R. v. Frost, 2012 NBCA 94

COURT OF APPEAL OF NEW BRUNSWICK 24-12-CA HER MAJESTY THE QUEEN APPELLANT SA MAJESTÉ LA REINE APPELANTE - and - - et - JOSHUA VINCENT WILLIAM FROST RESPONDENT JOSHUA VINCENT WILLIAM FROST INTIMÉ R. v. Frost, 2012 NBCA 94 R. c.

Frost, 2012 NBCA 94 CORAM: The Honourable Justice Larlee The Honourable Justice Quigg The Honourable Justice Green CORAM : L’honorable juge Larlee L’honorable juge Quigg L’honorable juge Green Appeal from a decision of the Provincial Court: February 3, 2012 Appel d’une décision de la Cour provinciale : Le 3 février 2012 History of Case: Historique de la cause : Decision under appeal: Unreported Décision frappée d’appel : Inédite Preliminary or incidental proceedings: N/A Procédures préliminaires ou accessoires : S.O.

Appeal heard: June 19, 2012 Appel entendu : Le 19 juin 2012 Judgment rendered: November 22, 2012 Jugement rendu : Le 22 novembre 2012 Reasons for judgment by: The Honourable Justice Quigg Motifs de jugement : L’honorable juge Quigg

Concurred in by: The Honourable Justice Larlee The Honourable Justice Green Souscrivent aux motifs : L’honorable juge Larlee L’honorable juge Green Counsel at hearing: For the appellant: Cameron H. Gunn For the respondent: Richard Cove Avocats à l’audience : Pour l’appelante : Cameron H. Gunn Pour l’intimé : Richard Cove THE COURT Leave to appeal is granted, the appeal is allowed, and the conditional sentences varied to concurrent terms of four months imprisonment commencing February 3, 2012, the date the sentence was originally imposed. Mr. Frost shall be credited on a one-for- one basis for the time served.

The probation order imposed by the sentencing judge continues in force. The mandatory firearms prohibition under s. 109(1) (

c) of the Criminal Code shall be imposed. LA COUR Accorde l’autorisation d’appel, accueille l’appel et remplace les peines d’emprisonnement avec sursis par des peines concurrentes de quatre mois à purger à compter du 3 février 2012, date à laquelle la sentence a initialement été prononcée. M. Frost bénéficiera d’une réduction de sa peine correspondant à la durée de la période déjà purgée. L’ordonnance de probation rendue par le juge qui a déterminé la peine reste en vigueur. L’interdiction obligatoire de posséder des armes à feu qui est prévue à l’ al. 109(1)

c) du Code criminel sera imposée. The judgment of the Court was delivered by QUIGG, J.A. I. Introduction [ 1 ] The Attorney General seeks leave to appeal concurrent conditional sentences imposed by a Provincial Court judge after Joshua Vincent William Frost pled guilty to two separate indictable charges of possession for trafficking, one indictable charge of having in his possession proceeds of property of a value exceeding five thousand dollars, knowing that the proceeds of property were obtained by the commission of an offence, and unlawful possession of a controlled substance.

For the reasons that follow, I would grant leave to appeal, allow the appeal, and vary the sentences to concurrent terms of four months imprisonment. In view of the fact Mr. Frost has completed his four-month conditional sentence, I would give him credit for time served. At the outset of the hearing, counsel for Mr. Frost conceded that the judge erred in dispensing with the mandatory firearms prohibition. This error alone allows us to grant leave and to impose a proper sentence. II. Background

[ 2 ] On February 17, 2011, members of the Fredericton City Police responded to a call from a security officer on the University of New Brunswick Campus (UNB). The security officer advised the police that he had been travelling on Dineen Drive, near the UNB bookstore, when he was flagged down by Mr. Frost. Mr. Frost advised him he had just been robbed by an individual who had proceeded toward the Forestry Building. The security officer went in search of the suspect and was able to locate him in a washroom in Bailey Hall. [ 3 ] Mr.

Frost advised the police that his backpack, which contained his laptop and a small amount of marihuana, had been stolen by the individual. The backpack was recovered and then seized as incidental to Mr. Frost’s arrest.

