantial and marked departure from the sentences customarily imposed for similar offenders committing similar crimes. [53] Given: (

a) the proximity of the sentencing judge’s decision to the enactment of the Cannabis Act (which provided evidence of a reduction inthe objective seriousness of the offence); and (

b) the limited jurisprudence available to the sentencing judge; it has not been established that the sentence imposed in this case is a marked departure from sentences “customarily imposed” for similaroffenders committing similar crimes. [54] I conclude that the sentencing judge balanced uniformity in sentencing with his duty to consider the circumstances of the casebefore him. [55] Accordingly, I would dismiss this ground of appeal. ISSUE TWO Exceptional Circumstances [56] While unnecessary in light of my conclusion on the first ground of appeal, I will address the Crown’s assertion that by over-emphasizing Mr.

Murphy’s personal circumstances and failing to give sufficient weight to principles of general deterrence anddenunciation, the sentencing judge wrongfully characterized Mr. Murphy’s personal situation as “exceptional circumstances”. [57] The sentencing judge outlined Mr. Murphy’s particular attributes. He was 26 years old, a first time offender who entered a guiltyplea to a single count of possession for the purpose of trafficking in a very large quantity of cannabis.

He was extremely remorseful,recognized his poor decision, had moved to Alberta while on bail, trained for jobs in the insurance and automobile sales industries only

to be denied both on the basis of his outstanding charges. He persevered and ultimately secured employment laying pipeline at a camp which prohibits alcohol and drugs, working 60 hours a week, on a 40 day shift. It was his residency in this camp that his counsel explained precluded the completion of a pre-sentence report. [ 58 ] The sentencing judge described Mr.

Murphy’s future as “bright” and his family support as “strong” (paras. 15-17). [ 59 ] The sentencing judge neither used the term “exceptional circumstances” nor applied this sentencing principle in crafting what he considered to be an appropriate sentence for Mr. Murphy. [ 60 ] The sentencing principle of exceptional circumstances was addressed by the Manitoba Court of Appeal in R. v.

Burnett , 2017 MBCA 122 , at paras. 20-37 . [ 61 ] Acknowledging that the concept was a common law sentencing principle “nebulous and devoid of a precise definition”, the Court concluded that its practical effect was to act as “a safety value for the justice system in the ‘rare case’ where the circumstances are ‘above and beyond the norm’ ” (paras. 21-22, citing Voong , at para. 59 ). [ 62 ] The Manitoba Court of Appeal explained “when conditions are so out of the ordinary that a sentencing court may apply the principle” of exceptional circumstances (para. 23): [24] The role played by the principle of exceptional circumstances is separate and apart from a sentencing judge’s general discretion to depart downward or upward from a starting point or sentencing range to impose an individualized sentence based on the circumstances of the particular case.

As LeBel J. noted in R v Nasogaluak , 2010 SCC 6 , “[a] judge can order a sentence outside that range as long as it is in accordance with the principles and objectives of sentencing. Thus, a sentence falling outside the regular range of appropriate sentences is not necessarily unfit” (at para 44).

See also Lacasse at paras 57-61 . [25] The law does not require a sentencing judge to find “exceptional circumstances” to justify imposing a sentence that merely departs downward from a judicially created starting point or sentencing range ( see R v Scott , 2013 NSCA 28 at paras 26 , 53; and R v Howell , 2013 NSCA 67 at para 9 ). … [ 63 ] In Burnett , the personal circumstances that the sentencing judge cited were almost identical to those stated in relation to Mr. Murphy.

The Manitoba Court of Appeal characterized these as both common to many offenders and appropriate factors to take into account to mitigate sentence. However, the Court concluded that “considered cumulatively” they amounted to sympathetic circumstances and if they were to justify a reduced sentence for a “serious pre-meditated profit-motivated crime, the principle [of exceptional circumstances] would be meaningless” ( Burnett , at para. 33 ). [ 64 ] I agree that Mr. Murphy’s personal circumstances were not “exceptional circumstances” under the common law sentencing principle.

I conclude that the sentencing judge was correct in not attempting to rely on this principle and, as previously stated, I would find that it was unnecessary for him to do so in support of the sentence given. I would also dismiss this ground of appeal. CONCLUSION [ 65 ] The trial judge did not err in his consideration of the effects of the passage of the Cannabis Act as one of many factors relevant to his crafting of an appropriate sentence for Mr.

Murphy. [ 66 ] In reducing the maximum penalty for the equivalent offence in the Cannabis Act from life to fourteen years imprisonment, Parliament signaled a lessening of the objective seriousness of the post- Cannabis Act equivalent to the offence of trafficking in cannabis. This justified an adjustment to the judicially approved range of sentence for the offence to which Mr.

Murphy pled guilty. [ 67 ] The sentencing judge crafted a sentence that was at the lower end of the appropriate range for the offence as established by the authorities he cited but the range was a guideline only and it was within the sentencing judge’s discretion to pass this sentence provided that it was in accordance with the principles and objectives of sentencing ( Nasogaluak , at para. 44 ). [ 68 ] I conclude that the sentence did so accord. [ 69 ] The sentence imposed in this case was not so manifestly inadequate that it was required to be justified on the basis of exceptional circumstances. [ 70 ] I would dismiss the appeal.

