R. v. Fortune, 2011 ONCJ 459

COURT FILE NO.: St. Catharines - 2111-998-09-S3936-00 DATE: 2011·08·24 Citation: R. v. Fortune , 2011 ONCJ 459 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — JUSTIN FORTUNE Before Justice D.A. Harris Heard on June 15, 2011 Sentencing Judgment released on August 24, 2011 P. Wenglowski ................................................................................... for the Federal Prosecutor M.

Evans .................................................................................... for the accused, Justin Fortune HARRIS J.: [ 1 ] Following his trial, I convicted Justin Fortune of possession of heroin for the purpose of trafficking and of possession of proceeds of crime less than $5,000 [1] . Mr. Fortune is before me today to be sentenced with respect to these offences. [ 2 ] The Federal Prosecutor suggested that I should impose a sentence of imprisonment for more than two years and thereby send Mr. Fortune to the penitentiary. He also requested a mandatory firearms prohibition pursuant to

section 109 of the Criminal Code . Finally, he asked for an order for forfeiture of the money and the drug paraphernalia seized by police. [ 3 ] Counsel for Mr. Fortune suggested that a conditional sentence of imprisonment or alternatively a blended sentence combining an intermittent sentence and a conditional sentence would be appropriate. [ 4 ] I find that this is not an appropriate case for a conditional sentence or a blended sentence. [ 5 ] The conditional sentence came into being when

section 742.1 was proclaimed in 1996. In enacting this section, "Parliament clearly mandated that certain offenders who used to go to prison should now serve their sentence in the community." [2] [ 6 ] The Supreme Court of Canada stated further that an offender who meets the criteria of

section 742.1 will serve a sentence under strict surveillance in the community instead of going to prison. His liberty will be constrained by conditions to be attached to the sentence. In case of breach of conditions, the offender will be brought back before a judge who may order him to serve the remainder of the sentence in jail, as it was intended by Parliament that there be a real threat of incarceration to increase compliance with the conditions of the sentence. [ 7 ]

Section 742.1 lists five criteria that a court must consider before deciding to impose a conditional sentence.

These are: 1. the offender must be convicted of an offence that is not specifically excluded under the legislation; 2. the offender must be convicted of an offence that is not punishable by a minimum term of imprisonment; 3. the court must impose a term of imprisonment of less than two years; 4. the safety of the community would not be endangered by the offender serving the sentence in the community; and 5. a conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2. [ 8 ] The first four criteria are prerequisites to any conditional sentence.

These prerequisites answer the question of whether or not a conditional sentence is possible in the circumstances. Once they are met, the next question is whether a conditional sentence is

appropriate. That decision turns upon a consideration of the fundamental purpose and principles of sentencing set out in sections 718 to718.2. [9] In Mr. Fortune’s case, the first two prerequisite criteria have been satisfied. His offences are not excluded under section742.1. Nor are they punishable by a minimum term of imprisonment. [10] Counsel disagreed as to whether I should impose a sentence of imprisonment for less than two years. [11] Prior to the 1996 amendments, the answer to this would have been clear.

The Ontario Court of Appeal was consistentlyfirm in upholding longer sentences. [12] For example, in R. v. Hogan, [1976] O.J. No. 1087 (C.A.) the Court stated at para. 3 that “This Court and other courts inCanada have repeatedly indicated that in dealing with offences, such as trafficking in heroin, that a penitentiary term should be imposedunless there are exceptional circumstances.” [13] In R. v. Bahari, [1994] O.J.

No. 2625 (C.A.) the Court said at para. 6 that “We agree with the trial judge's statement thatunless there are exceptional circumstances a penitentiary term should be imposed for the sale of heroin.” [14] In R. v. Farizeh, [1994] O.J. No. 2624 (C.A.) the Court stated at paras. 4 and 5 that the sale of heroin even in smallamounts by first offenders who are addicts will call for a penitentiary sentence unless exceptional circumstances exist. [15] In R. v. Zamini, [1999] O.J.

No. 3780 (C.A.) the Court stated at para. 4 that “No doubt, the offence [trafficking in heroin]almost always attracts a significant jail term and usually calls for a penitentiary term.” [16] However, in R. v. Kerr, (ON CA), [2001] O.J. No. 5085 (C.A.) Abella J.A. wrote at paras. 13through 18 that: 13 This court has affirmed the principle that there is no presumption against conditional sentences for trafficking offences in R. v.Wellington (1999), (ON CA), 132 C.C.C. (3d) 470, substituting a conditional sentence for a sentence of fifteenmonths' incarceration for importing hashish.