The backpack contained: ➢ a large baggie containing 91.65 grams of marihuana; ➢ a large baggie containing 51.85 grams of psilocybin; ➢ a small bag containing 2.32 grams of morphine; ➢ a small bag containing 30 smaller individual baggies; ➢ a small spoon with suspected morphine residue on it; and ➢ $15,610 in cash, separated into 15 stacks of $1,000 (comprised of $20 bills), thirty $20 bills and one $10 bill in his pants pocket. [ 4 ] Mr.

Frost was arrested for possession for the purpose of trafficking as well as having in his possession proceeds of property of a value exceeding $5,000, knowing that the proceeds of property were obtained by the commission of an offence punishable by indictment. The other individual was charged with robbery. Mr. Frost and the other individual were known to each other. During the police interview, Mr. Frost advised he was a fourth year student at UNB. He ultimately confessed to being in possession of the drugs and the money recovered from the backpack.

He stated that all of the drugs were his, that he had been selling drugs to students on the UNB Campus for approximately two years, and that he usually carried the drugs at all times. Mr. Frost claimed the morphine was for personal consumption. He told the police he was on his way to purchase a large quantity of drugs and that was why he had so much cash in his possession. When asked why he was selling drugs, Mr. Frost replied he needed to pay off his student loan. [ 5 ] According to the police report, the marihuana would have been valued at $10 a gram; therefore, it would be worth $916.50.

The psilocybin, based on a street value of $10 a gram, would be worth $518.50. The morphine was worth approximately $45. The total street value of the drugs seized was $1,480. On April 26, 2011, Mr. Frost pled not guilty to the charges but changed his plea to guilty on December 1, 2011, and a Pre-Sentence Report was ordered. III. Sentencing [ 6 ] Mr. Frost’s sentencing hearing was held on February 1, 2012. At the hearing, counsel for Mr. Frost sought a conditional sentence. Mr. Frost had no prior criminal record and he was a fourth year university student with a good academic record.

The Crown requested a sentence of three to six months incarceration and was opposed to a conditional sentence. [ 7 ] A Provincial Court judge sentenced Mr. Frost on February 3, 2012. The judge rejected the imposition of the mandatory firearms prohibition and imposed the following sentences:

a) With respect to unlawfully having in his possession for the purpose of trafficking, a controlled substance to wit: Cannabis(marihuana), a term of 4 months imprisonment to be served in the community pursuant to

section 742.1 of the Criminal Code of Canada,a probation order for a period of 12 months and a victim fine surcharge of $100;

b) With respect to unlawfully having in his possession for the purpose of trafficking, a controlled substance to wit: Psilocybin(mushrooms), a term of 4 months imprisonment to be served concurrently to any other sentence and in the community pursuant to section742.1 of the Criminal Code of Canada, a probation order for a period of 12 months and a victim fine surcharge of $100;

c) With respect to having in his possession proceeds of property of a value exceeding five thousand dollars knowing that theproceeds of the property was obtained by the commission in Canada of an offence punishable by indictment, 1 month imprisonment to beserved concurrently to any other sentence and in the community pursuant to

section 742.1 of the Criminal Code of Canada, a probationorder for a period of 12 months, a victim fine surcharge of $100 and a order of forfeiture of monies in the amount of $15,610; and

d) With respect to unlawfully have in his possession a controlled substance, to wit: Morphine a term of 1 month imprisonment to beserved concurrently to any other sentence and in the community pursuant to

section 742.1 of the Criminal Code of Canada, a probationorder for a period of 12 months, and a victim fine surcharge of $100. [Statement of Facts – paras. 4(a)-(d)] IV. Issues raised on appeal [8] In her grounds of appeal, the Attorney General contends the trial judge erred in law and inprinciple by:

(1) Failing to impose a mandatory firearms prohibition order pursuant to s. 109(1) (

c) of the Criminal Code.

(2) Imposing a sentence that was manifestly inadequate and clearly unreasonable having regard to all of the circumstances.