Dissenting Reasons by Hoegg J.A. Introduction [ 71 ] I am unable to agree with my colleague’s decision to uphold the sentencing judge’s suspension of Mr. Murphy’s sentence. In my view the decriminalization of possession of small amounts of cannabis as a consequence of an amendment to the CDSA and the reduction in the maximum sentence for the indictable offence of cannabis trafficking, from life under the CDSA to 14 years under the Cannabis Act , do not affect established sentencing law respecting Mr. Murphy’s trafficking offence under section 5(2) of the CDSA .

I would rule that the judge erred in law in finding that recent proclamation of the Cannabis Act reduced the long-established paramountcy of deterrence and denunciation as factors in the sentencing of drug traffickers and that this error impacted the sentence he imposed on Mr. Murphy.

[ 72 ] I also cannot agree that the sentence the judge imposed on Mr. Murphy was fit. In my view, a suspended sentence and two years’ probation, on the facts of Mr. Murphy’s offence and personal circumstances, is a demonstrably unfit sentence. It is a marked departure from the established range of sentence for Mr. Murphy’s offence and no exceptional circumstances present to warrant such a departure. [ 73 ] For the reasons that follow, I would allow the Crown’s appeal and impose an incarcerating sentence of one year. Facts [ 74 ] Mr.

Murphy was charged with possession of cannabis for the purpose of trafficking in breach of section 5(2) of the CDSA on January 6, 2017 . He pleaded guilty and was sentenced on November 23, 2018, shortly after proclamation of the Cannabis Act . An Agreed Statement of Facts was read into the record at the sentencing. It is appended to this decision (Appendix A). The Sentencing Judge’s Decision [ 75 ] At his sentencing hearing, Mr.

Murphy argued that the recent proclamation of the Cannabis Act reflects a shift in society’s attitude towards cannabis, and that this shift in attitude should result in more lenient sentences for cannabis related offences. Specifically, Mr. Murphy maintained that proclamation of the Cannabis Act is evidence of society’s acceptance of cannabis and that this acceptance reduced the importance of general deterrence and denunciation as sentencing principles for trafficking offences such as the one to which he pleaded guilty.

In turn, he argued that a significant reduction from the established range of sentence for his trafficking offence was justified. Mr. Murphy also argued that his antecedents were such that he should receive a suspended sentence and a period of probation for his trafficking offence, which is an offence that would usually attract an incarcerating sentence of up to two years. [ 76 ] The judge accepted both of Mr. Murphy’s arguments.

After reviewing the provisions of the Cannabis Act and noting the differences between it and the CDSA , the judge stated that while he did not discern any “appreciable change in the principles of sentencing for cannabis related offences post legalization” (para. 62), he observed that society’s attitude toward cannabis had shifted toward acceptance of its use and found that “the [sentencing] principles of general deterrence and denunciation, while still relevant, have less prominence than prior to legalization” (para. 135). [ 77 ] The judge canvassed the sentencing caselaw for the offence of trafficking cannabis.

In so doing, he noted that Parliament’s 2012 amendment of

section 742.1 of the Criminal Code (

section 742.1 (c)) precluded conditional sentences for offences carrying a maximum sentence of 10 years or more, and because Mr. Murphy’s indictable offence involved 24.8 pounds of cannabis, and carried the possibility of a life sentence under the CDSA , a conditional sentence was not available to him. He also noted that a conditional sentence would not be available to him under the Cannabis Act . The judge stated that if a conditional sentence had been available to Mr.

Murphy, his offence would have attracted a 15-month conditional sentence. (Conditional sentences for distributing cannabis remain available under the Cannabis Act for cannabis related offences prosecuted summarily.) [ 78 ] The judge described Mr. Murphy’s circumstances as follows: [8] Mr. Murphy presents to the Court as a first time offender, who was 26 years old at the time of the offence. He testified at his sentencing hearing, albeit with considerable difficulty at times, such is his profound regret over having “let his parents down”. Mr.

Murphy admitted his involvement in a cautioned statement to police at the time of his arrest. He subsequently entered a guilty plea and took responsibility for his behavior. I accept his remorse as genuine. [9] Mr. Murphy is in his third year as a millwright apprentice. He explained that he had been working up until a month or so prior to the offence. Due to his loss of employment, he found that he was “barely able” to pay his bills. It was at this time that he was approached by someone in downtown St. John’s with a proposition for quick cash.

He was feeling vulnerable at the time and much to his everlasting regret availed of the opportunity. As the saying goes, the rest is history. Mr. Murphy related this circumstance, not as an excuse for his behavior, but rather by way of explanation for what he now recognizes as a poor decision on his part. [ 79 ] The judge characterized Mr. Murphy’s involvement in the drug trade as “bad choices” and his offence as being of an “unsophisticated nature” (paras. 123-124). The judge found Mr.

