R. v. McGill, 2016 ONCJ 138

CITATION: R. v. McGill , 2016 ONCJ 138 ONTARIO COURT OF JUSTICE Old City Hall – Toronto BETWEEN: HER MAJESTY THE QUEEN — AND — ROBERT McGILL ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) A. Chamberlain For the Crown J. Erickson For the Defendant Heard: June 5 and November 23, 2015 and January 19 and February 11, 2016 TABLE OF CONTENTS Paragraph A. INTRODUCTION .......................................................................................................... 1 B. EVIDENCE ...................................................................................................................... 6 (

a) Introduction......................................................................................................... 6 (

b) The Offence......................................................................................................... 7 (

c) The Offender’s Criminal Record................................................................... 11

(

d) The Offender’s Circumstances...................................................................... 13 (

i) The Early Years: Until 1999.............................................................. 13 (ii) The Interim Years: 1999-2013.......................................................... 19 (iii) The Bail Years: 2013-2016 ........................................................... 23 (

e) External Assessments...................................................................................... 27 C. ANALYSIS .................................................................................................................... 29 (

a) Introduction....................................................................................................... 29...... (

b) The Statutory Sentencing Options................................................................. 33 (

i) Introduction.......................................................................................... 33 (ii) An Historical Review.......................................................................... 34 (iii) The Current Sentencing Framework .............................................. 42 (

c) Sentencing “Ranges”....................................................................................... 52 (

i) Introduction.......................................................................................... 52 (ii) The Sentencing Range for Cocaine Trafficking.............................. 54 (iii) Sentencing Ranges: From Rules to Guidelines............................. 60 (d) “Exceptional Circumstances”........................................................................ 69 (

i) Introduction.......................................................................................... 69 (ii) Drug Trafficking and “Exceptional Circumstances”...................... 70 (iii) “Exceptional Circumstances” After Lacasse .................................. 78

(

e) Restorative Justice........................................................................................... 88 (

f) Deterrence, Denunciation and Rehabilitation.............................................. 96 (

i) Introduction.......................................................................................... 96 (ii) Deterrence, Examined and Applied................................................ 101 1. Specific Deterrence..................................................................... 101 2. General Deterrence...................................................................... 104 (iii) The Communicative Function of Sentencing: Denunciation and Rehabilitation ................................................... 106 (g) “Local” Conditions, Circumstances and Needs........................................ 108 (

h) Applying the Law: The Just and Appropriate Sentence........................... 114 D. CONCLUSION ........................................................................................................... 121 REASONS for SENTENCE MELVYN GREEN, J.: A. INTRODUCTION [ 1 ] The police executed a search warrant at the home of Robert McGill on November 17, 2013. They seized approximately 300 grams of cocaine and $3,000 in cash. Some 17 months later, on June 5, 2015, McGill pled guilty to single count of possession of cocaine for the purpose of trafficking.

Eight months further on, at the conclusion of a contested hearing on February 11, 2016, McGill was finally sentenced. Brief oral reasons (considerably less dense than those that populate much of this reserve judgement) accompanied the imposition of sentence. [ 2 ] McGill is a 40-year-old Aboriginal man. He has prior convictions for crimes of violence, but they are very dated. He is in a settled and supportive relationship and is the caring father of an eight-year-old son. McGill and his son both suffer from the same chronic, debilitating heart condition.

As a child, McGill was subject to emotional and physical abuse, parental alcoholism, extreme poverty, routine exposure to criminality and drugs, and the scarring effects of racism. Since his arrest in November 2013, he has secured

employment, diligently pursued his schooling, abstained from illicit drug use, attended regular counseling programs with respectedmembers of the Indigenous community, and garnered educational certificates, an award and several commendatory attestations. In short,he has turned his life in a very positive direction. [3] What now, well more than two years after his arrest, is a fit sentence for this offender for this offence? [4] The offender’s circumstances clearly invoke the sentencing guidance emanating from the Supreme Court’s decisions in R. v.Gladue, (SCC), [1999] 1 S.C.R. 688 and R. v.

Ipeelee, 2012 SCC 13 , [2012] 1 S.C.R. 433. Front-loadingthese considerations, and attributing, he says, due weight to them, Crown counsel maintains that the paramountcy of deterrence anddenunciation nonetheless command a maximum reformatory-length sentence of two years less a day. Defence counsel’s position ismarkedly at odds.

To maintain McGill’s employment, education and dependent family, the defence urges the imposition of a maximum-length intermittent prison sentence of 90 days followed by a lengthy period of probation. [5] The Crown’s position can fairly be described as marginally within or somewhat below the range of sentence generallyendorsed by the Court of Appeal for the offence of possessing close to a third of a kilogram of cocaine for the purpose of trafficking.McGill’s antecedents help situate and to some degree mitigate the circumstances of his offence.

They also fall squarely within the matrixof concerns to which Gladue and Ipeelee invite a more creative approach to restorative justice than that too often honoured merely byway of a nominal tariff discount. McGill’s sincere and laudable efforts to advance his own rehabilitation within a culturally nourishingenvironment must be both acknowledged and encouraged.

At the same time, trafficking in “hard” drugs like cocaine must be condemned.How the “Gladue principles” and McGill’s own positive steps towards productive social re-integration are to be reconciled with theconventional punitive demands that accompany “hard” drug trafficking is the neat if, sadly, all-too-common question at the centre of thiscase. B. EVIDENCE (

a) Introduction [6] The evidence bearing on the offence itself can be surveyed in very brief compass. That salient to the broader context of theoffence, the circumstances of the offender, his antecedents and his post-offence conduct require more granular attention. Consistent withthe direction of the governing authorities, McGill is the subject of a thorough “Gladue Report”. He also participated in a culturally richand sometimes emotionally charged “sentencing circle”, only the second conducted in the 15-year history of Toronto’s “AboriginalPersons’ Court”, more commonly styled the “Gladue Court”. (

b) The Offence [7] As noted, members of the Toronto Police Service executed a search warrant at McGill’s home on November 17, 2013. Theyseized some 139 grams of powder cocaine and 167 grams of crack cocaine (almost eleven ounces of cocaine in total) from a bedroom heshared with his partner, Sarah. The drugs were valued at approximately $15,000. The police also seized $2930 in cash, which money hassince been forfeited, on consent, to the Crown. [8] No Crown evidence was tendered of prior trafficking by the offender or of his dealing patterns.

Nonetheless, Crowncounsel’s characterization of McGill as a “mid-level” trafficker is likely accurate. The volume and value of the seized drugs place himabove the “street level seller” but below what is sometimes described as the “distributor” in the hierarchy of drug dealing: see R. v.Barkow, 2008 ONCJ 84 and R. v. Haye, [2013] O.J. No. 6493 (Sup. Ct.).

It is a fair inference, and one not challenged by defencecounsel, that McGill was directly supplying street-level dealers or those who performed that intermediary role, or perhaps both. [9] It is difficult to overestimate the harm attributable to the prolonged or indiscriminate use of the drugs in which McGill wastrafficking. As I said in R. v. Okash, 2010 ONCJ 93, at para. 11: Cocaine, particularly crack cocaine, is judicially acknowledged as a hazardous drug that wreaks personal and social havoc, both directlyand through the ancillary crime associated with its abuse: R. v.

Pearson (1992), (SCC), 77 C.C.C. 124, at para. 60(S.C.C.); Pushpanathan v. Canada (M.C.I.), (SCC), [1998] 1 S.C.R. 982, esp. at paras. 83-106; R. v. Cunningham(1996). (ON CA), 104 C.C.C. (3d) 542, at para. 21; and R. v. Scott (1996), (ON CA), 93 O.A.C.235, at paras. 4 and 6. One need only spend a few hours observing the parade of truly pathetic defendants in downtown Toronto’sresolution courts to appreciate the drug’s legacy of misery. Some indeterminable portion of this collateral damage is almost certainly aproduct of the criminalization of dependence-producing drugs.

However imperfect or misguided that policy choice, it cannot excuse oreven mitigate the exploitation of that policy for commercial ends. There is a live question, to which I shall return, bearing on McGill’s personal history of drug use and dependence. He readily concedes,however, a commercial motivation and acknowledges the harm necessarily flowing from his cocaine dealing. [10] McGill pled guilty to the single count of constructive trafficking in cocaine. Although hardly immediate, his plea was enteredbefore a date was fixed for a preliminary inquiry or trial.

