R. v. Jupiter, 2015 ONCJ 376

Information Nos. 2811 998 14 13201-02 2811 998 14 25264-02 Citation: R. v. Jupiter , 2015 ONCJ 376 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. ISAN JUPITER P R O C E E D I N G S A T J U D G M E N T A N D S E N T E N C I N G BEFORE THE HONOURABLE JUSTICE M.S. FELIX on May 25, 2015 at OSHAWA, Ontario APPEARANCES : A. Weiler Counsel for the Federal Crown G. Grill Counsel for Isan Jupiter ONTARIO COURT OF JUSTICE R. v. Jupiter

Legend[sic] – Indicates preceding word has been reproduced verbatim and is not a transcription error.(ph) – Indicates preceding word has been spelled phonetically. Page Reasons for Judgment, Felix, J. 1 Transcript Ordered: May 28, 2015 Transcript Completed: July 4, 2015 Ordering Party Notified: July 4, 2015 MONDAY, MAY 25, 2015 R E A S O N S F O R J U D G M E N T A N D S E N T E N C I N G FELIX, J. (Orally): Because of scheduling I am addressing Mr. Jupiter and Mr. Murley separately. I will not repeat findings of fact made in my trialjudgment, reported as R. v. Murley, 2015 ONCJ 50 , 2015 O.N.C.J. 50, except in a

summary manner. During this sentencing judgment I will attempt to balance all of the relevant sentencing considerations with the goal of imposing a fit andproportionate sentence. Sentencing Positions:

Trafficking in cocaine is a very serious criminal offence, punishable by life in prison. Mr. Jupiter submits that: 1) A sentence of 18 to 24 months incarceration is appropriate; 2) He should receive credit for 1.5 or one and a half days for each day in pre-sentence custody; and, 3) This court should decline to make an order with respect to his parole, pursuant to

section 743.6(1) of the Criminal Code of Canada [Criminal Code] . The Federal Crown submits that: 1) A sentence of 6 years incarceration, minus credit for pre-trial custody is appropriate; 2) Mr. Jupiter should receive diminished credit for pre-sentence custody because of his conduct while on release for this matter; 3) I should admit the evidence of his conduct while on release for this matter; and 4) I should order him to serve half of the sentence before being eligible for release on parole, pursuant to

section 743.6(1) of the Criminal Code . The parties are ad idem that the only ancillary order to address is a

section 109 order. I will make that order for life. Background of the Defendant: Mr. Jupiter is middle aged recidivist. He has three children. His parents are within the jurisdiction. They provided guidance and contributed to a pro- social upbringing. Mr. Jupiter's mother is retired from a career in public service, in the Provincial government. His father worked his way up to become a manager at a major local employer. As highlighted in the submissions of counsel, in this case and also during the sentencing of the defendant's son, Mr. Isan Murley, Mr.

Jupiter's parents provided a model of behaviour in our society and contributed to Canada. They are decent, hard working, humble persons of faith. Two other children are thriving and productive members of the community. They followed the example of their parents. There is no reason to view Mr. Jupiter as someone who was disadvantaged or especially challenged in some way by life. There really is no excuse for his conduct. There are some explanations for it. Work History and Education : There is limited work history and education to consider.

There is nothing really remarkable to say about his work history and education. Criminal Record : Mr. Jupiter is a middle aged recidivist with a lengthy criminal record. He also has a serious and concerning record for drug-related

crimes. This is the tenth conviction for a drug-related matter. The highlights of his criminal record, marked as Exhibit 1 on sentencing in this proceeding, include: • 1993, a conviction for possession of a restricted drug, fail to comply with recognizance, and possession of a restricted drug for thepurpose of trafficking, for which he received two years, less a day jail, and probation for three years. • 1998, he has a conviction for trafficking cocaine on the ounce level in a project, I am told in submissions is called ProjectOctopussy.

On top of 15 months and 20 days pre-sentence custody you received a 3 year and 5 month sentence. • 2009, a three year penitentiary sentence, which in submissions I learned was related to a police takedown in a drug relatedinvestigation. • He has two fail to comply with recognizance convictions, two fail to comply with probation convictions and he has previouslyviolated his parole and was placed back in custody in 2009. Sentence Parity: There were several persons charged by the police as part of Project Winapitee.

