R. v. Mauro Date:, 2015 BCPC 379

Citation: R. v. Mauro Date: 20151208 2015 BCPC 0379 File No: 90759-1 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. CHRISTOPHER GAETANO MAURO REASONS FOR SENTENCE OF THE HONOURABLE JUDGE T.S. WOODS Counsel for the Crown: A. Ip Counsel for the Defendant: R. Gill Place of Hearing: Port Coquitlam , B.C. Dates of Hearing: April 7, 2014; July 15, 2014; October 20, 2014; March 18, 2015; September 16, 2015; November 17, 2015

Date of Judgment: December 8, 2015 [ 1 ] THE COURT : The court has convened today for the purpose of passing sentence on Christopher Gaetano Mauro. [ 2 ] Mr. Mauro was previously convicted of the offence of possessing a controlled substance, that is to say cocaine, for the purpose of trafficking, contrary to s. 5(1) of the Controlled Drugs and Substances Act . He was charged with that offence under Information 90759-1. [ 3 ] The Crown has proceeded against Mr.

Mauro by indictment, and as I have said, he was, on a previous court appearance, convicted of that offence following the delivery of reasons on a voir dire that led to the reception of evidence obtained during the course of the investigation into this offence. CIRCUMSTANCES OF THE OFFENCE [ 4 ] The circumstances of the offence are fully outlined in the voir dire ruling which is indexed at 2013 BCPC 348 . I will accordingly only give a brief

summary of those circumstances. [ 5 ] The offence date was February 3rd of 2013, and on that date – shortly after the occurrence of a motor vehicle accident at the intersection of Clarke Road and Barnet Highway in Port Moody in which Mr. Mauro's 2009 Audi A4 was involved – Mr. Mauro removed a grocery bag containing slightly less than 1.3 kilograms of cocaine from the trunk of that vehicle and transferred it at scene to the front passenger footwell of a 1991 Volkswagen Jetta belonging to him. [ 6 ] Mr.

Mauro had rear-ended a pickup truck in that motor vehicle accident, and his mother, Mary Mauro, attended at the scene after being summoned to do so by Mr. Mauro. Mr. Mauro had called upon his mother to come to his assistance. He transferred the bag of cocaine to the vehicle driven to the scene by Ms. Mauro without saying anything to her about it, its contents, or what she should or could or should not or could not do with it. [ 7 ] It is because of the astute observations of the driver of the pickup truck that this action on the part of Mr. Mauro came to police attention.

The driver of the pickup truck, a man called Michael Hodges, observed Mr. Mauro's actions in transferring the bag containing approximately 1.3 kilograms of cocaine to the vehicle brought to the scene by Ms. Mauro. This manoeuvre struck Mr. Hodges as being peculiar and suspicious.

He used his smartphone to take a photograph of the manoeuvre and he drew this suspicious manoeuvre to the attention of law enforcement personnel who were present, investigating the motor vehicle accident. [ 8 ] The police investigation, at first an investigation into a motor vehicle accident, thus was enlarged to become a much more elaborate investigation. And again, I do not consider it necessary to delve too deeply into the factual circumstances of that investigation, other than to say that in due course both Mr. Mauro and his mother, Ms.

Mauro, were arrested and charged with possession of cocaine for the purpose of trafficking. [ 9 ] The charges against Ms. Mauro were ultimately dropped. The Crown pressed ahead with charges against Mr. Mauro. [ 10 ] There was a skirmish in the early days of the trial over whether or not the bag of cocaine that was seized was receivable into evidence for the prosecution. Mr. Mauro challenged the lawfulness and Charter compliance of the search and seizure, raising s. 8 of the Charter . His challenge was ultimately unsuccessful, the evidence was admitted, and not long afterward a conviction was entered against Mr.

Mauro. [ 11 ] Mr. Mauro is answerable before this court today for the actions embodied in Count 1 of Information 90759. The court is, as I have said, convened for the purpose of passing sentence against Mr. Mauro in that regard. CIRCUMSTANCES OF THE OFFENDER [ 12 ] I turn to the circumstances of the offender, Mr. Mauro. [ 13 ] Christopher Gaetano Mauro is 29 years of age now; he was, I believe, 27 at the time of the commission of the offence. He has graduated from high school; he attended Centennial High School in Coquitlam.

He currently resides with his parents, although in the time leading up to the offence he was residing on his own in an apartment. He has a younger brother. After attending high school he spent some time in post-secondary training at Malaspina University. [ 14 ] He has done some work in the hospitality industry. He has worked in the construction field, and at a certain point he settled upon a career path leading to a plumbing trade qualification. Prior to the offence, Mr.