Significantly, McGill entered his plea despite, as Crown counsel fairlyconcedes, there being viable trial issues, particularly respecting the constitutional validity of the search warrant here essential to aneffective prosecution. McGill’s plea reflects not only his acceptance of responsibility for the offence but, as well, his genuine remorse.Further, well more than two unblemished years have passed since the occurrence of the offence at issue. (

c) The Offender’s Criminal Record [11] McGill’s prior criminal record is limited to a narrow two-year band stretching from the time he was 20 until he was 22. InMarch 1995 he was convicted of possessing an unregistered restricted firearm. The equivalent of a two-week sentence for possession of anarcotic followed in October of the same year. And in March 1997 he received an effective penitentiary sentence of about 4½ years for

aggravated assault, possession of an unregistered restricted weapon and use of a firearm. He was released in November 1999. There is no record of his having any further conflict with the criminal justice system until the arrest, some 14 years later, which brings him before me. That is not to say, however, that his life was crime-free in that interim. [ 12 ] McGill was granted bail, by way of a surety-backed recognizance, the same day he was arrested. There have been no criminal infractions during the 27 months he has been on judicial interim release awaiting disposition of this charge. Nor is there any suggestion that he has done other than fully comply with his bail conditions. (

d) The Offender’s Circumstances (

i) The Early Years: Until 1999 [ 13 ] Robert McGill – or Robert, as I refer to him during this survey of his personal antecedents – is now 40. His mother and father are Aboriginal, Algonquin and Mi’kmaq respectively. Robert’s father, Raymond, was raised in an orphanage in New Brunswick. His maternal grandmother was sent to a residential school in Ontario when she was six. She did not leave until she was 16. Her first marriage failed. The second produced Robert’s mother, Linda, but it too ended badly as she descended into alcoholism and abusive parenting.

The CAS intervened and Linda and her brother were placed in separate homes. Judges who routinely preside in Gladue Court are all too familiar with the destructive intergenerational impact of residential schools recently canvassed in the reports of the Truth and Reconciliation Commission. [ 14 ] Linda met Raymond when she was 16. She gave birth to Robert a year later, in 1975. Robert was a born with a rare and complex congenital heart defect, Tetralogy of Fallot. He required surgery when he was two and again when he was eight.

The further replacement of a valve inserted during the seven-hour second procedure is long overdue. Robert’s only sibling, his sister Amanda, is about five years his junior. For a time, both were in CAS care when their mother Linda had a “breakdown” and had to be hospitalized. Throughout, Robert’s father became a progressively “nasty” drunkard.

As all the family members attest, he routinely humiliated Robert, telling him he “would never be a hockey player because of [his] heart condition”. [ 15 ] Robert’s family moved to Regent Park, one of the most impoverished and then crime-infested residential projects in Toronto, in 1979. From the time he was a young child, Robert was exposed on a daily basis to drugs, dealing, addiction, and violence both random and organized. His family had grown increasingly dysfunctional, with Raymond drinking heavily each day while Linda was severely depressed.

Robert came to “hate” his father, but he was devoted to his sister Amanda. In her words: “Rob was the one who raised me. He protected me from day one. Rob would take me to school and pick me up. He would make sure we had food and clothes.” [ 16 ] Robert knew he was “Native” but his parents “weren’t attached to anything” tied to their cultural ancestry. He learned nothing about his heritage from them. Being Aboriginal was a liability in Regent Park where “everyone thought Natives were drunks, and even the kids got beat up”. The racism was widespread and deeply seated.

As summarized by the Gladue Report writer: Robert’s exposure to his Native culture while growing up was a negative experience. All he witnessed were the negative stereotypes, without an understanding of the systemic factors. [ 17 ] Robert did not fit well into school. He was bullied, got into fights and was labelled a behavioural problem. He took on part- time jobs from the time he was 11, but he was robbed by his peers and pressured into thefts by his father that cost him his employment.

By the time he was in high-school, Robert had joined a gang and begun drinking and using and sometimes selling drugs. “Many of his friends”, says Amanda, were “shot, stabbed, killed”. [ 18 ] For Robert, “things got really bad” when he was about 18: I don’t think people understand what it’s like to grow up in Regent Park unless they’ve lived there. Your choice was be tough or be a victim. I saw terrible things, and things happened to my friends. A lot of them are dead, kids dead or addicted. Many of the people I was associated with carried guns. I chose to also get a gun. It was for protection.

The criminal conduct that led to Robert’s earlier convictions soon followed. It was while he was in prison that his drug use considerably ramped up. Reflecting on these experiences to the author of his Gladue Report, Robert commented: There were a lot of guys from Regent [Park] in there. We all did the same stuff and ended up in the same place. Sad when I think about it. I never thought about it until now that I’m piecing it all together. What a big waste of years my life has been. No one visited Robert during the years he was in prison.

He resolved, when released, to stay away from guns and violence, a vow he has since honoured. (ii) The Interim Years: 1999-2013 [ 19 ] Robert maintained a small apartment following his release on parole. He had no skills, no training, and no job. He was dependent on drugs and supported himself by dealing. His father died in 2006, soon after he met Sarah, the woman who has remained his partner and primary support for the past decade. Their son, Heyden, was born in 2007. Heyden, now eight, suffers from the same rare heart disorder as his father.

He required open heart surgery when he was six months old and will almost certainly require further surgical intervention. By all accounts (and there are many in this regard), Robert is a model, dedicated father. When Sarah began full-time work in 2009, Robert became his son’s primary caregiver. Sarah also attributes her return to school and now full-time employment to Robert’s encouragement and support.

It is not too far a stretch to infer that Robert’s protective devotion to his son is inspired by the neglect and abuse he suffered at the hands and tongue of his own father. [ 20 ] Robert was less than forthcoming with the Gladue Report writer respecting his drug use. While he conceded dealing to make ends meet, he left the impression that his son’s birth had prompted him to give up the consumption of drugs other than marijuana and alcohol. Asked directly at the sentencing circle, Robert acknowledged relying on drugs as a “crutch” for “pretty much [his] whole life”

and that he had a “cocaine addiction” at the time of his arrest in November 2013. His mother Linda, seated directly across the table from Robert, appeared visibly shocked – not that he had been dealing but that she had remained ignorant of the extent of his personal drug use. The exchanges that followed – among family, counsel and counsellors and, of course, Robert – was a moving and sometimes raw exercise in the dynamic of shame, denial and candour, and a tribute to the value of sentencing circles built on trust and shared respect.

As said directly to McGill at the circle by the ALST Gladue Caseworker (herself a former addictions counsellor) who had drafted the Gladue Report: There has been a level of denial around your addiction and that you have disclosed this in this setting is admirable. So there’s a step here. A lot of the people I work with many times think that the Gladue process is a get-out-of-jail-free card when in fact this process is much more difficult, much more difficult, than standing in court, pleading “I’m guilty”, getting your time and off you go.

So I have to honour you around this Robert because I know this is difficult, but it’s also transformative and it’s what we do as First Nations People. This is part of your culture, my culture. This is how we heal. [ 21 ] Robert made clear that he had not used drugs since he was arrested and that he “will continue to stay clean”. I accept Robert’s assertions of his abstention from drug use over the past two-plus years. He was slow to acknowledge his earlier dependency, but I see no tactical advantage in his advancing it at the late stage he did.

Irrespective of any dependence at the time of his arrest, Robert does not present as a stereotypical “addict trafficker” and the amount found in his possession belies such characterization. He has conceded from the time of his plea that he was a commercial trafficker. While his unlawful income may have supported his own habit, he was, in the end, in the business of selling dangerous drugs.

That said, and as I shall soon discuss, the changes Robert has engineered in his life, the insights he has developed and the counselling network now in place leave me confident that he has the resolve and support to effectively resist backsliding. [ 22 ] Robert’s response to his arrest is telling. In his words: When my place was raided and I got arrested it was the biggest wake-up call of my life. I realized I could lose my family, and I hate what I put them through. After this happened there were times I didn’t want to live. I’m sorry I’ve done this to them. I decided to get help.

Almost immediately following his release, Robert pursued a path of healing. (iii) The Bail Years: 2013-2016 [ 23 ] Robert’s partner Sarah provides a succinct account of his trajectory once on bail: Rob decided to change his life around. Rob never had a support system or anyone to guide him. I really credit his turnaround to all the Native organizations that have been helping him. He went for counselling and they helped him go back to school. I can’t believe the kinds of things he didn’t know how to do, simple things like going in to the bank.