A variety of dispositions have occurred includingwithdrawals, guilty pleas before trial, guilty pleas after preliminary hearing and those who have yet to have their trial. I have personally sentenced two other persons in this project. There are no sentence parity considerations based on those matters, that Iam aware of. Sentencing Issues: There are four important sentencing issues I must address: 1) Whether I should make an order pursuant to

section 743.6 of the Criminal Code delaying Mr. Jupiter's parole. 2) Having regard to an application pursuant to sections 7 and 24(1) of the Charter of Rights and Freedoms, is section 719(3.1) of theCriminal Code constitutional? 3) Should Mr. Jupiter receive enhanced credit for pre-sentence custody? 4) Is evidence from another unrelated trial involving Mr. Jupiter admissible on this sentencing? Parole Ineligibility

section 743.6 of the Criminal Code of Canada: In R. v. Dankyi, (QC CA), [1993] R.J.Q. 2767, the Quebec Court of Appeal held, with respect to

section 741.2 as itthen was, and I quote: "...since the scope of permissible sentences is itself conceived to accommodate the best and worst of cases,

section 741.2 can only bejustified as an exceptional measure reserved for particular circumstances requiring an additional form of denunciation and deterrence." The Quebec Court of Appeal was referring to drug trafficking in that decision.

In R. v. Goulet (1995) (ON CA), 97 C.C.C. (3d) 61, the Ontario Court of Appeal held that a

section 741.2 order is anexceptional measure, requiring clear evidence that an increase in the period of parole ineligibility is required. A trial judge should giveclear and specific reasons for the increase in parole ineligibility. I have also considered the guidance of the Supreme Court of Canada in R. v. Zinck 2003 SCC 6 , [2003] S.C.J. No. 5, atparagraphs 24, and 29 to 37, because I find that analysis helpful to my considerations. At paragraph 24 of that decision the Supreme Court of Canada provided the following guidance: "Delaying parole can be a significant component of a sentence.

It may almost entirely extinguish any hope of early freedom from theconfines of a penal institution with its attendant rights or advantages. In this manner, it brings a new element of truth, but also ofharshness, to sentencing. The time served in a penitentiary will be closer to the sentence imposed, although under the Act the sentence isnot over. Given its potential impact it would have been preferable to be clear about when and why this new sentencing tool is to beused. Regrettably, the drafting of

section 743.6 left many substantive and procedural questions unanswered. As Fish, J.A. in the QuebecCourt of Appeal pointed out on one of the earliest cases on the

interpretation of this provision, which was decided, like the Goulet case,before the enactment of 743.6(2), its conceptual basis remains "elusive". It concerns offences in respect of which the sentencing judgemust first apply the normal principles of sentencing to the facts in order to determine a fit punishment for the crime. Then, the Courtmust use the same principles all over again, in respect of the same facts -- although now with a priority to deterrence and denunciation,pursuant to

section 743.6(2) -- in order to decide whether parole should be delayed (R. v. Dankyi (1993), (QC CA),86 C.C.C. (3d) 368, at page 376)," as cited by the Supreme Court of Canada. The nature of the analytical process required in order to comply with this provision remains far from clear. This degree of uncertaintygoes a long way towards explaining the problems courts have encountered in their search for workable and consistent

interpretation ofsection 743.6, as well as the development of apparently conflicting jurisprudential currents in provincial appellate courts..." Having regard to the sentence that I intend to impose in this case, I am not satisfied that this exceptional measure need be invoked by meto properly address denunciation, deterrence and the other relevant aims of sentence. It strikes me that where I can achieve a proportionate sentence, a sentence that achieves all of the sentencing principles without resort tothis order, I should decline to make the order. Credit for Pr-trial custody: Mr. Jupiter brought a Charter application pursuant to

section 7 and 24(1) of the Charter for an order that section 719(3.1) of theCriminal Code, is inconsistent with

section 7 of the Charter, in that it limits credit for pre-trial custody to one day for each day spent incustody, if a person was detained pursuant to sections 524(4) or 524(8) of the Criminal Code. I permitted the application to proceed even though it was not brought in compliance with the criminal rules. I also permitted a responsefrom the Federal Crown that was not in compliance with the time considerations in the Criminal Rules. Relevant Procedural History: On June 26, 2013 Mr. Jupiter was arrested and charged with the offences before the Court. On July 2, 2013 he was released on judicialinterim release.

On October 3, 2013 Mr. Jupiter was arrested and charged with new offences. He consented to the cancellation of hisprior release, pursuant to section 524(8) of the Criminal Code of Canada and applied for judicial interim release concerning the matterbefore this Court and the new allegations. His application was denied and he was detained in custody on both the offences before thisCourt and the new allegations.

Position of the Applicant: The applicant submits that section 719(3.1) engages Mr. Jupiter's

section 7 liberty interests, violates the fundamental sentencing principle of proportionality, is arbitrary and over-broad. Mr. Jupiter requests that I grant him credit for 1.5 days for each day of pre-sentence custody. Position of the Respondent - Federal Crown: The Federal Crown submits that as Mr. Jupiter was detained pursuant to section 524(8) he is captured by the operation of section 719(3.1) , and is limited to the maximum credit of one day for each, for every day of pre-trial custody.

