R. v. Chiriac, 2011 ONCJ 324

Citation: R. v. Chiriac , 2011 ONCJ 324 ONTARIO COURT OF JUSTICE Old City Hall - Toronto BETWEEN: HER MAJESTY THE QUEEN — AND — SILVIO CHIRIAC ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) A. Shachter For the Crown A.D. Goldkind For the Defendant Heard: February 16 and May 4, 2011 REASONS for SENTENCE MELVYN GREEN J.: A. INTRODUCTION [ 1 ] Silvio Chiriac has pled guilty to two counts of trafficking in cocaine and one count of possession of the proceeds of an indictable offence. The first trafficking and related proceeds count relate to the sale of approximately three grams of cocaine for $300 on August 29, 2009.

The second trafficking, by way of “offer”, occurred a few days later, on September 3 rd . Mr Chiriac, the offender, appears before me as a contrite, fully employed, youthful first-offender. In these circumstances, Crown counsel says the appropriate sentence is one of 18 months incarceration. The defence agrees that a term of imprisonment is appropriate but that it should be served in the community by way of a conditional sentence for a period of between nine and twelve months.

Neither counsel suggests that a term of probation follow the offender’s imprisonment. [ 2 ] I first address the evidence bearing on the circumstances of the offences and the offender. B. EVIDENCE

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a) Introduction: Procedural History [ 3 ] The offender was arrested along with three others on September 3, 2009. He was released on bail a week later. His preliminary inquiry, along with that of his co-accused, was scheduled for February 16, 2011. He alone pled guilty to the three aforementioned offences on that date, his co-accused electing to proceed to trial in superior court. Almost 22 months have now passed since the offender’s arrest. (

b) The Offences [ 4 ] An undercover officer arranged a small purchase of cocaine with an anonymous Internet vendor on August 27, 2009. Two days later he met with the offender and a second man and purchased 3.06 grams of powder cocaine from them for $300. The undercover officer contacted the offender a few days later and arranged to purchase one ounce of cocaine for $1,850. The offender, accompanied by the same second man, met the undercover officer at a gas station later that day.

They were arrested before the transaction could be consummated, as were two other persons in a nearby car in which the police found two ounces of cocaine. [ 5 ] There is no evidence of any prior association between the offender and the occupants of the car in which the cocaine was found. The offender’s role in both transactions appears to have been that of a “go-between”. However, it is conceded that the offer to sell cocaine on the second occasion was a genuine tender rather than mere puffery, as evidenced by the cocaine found in the idling car nearby. (

c) The Offender [ 6 ] The offender was 23 years of age at the time he committed these offences. He has no criminal record or outstanding charges. He drinks alcohol socially and, in the past, occasionally smoked marihuana. He is not identified as ever having had any substance abuse issues. I have had the advantage of a pre-sentence report (PSR) that is generally positive. The offender is described as having been polite, co-operative and forthcoming during his interview with the PSR’s author. His remorse is palpable.

The PSR records that the offender “admitted that his actions were wrong and feels badly for committing the offence”. He repeated this sentiment in impromptu and earnestly-delivered words before me at the close of his sentencing hearing, observing that he brought himself, his family and his father’s name “down” and that he was truly “ashamed”. [ 7 ] The offender was born in Romania. His parents divorced when he was four years old and he did not hear from his father for the next three years. He later learned that his father had emigrated to Canada.

At his father’s invitation, he joined him in Ontario when he was 14. He resided with his father and stepmother until he was 19. He then moved out to live at the family home of his girlfriend. She is now his fiancée. [ 8 ] The offender completed high school without any disciplinary problems. He was enrolled in the Sea Cadets as an adolescent and played organized soccer during the same time - frame. He has been gainfully employed almost continuously since graduating.

He was laid off in 2008 and it was during this period of unemployment that he became involved in the criminal conduct that brings him before the court. Since his release on bail he has terminated his relationships with negative peers and, since October 2009, secured and maintained full-time work as a customer sales and service representative with a communications firm.