The court emphasized that the particular circumstances of the offence and the offendershould govern, at p. 475: This court has not changed its policy of significant sentences for importing drugs into Canada with the advent of conditional sentences.However, where the sentencing judge determines that the appropriate duration of sentence in all the circumstances is less than two years,then the propriety of a conditional sentence to be served in the community instead of in custody must be considered in the usual manner.Therefore, although statistically conditional sentences will be less frequent in certain types of cases including drug trafficking andimporting, the approach which a sentencing court is to take when considering imposing a conditional sentence in any particular case isthe same for all offences.

The court is not to begin with a rule that the circumstances of the case itself must be rare or unusual. Rather,each case must be approached on the basis that it will be considered on its particular facts taking into account the nature of the offence,the circumstances surrounding the commission of the offence, as well as the personal circumstances of the offender. 14 In other cases involving trafficking in serious drugs such as cocaine and heroin, appellate courts have held that conditional sentencescan be imposed. (See R. v. Hayes, [2001] O.J. No. 684 (C.A.), R. v. Rahime, 2001 ABCA 203 , [2001] A.J.

No. 988 (C.A.), R.v. Tahal (1999), (ON CA), 137 C.C.C. (3d) 206 (Ont. C.A.), R. v. Nguyen (1998), (BC CA),113 B.C.A.C. 56, and R. v. Browne (1997), (NL CA), 119 C.C.C. (3d) 147 (Nfld. C.A.). 15 It is true that sentencing judges have wide discretion and are entitled to considerable deference in the imposition of sentences. But inmy view, the application by the trial judge of a presumption against the possibility of a conditional sentence constituted an error inprinciple.

By relying exclusively on general deterrence, he appeared to disregard the evidence suggesting that not only had this particularoffender made dramatic and, to date, successful efforts to confront his addiction since being charged, there was also a real risk that hisgenuine progress would be entirely undermined by incarceration.

The likelihood of re-offending, in other words, would be enhanced byincarceration and the continued possibility of rehabilitation for this young addict would be profoundly impaired. 16 The trial judge's rejection of the availability of a conditional sentence, and his corresponding unwillingness to take into sufficientaccount the particularly positive steps taken by this offender, constituted an inappropriate fettering of his own discretion. In my view,any risk to the safety of the community in imposing a conditional sentence in this case can be addressed by the imposition of appropriateconditions.

In fact, based on the evidence, the long-term prospects for the community's safety are better served by not incarcerating theappellant, since this is the approach most likely to maintain the appellant's progress and prevent the risk of re-offending. 17 There is no doubt that this is a very serious offence. But the appellant's personal circumstances, the small quantity of drugs involved,and particularly Dr. Jollymore's evidence of the appellant's progress, which he feels incarceration would negate, argue for a conditionalsentence with strict terms.

There is, of course, no guarantee that the appellant's progress will continue indefinitely, but there is also a real

risk, on the evidence, that incarceration will prematurely end it. Although the seriousness of the offence is clearly relevant, to under-emphasize rehabilitation in this case would, on the other hand, send the unwarranted signal that courts will sacrifice evidence ofconsiderable rehabilitative progress on the altar of general deterrence. 18 It seems to me that this is a case where the ultimate interests both of the community and of the appellant are best served by asentence most conducive to eliminating the risk of re-offending.

And that, in turn, argues for a sentence that both acknowledges andfacilitates the ongoing rehabilitation of the appellant. [17] The Quebec Court of Appeal took a similar approach in R. v. Prokos (1998), (QC CA), 127 C.C.C.(3d) 190 (Que. C.A.), as did the British Columbia Court of Appeal in R. v. Chang, [2002] B.C.J. No. 2787 (B.C.C.A.). The Alberta Courtof Appeal still places primary emphasis on deterrence and denunciation.[3] [18] In Ontario, however, it is clear that there is no longer a presumption that a penitentiary term should be imposed in casesinvolving low level trafficking in heroin.

Nor is there a presumption that a conditional sentence is inappropriate. That does not meanhowever that the Ontario Court of Appeal has endorsed the view that a penitentiary term is never appropriate in such cases. On thecontrary, in R. v. Turner, [2003] O.J. No. 685 (C.A.) the Court said at para. 3 that “Trafficking in heroin, even small amounts, will attractpenitentiary time.” [19] So I have to determine which sentence is appropriate here, having regard to the facts of the case and Mr. Fortune’spersonal circumstances.

In this case, I find that a maximum reformatory sentence of imprisonment for two years less one day isappropriate. I will say more about this later. [20] Dealing with the other preconditions to a conditional sentence, it is a close call but I find that Mr. Fortune serving hissentence in the community, subject to appropriate conditions, would not endanger the safety of the community. He has not complied withthe terms of his release and stayed out of trouble since being charged.

