2021 QCCQ 3624, 2021 QCCQ 3624

R. c. Salem 2021 QCCQ 3624 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Criminal Division No: 500-73-004100-141 DATE: May 12, 2021 ______________________________________________________________________ BY THE HONOURABLE SALVATORE MASCIA, J.C.Q. ______________________________________________________________________ HER MAJESTY THE QUEEN Prosecutrix v. FADI SALEM

(002) Accused ______________________________________________________________________ JUDGMENT ON SENTENCE AND ON A RELATED CONSTITUTIONAL ISSUE ______________________________________________________________________ I. INTRODUCTION [ 1 ] On November 27, 2019, I found Mr. Salem guilty on the following two counts of an indictment: (

i) Of having participated between January 15, 2014, and February 11, 2014, in a conspiracy to possess heroin for the purposes of trafficking, s. 5(2) of the Controlled Drugs and Substances Act and s. 465 of the Criminal Code ; (ii) Of having in his possession on February 11, 2014, heroin for the purposes of trafficking, s. 5(2) and 5(3)

a) of the Controlled Drugs and Substances Act. [ 2 ] The nature of the drugs involved and the quantity (673 grams) places this offence activity at a higher degree of seriousness within the broad range of drug trafficking offences. Heroin is the most dangerous and addictive of all the hard drugs sold illicitly [1] . In certain parts of the city, the drug has become a real scourge, inflicting great harm not only on the users but on the community as well.

Those who deal in heroin, sow the seeds of death and destruction. [ 3 ] Given the seriousness of the offence, our courts have prioritized the principles of deterrence and denunciation in sentencing individuals who traffic in heroin. The objective gravity of the offence is reflected by the maximum penalty it attracts—life imprisonment. [ 4 ] It is a trite principle of law that the maximum penalty laid down by the legislature is reserved for matters falling within the worst category for which the penalty is prescribed.

A proportionate sentencing framework should account for the scale of the illicit activity as well as the role and personal circumstances of the offender. Was he a king pin of a group of well-organized traffickers or merely a low-level dealer? Was he the mastermind of the conspiracy or merely the courier or the mule who is given the one-time task of shepherding a drug to destination? Are his actions motivated by pure greed or driven by the need to feed a drug addiction? [ 5 ] In the case at bar, the offender’s role in the trafficking scheme was that of the proverbial «small fry».

Succinctly stated, he was tasked with the job of receiving two packages of heroin at his residence and then taking them to the person immediately above him in the conspiracy, the co-accused, Mr. Dereck Clarke. The first package delivered to his home contained 452 grams of heroin. The second one—which he never received—held 221 grams of heroin. [ 6 ] Fortunately, the drugs never made it to the streets of the city. The RCMP had intercepted the offender’s telecommunications circa seven days before the first package of heroin arrived at his home.

When the package finally did arrive, a police surveillance team followed the offender as he hopped on a cab on his way to the apartment of the co-accused. The latter was arrested a short time after opening the package. A few hours later, the police came knocking at the residence of the accused.

[7] As the low-man on the totem pole, the accused assumed most of the risk. Not unlike drug couriers or drug mules, his job wasto remit a package to destination and to insulate his immediate boss from detection. For his work, he was promised the sum of $1,500—arelatively modest amount when one considers that the street value of the heroin was $200,000.

The reward seems even paltrier when onetakes into account that the offender was the most vulnerable to being caught by the police. [8] At the time of the offence, the offender was an unemployed and destitute addict who was dependent on his drug dealer forhis daily fix of cocaine and cannabis. The said drug-dealer also happened to be his co-accused and immediate «superior» in the drug-trafficking scheme, Dereck Clarke. [9] At trial, the offender did not dispute his involvement in both offences, but raised duress as a defence.

He gave evidence thathe participated in the scheme under threats made by the co-conspirator to himself and to his family. In a nutshell, I dismissed the saiddefence concluding, in essence, that the offender willingly and actively participated in the illicit activities. [10] Having dismissed the defence of duress, the offender submits as a mitigating factor on sentencing that he was a drug addict atthe time of committing the offences. More particularly, his addiction impacted his capacity to resist temptation and say «no» to the co-accused who coaxed him into participating in the illicit scheme.

In short, the defence pleads «diminished capacity» at the sentencingstage of the proceedings. [11] Along with diminished capacity brought on by drug addiction as grounds for clemency on sentencing, the defence also notedthe offender’s positive steps to rehabilitation. He hasn’t reoffended since his arrest over seven years ago; nor has he breached any of theconditions of his bail. [12] Finally, the defence relied on the principle of parity on sentencing to mitigate the otherwise exemplary punishment usuallymeted out in matters relating to the trafficking of hard drugs.

More particularly, the defence stressed the differences in the respectiveroles of the offender and the co-accused, Dereck Clarke. While the former was described as the vulnerable «small fry», the latter waslabelled as the «big drug dealer» who stood to reap the most benefits in the illegal scheme. For his

part in the scheme, the co-accusedwas handed a sentence of five years and ten months. Surely, parity in sentencing commands that the offender in this case receives asentence that is significantly less than that given to the «master mind» of the scheme. It should be noted, however, that the co-accused—unlike the offender in the present matter—pled guilty to the two counts in the indictment. Also, the sentence of five years and ten monthsresulted from a common suggestion of the parties. [13] As we shall see in a later

chapter of this decision, the defence asks not only that I impose a provincial term of imprisonment—which in itself would constitute an unusually light sentence—but that I order that it be served in the community.

Of course, there is oneobvious obstacle to this request: since 2012, amendments to the Criminal Code deny a conditional sentence to those convicted of offences carrying a maximum prison term of at least 14 years.[2] Unfortunately for the offender, the offences for which he has been foundguilty, carry a maximum penalty of life imprisonment—thus precluding the pronouncement of a conditional sentence order. [14] Undeterred, the defence challenges the constitutionality of s. 742.1c) of the Cr.C. on the basis that it violates the offender’ssection 7 rights guaranteed by the Canadian Charter of Rights and Freedoms (Charter).

At paragraph 84 of defence counsel’s brief, thesection 7 challenge to the prohibition against «house arrest» was announced in the following terms: The Applicant is engaging his

section 7 rights in the context of a challenge to the prohibition against a conditional sentence in paragraph742.1c). As he risks suffering a deprivation of liberty, the issue is whether that deprivation of liberty would be in accordance with theprinciples of fundamental justice. He submits that the deprivation would not be in accordance with the principles of fundamental justice, as any such deprivation would violate the principle against overbreadth.[3] (Emphasis added) [15] Support for the constitutional challenge was based on the decision of the Ontario Court of Appeal in R. v. Sharma, 2020ONCA 478 .

In that case, an aboriginal offender pled guilty to importing a large quantity of cocaine from South America. Themajority of the Court agreed that the inaccessibility of a conditional sentence order under sections 742.1c) and 742.1e) of the lawviolated her s. 7 and 15 Charter rights. In essence, they found that the said sections discriminate against indigenous offenders on the basisof race and are overbroad in relation to their objectives.

[ 16 ] Though Sharma’ s argument under s. 15 of the Charter would not apply to the accused, the s. 7 argument applies to anyone— indigenous or not—convicted of an offence that is no longer admissible to the provisions of a conditional sentencing order. [ 17 ] As for the Crown, it takes issue with some of the mitigating factors on sentencing raised by the defence. While the defence portrayed the offender as a marginalized drug addict with limited capacity to resist the criminal activity, the Crown noted that he was a willing and active participant in the commission of the offences.

Though the low-man on the totem pole of the trafficking hierarchy, his role was nonetheless essential to the completion of the scheme. [ 18 ] It should be noted that the Crown did not dismiss off-hand some of the mitigating factors raised by the defence on sentencing (i.e. first-time offender, positive prospects for rehabilitation and the fact that the offender was at the bottom of the food chain when it comes to trafficking). This being said, the deterrent aspect of a sentence remains as important as ever.