He intends to train as an industrial gas technician, half the cost of which program his father has offered to pay. [ 9 ] The author of the PSR notes that the offender has a positive and supportive relationship with both his parents and his fiancée and her family. He tries to visit his mother in Romania every two years and sends her $200 a month by way of financial assistance. C. ANALYSIS (

a) Introduction [ 10 ] Canadian appellate courts have repeatedly characterized cocaine as a perfidious drug. Commercial trafficking in quantities such as those reflected in the second transaction for which the offender has accepted responsibility typically attracts sentences of imprisonment in the mid-reformatory range, although an offender’s criminal antecedents or other aggravating factors may extend the range to low-end penitentiary time.

Deterrence and denunciation are routinely identified as the paramount sentencing objectives in cases such as the one before me. [ 1 1] There are, however, other sentencing considerations to which heed must also be paid. These include concern for an offender’s rehabilitation and the principles of restraint and restorative justice – particularly where, as here, the offender presents as a youthful and sincerely remorseful first offender who, for the past 22 months, has demonstrated a resolve and capacity to return to a pro-social existence.

In the end, the overarching and fundamental principle of sentencing must be honoured. As prescribed by s. 718.1 of the Criminal Code , “A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender”. The harmonization of these sometimes-disparate values and principles requires attention to the individualized circumstances of the offender and his crimes. The divergence between the Crown and defence positions reflects the tension involved in this exercise. (

b) The Legal Framework [ 1 2] I have recently had occasion to pass sentence in a case that bears significant similarities to the one now before me. While the particular circumstances of two offenders and their offences are inevitably unique, they are both young men who faced challenges in their youth, pursued an education, avoided delinquent conduct, secured respectable work as adults, fell into intermediate level drug trafficking during a period of unemployment, and resumed constructive and crime-free lives in the lengthy interval between their release on bail and their remorseful return for sentencing.

The material differences between their situations is reflected in their sentences, but the framework in which I anchor my analysis is effectively the same as that I employed in the earlier case, that R. v. Philippe Dormevil , unrept., June 8, 2011.

[13] Rather than repeat much of what I wrote in Dormevil, I here incorporate, if only by reference, the relevant portion of those reasonsthat fall under the rubric “The Legal Framework” (paras. 16-30). While acknowledging the importance of deterrence and denunciation inthe penalization of commercial trafficking in “hard” drugs, I endeavour in Dormevil to fit these objectives into a more holistic sentencingmatrix. One critical consideration, as I there develop, involves attention to the codification and reform of Canadian sentencing lawexpressed in the 1996 amendments to

Part XXIII the Criminal Code and, in particular, their statutory introduction of the remedialprinciples of restraint and restorative justice. As said by Chief Justice Lamer for a unanimous Supreme Court in R. v. Proulx (2000),2000 SCC 5 , 140 C.C.C. (3d) 449, at para. 15, … two of Parliament’s principal objectives in enacting this new legislation [were]: (

i) reducing the use of prison as a sanction, and (ii)expanding the use of restorative justice principles in sentencing. [14] Applying this

interpretation, the Supreme Court, in its companion case of R. v. Gladue (1999), (SCC), 133C.C.C. (3d) 385, at para. 36, directed that, … imprisonment should be the penal sanction of last resort. Prison is to be used only where no other sanction or combination ofsanctions is appropriate to the offence and the offender. [Emphasis added.] The introduction of conditional sentences as part of the same 1996 reform package was read as buttressing the view that Parliament’sintention was to restrain the use of incarceration as a sentencing modality and to advance the use of restorative and community-basedalternatives.

As said in Proulx, at para. 113, “Where a combination of both punitive and restorative objectives may be achieved, aconditional sentence will likely be more appropriate than incarceration”. [15] The principles of incarcerative minimalism and restorative justice have since been re-affirmed by the Court of Appeal. See, byway of example only, R. v. Kutsukake (2006), (ON CA), 213 C.C.C. 80, esp. at para. 15; R. v. Batisse (2009), 2009ONCA 114 , 93 O.R. (3d) 643, at paras. 32-35; and R. v.

Jacko, 2010 ONCA 452, esp. at paras. 87 and 94. [16] In weighing the applicability of these principles to the case at bar and, in particular, the determination of a fit sentence, I musthave regard to the nature of the offence: here, in short, the trafficking in a substantial quantity of what is often described as an insidiousdrug for purely commercial purposes. The addictive properties of cocaine and the collateral criminality, violence and corruption thatattend its distribution cannot be gainsaid.