Murphy to be “a repentant young man, with no criminal antecedents and [a] future ahead of him” (para.141), and said he was satisfied that Mr. Murphy did not require rehabilitation directed toward his reintegration into society because he was “already integrated”, and stated that nothing could be gained by sending him to jail (paras. 125- 126). [ 80 ] In the result, the judge suspended the passing of Mr. Murphy’s sentence and placed him on probation for two years. In addition to the statutory conditions of probation, the judge added “optional” conditions, and made various ancillary orders.

Issues [ 81 ] The appeal raises three issues: (1) whether the judge erred in sentencing Mr. Murphy by ruling that the recently proclaimed Cannabis Act reduces the importance of deterrence and denunciation in sentencing cannabis related offences such as Mr. Murphy’s offence; (2) whether the judge erred by failing to consider denunciation and deterrence, the gravity of Mr. Murphy’s offence and his degree of responsibility for it, and the principles of proportionality and parity in sentencing Mr. Murphy; and (3) whether the sentence the judge imposed on Mr. Murphy was demonstrably unfit.

Standard of Review [ 82 ] In Friesen , the Supreme Court of Canada summarized the standard of review for sentencing appeals:

[26] As this Court confirmed in Lacasse, an appellate court can only intervene to vary a sentence if (1) the sentence is demonstrablyunfit (para. 41), or (2) the sentencing judge made an error in principle that had an impact on the sentence (para. 44). Errors in principleinclude an error of law, a failure to consider a relevant factor, or erroneous consideration of an aggravating or mitigating factor. Theweighing or balancing of factors can form an error in principle "[o]nly if by emphasizing one factor or by not giving enough weight toanother, the trial judge exercises his or her discretion unreasonably" (R. v.

McKnight (1999), (ON CA), 135 C.C.C.(3d) 41 (Ont. C.A.), at para. 35, cited in Lacasse, at para. 49). Not every error in principle is material: an appellate court can onlyintervene if it is apparent from the trial judge's reasons that the error had an impact on the sentence (Lacasse, at para. 44).

If an error inprinciple had no impact on the sentence, that is the end of the error in principle analysis and appellate intervention is justified only if thesentence is demonstrably unfit. [83] In Friesen and Lacasse, the Court restated the importance of deferring to a sentencing judge’s decision, confirming long-standinglaw that an appellate court may not intervene simply because it would have weighed the relevant factors differently.

However, the Courtwas clear that an appellate court is not required to defer to a sentencing judge’s imposition of a sentence when imposition of that sentenceis impacted by error, or the sentence is unfit (Friesen at paras. 25 and 27). [84] In arriving at a fit sentence, Lacasse directed sentencing judges to focus on two principles when considering the applicable rangeof sentence for a particular offence: (1) the principle of proportionality, which provides that a sentence must be “proportionate to thegravity of the offence and the degree of responsibility of the offender” (section 718.1 of the Code) and (2) the principle of parity, whichprovides that “a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similarcircumstances” (section 718.2(b)) of the Code).

The Court explained that the parity principle has led to judicial recognition of sentencingranges for certain offences and that “a sentence that, on its face, falls outside of a particular range… is not demonstrably unfit” (para.58). Rather, “everything depends on the gravity of the offence, the offender’s degree of responsibility and the specific circumstances ofeach case” (para. 58).

The Court also explained that the determination of whether a sentence is fit requires that: [54] …the sentencing objectives set out in s. 718 of the Criminal Code and the other sentencing principles set out in s. 718.2 be takeninto account.

Once again, however, it is up to the trial judge to properly weigh these various principles and objectives, whose relativeimportance will necessarily vary with the nature of the crime and the circumstances in which it was committed… [85] In Friesen, the Court reiterated the importance of the principles of proportionality and parity (at paras. 30-32) and concluded bysaying at para. 33: [33] In practice, parity gives meaning to proportionality.

A proportionate sentence for a given offender and offence cannot be deducedfrom first principles; instead, judges calibrate the demands of proportionality by reference to the sentences imposed in other cases.Sentencing precedents reflect the range of factual situations in the world and the plurality of judicial perspectives. Precedents embody thecollective experience and wisdom of the judiciary. They are the practical expression of both parity and proportionality Analysis [86] The judge’s acceptance of Mr.

Murphy’s argument that proclamation of the Cannabis Act justifies reducing his sentence fromwhat otherwise would be imposed invites consideration of the provisions of the Cannabis Act. Sections 7 and 9 pertain to Mr. Murphy’sargument.

Section 7 sets out the purpose of the legislation: 7 The purpose of this Act is to protect public health and public safety and, in particular, to (

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

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

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

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

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

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

g) enhance public awareness of the health risks associated with cannabis use.