Anyone dealing in a dangerous dependence-producing drug like heroin at a commercial level must be made to realize that the courts will exact a heavy price if found guilty of that offence. In the end, the mitigating factors—including the offender’s position of low-man on the trafficking hierarchy—can only justify a sentence at the bottom of the range, a jail term of five years. [ 19 ] As for the constitutional challenge, the Crown submitted that it was largely a moot point. To benefit from a conditional sentencing order, the sentence meted out to an offender must be less than two years of incarceration.

As an adequate sentence in the present matter calls for a term of five years, a conditional sentence order is out of reach. The principle of judicial economy dictates that I not even address the issue. [ 20 ] In the event that a provincial sentence is justified in the present matter, the Crown argued that «house arrest» was still off the table. Contrary to the claims of the defence, it maintained that the prohibition against a conditional sentencing order for offences set out at s. 742.1c) was not «overly broad».

Further, there is a rational connection between the measure adopted by Parliament and the objective of denouncing certain serious crimes. In short, the impugned

section withstands the constitutional challenge under s. 7 of the Charter . [ 21 ] In a later

chapter of this decision, I will canvass the respective positions of both parties in greater detail. Along with the parties’ submissions regarding the length of a proper sentence, I will briefly review their arguments regarding the constitutionality of s. 742.1c) of the Cr. C . II. THE ISSUES [ 22 ] Here are the main issues in the present matter: • Firstly, what is the appropriate length of sentence for the offences committed by the offender? • Secondly, if the appropriate sentence is less than two years, should a conditional sentence be imposed? • Thirdly, does the prohibition against a conditional sentence order set out at s. 742.1

c) violate the accused’s liberty rights set out at s. 7 of the Charter ? Of course, this third issue is tied in with the second one. If I deem that the appropriate sentence is more than two years, the constitutional issue becomes merely academic. III. OVERVIEW OF THE FACTS [ 23 ] The facts surrounding the commission of the offences were set out in considerable detail in my reasons for judgment released on November 19, 2019.

For the sake of convenience I will reproduce below a few of the paragraphs in the decision that capture the essence of the factual background to the present matter: [3] In January 2014, the RCMP intercepted a package containing heroin that was destined for an address in Etobicoke (Toronto), Ontario. From the evidence, one gathers that the original importer of the heroin had to pick up the package at a FedEx office in Toronto and then deliver it to a drug dealer in Montreal, Mr. Dereck Clarke. [4] For one reason or another, the importer of the package did not or would not accept delivery thereof.

In what appears to be a « plan B », Mr. Clarke recruited the accused in order to reroute the package containing the heroin to the latter’s address at 528, 2 nd Avenue, in Verdun, Quebec.

[5] After several calls made over a period of seven days with the customer services agents at FedEx, the accused succeeded in rerouting the package to his home address. Before the package was sent out, however, the police removed the heroin and replaced it with an inert substance. Next, they rigged the package with an alarm designed to alert them that it was being opened. [6] Right after accepting delivery of the package, the accused hopped on a cab and headed to the apartment building on Westminster Street where Mr. Clarke lived.

He was observed entering the building with a package in his hand and exiting a few minutes later empty- handed. He then took the same cab back to his residence where he was waiting for another package of heroin that was to be delivered by Canada Post. The delivery of this second package was also made at the behest of the co-accused, Mr. Clarke. [7] The police were following the accused’s every move. They had even wire tapped his cell phone. [8] The officers that followed the accused to Mr.

Clarke’s Westminster address were waiting to receive the signal that the package was being opened before entering the apartment. They didn’t have to wait too long. A few minutes after the package was delivered, the alarm sounded. The police immediately barged into the apartment and proceeded with the arrest of Mr. Clarke. On the floor of the living room, they found the opened FedEx package that originally contained 452 grams of heroin. [9] Before being arrested, Mr. Clarke managed to make a call to the accused telling him that the police were at his door.

A few minutes later, the accused called a woman who lived at the same block apartment on Westminster Street to inquire about what happened to Mr. Clarke. She confirmed that the police had taken him away. A short time thereafter, it was the accused’s turn to receive an unwelcome knock at the door by the police. IV. THE EVIDENCE AT THE SENTENCING HEARING A . Preliminary remarks [ 24 ] A judge is not called to pass sentence for a particular offence, but to sentence the individual who committed the offence.

An offender, therefore, must be dealt with in accordance to his or her individual characteristics, circumstances, needs and potentialities. [ 25 ] A range of mitigating factors, including an offender’s motivation, socio-economic circumstances, mental illness, addiction and upbringing have to be given consideration during sentencing.

In matters of drug trafficking—as in the case before the Court—the offender’s drug addiction is often a relevant factor in explaining why the offence was committed and is also relevant to the prospects of rehabilitation. [ 26 ] In a system in which sentencing is as individualized as is ours, each offender who comes before a judge deserves to have his or her individual facts and circumstances considered in determining a just sentence. [ 27 ] In the present case, the offender did not testify at the sentencing stage of the proceedings.

However, several documents were filed into the court record (letter from the accused, letters of support from his mother and girlfriend, a presentence report and an updated presentence report) attesting to the positive changes in his lifestyle since his arrest more than seven years ago. [ 28 ] At the time of his arrest in February 2014, the offender was nothing but a «pathetic and vulnerable drug addict. » [4] The man who stands before the court today, anxiously awaiting sentence, is a totally changed individual. He has a steady job and enjoys the support of his mother, his step-father and his girlfriend.

Except for one slip-up, he has not consumed hard drugs of any kind. Just as importantly, he regrets his actions and understands the harm caused by the trafficking of hard drugs. In short, he has taken positive steps towards his rehabilitation and reinsertion into society. [ 29 ] The evidence at the sentencing stage also included the testimony of Dr. Will Small, PHD, a renowned and respected expert in matters dealing with substance abuse.

His testimony was accompanied by a 15-page report. [ 30 ] In the following subsections of this chapter, I will review the documents filed by the defence on sentencing as well as the testimony and written report of Dr. Small.

B . Letter from the offender and letters of support

i) The letter of the offender [ 31 ] In a very moving letter, drafted September 4, 2020, the offender set out to explain the reasons for the offence and the manner in which he has turned his life around. [ 32 ] With regards to the commission of the offence, the blame falls to his addiction to cocaine and the misfortune of knowing Dereck Clarke, a drug dealer who exploited his weaknesses : This all started 7 years ago. My addiction to cocaine led me to make questionable acquaintances. I got in the middle of a situation I was never supposed to be in.

It hit me hard that this drug that I felt so necessary to maintain my happiness was only ever going to bring chaos and danger into my life. Dereck Clarke hurt me real bad by involving me in his criminal life. [ 33 ] Since his arrest, however, he has sought help for his addiction and made real efforts to stay drug-free. I decided to quit this substance for good but it was not so easy. I had help from the Crisis Centre. I’ve resorted to their aid regularly by appointment and phone consultations.

I would go to their facility often, weekly at some point…I didn’t give up. [ 34 ] Since turning his life around, he has a better understanding of the manner in which hard drugs are harmful to individuals and society. The point was brought home when he described the empty shell of a woman—no doubt an addict—who robbed at gun point the store where he was working: One month ago, a woman came into the store where I work, attempted to rob the store and customers at gun point. She needed money for her drug habit.

Seeing these events in front of my own eyes really sinks in your brain what the consequences of a drug really are. I’m grateful that Dereck Clarke’s heroin never actually made it to the streets nor got to anyone’s hands, especially any young victim which makes them act in horrible ways. People steal from my store and do anything necessary to get money to get their next “high”. I can see these people have lost their dignity. It’s not a sight to behold. [ 35 ] Given the pernicious nature of the drug, the offender stated that he regrets having participated in the offences.