Indeed, it is the aggravating nature of the drug and the amount here offered that invites, as afrequent disposition, a substantial sentence of incarceration. I must also have regard to the offender’s role in this offence as it bears onhis degree of responsibility. The offender was not the supplier or “back-end”; he middled product (exposing himself on eachtransaction), no drugs or proceeds were found in his possession, and there is no evidence of personal enrichment.

He was not, however,an “addict-trafficker”; his participation flowed from conscious choice and criminal avarice. [17] The crafting of a just and appropriate sentence also commands consideration of the circumstances of the accused person,especially where, as here, he is a youthful first offender. His only prior experience of imprisonment was the week spent at the “Don” Jailbefore being released on bail. He has expressed genuine remorse and accepted responsibility for his role, as reflected in his pleas ofguilty.

He was 23 at the time of the offences and has since returned to a constructive life of meaningful employment and a settleddomestic relationship that will soon mature into marriage. He has the support of his immediate and fiancée’s families. He remains closewith his mother in Romania and supports her financially. Further, his offences appear largely out-of-character, as reported by thoseinterviewed by the author of his PSR and by the absence of any recorded or acknowledged criminal conduct before or after the offencesthat bring him before me.

While the nature of the offences at issue argue for a sentence of true imprisonment, the personalcircumstances of the offender detract from the necessity of such disposition. As the Court of Appeal has repeatedly reminded trial courtjudges, youthful first offenders should be afforded the “shortest possible sentence [necessary to] achieve the relevant objectives”: R. v.Borde (2003), (ON CA), 172 C.C.C. (3d) 225, at para. 36. (See, also, R. v. Vandale and Maciejewski (1974), (ON CA), 21 C.C.C. (2d) 250 at 251-2 (Ont. C.A.) and R. v. Hayman (1999), (ON CA), 135 C.C.C. 338,at para. 22 (Ont. C.A.); R. v.

Priest (1996), (ON CA), 30 O.R. (3d) 538, at 545; and R. v. Blanas (2006), 201 O.A.C.226, esp. at para. 5.) [18] Clearly the sentencing objectives of deterrence and denunciation must be given appropriate effect. However, as said by the Courtof Appeal in R. v.

Jacko, supra, at paras. 80 and 94, It is well-settled that the prominence of these sentencing objectives does not, on its own, foreclose a conditional sentence order as asentencing alternative, since a properly crafted conditional sentence can give full voice to both objectives. [Emphasis in original.] … Incarceration may provide for more denunciation and deterrence than a conditional sentence. But, at least as a general rule, a conditionalsentence is more tailored to accomplishing the restorative objectives of rehabilitation, reparation and promotion of a sense ofresponsibility in the offender. (

c) Applying the Law [19] The imposition of a conditional sentence requires satisfaction of four pre-conditions, as prescribed in s. 742.1 of the Code: nominimum term of imprisonment must attach to the offence or offences involved; the contemplated term of imprisonment must under twoyears; the safety of the community would not be endangered by the offender serving his sentence in that environment; and, finally, aconditional sentence must be consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2 of the

Criminal Code . [ 20 ] As there is no minimum penalty for the offender’s crimes and as Crown and defence are agreed that a reformatory-range sentence is appropriate (as is my view), the first two criteria are here met. The third focuses on the risks to the public attending the specific offender serving his sentence in the community. For the reasons I developed in R. v. Acorn , 2010 ONCJ 142 , at para. 17 , I find that this condition is also satisfied. As said in R. v.

Proulx , supra, at para. 90 , “ serious consideration should [then] be given the imposition of a conditional sentence” (emphasis in original). [ 2 1] Applying such “serious consideration”, I am convinced that the imposition of a conditional sentence is consistent with the purposes and principles of sentencing set out in the Criminal Code and as construed by the various appellate authorities upon which I have relied in these Reasons.