Section 9 of the Cannabis Act addresses distribution of cannabis and is the charging

section for what was trafficking in

section 5 of theCDSA: 9(1) Unless authorized under this Act, it is prohibited (

a) for an individual who is 18 years of age or older (

i) to distribute cannabis of one or more classes of cannabis the total amount of which is equivalent, as determined in accordance withSchedule 3, to more than 30 g of dried cannabis, (ii) to distribute cannabis to an individual who is under 18 years of age, (iii) to distribute cannabis to an organization, or (iv) to distribute cannabis that they know is illicit cannabis;

…

(2) Unless authorized under this Act, it is prohibited to possess cannabis for the purpose of distributing it contrary to subsection (1). …

(5) Subject to

section 51, every person that contravenes subsection (1) or (2) (

a) is guilty of an indictable offence and is liable (

i) in the case of an individual who is 18 years of age or older, to imprisonment for a term of not more than 14 years, … [ 87 ] It is clear from the judge’s decision that he viewed proclamation of the Cannabis Act as representing a shift in attitude towards cannabis which reduces the importance of denunciation and deterrence as sentencing principles applicable to trafficking cannabis. In arriving at this conclusion, the judge observed that the present attitude of Canadians toward cannabis is very different from Magistrate Emily Murphy’s scathing indictment of it in 1922.

If Magistrate Murphy’s attitude reflected the attitude of Canadians towards cannabis in 1922, I agree that the attitude of Canadians has shifted significantly since then. In any event, and regardless of Magistrate Murphy’s views, I would say that there has been a shift in the attitude of Canadians towards cannabis over the past 100 years.

However, I cannot agree that the passing of the Cannabis Act has caused the shift, or that the provisions of the Cannabis Act call for less emphasis on the sentencing principles of deterrence and denunciation, or otherwise call for a new approach to sentencing for offences involving the trafficking of large amounts of illicit cannabis. In my view, the attitude of Canadians toward cannabis has been shifting for many years, and the shift has been reflected in the sentencing law respecting cannabis related offences as it has evolved.

In this regard, I observe that sentences for such offences are lower than they once were, and that charges of simple possession of cannabis have rarely been laid or prosecuted in recent years. This evolution was recognized by the sentencing judge in R. v.

Hanse , 2019 ONSC 1640 , wherein she observed that “reduced moral blameworthiness of marihuana possession and marihuana trafficking is already reflected in the case law, and has been for many years” and also that “low-level street trafficking [of cannabis] does not attract high penalties” (para. 48). [ 88 ] In his decision the judge identified three differences between trafficking under the CDSA and distribution under the Cannabis Act : (1) amendment of the CDSA and proclamation of the Cannabis Act together have resulted in the decriminalization of possession of small amounts of cannabis; (2) the maximum sentence of life for the indictable offence of trafficking cannabis under the CDSA was reduced to 14 years for the indictable offence of distributing illicit cannabis under the Cannabis Act , and; (3) the new legislation eliminates reference to mandatory minimum sentences for distributing cannabis. [ 89 ] In my view, these three differences make no difference to the application of sentencing law to Mr.

Murphy’s offence. Trafficking, or distributing as it is called in the Cannabis Act , large amounts of illicit cannabis remains a criminal offence in the Cannabis Act carrying a penalty of up to 14 years imprisonment. The decriminalization of possession of small amounts of cannabis does not touch on the indictable offence of possession of cannabis for the purpose of trafficking under the CDSA , or distributing large amounts of illicit cannabis under the Cannabis Act .

Further in my view, the reduction in the maximum sentence for distributing cannabis from life to 14 years and the lack of reference to mandatory minimum sentences for doing so are not meaningful differences respecting the sentencing of trafficking offences like that of Mr. Murphy. Both of these changes reflect the reality of well-established sentencing law for trafficking cannabis.

Sentences of life imprisonment for trafficking cannabis have rarely, if ever, been imposed, and the absence in the new legislation of mandatory minimum sentences for trafficking reflects statutory accordance with recent constitutional decisions respecting cannabis related offences ( see R. v. Lloyd , 2016 SCC 13 , [2016] 1 S.C.R. 130 , and other serious charges see R. v. Nur , 2015 SCC 15 , [2015] 1 S.C.R. 773 ).

Moreover, nothing in the Cannabis Act suggests a new or different approach to the application of the sentencing principles in the Criminal Code to any offence under the Cannabis Act . [ 90 ] The Crown argues that the sentencing judge mistakenly assumed that the new legislation amounts to a recognition by Parliament that cannabis is not inherently harmful. I cannot agree that the judge went that far. While the judge likened the legal availability of cannabis to the legal availability of alcohol and tobacco, he did not suggest that either is not inherently harmful.

Importantly, the Cannabis Act does not suggest that cannabis is without inherent harm. In fact, the provisions in the purpose

section of the Cannabis Act , specifically subsections 7 (a), (

b) and (g), suggest otherwise. [ 91 ] Several Canadian appellate courts have addressed arguments respecting the effect of the Cannabis Act on sentencing for offenders convicted of cannabis related offences. One decision which considered that argument, Neary , was submitted to the sentencing judge in this case. In Neary , the offender was convicted of trafficking approximately 20 pounds of cannabis.