Analysis : This issue has been considered by an experienced and learned justice of the Superior Court of Justice, Madam Justice B. Wein, in R. v. Dinardo , 2015 ONSC 1804 [ Dinardo ] . Madam Justice Wein, held at paragraph 133: "The operation of section 719(3.1) in conjunction with sections 525(4) and (8) violates

section 7 of the Charter and is not saved by

section 1 of the Charter . To that extent those portions of the provision are declared to be of no force and effect, pursuant to section 52(1) of the Charter ." Paragraph 134: "Taking into account the decision in R. v. Safarzedeh-Markhali the operative portion of the

section shall now read;

(3.1) Despite subsection (3) if the circumstances justify it the maximum is one and one half days for each day spent in custody." I must examine the impact of the Dinardo decision on my sentencing today. What is the impact of this declaration of invalidity? Is the Dinardo decision binding on this Court? The state of the law in this area was set out by Justice Strathy [as he then was] in R. v. Scarlett , 2013 ONSC 562 at paragraphs 33 to 44 , addressing the impact of the declaration and validity pronounced in R. v. Smickle . 2012, ONC 602. I found this decision, provided by counsel, to be of key assistance.

"33 The purport and effect of Smickle is to declare the minimum sentence for possession of a loaded prohibited weapon in section 95(2) (a)(

i) of the Criminal Code to be null and void and of no effect, not only in that case but in all future cases. That was the conclusion reached by my colleague, Frank, J. in obiter in R. v. Williams (18 April 18 2012), Toronto (S.C.J.), in which the accused was convicted of possession of a loaded prohibited firearm in related offences. Frank J. concluded that a proper sentence in that case was in excess of three years, and it was unnecessary to consider the effect of Smickle .

She stated, however: But had I been required to decide that issue I would have had no hesitation of finding that the declaration of invalidity [in Smickle ] applies. In my view the answer to the question has been clear since the Supreme Court of Canada decision in R. v. Ferguson , [2008] 1 S.C.R. 96 , 2008 SCC 6 . The declaration of invalidity of section 95(2) was made pursuant to section 52(1) of the Constitution Act . The

section is therefore null and void, not just in the specific case but for all purposes. But, a full analysis and decision on that issue must be left for another case. 34 The jurisdiction exercised by Malloy J, was pursuant to section 52(1) of the Constitution Act , which provides that: The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect." Paragraph 35, Mr. Justice Strathy continued; "The appropriate remedy pursuant to this jurisdiction is a declaration of invalidity.

The effect of the declaration is not, of course, to actually delete the provision from the Statute . Rather, it renders it of no force and effect the extent of its consistency with the Constitution: R. v. Turmel , R. v. J.P ." I'm not going to read out the entire citation. "36 Where the legislation is declared unconstitutional, the declaration applies not merely to the parties immediately before the Court, but to the whole world.

Lazar Sarna made this point in The Law of Declaratory Judgments, 3rd edition, (Toronto: Thompson Canada, 2007), at page 139. [T]he Charter declaratory remedy declaring a statute invalid has effect erga omnes [toward everyone]. The invalidation of a statute, erga omnes creates a legal vacuum, which urgently calls for the legislature and the administrative agencies involved to amend enabling statutes and alter organizational structures. 37 This is why, in some cases, the declaration of invalidity is suspended for a period of time to permit Parliament or the legislature to address the issue.

See, for example, Bedford v. Canada , (Attorney General)." Mr. Justice Strathy continues in paragraph 38: It is clear from the reasons of Malloy J. in Smickle that she was declaring section 95(2) (a)(

i) of the Criminal Code "of no force and effect". - she stated at paragraph 162; A declaration shall issue that the reference to a minimum punishment of imprisonment for a term of, "in the case of a first offence, three years" as set out in s. 95(2)(a)(

i) of the Criminal Code is inconsistent with the Charter and of no force and effect. 39 It would have been unnecessary to grant this remedy if the decision was only confined to the facts before Justice Malloy. 40 It is also clear that in considering whether the effect of the declaration should be suspended, Malloy J. concluded that in the absence of a suspension the declaration would be applicable to all other cases. She stated at paragraph 151: I see no reason why this decision should not take effect immediately. In Schachter v.