Aboriginal Legal Services of Toronto (ALST) helped Robert apply for disability support. They referred him to an Aboriginal service agency, Anishnawabe Health, where he was introduced to a Traditional Counsellor, Julian Bubb, with whom he still meets regularly. ALST also referred Robert to a Spiritual Elder from whom he received his Spirit name and colours. This was, in Robert’s words, the “first time ever that I felt Native and accepted. It was a motivational boost. I wanted to keep going and learning as much as I can”. [ 24 ] Julian Bubb began meeting with Robert within a month of his arrest in late-2013.

He attended the sentencing circle and described Robert as a “model client”. “He has made”, he continued, “a complete 180 degree change in his life”. Robert also attended at Miziwe Biik Aboriginal Employment and Training program where he sought direction from a guidance counsellor, Osborne Farrell, who also supported Robert at the sentencing circle. With Osborne’s encouragement, Robert returned to school and obtained his Secondary School Diploma in mid-2014. He also received an award for “Outstanding Results in Social Science”, a source of particular pride to him, Sarah and their son Hayden at his graduation.

In Osborne’s assessment: Robert had never realized how smart he is, and it really helped his self-esteem. It also helped him to realize that the lifestyle he had lived wasn’t necessary. I pushed Rob toward education. I would like to see him go to university, and he’s certainly got what it takes. When he first came to see me he was really beating himself up over what he had done. He had a hard time lifting his head. His identity was an issue. He felt he wasn’t Native enough because he never went to ceremonies or Pow Wows.

I explained that just because we’re not raised in the culture does not make us less Aboriginal. I suggested he immerse himself in the culture and find his identity. Now he’s a proud Aboriginal man. His sister Amanda also spoke of Robert’s search for identity: “Rob finally feels he belongs somewhere. He’s embracing the culture, and the culture is embracing him”. [ 25 ] Robert enrolled in a Pre-Business course at Centennial College after graduating from high-school. He successfully completed the course and was formally certificated in April 2015.

He is now mid-way through a Business Administration program at the same College. He attends classes for half the day and works at a manufacturing company the other half of each day. Very positive letters from his instructors and employer were filed on the sentencing hearing. [ 26 ] Robert maintains a close relationship with his mother and sister. He continues his Aboriginal counselling and remains devoted to Sarah and his son. (

e) External Assessments [ 27 ] McGill attended a forensic psychologist’s office for purposes of preparing a clinical risk assessment in June 2015. The clinicians were satisfied with the validity of the psychometric test results, although, in retrospect, it is clear that, as with the Gladue Report writer, McGill downplayed his historical involvement with drugs. “Minimal levels” of anxiety and depression were identified, but

no major mental health or other problematic areas. While McGill’s intellectual functioning was in the “average range”, his problem-solving abilities were “above” or “very much above” average. Based on clinical interviews, observations and psychometric testing,McGill was assessed “overall” as having a “moderate risk for future legal involvement”.

In the clinician’s opinion, in light of McGill’srisk factors, acceptance of responsibility and positive life changes since his arrest, “he could be managed in the community” underconditioned supervision. [28] Subject to appropriate comments regarding McGill’s somewhat muted disclosure respecting his earlier drug use, Crowncounsel took no objection to the admissibility of or reliance on the clinical report. C. ANALYSIS (

a) Introduction [29] The circumstances of this case, including those provoking Gladue and Ipeelee scrutiny, invite a close review of three importantsentencing constructs: the available sentencing options, as defined by statute; the principle of sentencing “ranges”; and, finally, thedoctrine of “exceptional circumstances”. [30] In the end, and for the reasons I soon develop, I conclude that the fit sentence in this case is a suspended sentence followed bya lengthy term of probation for the purpose, as directed by s. 732.1(h), of “protecting society and for facilitating the offender’s successfulreintegration into the community”.

Viewed through the prism of the conventional sentencing range assigned to offences such as thatcommitted by McGill, a non-custodial disposition is only justifiable on a mitigative theory of “exceptionality”. When informed byGladue-driven considerations, I am amply satisfied that McGill’s circumstances meet this threshold. [31] The same outcome results from an alternative orientation to sentencing that is neither grounded in nor chiefly mediated bysanctioned ranges.

With respect, there is a risk of injustice in relying on a sentencing model premised on judicially-created fixed rangesof imprisonment from which the sole reprieve is resort to an uncertain doctrine of exceptionality. By way of analogy only, rangesrelieved only by exceptional circumstances is akin to the methodology of fixed-rules-and-narrow-categorical-exceptions that defined thelaw of hearsay prior to the Supreme Court’s development of a “principled approach” in R. v. Khan (SCC), [1990] 2S.C.R. 531, R. v. Smith, (SCC), [1992] 2 S.C.R. 915 and R. v.

B. (K.G.), (SCC), [1993] 1 S.C.R. 740.The fairer and, in the end, more “principled approach” to the law of sentencing – as repeatedly mandated by the Supreme Court – is thatof individualized proportionality. On this model, the distance between the sentence I here impose on McGill and that ordinarily directedfor the offence of cocaine trafficking of this gravity is “exceptional” only in a descriptive sense, not a normative one. Put differently,based on an individualized assessment of McGill and his offence, a non-carceral disposition by way of a suspended sentence is theproportionate response.

While I am mindful of and have carefully considered the range endorsed by appellate authority for similaroffences, application of the full breadth of s. 718.1, the “fundamental principle” of Canadian sentencing law, leads here to a result outsideits parameters. Both approaches reach the same sentence destination in the instant case, but the test of the sentence’s integrity isultimately its proportionality and not whether it meets the amorphous criteria of exceptionality to an approved range. [32] I begin, then, by returning to the building blocks of sentencing. (

b) The Statutory Sentencing Options (

i) Introduction [33] The case-specific array of penal options does not ordinarily attract detailed judicial discussion on sentencing. This case issomewhat different than most. First, as a result of relatively recent amendments, an intermediate sanction for cocaine trafficking – that ofa “conditional sentence” – is no longer part of a judge’s sentencing toolbox. This leaves, in practice, two blunt options: incarceration or anon-custodial disposition by way of a “suspended sentence”.

The stark differences between these alternatives tend to sharpen judicialfocus, particularly in the absence of the “halfway-house”, as it is sometimes described, of a conditional sentence. Second, the offender’sFirst Nations ancestry (and, in particular, the close nexus between his Indigeniety and both his personal history and his rehabilitativeefforts) align with both the codified principles of restraint and restorative justice that inform the sentencing calculus and, in particular, s.718.2(

e) of the Criminal Code which directs that “all available sanctions other than imprisonment that are reasonable in thecircumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders” (emphasisadded). And third, there is an evolving appreciation of the importance of rehabilitation in addressing the individual and societal concernspresented by drug consuming and dependent offenders and, accordingly, refreshed consideration of dispositions that further such ends. (ii) An Historical Review [34] As just noted, the variants of non-custodial sanctions for trafficking in

Schedule I drugs are considerably narrower now thanthey were but a few years ago. [35] Section 5(3) of the Controlled Drugs and Substances Act (the “CDSA”) directs that anyone who, inter alia, possesses cocainefor the purpose of trafficking “is guilty of an indictable offence and liable to imprisonment for life”. Several sub-clauses mandate theimposition of a minimum sentence if particularized conditions obtain. None of those conditions here obtain.

Accordingly, while McGillfaces a maximum sentence of life imprisonment there is, in his case, no statutory minimum sentence. [36] Until relatively recently, a “conditional sentence” of imprisonment, to be served in the community rather than a brick-and-mortar institution, was available to persons convicted of actual or, as here, constructive cocaine trafficking so long as certain statutorycriteria were satisfied. Conditional sentences, as set out in s. 742.1 of the Code, were introduced into the Canadian sentencing armoury aspart of the Sentencing Reform Act (Bill C-41) in 1996.

The statutory pre-conditions for the imposition of a conditional sentence, as thenprescribed, were, first, the absence of a minimum term of imprisonment; second, the imposition of a sentence of imprisonment of lessthan two years; and third, the sentencing court’s satisfaction “that such sentence would not endanger the safety of the community and

would be consistent with the codified purpose and principles of sentencing”. On behalf of the Court, in R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at para. 90, Lamer C.J. directed sentencing judges to give “serious consideration … to the imposition of aconditional sentence in all cases where the[se] statutory prerequisites are satisfied”. [37] Further, unless expressly excluded by statute, R. v. Proulx held that no category of offences was ineligible for disposition byway of a conditional sentence.