(3) Failing to adequately consider the purpose and principles of sentencing contained in the Criminal Code. V. Standard of Review [9] In R. v. R.K.J. (1998), (NB CA), 207 N.B.R. (2d) 24 (C.A.), [1998] N.B.J.No. 483, Drapeau J.A. (as he then was) sets out the analytical framework that should be applied to the determination of applications forleave to appeal sentence: It is the undoubted duty of this Court to review the fitness of any sentence imposed. That it must do so bearing in mind the privilegedposition occupied by the trial judge is settled law.

All agree that the sentencing process is hardly an exact science. It is a subjectiveprocess which features a large measure of discretion. The intrinsically discretionary nature of the sentence decision explains, at least inpart, the Supreme Court's insistence on a deferential approach to all sentence reviews. See R. v. Shropshire, (SCC),[1995] 4 S.C.R. 227, R. v. M.(C.A.), (SCC), [1996] 1 S.C.R. 500, and R. v. MacDonnell, (SCC),[1997] 1 S.C.R. 305. […] Nevertheless, deference has its limits, and this Court is duty bound to vary a sentence in appropriate circumstances.

Indeed, if thesentencing court commits an error of law or an error in principle, or if the sentence imposed is clearly unreasonable, there is no longer

room for deference and this court is required to impose the sentence which it considers fit. See R. v. F.S.A. (1996), (NB CA), 182 N.B.R. (2d) 20; 463 A.P.R. 20 (C.A.), and R. v. Melanson (E.R.) (1998), (NB CA), 199 N.B.R. (2d)338; 510 A.P.R. 338 (C.A.). In this context, an error in law most commonly occurs as a result of a misapprehension of the evidence or a misapplication of judicialprecedents.

As for an error in principle, it typically involves one or more of the following: the application of wrong sentencing principles,a failure to consider relevant factors or the taking into account of irrelevant considerations. As well, there will be cases where the failureto give proper weight to each relevant circumstance will amount to an error in principle. (Our court will necessarily be slow to find anerror of this nature for, if it was otherwise, professions of deference would soon ring hollow.) Finally, a sentence will be clearlyunreasonable where it is either inordinately long or inordinately short.

It will reach this level only if it is a substantial and markeddeparture from the sentence customarily imposed for similarly situated offenders committing similar crimes. [paras. 11-13] This standard of review was applied in R. v. Collier, 2006 NBCA 92, 303 N.B.R. (2d) 369 and R. v. Gallon, 2006 NBCA 31, 297 N.B.R.(2d) 317. For further discussion and amplification of this framework, see R. v. Basque (1999), (NB CA), 211 N.B.R.(2d) 273, [1999] N.B.J. No. 211 (C.A.) (QL), R. v. Kuriya, 2003 NBCA 63, 261 N.B.R. (2d) 153, R. v. R.T.S., 2006 NBCA 65, 301N.B.R. (2d) 338, R. v. Veysey, 2006 NBCA 55, [2006] N.B.J.

No. 365 (QL) and R. v. Melanson, 2009 NBCA 41, 347 N.B.R. (2d) 201. [10] In my view, the sentencing judge erred in law in not imposing the mandatory firearmsprohibition. He also erred in principle with respect to the imposition of conditional sentences. Considering the principles of sentencing tobe applied in cases involving possession of drugs for the purpose of trafficking, the sentences imposed in this case are clearlyunreasonable. VI. Analysis A.

Firearms Prohibition [11] During the sentencing hearing, Crown counsel advised the judge that the offences under s. 5(2)of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 require a mandatory order prohibiting Mr. Frost from possessing firearmspursuant to s. 109 of the Criminal Code. The sentencing judge stated that although he had considered the imposition of an order under s.109, he was rejecting it “in the circumstances”. Absent statutory or constitutional exemptions or a declaration that a provision isconstitutionally invalid, a judge cannot refuse to make a statutorily mandated order.

The decision not to make the mandatory order in thiscase constitutes a reversible error (see R. v. Goguen, 2006 NBCA 37, 299 N.B.R. (2d) 320, paras. 4-10). B. Conditional Sentence [12] A review of recent decisions in our Province reveals there have been cases in which asentencing judge has decided to impose a conditional sentence, contrary to jurisprudence which indicates such a sentence is inappropriatein circumstances concerning trafficking or possession for the purpose of trafficking, unless there are exceptional circumstances.