Canada , the Supreme Court considered the appropriateness of suspending a declaration of constitutional invalidity of impugned legislation. Lamer C.J.C. noted that to delay the declaration "is a serious matter". A suspended declaration allows for a Charter violating state of affairs to persist. Lamer, C.J.C. provided guidelines as to when the suspension will be warranted. A striking down the legislation without enacting something in its place would pose a danger to the public;

B striking down the legislation without enacting something in its place would threaten the rule of law; or C the legislation was deemed unconstitutional because of underinclusiveness rather than overbreadth and therefore striking down thelegislation would result in the deprivation of benefits from deserving persons without thereby benefiting the individual whose rights havebeen violated. None of these factors support a suspension of the finding of invalidity. The underlying offence will still exist. The same maximumpenalty will still apply for those convicted of it.

There is therefore no danger to the public or interference with the rule of law. Judgeswill simply sentence individuals convicted of this offence in accordance with the sentencing principles set out in the Criminal Code andjudicial precedent." I will stop there, in terms of the quote. Mr. Justice Strathy, as he then was, goes on in paragraph 41 to cite the Supreme Court of Canada in Nova Scotia v. Martin and R. v.Ferguson, previously cited. In paragraph 42 he relied upon Chief Justice McLachlin's approach in R. v.

Ferguson: McLachlin expressly rejected the notion that after a declaration of invalidity in one case, the Court should continue to consider the issueon a case by case basis, requiring the accused to seek a constitutional exemption in the circumstances of his or her particular case. Shenoted at paragraphs 72-73, that this would create uncertainty for accused persons, and for Parliament, concerning the precise scope of thelaw.

It would also lead to an unequal application of the law. 43 The decisions of judges of coordinate jurisdiction, while not absolutely binding, should be followed in the absence of cogent reasonsto depart from them: see Re Hansard Spruce Mills Ltd., (BC SC), [1954] 4 D.L.R. 590, (S.C.), R. v. Northern ElectricCo. L.T.D., (ON SC), [1955] O.R. 431. Reasons to depart from a decision, referred to in Hansard Spruce Mills, include(

a) that the validity of the judgment has been effected by subsequent decisions; (

b) that the judge overlooked some binding case law or arelevant Statute; or (

c) that the decision was otherwise made without full consideration. These circumstances could be summed up by saying that the judgment should be followed unless the subsequent judge was satisfied thatit was plainly wrong. I am not satisfied that the decision in R. v. Smickle is plainly wrong. The final paragraph I am going to cite from that decision is paragraph 44, Mr.

Justice Strathy, as he then was, indicated: "In a Constitutional case where a statute has been declared invalid by a judge of coordinate jurisdiction, there is strong reason for judicialrestraint on the part of the subsequent judge for the reasons identified by Chief Justice McLachlin in Ferguson. To create a judicial exemption, based on the facts of a particular case before me, would create uncertainty and unfairness. This is particularly so because an appeal of both Nur and Smickle is to be heard by a single panel of the Court of Appeal next month." I have considered this case.

I have also considered two helpful articles provided by counsel that were submitted: Debra Parks"Precedent Unbound Contemporary Approaches to Precedent in Canada" (2007) 32 Man LJ 135; David Stockwood QC entitled "StareDecisis": "The heart of the system rarely visited" (Winter 2003) 22 Advocates Society J 3, 1-6. I have also considered a case of Mr. Justice Duncan, in R. v. D.L. (No. 2) 2005 ONCJ 344. I have obviously considered R. v. Scarlett, R.v. Ferguson and several other authorities.

It is my respectful view that the declaration of constitutional invalidity issued in R. v. Dinardo should be followed in this case. Even if R. v. Dinardo is not legally binding upon me, I feel obligated to interpret section 719(3.1) in the manner set out by Madam Justice Wine for the following reasons:

(1) As per the Supreme Court of Canada in R. v. Ferguson : (

i) a declaration of invalidity renders the impugned law null and void for all future cases; and (ii) the notion of continuing to consider the issue on a case-by-case basis creates uncertainty in the law, uneven application of the law, and unequal application of the law;

(2) Decisions of judges of coordinate jurisdiction should be followed unless there are good reasons to depart from them (e.g. a basis to distinguish them);

(3) I find the Dinardo decision to be meaningful and persuasive, leaving aside the issue of whether it is binding;

(4) Mr. Justice Peter De Freitas of the Ontario Court of Justice in this jurisdiction has followed Dinardo in a brief ruling, in a recent case not yet published; and