His sentence was suspended on the basis of the sentencing judge’s view that the proposed Cannabis Act, which at the time of the sentencing was not law but anticipated to become law, meant that sentences for trafficking cannabis should be reduced.

The Crown appealed, and the Saskatchewan Court of Appeal allowed the appeal, citing two reasons: the first was because the Cannabis Act was not in force at the time and courts cannot make decisions based on speculation, and the second was because there was no indication that the government had proposed legislation that trafficking in cannabis would be decriminalized or otherwise affected. The Court’s second reason was borne out by the Cannabis Act when it became law. The appellate court declared Mr.

Neary’s suspended sentence unfit and imposed a sentence of 15 months. [ 92 ] The Quebec Court of Appeal addressed a similar argument in Sanon . In Sanon , an offender appealed his six month sentence for trafficking 1.8 kg of cannabis, arguing that he ought to have benefitted from a more lenient sentence given society’s changed perception of cannabis shown by proclamation of the Cannabis Act .

The appellate court was not persuaded, reasoning that the new legislation did not reflect a shift in society’s attitude to trafficking cannabis, and that it was up to Parliament to alter the sentencing law pertaining to it. [ 93 ] In R. v. Clement , 2019 QCCQ 3101 , the Court of Quebec followed the reasoning in Sanon in rejecting the “shift in attitude” argument, and imposed an 18 month sentence on an offender for two counts of trafficking 1.7 kg of cannabis and one count of trafficking 150 grams of cannabis resin.

[94] The Ontario Court of Appeal also rejected the argument that proclamation of the Cannabis Act justifies decreased sentences fortrafficking offences (see Strong). At trial, Mr. Strong was convicted of two counts of trafficking cannabis, one count of conspiring totraffic cannabis, and one count of possessing proceeds of a crime. He had distributed or sold 124 pounds of cannabis over a 10-weekperiod. He pleaded guilty, and received a three year sentence for the drug offences and a one year concurrent sentence for the proceedsof crime offence. [95] Mr.

Strong appealed, arguing that the sentence failed to take into account society’s shifting attitude towards cannabis asdemonstrated by proclamation of the Cannabis Act. The Court of Appeal disagreed, saying: [2] The appellant's main argument rests on the assertion that that the changed societal attitude toward marihuana use warrants areduction in the established range for this kind of offence.

We cannot accept this submission. [3] While the societal perception of the seriousness or harmfulness of the offender's conduct has a role to play in considering factorssuch as denunciation and deterrence, we see no basis to conclude that the conduct involved in this case would be viewed as anythingother than serious criminal misconduct. [4] Parliament has not significantly altered the applicable penalty. Nor, in our view, can one assume that a large scale, prolongedtrafficking for profit in marihuana is somehow viewed as less serious because of the legislative changes in respect of personal possessionand use.

The sentence was within the established range… [96] The Court dismissed Mr. Strong’s appeal. [97] A decision of the Supreme Court of Newfoundland and Labrador General Division also pertains. In R. v. Noseworthy, 2019NLSC 23, Mr. Noseworthy, relying on the sentencing judge’s decision in this case, argued that he should receive a suspended sentencefor his offence of trafficking cannabis like Mr. Murphy did. While Mr. Noseworthy’s case differs from this case in that it also involveda conviction for trafficking cocaine, the sentence for which is under appeal, Faour J. rejected Mr.

Noseworthy’s argument and imposed asentence of 18 months imprisonment to run concurrently with the sentence he imposed for trafficking cocaine. [98] The provisions of

section 9 of the Cannabis Act provide that distributing any quantity of illicit cannabis, and distributing morethan 30 grams of dried cannabis, whether licit or illicit, are indictable offences carrying a maximum sentence of 14 years. Accordingly,the legislation did not alter the legality of trafficking cannabis nor did it alter sentencing considerations in respect of this offence (save forthe relatively inconsequential reduction in maximum sentence from life to 14 years). In fact, it could be said that the provisions of theCannabis Act emphasize society’s condemnation of trafficking illicit cannabis. More specifically,

section 7 shows that Parliament hadhealth and safety concerns respecting young persons and others respecting the use and content of cannabis and addressed these concernsby enacting provisions to restrict access to cannabis and provide for the licit production of quality-controlled cannabis. [99] Parliament also recognized the relationship between illicit activities and cannabis in sections 7(

c) and (d). It is well established inthe jurisprudence that involvement in the illicit drug trade can have huge downstream social and health costs. In R. v. Mack, (SCC), [1988] 2 S.C.R. 903, at 978 (S.C.C.), Lamer J. stated: “It is also a crime of enormous social consequence whichcauses a great deal of harm in society generally”. This Court stated the same concern in R. v. Oates, (1992), (NLCA), 100 Nfld. & P.E.I.R. 289, per Marshall J.A. at para. 24. See also, R. v. Smith, (SCC), [1987] 1 S.C.R. 1045, at1090 (S.C.C.), and R. v.