Yet, despite his obvious participation in the illicit scheme, he appears to minimize his responsibility by writing that it was never his intention to deal in drugs or to participate in any kind of similar activity: I regret being a part of this, I regret it deeply. Drugs hurt every individual no matter the gender or age. A drug dealer is a cancerous tumour that can rip apart the goodness of a society.

It was never my intention to deal drugs in any way shape or form nor would I partake in any kind of similar activity. [ 36 ] In the next-to-last two paragraphs of his letter, the offender elaborates on the positive values he has now come to embrace: I’m now completely devoted to my family life and my job. Gloria, my girlfriend, and I live together. We are building a family together. [ 37 ] He also writes about how he has come out of his ordeal stronger, more mature and fully invested in his community: I am honest and true in everything I do. And the result of my actions is starting to show.

Instead of thinking back on these years with regret, I look at it as being a way to give me strength and drive. I have become stronger and more responsible in every task that I do. And I can finally say I have come through on the better end for most of my life’s series of unfortunate events. I have become involved with the community of LaSalle, getting to know people from all over the area, and even making acquaintances in the community . [ 38 ] He closes the letter by thanking his mom for sticking by him through the hard times.

She need no longer worry, her prodigal son is back on the right path : I also want to finally give peace to my mother, let her know she can stop worrying about losing her son. I want to show her it was worth it to stay by my side and be there for me…

ii) Letter from his mom [ 39 ] The letter begins with an account of the offender’s difficult childhood, which included physical and mental abuse at the hands of his strict and domineering father . Fadi had a very hard life growing up in the Middle East thanks to his father. ...

Fadi suffered both physical and mental abuse, he was often told by his father to «shut up», or «you are not a man», or embarrass him in front of his friends….Because of this, Fadi learned how to shut out his feelings and try to impress his father and could not say the word «no». [ 40 ] Though belittled for not «being a man», he stood up for his mother when she was the target of his father’s rage, taking a beating in the process: I will never forget when Fadi stood between me and his father and took the beating instead of me, it breaks my heart till today; no child should go through all that kind of humiliation. [ 41 ] The judicial process has taken quite a toll (physical and psychological) not only on her son, but on the rest of the family as well.

After stating that her son has suffered considerably « for what he did », the letter concludes with a mother’s unconditional support for her son and a plea for mercy: I’ll never stop supporting Fadi in or out of jail, I’ll stay on his side till the day I die and that goes for his step father and brother too, as well as for my friends who keep supporting and helping by any means they can, they too will always be there for him I hope you can see that Fadi really does have a good heart and that there is also a lot that shows how good of a person he is.

Please search in your heart and I am sure that despite his actions you will find some mercy and empathy for him. iii) Letter of support from his girlfriend, G.S . [ 42 ] In essence she described a caring and giving individual. At the store where they both worked, the offender would go out of his way in helping customers and in «making everyone around him feel good. » She also recounted how the offender was a positive influence in her life: …he took me in at my worst. He is always willing to give a helping hand to me or anyone else. He is very resilient and strong. He always puts me first.

He is always willing to listen to me, to change what’s needed and to do the right thing…He’s given me the motivation to see the world, to not be afraid and to try things out. And when things don’t work out, he’s there and still ready to push me and support me to try again. When frustration or anxiety comes along, he lets me have time and space as needed. He almost always knows what to do and when he doesn’t we figure it out together . C . The Presentence Report [ 43 ] The presentence report drafted by Alice Baudard, dated March 16, 2020, provided useful information on the background and character of the offender.

At the very first paragraph we learn that the he did not have the benefit of a stable home environment during his formative years. As the drafter of the report explained, the offender grew up in a violent and dysfunctional home where he, along with his mother and brother, suffered daily physical and mental abuse at the hands of his father : Mr. Salem, who comes from Egypt and was born in Dubai, said he grew up in a dysfunctional family. Indeed, he described his father as an aggressive, arrogant and oppressive man. According to Mr.

Salem, his father was physically and verbally violent with him, and humiliated him, on a daily basis, when he was a child and a teenager. He was also exposed to violence against his brother and mother. While the whole family seems to be under the control of the father, the mother figure was not available and unwilling to protect her children, considering her own difficulties . [ 44 ] After graduating from college in the United States, the offender moved with his family to Montreal at the age of 21.

The father’s business plan in Montreal was to open a restaurant . [ 45 ] Financial troubles and failure of his father’s business forced the offender to overwork. Exhausted, stressed and overwhelmed by what was happening, the offender became anxious and depressive for the first time in his life. He started drinking alcohol, sniffing cocaine and smoking cannabis. Over time, his drug use intensified and he developed an addiction to sniffing cocaine.

The drafter of the report opined that «this lifestyle kept him for several years in a nonconformist environment and had a negative impact on his physical and mental health, as well as a criminal record. » He was first convicted in 2007 on charges of impaired driving for which he was sentenced to a fine and a driving ban. In 2008, he was convicted of drug possession, for which he received an absolute discharge .

[ 46 ] Though the offender appeared sincere in his desire to abstain from using hard drugs, he still has some work to do: Even though Mr.

Salem mentioned he only used cocaine once in the past year and seems sincere in his desire to get rid of his addiction, his comments show he hasn’t thought much about it, and relies on magical thinking, which suggests that the support of a resource specialized in drug addiction would be beneficial to him. [ 47 ] With respect to the commission of the offence, the offender did not sway from the defence he presented at the trial: Under threat of physical violence to himself and his family, he was coerced by a co-accused into rerouting two packages of heroin from Toronto to his (the offender’

s) apartment. [ 48 ] As mentioned earlier in this decision, the said defence was soundly dismissed. Along with being an active and willing member of the illicit scheme, the offender proved to be quite resourceful in making sure the packages made it to their destination . [ 49 ] With respect to the offender’s inability to accept his responsibility, the drafter made the following comments: He claimed he acted out of fear of reprisals, reflecting, in our view, a low awareness of his personal problems and of the factors that led to the crime. To this end, although Mr.

Salem tends to position himself as a victim, we identify the following underlying elements which contributed to the crime: company of nonconformist peers, lax values, and drug addiction and deficient problem-solving abilities. In short, and in all likelihood, Mr. Salem displayed willful blindness to obtain the benefits he derived from the relationship with the co- accused . [ 50 ] I do have some reservations with the drafter’s use of the term «willful blindness» to explain the offender’s participation in the illicit scheme.

As I already mentioned, the offender was a willing and ready participant in the commission of the offences. Next, the evidence leaves no doubt that the offender knew that the packages contained heroin. [ 51 ] At the «Assessment and Recommendations»

chapter of the presentence report, the criminologist states that the offender’s failings on a personal level stem from his difficult childhood; more particularly, from the mental and physical abuse suffered at the hands of his father : The dysfunctional and violent family environment in which he grew up seems to have had a considerable impact on his emotional development. We believe that under the oppression of his father, he did not have the space necessary to blossom and build himself up. Because of the absence of a positive and significant model, Mr.

Salem did not develop the necessary problem solving tools and emotion management abilities, which seems to have contributed to a drug addiction in adulthood. Consequently, he associated with nonconformist peers, exhibited lax values and had to deal with a deteriorating mental health.

In addition, while the offender seems to have a good capacity for introspection regarding his psychological problems, awareness of his criminogenic difficulties is at an embryonic stage. [ 52 ] This being said, the presentence report does indicate that the accused has made positive steps towards his rehabilitation since his arrest in February 2014. When distressed, he does not hesitate to call his social worker at the Crisis Centre .

Just as importantly, he has distanced himself from negative peers . [ 53 ] According to the criminologist, the offender’s social reintegration consists in continuing to work and in abstaining from alcohol and cocaine. Although of a positive opinion regarding the offender’s reintegration in society, she stated that he could benefit from more specialized help : […] we are of the view that this project should include a specialized approach to drug addiction, a medical approach to his pervasive anxiety and depressive affects, and possibly a psychological therapy to help Mr.