(5) The decision in R. v. Chambers , 2014 YKCA 13 , a decision of the Yukon Court of Appeal is not binding and I do not find it to be persuasive. In

summary, a Court of coordinate jurisdiction has issued a declaration of invalidity. Another court of coordinate jurisdiction has followed Dinardo and the Ontario Court of Appeal has not yet decided the constitutionality of the impugned portion of section 719(3.1) at issue in this case. I can add nothing further to the reasoning and the thorough analysis set out in Dinardo . As such I will decline to simply parrot paragraphs from the Dinardo judgment in this oral judgment. But in a

summary way the core of the concern is that the automatic denial of credit for pre-trial custody based on a determination pursuant to

section 524 of the Criminal Code infringes on my ability to achieve a just and proportionate sentence. The impact of the impugned provision is that my sentence is partially determined by judicial interim release procedures and provisions that are irrelevant to the considerations that I must engage on sentencing. I find that the applicant has established a breach of

section 7 of the Charter that is not saved by

section 1 of the Charter. Pursuant to the provisions therein I find that the portion of section 719(3.1) that removes my ability to determine credit for pre-sentence custody is inconsistent with the Charter and is of no force and effect in this proceeding only. My jurisdiction extends to this matter and this matter only. I do not have the jurisdiction to issue a declaration of invalidity.

I will follow the Dinardo construction of section 719(3.1) as follows: "719(3.1): Despite subsection (3), if the circumstances justify it the maximum is one and one half days for each day spent in custody." Credit for Pre-sentence Custody : Given my ruling I may now determine the appropriate credit for pre-sentence custody. I am mindful that there is no mathematical formula and I am, as the trial judge and the sentencing judge, in the best position to weigh all of the relevant factors.

Quantitative and Qualitative Rationales for Pre-sentence Custody: I have considered that Mr. Jupiter might have lost eligibility for early release and parole during pre-sentence custody. I am aware that even if I was to view his ineligibility for early parole to be unlikely, I should view that loss as generally sufficient to consider awarding credit at the rate of 1.5 to 1 per the Supreme Court of Canada and R. v. Summers , 2014 SCC 26 . I must confess that this is normally a rather routine consideration in less complex cases. In this particular case I am not convinced that Mr.

Jupiter deserves full consideration on these grounds. I am troubled by several features of this case, involving Mr. Jupiter. First of all consider his extensive criminal record set out earlier in this judgment. This record includes four convictions for failing to abide by court orders and records the fact that he violated his parole and was returned to prison in 1995. Certainly his criminal antecedents and this current conviction should send a powerful message to the parole board. I have received evidence that Mr. Jupiter was subject to lockdown for approximately 49 days.

I note that he did not avail himself of any available programs while in remand, including Chaplaincy, Social Workers, Psychology, Teachers or even Library privileges. I accept as well that he was sanctioned for a violent assault on another prisoner - his partner in the assault was his son, Isan Murley. He was housed with his son for some 66 days and thereafter housed in the same range as his son. I have declined to make an order pursuant to

section 743.6 of the Criminal Code . This should not be interpreted by the Parole Board as an endorsement of Mr. Jupiter's early parole candidacy or suitability. Having considered all of these factors I have determined that I will grant Mr. Jupiter some credit for his pre-sentence custody. The amount of credit and the rationale for it will be apparent by the end of this sentence decision. I note that Mr. Jupiter was arrested on June the 26th, 2013 and subsequently released on judicial interim release on July the 2nd, 2013.

On October 3rd, 2013, he returned to custody on new allegations and has remained in custody until today. I thank counsel once again for their assistance in calculating accurately the total of 608 days of actual days in custody. Admissibility of Evidence from another Trial : Having regard to my finding with respect to credit for pre-sentence custody this issue is of diminished importance. I will still examine the issue in a

summary way to assist any reviewing court with my sentencing decision. The Federal Crown weeks to adduce additional evidence on the sentencing hearing. It was submitted that while on judicial interim release Mr. Jupiter possessed drugs for the purpose of trafficking. A transcript of this was made available to the Court for the purposes of the argument. I did not need to review the transcript because I was able to absorb the issue and address it based on the following procedural history

summary, which was not contested: 1) Mr. Jupiter was charged on October 3rd, 2013, in relation to the possession of cocaine and marihuana. 2) Mr. Jupiter consented to a revocation of his prior release, pursuant to section 524(8) of the Criminal Code of Canada . He was detained after a bail hearing on both the new allegations and the current matter before the Court.

3) During the trial into the allegations in relation to the charge on October 3rd, 2013, Mr. Jupiter chose to testify on a Charterapplication seeking to exclude evidence. 4) During his testimony on the Charter application he testified that he was in possession of cocaine and marihuana on October 3rd,2014. 5) Mr. Jupiter was acquitted of the charges on the basis of the successful Charter application. The Federal Crown submits that notwithstanding his acquittal, Mr. Jupiter's admissions during the Charter application should bereceived by the Court for two distinct purposes:

(1) As important evidence relevant to the exercise of Court's discretion on the issue of credit for pre-sentence custody.