ThisCourt has a long history of jurisprudence which dictates that, absent exceptional circumstances, when sentencing drug traffickers, courtsmust give “great weight” to the principle of general deterrence and “lengthy jail sentences are necessary to deter persons from enteringthis highly lucrative and hard to detect activity” (see R. v. Madore (1986), (NB CA), 75 N.B.R. (2d) 230, [1986]N.B.J. No. 146 (C.A.) (QL)). In the case before us, it is clear the sentencing judge did not believe Mr. Frost was a danger to thecommunity and, as such, was a candidate for a conditional sentence.

In my view, the sentencing judge committed an error in principle byimposing a conditional sentence. [13] The record indicates the sentencing judge was aware of R. v. Collier, wherein Richard J.A.discusses general deterrence as being the guiding principle in sentencing drug traffickers: The guiding principle in sentencing drug traffickers in this province has long been held to be general deterrence. This was articulated byHoyt J.A. (as he then was) in R. v. Madore (1986), (NB CA), 75 N.B.R. (2d) 230 (C.A.), [1986] N.B.J. No. 146(C.A.)(QL) as follows (at para. 5 N.B.R.):

This Court in R. v. Robichaud (1969), (NB CA), 2 N.B.R. (2d) 123; in R. v. Cusack (1973), (NBCA), 6 N.B.R. (2d) 324; in R. v. Sutherland (1974), (NB CA), 10 N.B.R. (2d) 221 and in R. v. Richardson (1977), (NB CA), 17 N.B.R. (2d) 105, pointed out that courts, when sentencing drug traffickers, must give great weight to theprinciple of general deterrence and that lengthy jail sentences are necessary to deter persons from entering this highly lucrative and hardto detect activity.

Thus this Court recognizes, as have other courts, that emphasis must be placed on general deterrence when sentencingfor this type of activity. Of course, other factors must also be considered. Hoyt J.A. continues at paras. 6-7: In R. v. Cormier (1977), (NB CA), 16 N.B.R. (2d) 710 Hughes, C.J.N.B. pointed out that general deterrence was not,however, the only factor to be considered when soft drugs are involved.

At p. 712 he said: Where, however, the offence involves trafficking or possession for the purpose of trafficking of the so-called soft drugs such asmarijuana and hashish the courts must consider in addition to the deterrent aspects of the sentence other matters such as the extent towhich the accused is involved in the illicit trade, his character, background, criminal record if any, mode of life, and the likelihood of hisrehabilitation.

In my view, the former Chief Justice was not suggesting that these additional considerations have equal importance to general deterrencewhen sentencing for trafficking in soft drugs. He was merely reminding us that those factors must also be taken into account. In R. v. Bourque (1989), (NB CA), 93 N.B.R. (2d) 423, [1989] N.B.J. No. 1166 (QL), our Court warned (at para. 6): [...] To put it more plainly we are of the general view that convicted drug traffickers, whether dealing in hard or soft drugs, can lookforward to incarceration.

These principles were applied by this Court in Beckwith, a case involving an accused with a previous conviction for trafficking, datingback five years, who had pleaded guilty to two charges of trafficking in marijuana after she had sold small amounts of the drug toundercover police officers. Sentences of nine months and three months imprisonment to be served consecutively resulted. In my view, the sentencing principles adopted by this Court for trafficking offences are consistent with the requirements of the CriminalCode that govern sentencing generally and that are set out in ss. 718 to 718.2.

Considering these principles, I am of the view that Mr.Collier should have been sentenced to terms of imprisonment for the trafficking offences he committed. Mr. Collier, who committed theoffences on two separate occasions, must be deterred from such conduct. Moreover, trafficking in drugs is conduct that must bedenounced and, importantly, those who might be tempted to engage in such unlawful conduct must be deterred by appropriatepunishment.

Imprisonment is generally necessary to achieve those goals. [paras. 18-22] [Emphasis added.] [14] In the present case, the sentencing judge appears to have interpreted Collier as standing for theproposition that a conditional sentence is a fit sentence in circumstances where an accused pleads guilty to trafficking or possession forthe purpose of trafficking so-called “soft drugs” when, in fact, Collier stands for the completely opposite premise. Although the Courtdid impose a conditional sentence in Collier, the circumstances were quite unique. Mr.