Pearson, (SCC), [1992] 3 S.C.R. 665, at 698-699 (S.C.C.). [100] The Supreme Court of Canada, in Mack, Smith, and Pearson has made it abundantly clear that deterrence and denunciation are tobe emphasized in the sentencing of traffickers of illicit drugs. This Court, in Oates, per Goodridge C.J.N. at paras. 4 and 7, per MarshallJ.A. at paras. 26 and 40, and per Steele J.A. at paras. 64 and 68, and in Provost, at paras. 60-62, emphasized the importance of deterrencein sentencing drug traffickers. More recently in R. v.

Kane, 2012 NLCA 53, 325 Nfld. & P.E.I.R. 78, and in Parsons, this Courtconfirmed deterrence as a paramount consideration in sentencing drug traffickers. The concerns raised in the jurisprudence respectingthe negative impact on vulnerable people and society generally of drug trafficking have not been shown to have abated.

Parliament’scurrent emphasis on protecting the health and safety of young persons by restricting access to and use of cannabis and providing for thelicit production of cannabis to reduce illicit activities in relation to cannabis underscores the paramountcy of deterrence and denunciationin the sentencing of persons convicted of trafficking significant amounts of illicit cannabis. Moreover, Parliament’s stated legislativegoal to “deter illicit activities in relation to cannabis through appropriate sanctions and enforcement measures” (section 7(

d) of theCannabis Act) further underscores the paramountcy of deterrence as a sentencing factor. [101] A word about the importance of the deterrence principle. Deterrence is important not only to deter offenders from re-offending,but to deter persons who may be inclined to become involved in trafficking illegal drugs for profit, like Mr. Murphy was, from doing so. It is especially important to deter young people, but also others, from succumbing to the lure of easy money, because they can be drawninto a culture of deceit and danger from which it can be difficult and sometimes impossible to escape.

As Lamer C.J.C. said at paragraph63 of Pearson: … trafficking in narcotics occurs systematically, usually within a highly sophisticated commercial setting. It is often a business and away of life. It is highly lucrative, creating huge incentives for an offender to continue criminal behavior even after arrest… In this regard, I add that it is not lost on me that Mr. Murphy, while admitting his guilt, stopped short of stating what he was going to dowith the cannabis he picked up from Mr. Baker’s residence.

I suggest that he did not want to jeopardize others by implicating them, butalso that he did not want to jeopardize his own safety by doing so. [102] For the above reasons, I cannot accept that proclamation of the Cannabis Act reduces the well-established importance ofdeterrence, recently reemphasized in section 7(2) of the Cannabis Act, in the sentencing of offenders convicted of trafficking largeamounts of illicit cannabis.

Neither can I accept that reduction in the maximum term of imprisonment from life to 14 years for traffickingjustifies a proportionate downward shift in sentencing for trafficking large amounts of illicit cannabis so as to lessen the sentence for Mr.Murphy’s CDSA offence or justify giving him a suspended sentence. Rather, I agree with the Courts of Appeal in Saskatchewan,Quebec, and Ontario that the Cannabis Act does not alter application of the principles of sentencing with respect to trafficking large

amounts of illicit cannabis. Mr. Murphy’s involvement in the large scale and ongoing trafficking of illicit cannabis for profit is not, in my view, less serious because of legislative changes respecting personal possession and use of small amounts of cannabis. To my mind, the judge’s reasoning constitutes legal error which impacted the sentence he imposed on Mr. Murphy. The Fitness of Mr. Murphy’s Suspended Sentence [ 103 ] Mr. Murphy testified at his sentencing hearing. He explained his regret over hurting his parents and his persistent attempts to maintain employment in the legal working world.

His father, sister, and four aunts testified to his character. Their evidence was that Mr. Murphy was a decent, kind, independent young man whom they were convinced had seen the error of his ways and would not reoffend. They said they were committed to giving him all of the support he would need in the future. No presentence report was submitted, nor was there any documentation respecting Mr. Murphy’s post-charge employment status or efforts. [ 104 ] It is clear from the evidence of Mr.

Murphy and his relatives that the Murphy family is close-knit and law-abiding, like the judge found, and that the relatives were shocked and disappointed to learn of Mr. Murphy’s criminal conduct. [ 105 ] I do not doubt for a moment that the Murphy family members gave honest and sincere evidence and that their care, concern and support for Mr. Murphy is genuine. He is very fortunate to be so loved and supported. Such love and support, which was always there for him, will stand him in good stead in future if he avails of it.

However, I feel compelled to note that evidence from close family members of their faith in their son, brother, and nephew is not necessarily objective evidence that Mr. Murphy has been rehabilitated. In this regard, I note in particular Mr. Murphy’s evidence that he has lived far away from his family in the almost two years prior to his sentencing and that he planned to return to his recently acquired work on a pipeline in British Columbia forthwith following his sentencing hearing. [ 106 ] The judge seemed impressed by the fact that Mr.

Murphy was currently employed and wanted to continue to pursue his millwright career. Employment is generally expected of able-bodied adults and loss of employment as a result of incarceration for a serious crime is also expected. The fact that someone is working is not generally accepted as a reason for imposing a suspended sentence. In this regard, I agree with the Manitoba Court of Appeal in Burnett , at para. 33 , and the Nova Scotia Court of Appeal in R. v.