(2) As evidence of Mr. Jupiter's background and character. The Federal Crown was careful to stipulate this evidence was not being adduced for the purpose of proving an aggravating factor onsentence. Counsel for Mr. Jupiter argued that the admission of this evidence is barred by at least

section 13 of the Charter. I must confess that the position of the Federal Crown makes intuitive sense to me. At sentencing shouldn't Court have all availableinformation? Mr. Jupiter chose to bring a Charter application. He made an informed decision to testify in that application. Why shouldthis evidence be inadmissible on sentencing? Notwithstanding this pragmatic, sensible view, I am concerned that this approach runs afoul of the available binding jurisprudence and itwould be an error. First of all I believe that a synthesis of R. v. Henry 2005 SCC 76 , [2005], 3 S.C.R. 609, Dubois v.

The Queen (SCC), [1985] 2 S.C.R. 350, and R. v.Nedelcu, 2012 SCC 59 , [2012] S.C.J. No. 59 leads one away from a focus on the circumstances surrounding the creation of theevidence sought to be adduced, for example notions of compelled or non-compelled evidence, toward a focus on the intended use of theevidence and whether it incriminates the defendant. Second, it is arguable that where the accused does not testify at a trial that this sort of evidence is inadmissible for any purpose. Third, it is my view that

section 13 of the Charter applies at the sentencing stage, and I find the reasoning of Mr. Justice K. Campbell inR. v. Duhamel, [2013] OJ No 936 (ONSC) persuasive. Mr. Jupiter did not testify during this trial or sentencing hearing, as is his choice. I find that the evidence of the intervening conduct is inadmissible for any purpose at this sentencing. Mitigating factors: There are really no apparent mitigating factors in this case.

Mr. Jupiter is not a youthful first offender. I am sentencing him after a trial in this matter, which is his right, so there is no understanding of remorse as is evident on a guilty plea. A positive factor is the strong support that he has from his family. Were he to decide to embark upon a more positive approach to his life, there is little doubt that his parents would support him. On the other hand there really is no evidence before me that he relies upon the guidance of his parents.

Factors Neither Mitigating nor Aggravating : I am including here other factors that do not neatly fit into categories of mitigating and aggravating factors. Here I consider the fact that although the trial in this matter took several days it is quite evidence that Mr. Jupiter instructed his counsel to present a focused defence. There were triable issues. The issues were focused and litigated before me in a most professional manner, and to that I am indebted to counsel before the Court. AGGRAVATING FACTORS: Finally, it is my duty to address the aggravating factors in this case, and there are many of them. A.

Deterrence and Denunciation: Deterrence and denunciation are the primary sentencing considerations in this case. Rehabilitation is of a secondary concern, given Mr. Jupiter's criminal antecedents and the offence before this Court. B. Criminal record : Mr. Jupiter has a significant criminal record that I have already set out in this judgment. C. Moral Blameworthiness : There are at least two aggravating factors relevant to Mr. Jupiter's high moral blameworthiness in this case. First of all, Mr. Jupiter engaged in this crime for the simple purpose of profit. It is a commercial enterprise for him.

He was not servicing an addiction or supporting any other aim. This is a very aggravating consideration, especially when considered along with his prior related drug offence convictions. R. v. Malenca , [2007] O.J. No. 2782 , Ontario Court of Appeal. The second factor involves Mr. Isan Murley - the son of Mr. Jupiter. While I accept that Mr. Isan Murley is a youthful adult who makes his own decisions, and while I acknowledge that in sentencing Mr.

Murley he did not seek to blame his father, it is a particularly unique aggravating factor that Mr. Isan Jupiter was involved in this matter with his own son. What example has he provided for his son? His son received a substantial jail sentence. Any right-minded member of the community would reserve special condemnation for this sort of behaviour. Mr. Isan Jupiter's proper role is to guide his son in life, not participate in very serious criminal acts with him. The Offence : Mr. Jupiter has been found guilty of a drug trafficking offence in which I found him to be the directing mind.

This was not an impulsive decision that he made. There was some planning and in fact I detailed in my trial judgment the arrangements made by Mr. Jupiter to coordinate with others to arrange for this crime. The coordination with others was at the intended destination. The degree of planning and commitment to the endeavour is highly aggravating. What Level of Drug Dealer is Mr. Jupiter ? It is important for me to attempt to assess where Mr. Jupiter sits in the criminal hierarchy. Aspects of the evidence indicate that Mr. Jupiter is a sophisticated mid level drug trafficker.