Salem address his past traumas. [ 54 ] When the aforementioned suggestions were made to him, «he demonstrated an openness to intervention. » [ 55 ] The report also mentioned that the offender could count on the support of his mother and stepfather as well as that of two friends deemed to espouse pro-social values. [ 56 ] In light of all the aforementioned information, the presentence report concluded that the offender represents a moderate risk of recidivism . D . The testimony and report of Professor Will Small

i) His qualifications as an expert

[ 57 ] Dr. Small [5] is an associate professor in the Faculty of Health Sciences at Simon Fraser University and also a research scientist at the British Columbia Center on Substance abuse . He is currently director of the Centre for Applied Research in Mental Health and Addiction at SFU.

He has extensive experience in «substance use» research and has published more than 120 peer-reviewed articles over the course of his career. [ 58 ] His academic background, field experience and research projects make him uniquely qualified to testify on matters relating to drug addiction, the dynamics of the drug market and the relationship between drug dealer and addict. [ 59 ] While expressing reservations about the value or weight of Professor Small’s testimony, the Crown did not object to his qualification as an expert on certain facets of drug addiction.

With respect to the limited value of the expert’s testimony, the Crown noted that it was based solely on information garnered from two sources: the decision on the verdict rejecting the defence of duress and the presentence report drafted by Alice Baudard. The offender was never interviewed; nor did the professor gather information from people close to him. [ 60 ] Despite the inherent limitations in the source materials, the expert opined that the offender’s substance use likely met the criteria for a «stimulant use disorder».

The expert added that this disorder qualifies «as a mental disorder per the Diagnostic and Statistical Manual of Mental Disorders (5 th Edition), produced by the American Psychiatric Association (often referred to as the DSM). Succinctly stated, the disorder is characterized by a loss of control over use of the substance and compulsion to continue to use the substance despite recognition of risks and harm that the use is causing. » [6] [ 61 ] As noted by the Crown, the expert is neither a psychiatrist nor a psychologist. It was not disputed, however, that Professor Small has extensive knowledge of drug addiction.

The problem, however, was that the expert was using general observations regarding drug addiction in order to make a specific diagnosis of an offender he had never interviewed. ii) A review of the basic themes covered by the expert’s testimony and written report

a) The diagnosis [ 62 ] Professor Small opined that the offender met four of the criteria outlined in the DSM manual to qualify as suffering from a «moderate or severe stimulant use disorder at the time he was arrested»: 1. ongoing cocaine use; 2. his deteriorating mental health; 3. spending excessive time obtaining and using the substance (cocaine); and 4. from his ongoing stimulant use, he would certainly have had increased tolerance and withdrawal substances [7] [ 63 ] Along with a «stimulant abuse disorder », the offender was also afflicted with mental health issues.

As the expert explained, substance abuse often co-occurs with other mental disorders: Substance use disorders are strongly associated with mental health problems, including mood disorders, anxiety, and personality disorders…It is important to note that in addition to the documented mental health problems Mr. Salem has experienced with depression and anxiety, his substance use represents a further mental health issue to be managed as part of his rehabilitation . [8]

b) Comments from the expert on sentencing related issues (notably, those relating to the «diminished capacity» of the drug-dependent offender) [ 64 ] Based on the aforementioned characteristics of the offender at the time of his arrest, and his knowledge of drug addiction, the expert draws the attention of the Court to four main points relating to sentencing:

1. Mr. Salem had limited ability to decline the request from Mr. Clarke due to his dependence on psychoactive substances; 2. Impaired decision-making ability is a component of substance use disorder, and ongoing cocaine use would have compromised Mr. Salem’s ability to assess the risks involved in the request from Mr. Clarke, and the potential for him to decline involvement; 3. Relationships between drug dealers and drug dependent customers are not equal, but are inherently exploitative , and these dynamics strongly reduced Mr. Salem’s ability to decline the request; 4.

Serving time in the community rather than being incarcerated would be better for Mr. Salem’s health and function, and result in reduced societal costs. (Emphasis added) [ 65 ] In the next sub-chapter of this decision, I will review and analyze the four points described by the expert as relevant to sentencing. In essence, the basic themes relate to the futility of punishing drug-dependent, low-level traffickers like the offender.

As our courts know too well, addicts engaged in low-level trafficking (i.e., street-level) are usually motivated by their addiction to sell drugs in order to access drugs for their own consumption. Their capacity to make the right decisions (and avoid transgressing the law) is often compromised by their overriding need to consume drugs. [ 66 ] Deterrence as a principle in sentencing assumes that rational people make the right choices in order to avoid the consequences of breaking the law.

The problem, however, is that the drug addict’s capacity to make rational choices is compromised by his addiction (and by mental health issues which are often associated with drug addiction). As one writer eloquently explained, addiction does not respond well to deterrence: Deterrence and addiction are incompatible . Addiction involves engaging in drug use on an ongoing basis despite risk of harms or negative consequences associated with these behaviours.

The current model of sentencing views punishment and “sending a message” to the offender (and other offenders) as a solution while addiction as a mere factor to balance on sentence. Understanding addiction and its specific impact to the crime at hand may assist in crafting sentences suited to reduce recidivism. The threat of an increased jail term does not dissolve an addiction [9] [Emphasis added ] [ 67 ] Imposing a stiff penalty on the addict-trafficker who is caught will not serve to deter similarly placed individuals.

Like the disposable henchmen in a Bond movie, the low-level trafficking addict is easily replaced by a host of other addicts who will sell drugs to support their habit. [ 68 ] In the illicit drug trade, drug addicts are shamelessly exploited by their dealers. Because of their addiction, they are easily manipulated into assuming the most visible and dangerous roles. Yet, they get paid the least for taking the highest risks. The little money they make is eventually funnelled back to the dealer from whom they purchase their drugs.

In the end of the day, the hapless addicts only serve as cannon fodder to distance and insulate the real profiteers from police detection. [ 69 ] Instead of focusing on deterrence as the dominant principle in sentencing the addict (who is at the bottom rung of the trafficking hierarchy), courts should prioritize treatment and rehabilitation. The offender in the present matter has made important strides in his rehabilitation. Prison would only compromise his reinsertion into society. — Point 1. Mr.

Salem had limited ability to resist committing the offence [ 70 ] The case for diminished responsibility is predicated on the offender’s addiction to cocaine (and the related mental health issues). As explained by Professor Small, addiction is an illness characterized by a loss of control over the need to consume the substance the addict craves: Dependence and dependence syndrome are important drivers of substance use disorders, and include impaired control over substance use, substance use becoming an overriding priority in the individual’s life, and tolerance to or withdrawal symptoms from the substance.

The psychological aspects of dependence, including the increased tolerance and withdrawal symptoms that accompany reduced use, generate a powerful incentive to continue consumption of the substance, and reduce the potential for abstinence or complete cessation. [10]

—Point 2. Mr. Salem’s impaired decision-making ability on account of his addiction to cocaine. [ 71 ] Transposing what we know of drug addiction to the particular case of the offender and his capacity to resist Dereck Clarke’s offer, the expert opined as follows: In the circumstances faced by Mr. Salem, his dependence on cocaine and his disordered use of the substance would have functioned to limit his ability to decline the request given his need to continue to access the substance he was dependent on through Mr.

Clarke, and would also have contributed to his constrained decision to agree to participate in order to obtain the promised compensation… [11] [ 72 ] Addiction to hard drugs compromises the addict’s reasoning or decision-making process. Specifically, cocaine use is associated with riskier decision-making. [12] With respect to the manner in which cocaine would have affected the offender’s ability to assess risk and fend off the offer of Mr. Clarke, the expert stated the following: Use of this particular substance cocaine, likely impaired Mr.

Salem’s decision-making even further than it would be among the average person with a substance use disorder. These dynamics would have contributed to Mr. Salem’s decision to accept the request and participate by agreeing to receive the package, as his ability to effectively and realistically assess the risks and consequences of involvement was highly likely to be diminished. [13] —Point 3. The unequal relationship between drug dealer and drug-dependent customers . [ 73 ] The relationship between a drug dealer and his drug-dependent client, explained the expert, inherently lends itself to exploitation.