He has however hopefully learned the consequences of suchbreaches and he should now be aware of the degree of police scrutiny that he attracts. With the appropriate safeguards in place, I amtherefore satisfied that there is no danger he would return to crime following the imposition of a conditional sentence. [21] That then leaves the question of whether a conditional sentence is appropriate in all of the circumstance of this case.

Inmaking this decision, I must consider the fundamental purpose and principles of sentencing set out in sections 718 to 718.2. [22] The fundamental purpose of sentencing as expressed in

section 718 is to contribute to respect for the law, the maintenanceof a just, peaceful and safe society by imposing just sanctions that have one or more of the objectives of denunciation; deterring theoffender and other persons from committing offences; separating offenders from society, where necessary; assisting in rehabilitatingoffenders; providing reparation for harm done to victims or to the community; and promoting a sense of responsibility in offenders, andacknowledgment of the harm done to victims and to the community. [23] The fundamental principle of sentencing is that the punishment should be proportionate to the gravity of the offence andthe degree of responsibility of the offender.

The punishment should fit the crime. There is no single fit sentence for any particularoffence. The determination of an appropriate sentence involves attempting to apply a blend of the above principles including specific andgeneral deterrence, denunciation and rehabilitation. [24] Possession of heroin for the purpose of trafficking is a very serious offence. In R. v. Sidhu, [2009] O.J. No. 325 (C.A.) theOntario Court of Appeal wrote that: The trial judge's characterization of heroin as "marginally" more dangerous than cocaine finds no support in the record, nor in theexisting case law.

Time and again, this court and the Supreme Court of Canada have made it clear that heroin is the most pernicious ofthe hard drugs - it is the most addictive, the most destructive and the most dangerous. Heroin trafficking has been described as a"despicable" crime and one that "tears at the very fabric of our society": see Pushpanathan v. Canada, (SCC), [1998] 1S.C.R. 982 at para. 79; R. v. Nguyen (1996), (ON CA), 92 O.A.C. 200 at para. 9; R. v. Sherman, [2001] O.J. No.5008 (S.C.) at para. 18; aff'd (2004), (ON CA), 183 O.A.C. 198; and R. v. Osei, [2002] O.J. No. 5601 (S.C.) at para.7, aff'd [2004] O.J.

No. 65, (C.A.). [25] This is so even in cases of low-level trafficking such as this one. Mr. Fortune was in possession of 4.4 grams of heroinwhich represented 44 individual doses of the drug and which could have sold for approximately $1,300. Mr. Fortune was also inpossession of a little more than $3,000 in cash.[4] [26] I must accordingly give consideration to the principles of denunciation and deterrence. [27] Mr. Fortune is a young man, 21 years of age, who had no criminal record at the time that he committed these offences.

Asa result, I cannot give up on the possibility of rehabilitation. [28] I must also note that the Supreme Court of Canada in Proulx, supra has expressly said that a conditional sentence is "apunitive sanction capable of achieving the objectives of denunciation and deterrence" although it is not as effective as a sentence of realimprisonment. [29] I must also consider the impact of

section 718.2(

e) which provides that, ... all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, withparticular attention to the circumstances of aboriginal offenders.

[30] The Supreme Court of Canada discussed the application of this

section in Gladue v. The Queen (1999), (SCC), 133 C.C.C. (3d) 385, and in particular said at para. 36 that

section 718.2(

e) applies to all offenders, and that imprisonment shouldbe the penal sanction of last resort. Prison is to be used only where no other sanction or combination of sanctions is appropriate to theoffence and the offender. [31] At para. 43 in Gladue, the Supreme Court also noted that

section 718 now requires a sentencing judge to consider morethan the longstanding principles of denunciation, deterrence and rehabilitation. Now a sentencing judge must also consider therestorative goals of repairing the harms suffered by individual victims and by the community as a whole, promoting a sense ofresponsibility and an acknowledgment of the harm caused on the part of the offender, and attempting to rehabilitate or heal the offender.As a general matter restorative justice involves some form of restitution and reintegration into the community.

A conditional sentence ismuch more effective in achieving those restorative sentencing goals than is sending an offender to jail. [32] The Pre-Sentence Report indicates that Mr. Fortune had a good childhood. He lived with his mother following thebreakup of his parents’ marriage. He left her home when he was 15 because there were too many rules and he was not getting along withher.