Indeed, this latter proposition was articulated in direct response to the position advanced by the AttorneysGeneral of Canada and Ontario who, as noted at para. 80, “argued … a presumption against conditional sentences for certain offences”and “that a conditional sentence would rarely be appropriate for offences such as … trafficking or possession of certain narcotics”,undoubtedly including cocaine.

The Chief Justice’s reply, at para. 81, could not have been plainer (or more directly apposite to thematter before me): “Such presumptions”, he said, “do not accord with the principle of proportionality … and the value ofindividualization in sentencing”. [38] Accordingly, and until certain recent amendments, a person convicted of trafficking in cocaine or, as here, possessing it forsuch purpose was not barred from receipt of a conditional sentence so long as the court determined that the fit sentence was less than twoyears, that such sentence would not endanger the community, and that a sentence served in the community was otherwise consistent withthe principles and purpose of sentencing. [39] R. v.

Proulx and R. v. Wells, 2000 SCC 10 , [2000] 1 S.C.R. 207, like R. v. Gladue, reflected the Supreme Court’sseminal efforts to construe the purpose of the Sentencing Reform Act of 1996 and instruct Canadian courts as to the manner of itsimplementation. As précised in R. v. Wells, at para. 3, Gladue, … determined that the new sentencing amendments represented “a watershed, marking the first codification and significant reform ofsentencing principles in the history of Canadian criminal law” (para. 39).

And, at para. 4 (here essentially repeating the language of Gladue): Parliament had two primary objectives in enacting this new legislation: (

i) reducing the use of prison as a sanction, and (ii) expanding theuse of restorative justice principles in sentencing. [Emphasis added.] [40] The subsequent sentencing jurisprudence of the Supreme Court has reinforced these “primary objectives”. Although typicallyframed as Charter violations or matters of statutory construction, the Court’s rollback of some of Parliament’s decade-long endeavour toextend carceral sentences may be fairly read as a consistent affirmation of these same policy goals. By way of example only, see:Canada (Attorney General) v.

Whaling, 2014 SCC 20 , [2014] 1 S.C.R. 392 (striking down the retrospective application offederal parole limitations), R. v. Summers, 2014 SCC 26 , [2014], 1 S.C.R. 575 (respecting the extension of credit to pre-sentence custody), and R. v. Nur, 2015 SCC 15 , [2015] 1 S.C.R. 773 (declaring unconstitutional a firearms-related mandatoryminimum sentence). As a unanimous Court said in R. v.

Knott, 2012 SCC 42 , [2012] 2 S.C.R. 470, at para. 43: “The sentencingobjectives set out by Parliament in ss. 718 to 718.2 of the Criminal Code are best achieved by preserving — not curtailing — asentencing court’s arsenal of non-custodial sentencing options”. [41] Independent of the Aboriginal focus of R. v. Gladue and R. v. Wells, these same themes of carceral restraint and restorativejustice inevitably impact on the resolution of the sentencing challenge posed by the immediate case.

Although by now trite law, it isbears repeating, as put in Gladue, at para. 36, that, As a general principle, s. 718.2(e) [directing restraint in sentencing] applies to all offenders, and states that imprisonment should be thepenal sanction of last resort. Prison is to be used only where no other sanction or combination of sanctions is appropriate to the offenceand the offender. [Emphasis added.] (iii) The Current Sentencing Framework [42] Commencing in 2007, amendments to both s. 742.1 and various offence-specific provisions of the Code significantly reducedthe availability of conditional sentences.

In some cases, like that involving the offence of sexual interference, the imposition of arelatively modest minimum sentence of 90 days effectively barred access to the conditional sentencing regime for such offenders. Inother instances, such as those encompassing a broad range of drug offences, s. 742.1 was directly amended in 2012 to disqualify personsconvicted of crimes “for which a maximum term of imprisonment is 14 years or life”.

As a result, persons found guilty of trafficking inany amount of cocaine may no longer serve a reformatory-length sentence of imprisonment in the community by way of a conditionalsentence. [43] Judges faced, as here, with the disposition of a single count of non-aggravated cocaine trafficking now have only three statutorysentencing options: a suspended sentence, coupled with a period of probation of up to three years; second, a term of incarceration; andthird, a fine (which may be combined with probation or incarceration or, on some judicial constructions, both).

A “fine”, at least standingon its own, is a most unlikely outcome in such cases but for fact-patterns involving corporate offenders.

This effectively leaves only tworealistic alternatives: a non-custodial disposition by way of a suspended sentence and probation or a sentence of imprisonment of fitduration (followed, if no longer than two years and where deemed appropriate, by a probationary term of up to three-years length). [44] As was the approach it adopted respecting persons convicted of the offence of sexual interference, by merely introducing anominal minimum sentence for trafficking in “hard” drugs such as cocaine Parliament could readily have eliminated both conditionalsentences and non-carceral dispositions for such offenders.

The same initiative would also have abolished the possibility of suspendedsentences for this category of offences as the pertinent Code provision, s. 730(1)(a), permits suspended sentences followed by probationonly “if no minimum punishment is prescribed by law”.

Instead, Parliament appears to have recognized the potential utility ofcommunity sentences, by way of supervised probation, and expressly maintained trial judges’ authority to impose them for cocainetrafficking offences in fit circumstances. [45] Any doubt as to Parliament’s intendment in this regard is readily erased by reference to the “Sentencing” provisions of theControlled Drugs and Substances Act. Section 10(2) of the CDSA sets out a series of “relevant aggravating factors” a court is obliged to

consider in formulating an appropriate sentence for drug offenders, including cocaine traffickers. Significantly, in s. 10(3) judges areinstructed that even where they are “satisfied of the existence of one or more the[se] aggravating factors” they may still “decide not tosentence the person to imprisonment” so long as they provide “reasons for that decision”. Restated, the judicial burden of transparency –of explaining the imposition of a community-based sentence rather than one of imprisonment – arises only where a statutorily-definedaggravating factor obtains.

Where, as in the instant case, none of these aggravating considerations apply, a sentencing court bears no suchstatutory burden. The failure to impose a sentence of imprisonment is, in such circumstances, so unremarkable or unexceptional that theCDSA does not mandate judicial explication. [46] The weight of appellate authority clearly favours sentences of incarceration, and often lengthy ones, for cocaine trafficking.Non-custodial dispositions represent a departure from this general rule.

Accordingly, and independent of any statutory direction, a courtbears a common law obligation to demonstrate, through its reasons, that a community-supervised sentence honours the recognizedpurposes and principles of sentencing in the individual case. [47] As the only realistic sentencing alternatives in the instant proceedings are custodial and non-custodial, it should be immediatelyobserved that a suspended sentence is not a lawful substitute for a conditional sentence.

To be very clear: a conditional sentence is afixed-length sentence of imprisonment, but one served in the community and, generally, subject to onerous terms. A suspended sentenceis not a sentence of imprisonment. Further, the conditions attached to the probation order that necessarily accompanies a suspendedsentence are not as readily enforced as those attending a conditional sentence.

Accordingly, the threshold question that must be addressedby any judge charged with sentencing a person convicted of trafficking in cocaine is whether the gravity of the offence and the moralresponsibility and individual circumstances of the offender are such that, in the language of Proulx, supra, at para. 36, “no other sanction… is appropriate” other than a sentence of imprisonment. If so, a judge cannot impose a non-custodial disposition by way of a suspendedsentence and probation. (See R. v.

Bankay, 2010 ONCA 799 with respect to the legal impropriety of a “disguised conditional sentence”,and, to similar effect, R. v. Carrillo, 2015 BCCA 192, at para. 30.) Put otherwise, a suspended sentence cannot be substituted for aconditional sentence where imprisonment is the only fit sanction. Conversely (and fines aside), where imprisonment is not warranted,there is but one correct alternative: a suspended sentence and associated period of probation: R. v.

Wu, 2003 SCC 73 , [2003] 3S.C.R. 530. [48] The enforcement of a breach of conditional sentence order is procedurally simpler than that associated with breaches ofprobation orders.

However, both the array and severity of potential penal sanctions following proof of a breach of a probation order aremuch greater and, accordingly, suspended sentences are recognized as having a very significant deterrent element. [49] Where the terms of a conditional sentence are breached a court may, pursuant to s. 742.6(9), “change the optional conditions”of the order or direct the offender to custody for a portion or the entirety of his or her unexpired sentence – a sentence that, by statutorydefinition, can be no longer than two years less a day at the time it was initially imposed.