Repeating the language of the Supreme Court in Proulx , at para. 100 , where, as here, “both punitive and restorative [sentencing] objectives can be achieved … a conditional sentence is likely a better sanction than incarceration”. The conditional sentence I intend to impose includes “house arrest” and restrictions on the offender’s liberty and mobility. It will thus serve to denounce the offender’s conduct and deter him and, hopefully, others from similar criminal conduct.

The terms of that sentence will also afford at least a modicum of restorative justice and reinforce the offender’s sense of responsibility. [ 2 2] Applying the totality principle, a global sentence of 12 to 13 months would, in my view, be fitting if I were sentencing the offender to a period of “straight” jail. As conditional sentences, while onerous, are less so than those served in a prison, I intend to lengthen the effective global disposition to one of 15½ months: see Proulx , at paras. 41 and 44 .

I also intend to assign the offender two weeks credit for the week of pre-sentence custody he served pending bail, thus reducing his sentence, going forward, to 15 months.

The offender’s one week of pre-sentence custody is to be noted on the Information in respect to the second trafficking offence. [ 2 3] I allocate the offender’s 15 month conditional sentence as follows: • Trafficking in cocaine on August 29, 2009: 3 months; • Possession of proceeds on August 29, 2009: 1 month, concurrent; • Trafficking in cocaine on September 3, 2009: 12 months, consecutive. [ 2 4] During the first five months of his conditional sentence, the offender is subject to strict house arrest conditions.

He must reside at an address approved by his conditional sentence supervisor and is not to leave that house at any time but for the following exceptions: • To attend employment and to travel directly to and from his place of employment; • To attend school or training programs, and direct travel to and from, upon the provision of appropriate documentation confirming his enrolment to his conditional sentence supervisor; • For scheduled medical and dental appointments, any medical emergencies, and scheduled appointments with his conditional sentence supervisor; • For three hours once a week to attend to personal needs; • For any other purpose for which his conditional sentence supervisor has provided advance written authorization. [ 2 5] During the next five months of his conditional sentence, the offender is subject to a strict curfew.

But for medical emergencies, he must be at his approved residence at all times between 11pm and 7am. Any exception requires advance written authorization from his conditional sentence supervisor. [ 2 6] During the final five months of his conditional sentence, the offender is required to perform 75 hours of community service as directed by his conditional sentence supervisor and at a rate of not less than fifteen hours a month.

He is also subject to the statutory terms that accompany all conditional sentence orders and, in addition, those “general terms” to which I am about to turn. [ 2 7] By way of “general terms”, throughout his conditional sentence the offender is: • Not to possess or consume any non-prescription drugs listed in the Controlled Drugs and Substances Act ; • To maintain employment and/or pursue his education; • To promptly advise his conditional sentence supervisor of any change in employment or education; • To have no contact with his co-accused. [ 28 ] By way of ancillary orders, the offender is prohibited, pursuant to s. 109 of the Code, from possessing any of the weapons, ammunition, explosives and other offensive devices listed in that provision for a period of ten years.

Given the nature of his offences, he is also required to provide a sample of his bodily substance for purposes of DNA analysis and archiving. [ 29 ] As the offender is currently employed, I see no undue hardship that impedes the imposition of the victim fine surcharge. He shall have 90 days to pay this sum. D. CONCLUSION

[ 30 ] Mr. Chiriac is sentenced to a total further 15 months in custody, which custody is to be served in the community by way of a conditional sentence. Collateral weapons prohibition, DNA and victim fine surcharge orders complete this disposition. [ 31 ] Finally, I note that Crown counsel does not seek a probation order in this case. I infer that this reflects Crown confidence in the offender’s capacity to shun further criminal conduct and, thus, the absence of any need for continuing community supervision once he has completed his custodial sentence.

This, of course, supports the appropriateness of a conditional sentence and, in particular, my conclusion as to the third statutory condition to the grant of such a disposition being met. It also suggests that the Crown’s urging of a sentence of incarceration is primarily rooted in retributive sentencing values as the rehabilitative and restorative benefits of a period of probation are viewed as unnecessary. As I have held, a proper balancing of all relevant factors and circumstances admits to a non- incarcerative disposition as more fitting to the individual circumstances of the offender and his crimes.

Released on June 21, 2011 __________________________ Justice Melvyn Green