Not bound by any market rules, the addict has no legitimate avenue to settle his grievances. If there was a problem with the product, he surely couldn’t lodge a complaint at the better business bureau. If his working conditions as a low-level trafficker were too harsh, he couldn’t complain to workman’s compensation. In the end, the addict who needs his daily fix of drugs is beholden to his dealer. [ 74 ] Out of necessity, the addict has to maintain good relations with his drug dealer, lest he’s cut off.

This power imbalance between drug dealer and his drug-dependent addict makes it easier for the former to conscript the latter in the risky and dangerous business of drug trafficking. With respect to the manner in which the offender’s subservient role in the relationship with his drug dealer contributed to the commission of the offences in this matter, Professor Small had this to say: It is important to note that Mr. Salem appears to have been heavily reliant on Mr.

Clarke to access his drug supply, and for this reason it would have been crucial to maintain a positive relationship, particularly in the context of his substance use disorder and dependence on cocaine. Declining the request would have jeopardized the relations , and it is possible that Mr. Clarke would have threatened to stop selling to Mr. Salem, which would have required him to find a new supplier, which would involve some effort and potential risks in the illegal drug market [14] . (Emphasis added) [ 75 ] In the drug trade, it is not uncommon for addicts to be indebted to their dealers.

These debts are often leveraged by dealers to manipulate their customers, who have a very difficult time repaying debts due to dependence and constant expenditures for drugs, and the need to maintain relationship with their dealer to access the drug supply. [15] These drug debts, explained the expert, could be cleared by doing a «favour» for the dealer or «working» them off through involvement in drug trafficking activities. [16] Unfortunately, difficulty in repaying the debt leads to an endless cycle of exploitation: Sometimes participation in these activities is only sufficient to cover the interest on the debt, leading to a form of debt servitude where the individual becomes a long-term employee of the dealers solely due to a previous debt, and the need to obtain and use drugs on a daily basis. [17] [ 76 ] For the expert, the offender’s relationship with Mr.

Clarke had all the trappings of abuse. As with other addicts, the former’s drug dependence was actively and intentionally leveraged by the latter. In support of this conclusion, the expert noted that the offender regularly scored free drugs from Mr. Clarke. The free drugs, in effect, created a sense of «obligation» owed by the addict to his dealer.

Also, the free drugs served to «prime» the offender for an eventual participation in the commission of the offences. [ 77 ] The expert also selected passages from the intercepted communications to buttress his conclusion that the offender was being groomed or leveraged to do the dealer’s bidding [18] . In one of the said communications, for instance, the offender is heard to say the following to Mr. Clarke, « you’ve spoiled me, yes…but this is work». On the premise that the said excerpt refers to previous favours of free drugs, it suggests, according to the expert, that Mr.

Clarke had previously acted generously toward Mr. Salem, in some ways «grooming »him to cultivate a debt he could later collect on. [19] [ 78 ] In another passage from the intercepted communications, Mr. Clarke tells the offender that «he is smoking for free» and that he «should be happy». In the expert’s view, this was another way for Mr. Clarke to remind the offender that free drugs come at a price: While this demonstrates that Mr. Salem was being supplied with drugs without charge while the process of trying to reroute the package was underway, Mr. Clarke was tactfully reminding Mr.

Salem of his seeming generosity, and implicitly drawing attention to the reward access and use of these substances represented. [20] [ 79 ] The offender’s active participation in rerouting of the package of drugs from a warehouse in Toronto to his residence in Montreal did not detract from the expert’s conclusion that he (the offender) did not have the capacity to resist Mr. Clarke’s offer. Nor did it put a dent in the view that the offender was effectively coerced by Mr. Clarke to participate in the illicit scheme.

On the contrary, his apparent eagerness in accomplishing his task was nothing more than a subordinate trying to impress (or cozy up) to his superior. In the mind of the addict, diligence in the task at hand was essential in maintaining a good relationship with his supplier of psychoactive substances: …in his reports to Mr. Clarke regarding his efforts and persistence may have been intended to display that he was working hard to achieve the objective assigned to him, partially to maintain a positive relationship with Mr.

Clarke, and he may have anticipated being rewarded with additional substances free of charge for displaying initiative and diligence. It was like he blocked the risks involved out of his mind, and focused on the financial reward which would let him obtain a considerable quantity of drugs. [21] [ 80 ] To sum up, the dynamics of the drug trade readily lends itself to exploitation of the addict by his dealer. In the case at hand, Mr.

Clarke knowingly and actively leveraged the offender’s addiction by making him an offer he knew the latter would have extreme difficulty refusing, and effectively coercing him into joining the conspiracy. [22] On the issue of diminished responsibility, the offender’s addiction—and the overriding need to procure more drugs—hampered his ability to make the right choices and to resist Mr. Clarke’s offer. — Point 4. Serving time in the community would serve the best interests of the offender and of society. [ 81 ] In this

section of his report, the expert makes the case for the offender’s rehabilitation in the community rather than in prison. His argument takes into consideration the following factors: Positive steps taken by the offender in his rehabilitation The offender has made progress in resolving problems relating to his mental health and substance abuse by accessing psychosocial support from a social worker through a crisis centre.

Except for one incident back in December 2019, the offender has not relapsed. [23] Also, the offender is amenable to a specialized approach to deal with his drug addiction as well as medical treatment and psychological therapy to help him deal with his pervasive anxiety and depression issues. Want of effective therapy in jail Effective therapy for the offender’s substance abuse disorder and mental health issues are not readily accessible in a prison environment.

Here, the expert echoed the concerns of researchers regarding the inadequate « or patchwork » care received by inmates in Canadian prisons. This is especially true for detainees with mental health issues. [24] Danger of relapsing in a prison environment A jail term would increase the likelihood of the offender relapsing and would compromise his chances of rehabilitation.

Treatment makes for better public policy From a strictly utilitarian point of view, incapacitating the offender through a prison sentence—as opposed to offering him treatment— would not be a good return on the taxpayer’s investment. [25] What is more, the societal costs stemming from his incarceration could also increase if exposure to the correctional environment or the lack of care leads to a worsening of his mental health and/or substance use, impedes his rehabilitation, or leads to further criminal behaviour. [26] [ 82 ] Treating the offender, in short, is a «win-win» for society: Firstly, the public is better protected—an offender who receives treatment and is rehabilitated is less likely to reoffend.

Secondly, treatment in view of rehabilitation—as opposed to incarceration in the name of deterrence—is a more cost efficient way of dealing with offenders who commit crimes in order to feed their addiction. [ 83 ] In his concluding paragraph, Professor Small sums up the case for leniency on sentencing . Along with considerations relating to the offender’s diminished capacity to resist committing the offences, the expert stressed that incarceration poses a significant risk to his mental stability and rehabilitation.

Just as importantly, the interests of society are best served by rehabilitating rather than incarcerating the addict-dependent offender: In light of all the above considerations, I would recommend leniency in sentencing due to the extenuating circumstances which limited Mr. Salem’s ability to decline the request, and diminished his decision-making ability and the potential to decline the request. Some of these stemmed from the power imbalance characterizing his relationship with Mr. Clarke, who recruited him to participate. In light of the considerations related to Mr.

Salem’s rehabilitation and the management of his mental health and substance use, it is clear to me that serving time in the community would be better for his individual health, and precipitate less societal costs. He would do better in the community, with more access to support, community services and programs. This would also be better for society as he would be more likely to succeed in his rehabilitation, rather than have his condition worsen, which could lead to further substance use resulting in additional healthcare costs as well as potential recidivism. [27] E .