Mauro had logged a significant number of hours of field experience under supervision as a plumbing apprentice, and he had also taken a substantial part of the school training that forms part of the curriculum for an aspiring journeyman plumber. I will have more to say about his plumbing studies and learning at a later point in these reasons. [ 15 ] At the time Mr. Mauro committed the offence for which he is now answerable before this court, he had no criminal record. Mr.

Mauro is spoken highly of by his current employer, the man with whom he works as he forges his way forward toward earning the journeyman's ticket that would make him a fully-qualified plumber. He is described as being hard-working and capable of working independently by his employer in a letter that was filed with the court. [ 16 ] Mr. Mauro is conspicuous for the support that he enjoys from his family, and I say Mr. Mauro is conspicuous for the support in particular that he derives from his mother, Ms. Mauro.

She is present today and she has been present on virtually every other court appearance since these proceedings commenced. This pattern of attendances is a clear demonstration of her love and support for her son who is, sadly, in such very serious trouble. Mr. Mauro enjoys a very substantial benefit in having that support, and I venture to say that

the significance and the depth and breadth of the connection between Mr. Mauro and his mother are all the more remarkable when one considers the way Mr. Mauro conducted himself at the scene of the accident that led ultimately to the detection of the 1.3 kilograms of cocaine in his possession. [ 17 ] That for now, I think, is a sufficient

summary of Mr. Mauro's personal circumstances. EFFECT OF THE OFFENCE ON VICTIMS [ 18 ] I am going to be brief in adverting to the effect of Mr. Mauro's offending on victims at this point in my sentencing reasons because that subject comes up for a more detailed and thorough discussion later on when I review the authorities that have been cited to me, both those that have assisted and those that have been of less assistance. Those authorities speak in clear ways about drug offending and the place it occupies in a society that is degraded by drug offending.

There are, of course, no specific victims before the court offering up victim impact statements to guide me, but there is a long line of authority that says judges can properly take judicial notice of the deleterious implications of illicit drug offending for our society as a whole. [ 19 ] Being involved in drug offences that entail the illicit sale of hard drugs like cocaine is a very, very serious matter. It is a very serious matter because that drug trade capitalizes upon the desperate circumstances of addicted users.

Addicted users in the grip of their addictions have little ability to control their consumption of illicit substances. The consumption of those illicit substances wreaks havoc with those addicted users: with their health, with their ability to function within society, with their family relations, and in innumerable other ways. [ 20 ] The illicit drug trade brings with it much ancillary law-breaking.

The cost of illicit substances like cocaine, which must be consumed in substantial quantities by end users, is generally beyond the means of end users who, by reason of their addictions, so frequently are incapable of earning an honest dollar. So, drug offending propagates ancillary offending, including property offences, firearms-related offences, and any number of other types of offences.

Thus, those who turn to the illicit drug trade and choose to exploit the commercial opportunities that exist there, bring a wide spectrum of grief to society as a whole, to those who are addicted to drugs in particular, and they also burden our law enforcement authorities, our courts, our Crown counsel, our judges and our sheriffs with substantial extra work. Those like Mr. Mauro who take their place in the world in which illicit drugs are the subject of commerce, are answerable for their offences as contextualized by the broader societal consequences of the drug trade for so many aspects of society.

As I say, there will be more to say about that when we come to a discussion of the governing authorities which, I repeat, often comment on the broader societal context of this especially odious form of criminality. MITIGATING FACTORS [ 21 ] I turn to mitigating factors; factors in mitigation of sentence. [ 22 ] I consider it a mitigating factor that Mr. Mauro had no criminal record at the time he committed this offence. I also consider it mitigating that both through counsel and in his own words when he was given the opportunity to do so, Mr.

Mauro made a sincere expression of his remorse for his criminal conduct. Remorse is associated with insight, and I believe I properly credit Mr. Mauro with having genuine remorse and a measure of insight into his own offending. He was unhesitant in acknowledging the wrongfulness of his conduct when given the opportunity to do so. [ 23 ] I pause here to say that some mention was made in the course of submissions of a failure on Mr. Mauro's part to express that remorse during the time he was giving testimony in relation to the subject of whether or not he was addicted to drugs. I agree with Mr.

Gill that that occasion was not the proper occasion for the court to expect expressions of remorse or regret when he was on the stand addressing a factual point in contention during the course of the sentencing. The time one would normally expect to hear those expressions of remorse and regret would be during the sentencing process itself, once its fact-finding function had been completed and, as I have said, Mr. Mauro did express remorse at that point and I treat his expressions of remorse as a mitigating factor.