Collier, a taxi driver, picked up two femalepassengers on two different occasions. Unbeknownst to Mr. Collier, the individuals were undercover police officers. On both occasions,one of the police officers requested Mr. Collier to supply them with marihuana and, on each occasion, he arranged to sell them the drugsrequested because, as he testified, “she was young, good looking and he was hoping to impress her and maybe she’d go out and partywith him.”(see para. 4). For each offence, Mr.

Collier received a conditional discharge with probation for three months with conditions.The sentences were to be served concurrently. The Attorney General sought leave to appeal the sentences. By the time the appeal washeard, Mr. Collier had already complied with the terms of his probation order, and the Attorney General advised that had a conditionalsentence been imposed in first instance, based on the circumstances, the sentence would likely not have been appealed.

As such, thisCourt held that although imprisonment should have been imposed, the sentence could be served in the community. [15] It is evident the analysis provided in Collier reinforces this Court’s jurisprudence, whichconsistently asserts that general deterrence and denunciation are the overriding sentencing principles when dealing with drug trafficking.

[16] The applicable principles and objectives of sentencing are found in s. 718 of the Criminal Code.It is clear that, of the principles listed, denunciation and general deterrence must take precedence in cases of trafficking or possession forthe purpose of trafficking. These situations involve crimes that are planned with the motive that significant profit can be gained.Generally, these crimes are not committed out of desperation or the result of an addiction, crimes for which general deterrence would beof little effect.

In cases such as this, where profit is the offender’s motivation, a significant penalty is generally a deterrent to others whomight consider whether or not to undertake such criminal activity. The necessity to emphasize general deterrence is clear. The question iswhether a conditional sentence is capable of providing general deterrence. [17] The answer is clearly no. This Court has consistently emphasized denunciation and deterrence incases of drug trafficking by imposing jail sentences on offenders (see R. v. Robichaud (1969), (NB CA), 2 N.B.R. (2d)123, [1969] N.B.J. No. 154 (C.A.) (QL); R. v.

Cormier (1977), (NB CA), 16 N.B.R. (2d) 710, [1977] N.B.J. No. 57(C.A.) (QL); R. v. Ouellette (1990), (NB CA), 105 N.B.R. (2d) 222, [1990] N.B.J. No. 23 (C.A.) (QL); R. v.McIntyre (1991), (NB CA), 114 N.B.R. (2d) 266, [1991] N.B.J. No.136 (C.A.) (QL); R. v. Wetmore (G.G.) (1999), (NB CA), 215 N.B.R. (2d) 204, [1999] N.B.J. No. 287 (C.A.) (QL)). Contrary to its

interpretation in some recentdecisions, Collier did not change this Court’s view that convicted drug traffickers require jail sentences which reflect the sentencinggoals of denunciation and deterrence, except in the rarest of circumstances. In Collier, Richard J.A. states that the appropriate sentencefor Mr. Collier “would have featured imprisonment”, meaning incarceration. [18] In this case it is obvious the sentencing judge failed to consider denunciation and deterrence tobe the overriding factors in sentencing Mr. Frost. In R. v. Steeves, 2007 NSCA 130, [2007] N.S.J.

No. 532 (QL), Oland J.A. discussesthe approach to be used when determining whether a conditional sentence is appropriate: In addition to failing to consider deterrence and the range of sentences for these offences, the sentencing judge erred in principle byfailing to follow the approach judges are to use in determining whether to impose a conditional sentence described by the Supreme Courtof Canada in Proulx, supra at para. 58-63. The judge begins by excluding probationary measures and a penitentiary term.

In making thisdetermination, he or she is to consider the fundamental purpose and principles of sentencing as set out in ss. 718 to 718.2 of the Codeonly to the extent necessary to narrow the range of sentence. If either of those sentences is appropriate, a conditional sentence should notbe imposed. If neither is appropriate, the judge then determines whether a conditional sentence would be consistent with the fundamentalpurpose and principles of sentencing as set out in those provisions.