Some difficulties with Professor Small’s analysis [ 84 ] No one, including the undersigned, doubts that professor Small is well versed in the many facets of drug addiction. For the following reasons, however, I must be cautious with respect to the ultimate weight or value of his expertise regarding the particular offender before the Court : Inherent limits in the methodology [ 85 ] Much of Professor Small’s analysis consisted of superimposing a general understanding of drug addiction (and the dynamics of the drug trade) to the particular circumstances of the offender.

Yet, he never interviewed the offender, nor did he ever consult his medical file. Can one reasonably assume that all drug-dependent offenders are cut from the same cloth? • Inherent limits in the source materials consulted [ 86 ] Information regarding the offender’s substance use and mental health issues were gleaned from the presentence report drafted by Alice Baudard. While the eight-page report includes details about the offender’s dysfunctional early years and his drug addiction, there are few details about his mental health issues.

One passing reference to the offender’s «deteriorating» mental health merely states

that he «struggled with anxiety and depression. » A short note attached to the report adds that the offender has sought help at a hospital emergency room for depression and anxiety, for which medication (Ativan and Paxil) were prescribed. [28] [ 87 ] As for the decision on the verdict, the professor appears selective in the passages or comments that support the position of diminished responsibility while ignoring others that may compromise that position.

Case in point: the professor’s report references a paragraph of the decision on the verdict where the offender is described as an «unemployed and destitute drug addict who was dependent on Mr.

Clarke for his daily fix of cocaine and cannabis.» [29] The said passage, however, is followed by another sentence in which I dismissed the suggestion that the offender—on account of his addiction—was in no condition to properly assess the situation or that his ability to perceive a reasonable alternative to committing the crime was compromised. [30] I also added that the accused was/is an intelligent, college-educated man who, despite his addiction, had the capacity to assess the viable avenues of escape, assuming he wanted to do so. [31] .

Paucity of evidence supporting the view that the offender was being leveraged or groomed by Mr. Clarke. [ 88 ] In the course of his testimony at trial, the offender recounted that he was addicted to both cocaine and marijuana. Both drugs were procured at the apartment of his drug dealer, Mr. Clarke. In terms of quantities, the offender would usually purchase between one quarter to a half gram of cocaine on a daily basis. As for the marijuana joint , the dealer regularly offered it for free. Interestingly, the offender added that he was not indebted to Mr.

Clarke at the time he was asked to join the conspiracy. [ 89 ] The absence of an actual drug debt does not stand on all fours with the expert’s view that the offender’s drug dependence was actively and intentionally leveraged by Mr. Clarke to participate in the illicit scheme.

More likely than not, throwing in a free joint with every purchase of cocaine was nothing more a good business practice—or a dealer’s way of maintaining a client’s loyalty. [ 90 ] The theory of the offender being groomed for the offence is also inconsistent with the fact that he was a last-minute participant in the conspiracy—circa seven days before the arrival of the first package of heroin on February 11, 2014. Were it not for the fact that the original recipient of the drug-laden package in Toronto refused delivery, the offender would not have been asked to join the conspiracy. Difficult to believe that Mr.

Clarke was grooming the offender for the longest time by selling him cocaine and offering free marijuana on the off chance that he would be needed—as sort of «plan B»—to reroute drugs stored in a FedEx warehouse in Toronto to Montreal. [ 91 ] This being said, it stands to reason that Mr. Clarke would have looked to someone like the offender—a destitute drug addict —as a last minute replacement to complete the illicit scheme. He knew the offender and he knew of his financial difficulties. If not the offender, Mr.

Clarke would probably have turned to another addict to take the risk of receiving the package of drugs. The higher ups in the trafficking scheme don’t expose themselves to detection, only the marginalized do. [ 92 ] In short, the offender’s addiction and financial difficulties made him an easier recruit to join the conspiracy. However, one can’t claim—as does the defence—that the offender was conscripted by Mr. Clarke in the scheme. V. DETAILED POSITION OF THE PARTIES A . The defence

i) The factors in favour of a sentence below the usual range) [ 93 ] Essentially, the defence’s representations on sentencing highlighted the following points: • Parity on sentencing

[ 94 ] An appropriate sentence for the offender should be well below the sentence of five years and ten months meted out to Mr. Clarke, the «big dealer». [32] As explained by defence counsel in his brief: (Mr. Clarke) had a far higher role to play in these crimes. He had the power. He recruited the addicted client. He exploited his relationship of dependence with the (offender). He has a long criminal record. The public, armed with knowledge of the full panoply of the relevant facts in this matter, would be incensed to learn that the (offender) received a sentence that was anything like the one imposed on Mr.

Clarke. [33] • The offender’s limited role in the conspiracy [ 95 ] He was only recruited at the last moment when the individual first assigned to pick up the package bailed out. As the lowest and most vulnerable participant in the conspiracy, his role was limited to providing an «address» for the delivery of the drugs. In the defence’s brief, the minor role of the offender was described as follows: The (offender) was the proverbial «small fry». The lowest rung on the ladder. He was a plan «B» for delivery purposes only. The packages of heroin were already in the pipeline before Mr.

Clarke got the (offender) involved. [34] • The offender’s addiction to drugs [ 96 ] Like many low-level traffickers, the offender’s implication in the conspiracy is explained by the need to get money to support a drug addiction or to pay off a drug debt. • Diminished capacity to resist offending on account of the power imbalance between the drug-dependent offender and his dealer [ 97 ] Here it was noted that the dynamics of the offender’s relationship with Mr. Clarke (his dealer) compromised his ability to make the right choices.

As defence counsel eloquently explained in his written submissions: The offender was in the throes of an illness when he was recruited and used by the person who likely had the most power over him at the time—his dealer. Prior to that recruitment, the offender was a destitute junkie . [35] • Diminished capacity to resist offending on account of mental illness [ 98 ] Along with his drug addiction, the offender also struggled with mental health issues relating to anxiety and depression.

An offender’s mental condition may reflect on his moral culpability, and may also mean that sentencing purposes such as general deterrence and denunciation have less weight. • The offender takes all the risks [ 99 ] On the theme of exploitation of the addicted offender at the hands of his dealer, defence counsel noted that the former takes all the risks while insulating the latter from detection and arrest: The dealer had the power and the interest to protect himself at the expense of a weak and dependent client.

The junkie was an easy target to become the «stooge» and potential fall guy should something go wrong. [36] • Difficult childhood as a contributing factor to the offender’s involvement in the conspiracy [ 100 ] Here, counsel argued that the dysfunctional home in which the offender grew up impacted negatively on his capacity to say «no» to Dereck Clarke. • Positive steps in his rehabilitation: [ 101 ] While not discounting the importance of sentencing principles relating to the traffic of hard drugs, counsel reminded the Court that rehabilitation is also a relevant objective, and should be given real consideration in the present matter.

In his brief, the offender’s metaphorical road to Damascus was described as follows: Once an impoverished drug addict who led a meaningless existence, the (offender) today is a hard-working member of the community, who worked through the entire pandemic as an essential worker, is good at his job, has respected the law for over (seven) years, sought out help in 2016 and has made continuous, strong and (but for one incident) successful efforts at making use of professional support in beating his addiction. Those efforts continue and will for some time. He has respected his conditions of release.

He has the loving support of his family as well as a life partner with whom he lives. [37] [ 102 ] The presentence report is described as generally positive. Though the drafter of the report deemed that the risk of recidivism was moderate, counsel noted that the offender had not reoffended in the seven years since his arrest; nor, for that matter, did he breach any of the conditions of his bail. [ 103 ] Incarceration, argued counsel, would only compromise the offender’s serious efforts at rehabilitation .

Treatment in the community—rather than the patchwork health services offered by a prison—is in the best interest of both the offender and society. • Immigration consequences

[104] The offender’s legal status in Canada is that of a landed immigrant. Given the nature of the offences, he is subject to adeportation order upon completion of his sentence. However, a sentence of two years less a day in the community would still entitle him to appeal such an order on humanitarian grounds.[38] ii) (Submission for a conditional sentence) [105] Considering the offender’s limited role in the offence and the positive prospects of rehabilitation, defence counsel argued fora conditional sentence of two years less a day plus a probation of three years.