J.J.W. , 2012 NSCA 96 , at para. 40 , that loss of employment is an expected consequence of serious criminal conduct and that it does not displace the importance of general deterrence and denunciation in sentencing. [ 107 ] In my view Mr. Murphy’s offence was not minor. The amount of cannabis involved in the one transaction which gave rise to the instant offence was 24.8 pounds. Its street value was between $168,000 and $224,800, depending on how it was sold. As well, I do not share the sentencing judge’s view that Mr. Murphy’s offence was unsophisticated. Whether Mr. Murphy sold the cannabis he received from Mr.

Baker directly to users or whether he passed it on to another person for further distribution and eventual sale does not diminish the fact that he was part of an established inter-provincial drug ring which brought significant amounts of cannabis into this province for distribution and sale purely for profit. Moreover, he inveigled Mr. Baker, another first offender, into the drug trafficking world by having him agree to accept delivery of the packaged cannabis when it arrived by courier in this province from British Columbia. Mr. Murphy’s procurement of Mr.

Baker and the fact that they were together involved in “four or five” deliveries speak to Mr. Murphy’s established and trusted role in the operation. He was not a low-level unsophisticated dealer. [ 108 ] The fact is that Mr. Murphy, at 26 years of age when he committed the offence, was like many persons who get involved in drug trafficking purely for profit, in that he knew full well that he was involved in serious criminal activity. He also knew full well that, if caught, he could suffer serious penalty. He took the risk, in essence a business risk, that he could get caught, and for a while it worked for him.

But then the risk materialized — he got caught. [ 109 ] The fact that there are no mandatory minimum sentences called for in the provisions of the Cannabis Act is in my view of no application to Mr. Murphy’s case. Suspended sentences have been available for trafficking small amounts of cannabis for several years and for larger amounts due to constitutional developments in sentencing law ( Lloyd and Nur ). In any event, the availability of suspended sentences for trafficking offences does not mean that they should be imposed for trafficking large amounts of illicit cannabis for profit like Mr. Murphy was doing.

The nature of the crime, the degree of responsibility of the offender, and the circumstances in which the crime is committed must always animate sentencing considerations ( Lacasse , at paras. 53-54 ). The nature of Mr. Murphy’s crime was serious, his degree of responsibility was full, and the circumstances in which it was committed, including his inveigling of Mr. Baker into the trafficking world, were calculated. They do not give rise to a pass on sentence. There is no reason to think that Mr. Murphy’s offence was anything but serious criminal conduct which ought to attract an incarcerating sentence.

The Judge’s sentencing decision sends the wrong message to young people and others who might be tempted, like Mr. Murphy was, and like he tempted Mr. Baker, to make easy money by accepting an invitation to become part of an illicit drug trafficking ring. Others must be informed that if they accept such invitations, they do so at their peril ( Burnett , at para. 34 ). [ 110 ] In my view, the sentencing judge erred in principle by failing to consider deterrence and denunciation, the gravity of Mr.

Murphy’s offence and his degree of responsibility for it, and the sentencing principles of proportionality and parity, as factors in sentencing Mr. Murphy. [ 111 ] These errors impacted the judge’s imposition of a suspended sentence on Mr. Murphy. ( Lacasse , at para. 11 ). What is a Fit Sentence? [ 112 ] The Crown seeks reversal of the judge’s suspension of Mr. Murphy’s sentence and the imposition of an incarcerating sentence of 18 to 24 months. [ 113 ] It is not necessary to conduct an exhaustive review of the sentencing caselaw for trafficking offences like that of Mr. Murphy.

In Provost , this Court set the range for trafficking cannabis at up to two years (para. 57); and in R. v. Hunt , 2012 NLCA 5 , 317 Nfld. & P.E.I.R. 244 , at para. 10 , this Court confirmed that range. The sentencing judge’s canvass of sentencing decisions also supports this range. In any event it is not controversial that the range of sentence for this type of trafficking offence is up to two years’ incarceration. Indeed the judge himself stated that Mr. Murphy might reasonably have expected to receive a 15-month conditional sentence and 12

months probation had a conditional sentence been available (para. 86). Several decisions relevant to the facts and circumstances of Mr. Murphy’s offence, as the sentencing judge observed, involve conditional sentences. In this regard, I note that conditional sentences, while onerous, are usually more lenient than imprisonment ( Proulx , at para. 44 ). [ 114 ] The sentencing judge relied on Owens , a decision of the Supreme Court of British Columbia trial court, where the offender received a suspended sentence for trafficking cannabis and cocaine. Mr.

Owens was a 21-year-old first offender) trafficking a very small amount of cannabis (17 ounces) and a very small amount of cocaine (22.1 grams). As well, at his sentencing hearing there was considerable evidence of community and family support and his recent community activities which demonstrated rehabilitation. This evidence came not only from his parents and siblings, but also from his employer, others in the community, and the father of his girlfriend. Mr. Owens was clearly a young, low-level dealer who tendered much evidence of his post offence efforts to rehabilitate himself.