A “suspended sentence”, however, has nosettled term or duration. As s. 731(1)(

a) of the Code makes clear, a “suspended sentence” is one in which it is “the passing of sentence”that is suspended – not service of the sentence itself. Where a person bound by a probation order attaching to a suspended sentence isconvicted of a breach of his or her probation order or (unlike the case with conditional sentences) any other offence, a court may, as withbreaches of the terms attending a conditional sentence, amend the optional conditions of the order. However, unlike the case ofconditional sentences, the court may instead extend the duration of the order for up to an additional year.

Most radically, a court may, inthe alternative, revoke the suspended sentence initially imposed and levy any sentence it could have imposed in the first instance “if thepassing of sentence had not [then] been suspended”. [50] As concisely explained in R. v.

Galang, 2014 BCPC 240, at para. 14, s. 732.2(5), … provides that if a person who is subject to a suspended sentence is convicted of another offence during the probation term, including abreach of the probation order, the court that made the order may revoke the order suspending sentence and “…impose any sentence thatcould have been imposed if the passing of sentence had not been suspended…”. [Emphasis added.] This formulation of the punitive reach of s. 732.2(5) echoes G.A. Martin J.A.’s construction of the provision for the Court of Appeal inR. v. Oakes (1977), (ON CA), 37 C.C.C. (2d) 84 (Ont.

C.A.), at p. 89, which, in turn, was approved by the SupremeCourt of Canada in R. v. Clermont, (SCC), [1988] 2 S.C.R. 171, affg. (QC CA). For examples of thecontinuing utilization and efficacy s. 732.2(5), see the cases of R. v. Moore, [1982] S.C.J. No. 416 (C.A.) and R. v. Patrick, [2013] B.C.J.No.1552 (C.A.) in which suspended sentences were revoked and replaced with penitentiary-length terms of imprisonment – 5 years and2 years, respectively. [51] The British Columbia Court of Appeal has, within the past year, several times affirmed the deterrent value of suspendedsentences. In R. v.

Voong, 2015 BCCA 285, the Court, at para. 39, added: Because a breach of the probation order can result in a revocation and sentencing on the original offence, it has been referred to as the“Sword of Damocles” hanging over the offender’s head. See also, R. v. Carrillo, supra, at para. 35; R. v. Thompson (1983), (NS CA), 58 N.S.R. (2d) 21, at 24 (C.A.); and R. v.Scott (1996), (NS CA), 152 N.S.R. (2d) 93, at 97 (C.A.).) (

c) Sentencing “Ranges” (

i) Introduction [52] The CDSA sets out the sentencing bracket following conviction for every drug-related offence. As noted, in the case oftrafficking in

Schedule I drugs, including cocaine, the maximum penalty is life imprisonment. Absent statutorily defined aggravatingcircumstances, no minimum penalty is prescribed. Accordingly, as in the case before me, a suspended sentence and probation is a lawfuldisposition. [53] It is commonplace for provincial courts of appeal to approbate if not expressly direct offence-specific sentencing “ranges”

(sometimes, if mistakenly, called, “tariffs”) and, in some provinces, “starting points” for carceral dispositions. (As to the differencebetween “range” and “tariff”, see R. v. Lacasse, 2015 SCC 64 , [2015] S.C.J.

No. 64, at paras. 56-57.) In the case of drugtrafficking offences, as with others for which sentencing ranges have been endorsed, the orthodox sentencing exercise thus involves ajudicial evaluation of the gravity of the offence and the moral blameworthiness of the offender so as to most reliably situate the latteralong the continuum of penal sanctions that constitutes the judicially approved sentencing range for the offence category or sub-categoryat play.

Aggravating factors, such as the pernicious nature or volume of the seized drugs or the related criminal antecedents of theoffender, tend to drag the pointer towards the higher end of the range. Mitigating factors, such as extreme youth, remorse or a crime-freehistory, edge the marker in the opposite direction. As is well settled, the range for trafficking in “hard” drugs such as cocaine orpossessing them for the purpose of trafficking reflects the substantial weight attributed to the principles of deterrence and denunciation inthe sentencing calculus that governs such cases.

In the result, sentences of imprisonment, frequently by way of penitentiary dispositions,are the norm. (ii) The Sentencing Range for Cocaine Trafficking [54] The Court of Appeal has, in effect, created graduated weight- or amount-based categories of cocaine trafficking and sentencingranges for each of these categories. It is undoubtedly true, as recently said by K.L. Campbell J. in R. v. Barraeiras,

(2015) ONSC 7196,at para. 39, that, “[l]engthy penitentiary terms of imprisonment are regularly imposed upon offenders that [sic] possess substantialamount of cocaine for the purposes of trafficking”. Indeed, the Court of Appeal has several times expressed the view that five to eightyears is the “proper range” for adult offenders found in possession of approximately a half-kilogram (slightly more than a pound) ofcocaine for the purpose of trafficking: R. v. Bajada (2003), (ON CA), 173 C.C.C. (3d) 255; R. v. Bryan, 2011 ONCA273 , [2011] O.J. No. 1581 (C.A.); and R. v. Haye, supra; affd. [2014] O.J.

No. 6575 (C.A.). Higher amounts are notinfrequently dealt with by way of penitentiary sentences of greater than ten years: see, for example, the detailed survey of the approachtaken by the Court of Appeal to multi-kilo cases, especially where aggravated by the element of importation, in R. v. Duncan et al, 2016ONSC 1319, at paras. 25-37. As regards cases involving much more moderate amounts of the drug, R. v. Woolcock, [2002] O.J. No.4927 (C.A.) is generally recognized as fixing the sentencing envelope for constructive possession of an ounce or less of cocaine at “6months to 2 years less a day”.

Intermediate amounts (as is the immediate case) tend to attract sentences in an intermediate range of two tofour- or five-years. [55] There are conspicuous legal and policy concerns with respect to step-laddering the ranges of penalties for cocaine traffickingexclusively on the basis of the weight or amount of the drug involved.

Some have argued that this approach jeopardizes the“fundamental” sentencing principle of proportionality and risks offending repeated injunctions of the Supreme Court. [56] As to the first concern, s. 718.1, the “fundamental principle”, directs that a “sentence must be proportionate to the gravity of theoffence and degree of responsibility of the offender”. A sentencing levy based on the weight or amount of a drug inevitably prioritizesthe gravity of the offence over the moral culpability of the offender.

Matters crucial to individualized sentencing – such as an offender’smotivation, role in the offence, mental health, historical antecedents and other personal circumstances – are reduced to mere slidersalong the continuum that runs between the bookends that define the outer limits of each quantum-based sentencing range.

It is thisoffence-weighted bias that led Lamer C.J., on behalf of the full Supreme Court in Proulx, supra, at para. 83, to caution that, … such an approach focuses inordinately on the gravity of the offence and insufficiently on the moral blameworthiness of the offender.This fundamentally misconstrues the nature of the [fundamental sentencing] principle. Proportionality requires that full consideration begiven to both factors. [Emphasis in original.] Similarly, in R. v.

Wells, supra, at para. 46, Iacobbuci J., again speaking for a unanimous Supreme Court, re-affirmed that an offence-based “categorical approach represents only a partial, and therefore unbalanced, application of the fundamental sentencing principle ofproportionality contained in s. 718.1”. [57] Secondly, it has repeatedly been held that the sub-classification of any offence category for penal purposes falls exclusively toParliament, and not the courts. As said in R. v.

McDonnell, (SCC), [1997] 1 S.C.R. 948, at para. 33, with respect to theAlberta Court of Appeal’s elaboration of a hierarchy of sexual assaults offences: …there is no legal basis for the judicial creation of a category of offence within a statutory offence for the purposes of sentencing. Ashas been true since Frey v. Fedoruk, (SCC), [1950] S.C.R. 517, it is not for judges to create criminal offences, but ratherfor the legislature to enact such offences.

By creating a species of sexual assault known as a “major sexual assault”, and by basingsentencing decisions on such a categorization, the Alberta Court of Appeal has effectively created an offence, at least for the purposes ofsentencing, contrary to the spirit if not the letter of Frey. [Emphasis added.] The Supreme Court re-asserted the same general proposition in R. v. Welles, supra, at para. 45, in R. v. Ipeelee, supra, at para. 86, and,again and very recently, in R. v.

Lacasse, infra, at para. 61, in disapprobating the judicial construction of graduated sentencing ranges forstatutory offences: “[T]he power to create categories of offences, lies with Parliament, not the courts” (emphasis added). [58] As regards offences under the Controlled Drugs and Substances Act, the only substance for which Parliament has created sub-categories of offences for sentencing purposes on the basis of the weight or amount of the drug at issue is cannabis.