To make the suggestion more palatable (as deterrenceusually calls for a significant penitentiary term), counsel added to his suggestion on sentencing the obligation for the offender to perform240 hours of community service. [106] Recalling the words of Chief Justice Lamer in the seminal decision of R. v.

Proulx, 2000 SCC 5 , [2000] 1 SCR 61,counsel argued that a carefully crafted conditional sentence order would at once meet the sentencing objectives of deterrence and rehabilitation.[39] Lest one believes that a conditional sentence order is too lenient and ill-suited for the sentencing purposes ofdeterrence, the Chief Justice stated that: Moreover, a conditional sentence can provide significant deterrence if sufficiently punitive conditions are imposed and the public ismade aware of the severity of these sentences.

There is also the possibility of deterrence through the use of community service orders,including those in which the offender may be obliged to speak to members of the community about the evils of the particular criminal conduct in which he or she engaged, assuming the offender was amenable to such a condition. [40] [107] A sentence served in custody—be it in a provincial or federal institution—would only compromise the positive steps taken bythe offender in his rehabilitation and reinsertion in society.

Incarceration for the purposes of deterrence would serve no real purpose.Addicts at the bottom rung of the trafficking hierarchy are not deterred by fear of punishment. The overriding need to consume drugsdiminishes their ability to make the right choices. If sentenced to a severe jail term—where treatment opportunities are limited—theoffender will only be caught in the revolving door of the criminal justice system.

In the final analysis, society and the individual offenderare best served by a sentence that incorporates both the principles of rehabilitation through treatment and deterrence—in this case, acarefully crafted conditional sentence. [108] Defence counsel was alive to the fact that the weight of the jurisprudence prioritizes deterrence and denunciation whensentencing individuals for trafficking hard drugs, all the more so when dealing with commercial quantities of heroin—the worst of all thehard drugs.

There are no reported cases in which our courts have meted out provincial sentences for trafficking in commercial quantitiesof heroin, even when the offender was a marginalized junkie at the low-end of the trafficking hierarchy.

This being said, counsel correctly noted that ranges in sentencing are not cast in stone, they are merely guide lines.[41] Deterrence notwithstanding, a sentence still has to be individualized.[42] In exceptional circumstances, rehabilitation becomes the dominant objective on sentencing and leniency is warranted.[43] iii) (On the constitutional issue) [109] Through the Safe Streets and Communities Act passed by Parliament in 2012, conditional sentences were put out of reach foroffences punishable to a maximum term of 14 years or life.

The goal, of course, was to prevent offenders charged with serious crimesfrom benefitting from house arrest. The problem, according to defence counsel, is that the law applies to all offenders across the entirerisk spectrum—there is no allowance for the personal circumstances of the offender or his or her role in the commission of the offences.The prohibition applies equally to the kingpin as it does to the low-level street dealer whose addiction has left him or her largelyimpoverished and who trades in drugs only to feed his or her addiction.

For that matter, the prohibition fails to consider that the offencescovered by the prohibition can be committed across a broad range of seriousness. [110] To determine whether a crime is «serious» argued the defence, one must look at the circumstances of the actual crime committed, and not merely the offence that appears on the charging sheet and the correlating maximum sentence.[44] Sentencing must be sufficiently flexible to respond to the myriad of ways an offender can commit an offence.[45]

[111] For the defence, Parliament cast the net too wide when imposing a blanket prohibition for a conditional sentence based solelyon the maximum sentence an offence attracts. While the provision itself is not arbitrary in the general sense, it is overbroad because itapplies to all offenders, regardless of their circumstances. The legislated maximum sentence for an offence cannot be an appropriateproxy for its seriousness. [112] The defence’s constitutional challenge relied heavily on the decision of the Ontario Court of Appeal in Sharma, supra. In thatcase, the majority of the Court found that the amendments to

section 742.1c) were not arbitrary as they coincided with Parliament’spurpose. Nonetheless the majority decision—penned by Feldman J.A., ruled that the impugned provisions run afoul to

section 7 of theCharter on the basis of overbreadth : [174] I conclude that the impugned provisions are contrary to s. 7 of the Charter because they resulted in the deprivation of Ms.Sharma’s liberty in a manner that was not in accordance with the principle of fundamental justice of overbreadth.

There is no rational connection between the impugned provisions’ purpose and some of their effects.[46] [113] In short, there is no correlation between Parliament’s concern about responding to serious crime and the tool it used as a gaugeto implement that concern. [114] Using the maximum penalty as a proxy for determining the seriousness of an offence also runs contrary to the basic objectivesof the conditional sentence.

When the conditional sentencing provisions were introduced in the Criminal Code in 1996, Parliamentwished to reduce the number of prison sentences and enlarge the application of corrective justice principles.

Parliament was motivated by the general incapacity of imprisonment to ensure the rehabilitation and social reintegration of offenders.[47] Unfortunately, the 2012amendments to the Code have taken a conditional sentence off the table for certain offences even where the level of the offender’s moralculpability is low and society would gain little by his or her incarceration. [115] In the same vein, the blanket prohibition against conditional sentences for certain offences runs contrary to the basicsentencing principle of proportionality.

This principle involves a consideration of the gravity of the offence and the degree of moralculpability of the offender. B. Position of the Crown

i) On the proper sentence) [116] In Mr. Salem’s case, Crown counsel suggests that a fit sentence would be a five-year penitentiary term. Such a sentence would be at the lowest end of the sentencing range for this type of crime concerning a commercial quantity of heroin[48]: the first packageMr.

Salem received contained roughly a pound of heroin (452gr.), while the second he agreed to receive contained slightly less than halfthat amount (221gr.) [117] While not unsympathetic to the personal circumstances of the offender, Crown counsel noted that deterrence is always the prime objective in heroin-related crimes and there are relatively few cases which call out for leniency or mitigation on sentence.[49] Referencing our Court of Appeal’s decision in Mohamed v.

R., 2017 QCCA 1643 , Crown counsel reminded the Court thatheroin is the most sinister of all the illicit street drugs: [9] […] Heroin is one of the most pernicious of the hard drugs, it is one of the most addictive, the most destructive and the mostdangerous of drugs. In Pushpanathan v. Canada, (SCC), [1998] 1 S.C.R. 982, at para. 79, Cory J.described heroin trafficking as a “despicable crime” that “tears at the very fabric of our society”: The United Nations considers heroin to be the most dangerous of illicit drugs. Trafficking in that drug is indeed a despicable crime.

Itwill be demonstrated that its consumption leads consumers, almost inexorably, to commit crimes to satisfy their addiction. The potentialprofits are so high that it frequently leads to criminal activity and money laundering. It can lead to corruption of customs officials, policeand judicial officers. It is a crime with such grievous consequences that it tears at the very fabric of society. [118] Given the social harm wrought by the trafficking in heroin, the courts have to send a clear message of deterrence.

Anyonedealing in a dangerous dependence-producing drug like heroin must be made to realize that the courts will not be sympathetic, but will

exact a heavy price if found guilty of that offence. [ 119 ] In support of its submission on sentencing, Crown counsel submitted a host of cases where our courts have held that deterrence is the guiding principle in sentencing heroin traffickers. The said principle applies equally to the bigwig who deals in commercial quantities of the drug as it does to the low-level trafficker who deals in smaller quantities. [50] The case law relied upon by Crown counsel will be discussed in a later

chapter of this decision. [ 120 ] The aggravating factors highlighted by Crown counsel are summed up as follows: (

i) The objective gravity of the offence. The maximum punishment for the offence at s. 5(2) and 5(3)

a) of the Controlled Drugs and Substances Act is a life sentence . (ii) The nature and quantity of the drugs involved The nature of the drug and the large quantity involved (2/3 of a kilogram when one combines the two packages of heroin) places this criminal activity at a higher degree of seriousness within the broad range of drug trafficking offences . At paragraph 10 in Crown’s brief, it pointed out that a pound of heroin is a commercial quantity [51] and when such amounts are being trafficked, organized crime is necessarily in the picture [52] . In Mr.