He resided with his father briefly before moving out on his own with the assistance of student welfare. [33] He has had the same girlfriend for four years and he hopes to move in with her when these charges have been resolved. [34] He is five credits short of completing high school. He has worked at a number of jobs in the restaurant business but iscurrently unemployed. [35] He began using illegal drugs when he was 15. He progressed from marihuana to mushrooms, acid and cocaine beforebecoming addicted to heroin.

He was using three to four points per day and when his girlfriend started using it as well, the cost for bothwas astronomical. He denied however selling heroin to support his drug habit. He still denies that he was selling heroin at all. [36] Mr. Fortune has been participating in a methadone program since January 2011.

He admitted to the author of the Pre-Sentence Report that he “had a dirty urinalysis test as a result of using his mother’s percocets for pain associated with a former brokenleg”[5] and that “his methadone doctor referred him to a local addictions agency for one to one counselling but he failed to contactthem”. [37] Mr. Fortune also told the author of the report that he had two sets of peer groups. One group has a negative influence onhim and is involved in partying and using illegal drugs. The other group is involved in playing sports and poses no risk. He has not beeninvolved with sports for the past year.

He indicated that he spends most of his free time with his girlfriend. The author of the Pre-Sentence Report indicated a concern that Mr. Fortune had a lot of unstructured free time which, along with his peer relations causesconcern and poses a risk of him re-offending. [38] Mr. Fortune has expressed no remorse for his offences. On the contrary, he has continued to deny his guilt from his notguilty plea to his comments to the author of the Pre-Sentence Report and his remarks to me when I asked him if he wished to sayanything before I imposed sentence.

His response to me was to repeat the arguments presented by his counsel before I found Mr. Fortuneguilty of these offences. Similarly, he stated that he viewed percocets as just another painkiller, albeit one that was more effective thanTylenol. This indicated a total absence of any understanding of the dangers involved with these and other addictive drugs.

I am awarethat I must not treat this absence of remorse as an aggravating factor on sentencing but it certainly eliminates one reason for me to reducethe sentence that I would otherwise impose. [39] So I have a 21 year old first offender who has committed a very serious offence. He has expressed no contrition orremorse. He has exhibited little if any insight into his problems. While he has embarked upon a methadone program, that has merelyallowed him to substitute one drug, methadone for another, heroin, while also using another illegal drug, percocet.

He has chosen not toobtain further counselling even though his doctor recommended that he do so. [40] This all adds up to a case that calls for jail. In my view, a penitentiary term would not be inappropriate. However, takinginto account Mr. Fortune’s age and the absence of a previous record, I choose to sentence him to two years less one day in thereformatory with respect to the heroin charge. I sentence him to imprisonment for one year concurrent with respect to the proceeds ofcrime charge. The jail sentences will be followed by probation for three years.

It is my intention that the combination of jail andprobation will satisfy the principles of deterrence and denunciation while still allowing for the rehabilitation of Mr. Fortune. It is also myintention that this combination of jail and probation will also provide structure and supervision for nearly five years. That is substantiallylonger than any penitentiary term that I would consider to be appropriate here. [41] The terms of the probation are that Mr.

Fortune will: 1. keep the peace and be of good behaviour; 2. appear before the court when required to do so by the court; 3. notify the court or the probation officer in advance of any change of name or address, and promptly notify the court or theprobation officer of any change of employment or occupation; 4. report to a probation officer within two working days of his release and thereafter, when required by the probation officer and inthe manner directed by the probation officer; 5. remain within the jurisdiction of the court unless written permission to go outside that jurisdiction is obtained from the court orthe probation officer;

6. not associate or communicate directly or indirectly with anyone known by him to have a criminal or youth record, except for members of his immediate family; 7. attend for and actively participate in, to the satisfaction of his probation officer, any assessment, treatment or counselling as required by his probation officer with respect to drug abuse, and sign whatever consents or releases that may be required by his probation officer to monitor and verify compliance with said assessment, treatment or counselling, and provide written proof of completion of said assessment, treatment or counselling to his probation officer; 8. abstain absolutely from the purchase, possession or consumption of illegal drugs; 9. make reasonable efforts to find and maintain suitable employment and provide proof to his probation officer if requested or attend school full time and show progress reports to his probation officer as required; 10. reside at an address approved by his probation officer. [ 42 ] I am also making an order pursuant to

section 109 of the Criminal Code and for the next 10 years, Mr. Fortune may not own, possess or carry any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance. [ 43 ] I am also making a forfeiture order with respect to the money and the drug paraphernalia seized by the police. [ 44 ] Finally, in light of the time to be spent in custody, I waive the surcharges. Released: August 24, 2011 Signed: “Justice D.A. Harris” _______________________ Justice D.A. Harris