Accordingly, where,as here, no CDSA-prescribed aggravating circumstances are engaged, any person convicted of trafficking in any amount or weight ofcocaine remains subject to the full gamut of statutory sentencing options, ranging from a suspended sentence to life imprisonment. Nosingle sentencing factor is privileged in this assessment. Instead, as said in R. v.

Lacasse, supra, at para. 58, “everything depends on thegravity of the offence, the offender’s degree of responsibility and the specific circumstances of each case.” Proportionality, then, turnson the balanced and even-handed consideration of each and all of these facets. No single element dominates. [59] Returning to the conventional sentencing framework, the quantity of cocaine seized from McGill is clearly not within the law’scontemplation of “moderate”.

On an orthodox range-driven assessment, the nature of the drug and the amount here implicated wouldordinarily call for a penitentiary-length disposition, if one towards the lower end. Accordingly, Crown counsel’s suggestion of amaximum reformatory sentence of two years less a day can be properly understood as an effort to factor in, if modestly, considerations

applicable to Aboriginal offenders. It is not, however, a result I find fully faithful to the remedial lessons I draw from the wisdom ofGladue and Ipeelee, particularly as they apply to McGill’s personal circumstances and rehabilitative initiative.

Nor, in my view, doesmechanical adherence to a sanctioned range here comport with the imperative of individualized sentencing. (iii) Sentencing Ranges: From Rules to Guidelines [60] Before the late-2012 amendments to s. 742.1, Ontario trial and appellate courts occasionally imposed conditional sentences fortrafficking in hard drugs, including cocaine and opiate narcotics, where the fit sentence was no longer than two years and the otherstatutory pre-conditions obtained. (See, for example, R. v. Nault, (2002), (ON CA), 59 O.R. (3d) 388 (C.A.); R. v.Velkovic, [2006] O.J. No. 1327 (C.A.); R. v. Moore, [2000] O.J.

No. 2260 (Sup. Ct.); R. v. Salazar, [2000] O.J. No. 4974 (Sup. Ct); R. v.Saikaley, [1999] O.J. No. 5462 (Sup. Ct.); R. v. Fedorak, 2010 ONSC 40; R. v. Burnett, 2013 ONSC 5536; R. v. Rebello, 2010 ONCJ 43;and R. v. Dormevil, 2011 ONCJ 323.) As earlier canvassed, conditional sentences are no longer an available penal disposition forpersons convicted of, as here, any species of cocaine trafficking. [61] In retrospect, the infrequent conditional sentences imposed for cocaine trafficking read as reticent exceptions to the “approvedranges” for such offences.

This judicial response seems somewhat at odds with the Supreme Court’s unambiguous directives in Proulxrespecting the objectives of Bill C-41 and the universal application and utility of conditional sentences. Similarly, despite the OntarioCourt of Appeal’s acknowledgement of the availability, if rare, of suspended sentences for trafficking in hard drugs (see, for example, R.v. Ward (1980), (ON CA), 56 C.C.C. (2d) 15, at p.18; and R. v.

Holt (1983), (ON CA), 4 C.C.C.(3d) 32, at para. 7), it is difficult to locate a single reported instance of the Court actually suspending the sentence of a trafficker in drugs,such as heroin or cocaine, now listed in

Schedule I to the CDSA. However, since the elimination of conditional sentencing as a result ofthe late-2012 amendments some Ontario trial courts have begun to suspend the passing of sentence in

Schedule I trafficking cases. (See,by way of example, R. v. Caputi, unreptd., July 17, 2013 (M. McLeod, O.C.J.); R. v. Azeez, 2014 ONCJ 311; R. v. Moniz, unreptd., Nov.4, 2015 (Hogan, O.C.J.); and R. v. Duncan, [2016] O.J. No. 25 (C.J.).) [62] It is hardly surprising that the state of desuetude into which suspended sentences fell with the advent of conditional sentenceshas been replaced by something of a renaissance in their utilization since the statutory demise of conditional sentencing for drugtrafficking offences.

The courts of appeal in some other provinces, most notably British Columbia, positively integrated non-custodialdispositions, achieved through suspended sentences, into the spectrum of appropriate dispositions for cocaine trafficking – both beforeand after the 16-year interval when conditional sentences were a viable option. Appellate affirmation of suspended sentences in BritishColumbia for “hard” drug trafficking, imposed before the introduction of conditional sentences, is illustrated by cases such as R. v.Harding, [1977] B.C.J. No. 830 (C.A.); R. v. Preston (1990), (BC CA), 79 C.R. (3d) 61 (B.C.C.A.); R. v.

Huang,[1993] B.C.J. No. 1118 (C.A.); and R. v. Yamanaka, [1994] B.C.J. 521 (C.A.). I return to the recent re-invigoration of suspendedsentences for such offences in British Columbia and elsewhere in due course. [63] As a matter of “practice and policy”, the Supreme Court only very rarely considers appeals concerned with the fitness orquantum of sentence. “Nonetheless”, as said in R. v. M. (C.A.), (SCC), [1996] 1 S.C.R. 500, at para. 33, the Court does“entertain appeals involving the legal principles which ought to govern the pronouncement of sentence”. (See also, R. v.

Gardiner, (SCC), [1982] 2 S.C.R. 368, at p. 404; R. v. Chaisson, [1982] 2 S.C.R. 368, at p. 404; and R. v. Proulx, supra, at para. 2.) Inhis recent

article devoted to the Supreme Court’s contribution to the law of sentencing over the past several decades, Justice W. Gormanidentifies “two main themes” that emerge from this jurisprudence: “an individualized process” and appellate deference to a trial judge’sexercise of his or her sentencing discretion: “The Impact of the Supreme Court on Sentencing in Canada” (2016), 72 S.C.L.R. 319, at p.323.

Inevitably, occasions arise when the offence-centric nature of range-sentencing is in tension with both the “fundamental” sentencingprinciple of proportionality (s. 718.1) and “the individualized process” that serves as its handmaiden. [64] As noted, the Supreme Court has for many years cautioned about the limits on penal sub-categorization, sentencing ranges and“starting-point” sentences and, in particular, how these judicial constructions must not suffocate the imperative of an individualizedapproach to each unique sentencing project. (See, by way of example only, R. v.

McDonnell, (SCC), [1997] 1 S.C.R.948; and R. v. Proulx, supra.) The Court of Appeal, while affirming the value of ranges, has similarly spoken of how “trial judges mustretain the flexibility needed to do justice in individual cases”: R. v. D.(D.) (2002), (ON CA), 163 C.C.C. (3d) 471, atpara. 33. (See, also, R. v. Wright (2006), (ON CA), 216 C.C.C. (3d) 54, at para. 16 (Ont. C.A.).) As eloquently saidby Watt, J.A. in R. v. Jacko (2010), 2010 ONCA 452 , 256 C.C.C. (3d) 113, at para. 90: Sentencing "ranges" … are not immovable or immutable.

They are and represent guidelines, of greater or lesser utility depending uponthe breadth of the range. Individual cases may fall within or outside the range. To consider a range of sentence as creating a de factominimum sentence misses the point [and] ignores the fundamental principle of proportionality … .

Individual circumstances matter. [65] Despite these intermittent reminders of the necessary plasticity of sentencing ranges, their overall, and indeed intended, impactis to restrain the scope of trial courts’ sentencing latitude, thereby risking nuance, rehabilitative effort and individual circumstances forparity and procedural efficiency. The Supreme Court has lately had occasion to re-instruct trial judges about the compass of theirdiscretion and appeal courts about the limits of their intervention. In R. v.

Nasogaluak, 2010 SCC 6 , [2010] 1 S.C.R. 206, atpara. 44, LeBel J., writing for the entire Court, observed: [I]t must be remembered that, while courts should pay heed to these ranges, they are guidelines rather than hard and fast rules. A judgecan order a sentence outside that range as long as it is in accordance with the principles and objectives of sentencing. Thus, a sentencefalling outside the regular range of appropriate sentences is not necessarily unfit. Regard must be had to all the circumstances of theoffence and the offender, and to the needs of the community in which the offence occurred.