Salem’s case, the initial pound of heroin tested at 57-58% pure. The second package of heroin Mr. Salem agreed to receive, which contained approximately a half pound of heroin, was 46% pure. (iii) The accused’s role in the commission of the offences Though the offender was not a key player in the conspiracy, his participation was nonetheless essential to its completion. While defence counsel cast the offender as a little more than an «address», Crown counsel insisted on the very active part he played in assuring that the two packages of heroin would be successfully rerouted from Toronto to Montreal.

To quote from paragraph 35 of Crown counsel’s brief: « Although Mr. Salem, who was 35-years old at the time, played a minor role in these heroin transactions, it was a critical one, which he accomplished with gusto. » (iv) The offender was not a heroin addict . Mr. Salem was not a heroin addict arrested for trafficking a few “points” to feed his habit. Rather, the evidence is that Mr.

Salem was a cocaine and cannabis consumer who participated in these heroin transactions to earn $1,500. [53] Though some of the money from his prospective earnings would probably have gone to purchasing drugs, above all else he was looking to make some money. [54] The monetary motive for his participation is also corroborated by the fact that the offender never asked his co-conspirator and personal drug dealer to be paid in drugs rather than cash. [55] [ 121 ] With respect to the mitigating factors, Crown counsel noted the following: (

i) The offender, for all practical purposes, has no criminal record; (ii) The offender is a drug addict.

[ 122 ] Crown counsel then commented on the following factors which, in the present matter, don’t fit neatly into the mitigating/aggravating categories: (

i) The absence of a guilty plea The offender’s refusal to recognize his criminal responsibility is not an aggravating factor. However, it does not mitigate his level of responsibility in these crimes either. (ii) Rehabilitation (not yet completed) While the offender has taken positive steps towards his rehabilitation, it is by no means complete. On this point, Crown counsel pointed to the presentence report where the author opined that «awareness of his (the offender’

s) criminogenic difficulties is at an embryonic stage» [56] and that his risk of recidivism was assessed as being moderate in March 2020. [57] An updated report also concluded that the risk for recidivism was moderate. [58] (iii) Delay in the proceedings More than seven years have passed since the offender was first charged and arrested in February 2014 and the date of his sentencing. While subject to strict conditions, he managed (with one exception) to stay drug free. He has not broken any of the conditions of his bail, nor has he reoffended.

Just as importantly, he had to live for the longest time with the uncertainty and stress brought on by the judicial proceedings against him. While not discounting the importance of the offender’s post-offence conduct in the past seven years as a mitigating circumstance on sentencing, Crown aptly noted that the procedural delays in this matter were largely due to tactical choices made by the defence. (iv) Immigration issues The offender’s eventual issues regarding his status in Canada (deportation) cannot skew the sentencing process.

In the Crown’s view, this is one of those cases where collateral immigration consequences are unavoidable, as a fit sentence will remain a penitentiary term. [59] (

v) Dr. Small’s testimony is to be taken with a «grain of salt» Crown counsel had several issues with the testimony of Professor Small. For one thing, the expert’s testimony was predicated on bare- bones material: the presentence report and the decision on the verdict. The expert never interviewed the offender, nor did he ever consult his medical file. Despite not being a psychiatrist or a psychologist (and despite the limited nature of the source materials), he opined that the offender «likely met the criteria for a «stimulant use disorder».

Secondly, Professor Small’s testimony and report presume certain facts which are not borne out by the testimony, i.e. the allegation that the offender had a drug debt towards his co-accused/dealer.

Conversely, the expert’s opinion regarding the level of the offender’s addiction and his diminished capacity fails to take into account certain facts or observations that appear in the trial judgment, notably, comments to the effect that there was no indication in his speech —as captured by the wiretap and self-recorded messages – that he was under the influence of stupefying substances at the time of the offences [60] . [ 123 ] Finally, crown counsel concluded his submissions on sentencing by addressing the issue of parity.

One will recall that defence counsel raised the parity issue so that a sentence properly reflects the very different roles played by Mr. Clarke and the offender in the present matter. Surely, the offender’s status as low-man on the totem pole along with his limited participation in the conspiracy merits a sentence that is significantly less than the term of five years and ten months meted out to the «big drug dealer» and major player in the offence, Mr. Clarke. Also, Mr. Clarke, unlike the offender, had a criminal record that included armed assault, robbery, theft, obstruction and possession of a

schedule I drug for which he was sentenced to a prison term of 90 days to be served intermittently. [ 124 ] This being said, Crown counsel noted that Mr. Clarke pled guilty to the charges against him back in January 2017—entitling him to a discount on sentencing.

Though the offender’s choice to proceed with a trial is not an aggravating factor, he deprived himself of an important mitigating factor on sentencing—a guilty plea along with the recognition of his responsibility. [ 125 ] On the parity issue, Crown counsel also discounted the relevance of the co-accused’s criminal record for justifying a significantly lighter sentence for the offender in the present matter. As counsel explained at paragraphs 35 and 36 of his brief: [35] Of note, (Mr. Clarke) had no prior convictions for trafficking and no prior convictions involving heroin.

In fact, all his prior convictions in drug matters were simple possession charges and – with the exception of one cocaine possession – they all involved cannabis.

[36] The sentences Mr. Clarke had previously received in drug matters ranged from a small fine to an intermittent sentence of 90 days: - 2006 (simple possession of cocaine): 90-day prison served intermittently; - 2006 (simple possession cannabis): $75 fine; - 2007 (simple possession cannabis): 1-day prison; - 2009 (simple possession cannabis): $100 fine; - 2011 (simple possession cannabis): $400 fine. [ 126 ] Finally, in the comparative analysis between the circumstances of the offender and that of the co-accused, qualifying the latter as the «big dealer» does not reflect reality. In the drug hierarchy, Mr.

Clarke was, relatively speaking, also a « small fry», just a notch above that of the offender in the drug trafficking hierarchy. Until the offender moved out to his new apartment in Verdun, both he and the co-accused lived in the same building. ii) On the constitutional issue [ 127 ] As I mentioned at the top of this decision, Crown counsel has argued that the constitutional question is largely academic as the proper sentence for a person who deals in commercial quantities of heroin is incarceration in a penitentiary.

The attenuating circumstances—such as the offender’s addiction and his role in the commission of the offences—can only justify a carceral term at the low-end of the range, five years. [ 128 ] Even if I sentenced the offender to a term of less than two years, Crown counsel argued that a conditional sentence could not adequately due justice to the dominant principles of deterrence and denunciation in this case. [ 129 ] This being said, Crown counsel addressed the constitutional issues raised by the defence on the «off chance» that I would sentence the offender to a provincial term of incarceration.

Crown’s brief on the constitutional issue—like that provided by the defence —is quite detailed.

In this chapter, I will try to summarize the gist of the argument holding that Parliament’s decision to withdraw from the conditional sentencing scheme certain offences was/is legitimate. • Legitimate purpose [ 130 ] Parliament’s purpose in removing the availability of conditional sentences for persons convicted of offences for which the maximum term of imprisonment is 14 years or life is to promote and enhance public safety and security by emphasizing the objectives of denunciation and deterrence for serious crimes, including drug trafficking.

The suggestion that they are overbroad turns on an incorrect characterization of the purpose of the enacting legislation, and a finding that Parliament was wrong to use maximum sentences as a “proxy” for what types of offences are serious. [61] • Deference to the means chosen by Parliament [ 131 ] In furthering its purpose to emphasize deterrence for the punishment of certain offences, it was open to Parliament to reference maximum sentences as part of limitations to the availability of conditional sentences. • Rational connection between the law’s purpose and its effects [ 132 ] There is a rational connection bet

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