In doing so, he or she considers those principles comprehensively,determines the duration and venue of the sentence and, if a conditional sentence, the appropriate conditions. Before imposing aconditional sentence, a sentencing judge must be satisfied that the safety of the community would not be endangered. With respect, nothing in his reasons indicates that in determining that a conditional sentence was appropriate, the sentencing judge hereconsidered the approach in Proulx, supra. He did not reject both a penitentiary term and probation as appropriate dispositions.

Hisdecision failed to include any consideration as to whether a conditional sentence was consistent with the principles and purposes ofsentencing. In particular, it was silent in regard to deterrence and denunciation which are so significant in cases involving drugtrafficking. Moreover, his conclusion that the respondent is not a danger to society was not grounded on any assessment of the risk of hisre-offending or the gravity of the damage that could ensue were he to re-offend. [paras. 23-24] [19] In R. v. Knickle, 2009 NSCA 59, [2009] N.S.J.

No. 245 (QL), Roscoe J.A. re-iterates: Numerous other sentencing decisions from this court repeatedly and consistently emphasize that persons involved in trafficking incocaine will be subject to sentences of incarceration. This has been absolutely clear since the very first case heard by this court involvingtrafficking in cocaine: R. v. Merlin, (NS CA), [1984] N.S.J. No. 346, 63 N.S.R. (2d) 78. See also, for example: R. v.Dawe, 2002 NSCA 147; R. v. Jones, 2008 NSCA 99; R. v. Stokes, 1993 NSCA 195 , [1993] N.S.J. No. 412, 126 N.S.R. (2d) 66;and R. v. J.B.M., 2003 NSCA 142.

This court has never approved or endorsed a conditional sentence on charges of possession for thepurpose of trafficking or trafficking in cocaine. As well, we have regularly allowed appeals from conditional sentence orders fortrafficking in large amounts marijuana and substituted penitentiary terms. See for example: R. v. Hill, 1999 NSCA 118; R. v. McCurdy,2002 NSCA 132; R. v. Jones, 2003 NSCA 48.

The sentencing judge in this case did not refer to any decisions of this court. [para. 18] [Emphasis added.] It is very important to stress that, in this case, the possession for the purpose of trafficking occurred on a university campus, and Mr.Frost confirmed he had been trafficking drugs to university students for approximately two years. This is of significance when applyingthe principles of denunciation and general deterrence. Imposing a conditional sentence, to be served in the same university communitywhere Mr.

Frost had trafficked drugs for two years, and allowing him to continue to attend classes, was unreasonable. As such,intervention by this Court is warranted.

[ 20 ] Those convicted of possession for the purpose of trafficking or trafficking so called “soft drugs” should, where the quantity of drugs is significant, where there is evidence of long term criminal activity, or where there is evidence of significant profit, face incarceration absent exceptional circumstances.

Sentencing judges should keep in mind the following: • Circumstances which are exceptional enough to forego a sentence of incarceration and impose a conditional sentence will be rare; • They should clearly identify the exceptional circumstances relied upon; and • Low level or single transaction instances involving trafficking of so-called “soft drugs” may, in appropriate cases, constitute exceptional circumstances. In this case, we are faced with a large scale, long term, for-profit enterprise.

It does not in any way involve exceptional circumstances. [ 21 ] Considering the above, I am of the view that fit sentences for the offences committed by Mr. Frost would have featured incarceration. However, taking into account that Crown counsel requested a sentence of 3 to 6 months incarceration at the sentencing hearing, I would vary the sentences to concurrent terms of four months imprisonment. In view of the fact Mr. Frost has completed his four-month conditional sentence and is complying with the terms of the probation order, I would give credit for time served.

The probation order shall continue to be in effect as ordered by the sentencing judge. VII. Disposition [ 22 ] For these reasons, I would grant leave to appeal, allow the appeal and vary the conditional sentences to concurrent terms of four months imprisonment commencing February 3, 2012, the date the sentence was originally imposed. Mr. Frost is to receive credit on a one-for-one basis for the time he has served. I would impose the mandatory firearms prohibition pursuant to s. 109(1) (

c) of the Criminal Code . The probation order imposed by the sentencing judge continues to be in full force and effect. ______________________________ KATHLEEN A. QUIGG, J.A. WE CONCUR: _____________________________ M.E.L. LARLEE, J.A. _____________________________ BRADLEY V. GREEN, J.A.