And very recently, in R. v. Lacasse, supra, at paras. 57-58 and 60-61: Sentencing ranges are nothing more than summaries of the minimum and maximum sentences imposed in the past, which serve in anygiven case as guides for the application of all the relevant principles and objectives. However, they should not be considered “averages”,

let alone straitjackets, but should instead be seen as historical portraits for the use of sentencing judges, who must still exercise theirdiscretion in each case … There will always be situations that call for a sentence outside a particular range: although ensuring parity in sentencing is in itself adesirable objective, the fact that each crime is committed in unique circumstances by an offender with a unique profile cannot bedisregarded. The determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purelymathematical calculation.

It involves a variety of factors that are difficult to define with precision. This is why it may happen that asentence that, on its face, falls outside a particular range, and that may never have been imposed in the past for a similar crime, is notdemonstrably unfit. Once again, everything depends on the gravity of the offence, the offender’s degree of responsibility and the specificcircumstances of each case. … In other words, sentencing ranges are primarily guidelines, and not hard and fast rules: Nasogaluak [supra].

As a result, a deviation froma sentencing range is not synonymous with an error of law or an error in principle. … The minority opinion in Lacasse is effectively identical. As said by Gascon J. for himself and McLachlin C.J., at para. 143: I agree … that the ranges established by appellate courts are in fact only guidelines, and not hard and fast rules. A judge can thereforeorder a sentence outside the established range as long as it is in accordance with the principles and objectives of sentencing. [66] R. v.

Lacasse speaks powerfully to the importance of two essential case-specific “exercises” that govern the process ofsentencing: the “highly individualized exercise” that ultimately determines “a just and appropriate sentence” and the “exercise [ofjudicial] discretion in each case”. As prescribed by Parliament in s. 718.3(1) of the Code: Where an enactment prescribes different degrees or kinds of punishment in respect of an offence, the punishment to be imposed is,subject to the limitations prescribed in the enactment, in the discretion of the court that convicts a person who commits the offence.

An appeal court’s approved “range” for the offence, or a sub-category of its creation, helps inform each of these two “exercises”, but itcannot itself determine the result. Any “inquiry” on an appeal against sentence, as said in Lacasse, at para, 53, “must be focused on thefundamental principle of proportionality”, not on the whether the sentence falls within a sanctioned range. “Furthermore”, as put atparas. 51 and 52, the choice of sentencing range or of a category within a range falls within the trial judge’s discretion and cannot in itself constitute areviewable error.

An appellate court may not therefore intervene on the ground that it would have put the sentence in a different range orcategory. It may intervene only if the sentence the trial judge imposed is demonstrably unfit. … [A] very high threshold … applies to appellate courts when determining whether they should intervene after reviewing the fitness ofsentence. Clearly, the approach directed by Lacasse has broad implications for sentencing, both at the trial and appellate levels. Professor TimQuigley concisely captured this in the “Comment” that accompanies the publication of R. v.

Lacasse in the Criminal Reports (2015 SCC 64 , 24 C.R. (7th) 225): “For good or ill, this will lead to more sentencing flexibility at the trial level and less intervention at theappellate level”. [67] Even post-Lacasse, the Court of Appeal has continued to measure, and find wanting, the propriety of a sentence imposed attrial on the basis of its distance from the Court-imposed range. For example, in R. v.

DiBenedetto, 2016 ONCA 116, at para. 9, the Court,by way of a brief Endorsement, held that a constellation of mitigating factors “support[s] a sentence at the lower end of the appropriaterange” for trafficking in “sinister” drugs; it does not redraw the boundaries of the range nor “amount to circumstances justifying … asignificant departure from the range”. In other cases, however, the circumstances of the offence or the offender, or both, have been heldto properly warrant a material digression from the customary range, either above the ceiling (as occurred in Lacasse and, more recentlystill, in R. v.

Hawley, 2016 ONCA 143, at paras. 6-9) or, if more dated, below the floor (as, for example, in R. v. Jacko, supra). In thelatter situations, the deviation from the sentencing norm is typically founded on the doctrine of “exceptional circumstances”. [68] Before turning to the meaning of “exceptional circumstances”, I repeat: conditional sentences are sentences of imprisonment.Suspended sentences are not. Satisfaction of the statutory terms for a conditional sentence may have justified the imposition of a non-custodial disposition when that option was available.

Not so, however, a suspended sentence for constructive trafficking in cocaine –particularly where, as here, some 300 grams and admitted commerciality are involved.

The appellate “guidelines” directing a sentence ofimprisonment for an offence of this gravity can, on conventional reasoning, only be distinguished or displaced where one or both of twosituations prevails: first, a demonstration of sufficiently “exceptional circumstances” to warrant a sentence outside the ranges approvedby appellate authority or, second, appropriate conditions for incorporation of a sentencing model that prioritizes a non-custodial form ofrestorative justice over incarceration. Drawing on both these paradigms, the case for departure from a sentence of imprisonment is heremade out.

The same outcome, to be clear, is warranted upon application of the doctrine of individualized proportionality as most recentlyre-affirmed in R. v. Lacasse. (d) “Exceptional Circumstances” (

i) Introduction [69] In the mainstream sentencing framework, “exceptional circumstances” is the analytical device by which sentences below anapproved range find lawful purchase. Functionally, the doctrine serves as a means for preserving the continuing authority of thesanctioned range while allowing for more lenient treatment of “exceptional”, “rare”, “unusual” or “extraordinary” cases that, throughsuch legal characterizations, can be fairly and sympathetically addressed without jeopardizing the sentencing norm for any given class ofcases. “Exceptional circumstances” is a concept of somewhat uncertain contours that, in the end, seems rooted as much in equity as

settled legal principle. The elasticity of the doctrine’s boundaries is understandable given the vicissitudes of human experience. Saidotherwise, the categories of cognizable “exceptional circumstances” are far from closed. (ii) Drug Trafficking and “Exceptional Circumstances” [70] Apart from sentences of imprisonment served by way of conditional sentence orders, non-custodial dispositions for drug-trafficking, even in “soft” drugs cases, have typically depended on a finding of exceptionality. In R. v.

D’Souza, 2015 ONCA 805, forexample, the Court of Appeal substituted a one-year conditional discharge for the conviction and fine imposed at trial on a trafficker of aquarter-pound of marijuana in light, as said at para. 4, of the appellant offender’s “remarkable steps to change his way of life”.Discharges are statutorily unavailable for offences that, like trafficking in

Schedule I drugs, may attract life sentences. However, thereare reported cases, and since the late-2012 amendments, of suspended sentences for cocaine and heroin trafficking. When imposed, theyhave rested almost exclusively on the doctrine of exceptional circumstances. Some recent trial level decisions in Ontario have alreadybeen noted. Moving further afield, in R. v. Carrillo, supra, for example, the British Columbia Court of Appeal affirmed a suspendedsentence and two years probation meted out to a “mid-level” cocaine dealer arrested in possession of three ounces of cocaine for thepurpose of trafficking.

After reviewing the offender’s perilous health and significant rehabilitation the Court found no reason, as said atpara. 33, to “disturb the [trial] judge’s determination of Mr. Carrillo’s highly distinctive personal circumstances as exceptional”, which“characterization justified the judge’s departure from the typical or usual range of sentence”. [71] Two months later, in June 2015, the same Court released its judgement in R. v.

Voong, supra, a compendious decision involvingfour Crown appeals from suspended sentences and probation imposed by trial judges in “dial-a-dope operations”, a particularly“insidious” form of trafficking in which dealers make home deliveries of cocaine and heroin with the same complacency as they would apepperoni pizza. In the end, the Court affirmed, with some modification, the suspended sentences awarded three of the four respondentsjoined in the Voong appeal.

Two of these three were “drug addicts” who had trafficked to support their dependencies and had madesincere and tangible rehabilitative efforts since their arrests. The third was a relatively young first offender for whom the offence wasostensibly out-of-character. A sentence of six months imprisonment and a year’s probation was substituted for the suspended sentenceinitially imposed on the fourth respondent, a man whose efforts to address his addiction issues were, at best, of only halting industry orsuccess. All four respondents worked close to the bottom of the distribution hierarchy.

While some had lengthy histories of participationin drug trafficking, and records consistent with such criminality, their immediate offences involved relatively small amounts of cocaine orheroin, measurable in grams rather than, as here, ounces. [72] In the immediate context, the importance of R. v.

Voong lies less in the individual results than in the Court’s effort to both fleshout the meaning of “exceptional circumstances” and explain the purpose and scope of a suspended sentence, particularly in light of thedistinction drawn by the Supreme Court in Proulx, supra, between, on the one hand, a suspended sentence and probation and, on theother, a conditional sentence.