His case is vastly different from that of Mr. Murphy. [ 115 ] The case most similar to Mr. Murphy’s is that of the offender in Neary , where the appellate court imposed an 18-month sentence. In Provost , the offender was sentenced to 30 and one-half months incarceration. In R. v. Blanchard , 2010 NLTD(G) 123 , 300 Nfld. & P.E.I.R. 53 , the offender, who was a highway drug courier who was found with 13 kilograms of cannabis, received a 15-month conditional sentence, and in R. v.

Barrett , 2008 NLCA 23 , this Court imposed a two-year conditional sentence on the offender who pleaded guilty to five counts of possession for the purpose of trafficking and two counts of possession of a controlled substance, all very small amounts of various drugs including cannabis with a total value of $29,000. The offender in Clement was sentenced to 18 months for two counts of trafficking a total of six kilograms of cannabis. [ 116 ] The majority does not point to a single case where a suspended sentence has been imposed for a trafficking offence similar to that of Mr. Murphy.

A suspended sentence in his circumstances is not only outside the range, it is at the very bottom of what is legally possible for any trafficking offence. [ 117 ] I accept that Mr. Murphy sincerely regrets his actions and the grief he caused his family and also that he is remorseful in that he is deeply disappointed with himself and knows he knew better than to do what he did. I also accept that Mr. Murphy’s relative youth, good antecedents, strong support from family and lack of criminal record are personal circumstances that weigh in his favour.

However, these circumstances, separately or together, are neither unique ( Lacasse at para. 58 ) nor exceptional ( Burnett , at para. 33 ), and they do not warrant the imposition of a suspended sentence. In my view, the judge permitted these circumstances to overwhelm his sentencing analysis, while failing to consider the nature and seriousness of Mr. Murphy’s offence and the sentencing objectives and principles set out in the Code , and caused him to impose an unfit sentence. [ 118 ] Accordingly, and in keeping with the law as set out in Friesen and Lacasse , I would vary Mr.

Murphy’s suspended sentence to a prison term of one year. I would do so in recognition that such a sentence is on the low end of the range for the nature of Mr. Murphy’s offence. However, I see his remorse and his efforts to stay clean as meriting some leniency, and I would not want to unduly interrupt his path of progress by imposing a lengthy prison term. Appeal dismissed (Hoegg J.A. dissenting). APPENDIX A Agreed Statement of Facts 1. On January 6, 2017, RCMP Federal Policing Operations East in St.

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

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

On January 10, 2017, the replicated parcel was delivered by an undercover police officer posing as a UPS employee to 22A Westminster Drive, Mount Pearl. A male who identified himself as Matt Baker to the undercover police officer accepted the parcel.

6. Half an hour later an unidentified male arrived at the residence at 22A Westminster Drive and went inside. Four minutes later the same male exited the residence with the parcel and walked back to his vehicle. This male was arrested at the scene for possession for the purpose of trafficking and identified as Nicholas Murphy. Nicholas Murphy had two iPhones on his person at the time of his arrest and they were seized by police. Police subsequently arrested Matt Baker and obtained a Warrant to search 22A Westminster Drive. 7. Matt Baker provided a cautioned statement to the police.

Matt Baker advised that he had been approached by Nicholas Murphy and asked if he would be willing to have parcels dropped at his house for $400.00 each time. Matt Baker was advised that he would not have to touch the parcels and Nicholas Murphy would pick them up. Matt Baker would ensure that he would be home when the parcels were delivered and the money would be left in a hiding spot on his porch. Matt Baker was aware that the parcels would contain Cannabis marihuana. Matt Baker explained that on January 10, 2017, the UPS delivery person came to his house and delivered the parcel.

Soon after Nicholas Murphy came to his home to get the parcel and paid him $800.00 for accepting the parcel. Matt Baker advised that he had followed four to five previous shipments to come to his house and that he made about $2000.00 total on those shipments. 8. Nicholas Murphy also provided a cautioned statement to police on January 10, 2017, after having exercised his right to counsel and while under police caution, that the parcel would not have anything more than marihuana inside and that he was taking the parcel to another location for someone else, but would not elaborate further. 9.

Nicholas Murphy was released on a Promise to Appear with an attached Undertaking before an Officer in Charge. 10. Samples of the seized substance was sent to Health Canada for analysis and was found to be Cannabis marihuana. 11. The street value of the Cannabis marihuana seized if sold at the gram level would be $168,600-$224,800 (based on a value of $15- $20 per gram) and if sold at the pound level would be $67,200-$72,000 (based on a value of $2800-$3000 per pound). (See Opinion Report of Cst. David Emberley attached). 12.

A s. 487 Search Warrant was obtained to search the cell phones seized from Nicholas Murphy. The contents were subsequently analyzed and were found to contain some contact between Matt Baker and Nicholas Murphy and limited messages about drugs and being caught with the parcel.