Other evidence suggests that his target market is street level customers. I have no evidence as to who the customers were going to be on this joint venture. I know that it involved several people and the renting of a hotel room. I know there was a local fixer named Nev who was organizing things on the ground at the destination. As set out in my trial judgment Mr. Jupiter was making arrangements for this transaction early in the day. Mr. Jupiter was with Mr. Isan Murley. Mr. Murley was significantly implicated in other charges before me, and a significant supplier of drug product. There was another person, Mr.

Thomas Gwidz who was, objectively speaking, a producer and a custodian of marihuana, as well as someone who assisted Mr. Isan Murley with the production of crack cocaine. There are no wire tap communications involving Mr. Jupiter. He was not the focus of the police investigation in this case until implicated in the matter for which I have found him guilty. The lack of electronic communications cuts both ways. Perhaps he is more sophisticated or careful. On the other hand perhaps he simply was not as involved as others. Nonetheless he was the directing mind of this crime. He was making the arrangements.

He was contacting the individuals long before he was picked up by his son and Mr. Gwidz. There was a large amount of product under the hood of the car. There is a reasonable inference that Mr. Jupiter is more than just a street level dealer, based on the amount of drugs possessed for the purpose of trafficking and the surrounding circumstances of travelling some distance for the purpose of trafficking. In addition, as I pointed out, there is a clear inference that a number of parties were anticipating his arrival.

With some caution I overlaid this on top of his prior related record, but my focus is the evidence in this case. In the final analysis I must also recognize that while I found that individuals in the car were embarking on a joint venture, it is difficult to concretely set out each person's role. I am not prepared to view Mr. Jupiter as simply some street corner level drug dealer. He is somewhere above that designation and below a mid level supplier, on the evidence I have before me. I deem this to be an aggravating factor.

Sentences for Trafficking in Cocaine: Having set out my findings at trial and the relevant aggravating factors some consideration of the sentences in this area is required. I have reviewed countless sentencing judgments in this area of law. Frankly this review is of limited assistance. Sentencing decision are driven by a multitude of factors. Each case is driven by the particular facts and findings, the particulardefendant's role, the background of the defendant, analyzed through all of the relevant sentencing principles. Mr. Jupiter engaged in ajoint enterprise son, Isan Murley and another person, Thomas Woods.

As outlined in my judgment they were embarking on a jointenterprise to distribute a large amount of cocaine in some remote community. I found Mr. Jupiter to be the organizing mind and set out explicitly my rationale for this finding in my trial judgment. Mr. Jupiter is entitled to a proportionate sentence. One that properly accounts for his role, his criminal morale blameworthiness, hiscriminal antecedence and his rehabilitative prospects going forward. I will briefly refer to a few of the decisions I found most helpful. In R. v. Woolcock, [2002] O.J.

No. 4927, the Ontario Court of Appeal provided the following guidance at paragraph 8; "There is no disputing that crack cocaine is an extremely dangerous and insidious drug with potential to cause a great deal of harm toindividuals and to society. Likewise possession of crack cocaine for the purpose of trafficking is a serious offence warranting emphasison the principles of deterrence and denunciation.

However, when sentencing an offender convicted of such an offence it is incumbent onthe trial judge to consider all of the principles of sentencing, including the accused's prospects for rehabilitation." I note as well that Courts have repeatedly pointed out that cocaine is an extremely dangerous and insidious drug with the potential tocause a great deal of harm to individuals and to the community. R. v. Daya, [2007] O.J. No. 3865, Ontario Court of Appeal and R. v. Woolcock, cited a moment ago.

Courts have repeatedly stated that trafficking of cocaine or possession of cocaine for the purpose of trafficking poses a serious danger tosociety. See, for example R. v. Brissett, [2004] O.J. No. 3378, (SCJ), R. v. Challenger,[2001] O.J. No. 5744, (SCJ). It is not simply the trafficking that is so harmful. It is the ancillary crime perpetuated by those who are addicted. It is also a risk ofviolence and the potential for conflict inherent in most drug related transactions.

The seriousness of the offence of possession of cocainefor the purpose of trafficking warrants the emphasis on the principles of deterrence and denunciation. Emphasizing general and specificdeterrence is necessary to denounce this criminal activity, R. v. Bertucci, (2002), (ON CA), 169 C.C.C. (3d) 453Ontario Court of Appeal. In a case called R. v. Bajada, (ON CA), [2003] O.J. No. 721, the Ontario Court of Appeal quoted from the 5thedition of Clayton Ruby's book, "Sentencing" at paragraph 12. I have read the 8th edition and nothing has changed.