The former, said Lamer C.J. for the Proulx Court, at para. 23, “is primarily a rehabilitative sentencingtool” (emphasis added) while “Parliament intended a conditional sentence to address both punitive and rehabilitative objectives”.Accordingly the question for the British Columbia Court of Appeal was whether a “primarily rehabilitative tool” could serve thesentencing goals of deterrence and denunciation accorded precedence in drug trafficking cases. [73] As amended in 1996 (concurrent with the inauguration of conditional sentences), the provision governing the imposition ofoptional conditions in a probation order now reads: 732.1

(3) The court may prescribe, as additional conditions of a probation order, that the offender do one or more of the following: … (

h) comply with such other reasonable conditions as the court considers desirable, subject to any regulations made under subsection738(2), for protecting society and for facilitating the offender’s successful reintegration into the community. [Emphasis added.] Placing reliance on the qualified nature of the Chief Justice’s characterization in Proulx and the language of s. 732.1(3)(h), Bennett J.A.,writing for the Court in Voong, concluded, at para. 37, that, A probation order has primarily a rehabilitative objective, however, as the statutory terms refer to the purposes of “protecting society”and “reintegration into the community”, it is not limited to this objective. [74] Invoking the deterrent impact of a suspended sentence and the authority of R. v.

Shoker, 2006 SCC 44 , [2006] 2S.C.R. 399 respecting the broad discretion of sentencing judges to craft appropriate probationary conditions, Bennett J.A., at para. 43, reasoned that, … imposing conditions for the protection of the community may have a deterrent and denunciatory effect in addition to a rehabilitativeeffect. Put another way, a condition need not be punitive in nature in order to achieve deterrence or denunciation. In D.E.S.M. [(1982), (BC CA), 80 C.C.C. (3d) 371] (and affirmed in R. v.

Sidhu (1998), (BC CA), 129 C.C.C. (3d) 26(B.C.C.A.)), this Court concluded that “home confinement” was an appropriate term of a probation order for the purpose of themaintenance of rehabilitation. The court concluded, at p. 381: It should not be thought that home confinement, if we may call it that, should readily be substituted for regular imprisonment.

Such adisposition is suitable, in our judgment, only where very special circumstances are present such as where the accused demonstrates thathe has rehabilitated himself prior to arrest, where he is not a danger to anyone, where others are dependent upon him, and where there areno factors that make it necessary in the public interest that punishment should be by conventional imprisonment. [Underscoring added.Emphasis in D.E.S.M. added by Court in R. v.Voong.] In short, “house arrest” and analogous restraints on physical liberty are, as acknowledged in R. v.

Shoker, supra, at para. 15, lawful, ifexceptional, probationary conditions that may be imposed so long as their purpose is to facilitate a “nexus between the offender, theprotection of the community and his reintegration in to the community”: Shoker, at para. 13.

[75] Voong did not disturb the settled “range of six to eighteen months imprisonment” for dial-a-dope traffickers. The core issue,rather, was the meaning and compass of the “exceptional circumstances” that may warrant a departure from that range. Bennett J.A.explained, at para. 59: Exceptional circumstances may include a combination of no criminal record, significant and objectively identifiable steps towardsrehabilitation for the drug addict, gainful employment, remorse and acknowledgement of the harm done to society as a result of theoffences, as opposed to harm done to the offender as a result of being caught.

This is a non-exhaustive list, but at the end of the day, theremust be circumstances that are above and beyond the norm to justify a non-custodial sentence. There must be something that would leada sentencing judge to conclude that the offender had truly turned his or her life around, and that the protection of the public wassubsequently better served by a non-custodial sentence. However, Parliament, while not removing a non-custodial sentence for this typeof offence, has concluded that CSO [conditional sentence order] sentences are not available.

Thus, it will be the rare case where thestandard of exceptional circumstances is met. [76] Monnin J.A. adopted this passage in his reasons written on behalf of the Manitoba Court of Appeal in R. v. Tran (A), 2015MBCA 120, at para. 16, one of a trilogy of Crown appeals the Court concurrently entertained respecting non-custodial sentences – twoconditional sentences (predating the 2012 amendments) and one suspended sentence – for cocaine trafficking. (The two companion casesare styled R. v. Peters, 2015 MBCA 119 and R. v. Racca, 2015 MBCA 121.) Like McGill, the respondent in R. v. Tran (

A) had beenarrested with eleven ounces of cocaine. In the course of affirming Tran’s conditional sentence, Monnin J.A., at paras. 17-22, conducted adetailed survey of authorities bearing on “exceptional circumstances” and the doctrine’s capacity to relieve from the general ruleinstructing trial judges “to impose a custodial sentence for trafficking in narcotics”. The vintage of the authorities on which he reliesmakes clear that application of the doctrine is not restricted to conditional sentencing. His review also makes clear that the meaning of“exceptional circumstances” is, as put in one cited case (R. v.

M.F.D. (1991), (MB CA), 75 ManR (2d) 21 (C.A.)),“not susceptible to definition” and, accordingly, the disposition of such “cases must then be left to judges exercising their discretionjudicially”.

In Monnin J.A’s words: The reliance on “exceptional circumstances” in dealing with sentences is not a new concept, but it is one that remains somewhatnebulous and devoid of a precise definition. … … I am no more inclined to provide a detailed definition of “exceptional circumstances” than other courts dealing with the issue have donein the past, but do glean from previous decisions the elements that courts have considered in finding that “exceptional circumstances”existed in a particular case.

The overriding factor that applies to this finding is that “exceptional circumstances” invariably involve multiple mitigating factors.[Monnin J.A. then set out the passage earlier reproduced from R. v. Voong]. … Other cases have demonstrated that, while rehabilitation remains the most commonly articulated factor, appellate courts have referred tomany other considerations in the cocktail of factors.

Depending on the facts, compliance with strict bail conditions, guilty pleas, co-operation with authorities, health issues, personal characteristics, family concerns, Gladue and Ipeelee considerations, etc., have all hadtheir role to play in the case law … However, in this canvass of factors warranting a consideration of “exceptional circumstances”, the aspect of demonstrated rehabilitationover a period of time might be the most persuasive of those factors. [Emphasis added.] [77] The standard of “exceptional circumstances” developed in R. v. Voong was re-affirmed by the British Columbia Court ofAppeal in R. v.

Pepper, 2015 BCCA 476 and applied by way of suspended sentences in R. v Lo, [2015] B.C.J. 2169 (S.C.) and R. v.Madison, [2015] B.C.J. 2528 (P.C.), both “dial-a-dope” cases. (iii) “Exceptional Circumstances” After Lacasse [78] The majority’s reasons in R. v. Lacasse almost inevitably invite reconsideration of sentencing courts’ reliance on “ranges” and“exceptional circumstances”. Canadian sentencing jurisprudence treats “exceptional circumstances” as rare occurrences, perhapsexceedingly rare.

To acknowledge any greater frequency would, of course, risk the exception swallowing the rule or, moreparadigmatically correct, the expansion of an approved sentencing range so as accommodate cases that were once treated as exceptions tothe rule. Too many exceptions threaten boundary maintenance. [79] Appellate construction of sentencing ranges is largely founded on the principle of parity: like cases should be treated alike. Thiscommon law principle was codified as s. 718.2(

b) of the Code in the 1996 sentencing reforms. However, as applied in Canadiansentencing law, the element of identity for cases captured by any sentencing range is exclusively the nature of the offence and, withrespect to drug trafficking offences, the amount or quantum of the drug at issue.

Other features bearing on the gravity of a drug crime(such as the purity of the drug, the sophistication of the enterprise and the use of violence in its perpetration) and, especially, the moralculpability of the trafficking offender are rendered subservient to this single offence-centric factor unless they, typically in combination,are of such “exceptional” quality to exempt the case from the restraints on sentencing discretion effectively imposed by an approvedrange. [80] The tension between the principle of parity and that of proportionality figures prominently in Wagner J.’s reasoning for themajority of the Supreme Court in Lacasse.

As framed at para. 53: Proportionality is determined both on an individual basis, that is, in relation to the accused him or herself and to the offence committedby the accused, and by comparison with sentences imposed for similar offences committed in similar circumstances. Individualizationand parity of sentences must be reconciled for a sentence to be proportionate. [Emphasis added.]

The authorized reconciliation, however, is one that grants prominence to proportionality, as made clear in the very next paragraph ofWagner J.’s reasons: The principle of parity of sentences … is secondary to the fundamental principle of proportionality. [Emphasis added.] This theme is immediately reinforced. Importing language from the Court’s decision

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