Paragraph 12; "Cocaine used to be regarded by the Courts as a drug which is somewhat more serious than marihuana but less serious than heroine,however, due to the existence of crack cocaine and intravenous cocaine users this attitude seems to be changing. More recent sentences

for cocaine seem on par with those imposed for heroine possession or trafficking." At paragraph 13 the Court of Appeal, Justice Weiler observed; "It would appear that sentences of five to five and one half years are not uncommon for possession of a substantial amount of cocaine forthe purposes of trafficking following an accused's plea of guilty or where the accused has no prior record." I am omitting the authorities in that quote. In this case, as I have pointed out I am dealing with someone who is not a youthful first offender. Mr. Jupiter has many convictions for drug related offences.

Extensive planning and deliberation is evident. A large quantity of drugs isinvolved. He interacted with his own son and embarked upon a joint venture with him. What a spectacular way to violate a basicprinciple of life. Parents have an obligation to do no harm to their children. Relevant Sentencing Principles: I have considered

section 718 of the Criminal Code of Canada. I have considered section 10(1) of the Controlled Drugs and SubstancesAct, mandating this Court to keep in mind the fundamental purposes set forth in

section 718 of the Code and the goal of rehabilitation,and I must acknowledge the harm done to the community as a natural result of the conduct in this case. The challenge I have is to balance the objectives and aims set out in

section 718 of the Criminal Code and section 10(1) of the ControlledDrugs and Substances Act, with a just sentence that is particularized to the offender, Mr. Jupiter. Again, I recall that denunciation and deterrence are the primary focus in this sentencing. Proportionality: This defendant, Mr. Jupiter, has served numerous jail sentences in the past, including lengthy reformatory and penitentiary sentences. Mr. Jupiter is a middle aged man for whom some prospect of rehabilitation must be considered. But frankly, it is a waning andsecondary concern at this point, having regard to his antecedents.

I must tailor a sentence to address this particular defendant before the Court and the serious offence he has committed with the goal ofarriving at a proportionate sentence (R. v. Borde, (ON CA), [2003], O.J. No. 354, (Ont. CA), R. v. Priest, (ON CA), [1996], O.J. No. 3369, (Ont. CA), Ontario Court of Appeal, R. v. Morrisey, 2000 SCC 39 , [2000], SCJNo. 39, R. v. M(CA) (SCC), [1996], SCJ No. 28, (SCC). As per

section 718.1 of the Criminal Code of Canada. "A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender." It is my respectful view that a strong deterrent message must be sent to Mr. Jupiter, given the weight of the aggravating factors in thiscase.

I have considered carefully my view of the appropriate sentence in this matter. Of course, I am aware that I am free to sentence Mr. Jupiter to the sentence that I find to be appropriate, but I will not sentence him to more than that advocated by the Federal Crown. Mr. Jupiter repeatedly engages in criminal conduct involving dealing drugs despite having received significant jail sentences in the past. There is no apparent evidence that he has put this past behind him. He engaged with his son in this serious illegal conduct.

These factors in addition to all the other factors in this case require a significant sentence to send a message to Mr. Jupiter that this repeated conduct will not be tolerated. Mr. Jupiter you may remain seated. A transcript of these reasons will be prepared. As I indicated at the outset there will be a

section 109 order for life. Pursuant to

section 743.21 there will be an order of non-communication with Thomas Gwidz. Mr. Jupiter, I sentence you to the penitentiary for five and one half years, which is approximately 66 months, and approximately 1,980 days. On count 1 the pre-sentence custody is approximately 608 real days. For the reasons outlined during this judgment I will give Mr. Jupiter some credit for pre-sentence custody but this credit will not be at one and a half to one.

I will grant 730 days credit for the 608 actual days of pre-sentence custody, which is approximately 1.2 days credit for each day of pre-sentence custody, leaving a sentence of 1,250 days remaining to serve, or approximately 42 months. With respect to count 2, the possession of cannabis resin, that arises out of the same transaction. I will sentence you to 90 days concurrent to the sentence on count 1. That is the sentence of this Court.

M A T T E R A D J O U R N E D FORM 2 CERTIFICATE OF TRANSCRIPT (SUBSECTION 5(2)) Evidence Act I, Roberta McDowell, certify that this document is a true and accurate transcript of the recording of R. v. JUPITER, Isan, in the Ontario Court of Justice held at 150 Bond Street East, Oshawa, Ontario L1G 0A2 taken from Recording No. 2811-402-20150525- 085650.DCR, which has been certified in Form 1 by Melissa Martin, as edited by the Honourable Justice M.S. Felix.

July 4, 2015 (Signature of Authorized Person) Transcript Ordered: May 28, 2015 Transcript Completed: July 4, 2015 Ordering Party Notified: July 4, 2015