AGGRAVATING FACTORS [ 24 ] I turn to aggravating factors, and I first make the observation that both the Controlled Drugs and Substances Act and the Criminal Code provide enumerations of statutory factors in aggravation of sentence. None of the statutory factors in aggravation of sentence under either of those statutes is placed in issue by the case at bar, but at common law a number of aggravating factors can be identified. [ 25 ] Mr. Mauro's offending consists of being in possession of cocaine for the purpose of trafficking.

The very nature of cocaine as a highly-addictive illicit substance is properly viewed as aggravating in this case. Courts do calibrate sentencing to some degree to the character of the substances involved, and while cocaine is not at the top of the list, neither is it anywhere near the bottom of the list. It is a highly addictive drug, and it is susceptible of being converted into even more highly addictive forms.

Possessing cocaine for the purpose of trafficking is rightly viewed as being aggravating by dint of the fact that cocaine is such a seriously-addictive substance. [ 26 ] Then we have the quantity of cocaine that Mr. Mauro had in his possession on February 3rd of 2013, not much less than 1.3 kilograms.

That is a sizeable quantity of cocaine, and when cocaine is possessed for the purpose of trafficking in that kind of quantity, the court can properly view that as a factor in aggravation of sentence. [ 27 ] The cases recognize that where an offence is committed as the result of some planning and premeditation, that is an aggravating factor. There can be no question that the role Mr. Mauro played in a larger criminal enterprise and the way he discharged that role by transporting cocaine in such a large quantity and of such a high value, entailed planning and premeditation.

There is nothing spontaneous about driving around with a bag of cocaine in the trunk of your car worth, on the street, somewhere near $100,000. The planning and premeditation that lies behind this offending is an aggravating factor. [ 28 ] I have said a few words about the grief and misery that spreads outward from each individual act of drug offending, crippling human lives, often irreparably. Engaging in the illicit trade and commerce in drugs like cocaine necessarily entails a disregard for the

consequences of drug addiction to those who ultimately consume those drugs. It necessarily entails a callous disregard for the widespread societal adverse consequences of the drug trade with all its ancillary criminality and all of the burdens that that trade imposes on law enforcement and the court system. Mr. Mauro showed a callous disregard for those harms, and that stands in aggravation of sentence. [ 29 ] It is recognized in the cases that to take advantage of a helpless victim is an aggravating factor. The 1.3, or slightly less than 1.3, kilograms of cocaine that Mr.

Mauro had in his possession for the purpose of trafficking would, in the ordinary course, have found its way, ultimately, into the hands of many, many helpless victims. Mr. Mauro, by being a participant in the chain of distribution of the cocaine, took advantage of those helpless victims, and I am entitled to take that into account as a factor in aggravation of sentence. [ 30 ] As I have already mentioned, there is Mr. Mauro's conduct at scene to consider.

Having just collided with another vehicle in a rear-end accident, he called his mother on the cell phone and asked her to come to the scene to assist him, and then transferred the grocery bag containing almost 1.3 kilograms of cocaine to the car she arrived in. That was, in my respectful judgment, a grotesque act. Mr.

Mauro was plainly in grave potential jeopardy of being found in possession of that cocaine, and in order to reduce his personal potential jeopardy he took the cocaine and placed it elsewhere, and thereby created a new form of jeopardy for the woman who gave birth to him, nurtured him as an infant, raised him as a child, celebrated his accomplishments and his achievements, worried and fretted over his mistakes, and who has, since he committed this most recent and very serious mistake, been at his side at every step along the way. [ 31 ] Being the mother of a wayward child can be a very thankless experience. Mr.

Mauro's actions on the day of the offence in seeking to improve his position at the expense of endangering his mother's position was a cowardly, self-serving, ungrateful act which I am going to say was significantly aggravating for the purposes of sentencing today. I pause to say that the fact that Ms. Mauro, despite that behaviour on her son's part, continues to stand behind him and show the support that appears to have been unwavering throughout is a testament to her character, her strength and her maternal commitment to someone who could be described as undeserving. Mr.

Mauro is very fortunate indeed to have that support. And we are not talking about theoretical jeopardy that was transferred by Mr. Mauro to his mother; Ms. Mauro came fully under the police microscope after he did what he did on February 3rd of 2013. She was made the subject of an investigation, was charged, and only after a period of time and further inquiries were those charges dropped. Ms. Mauro was put through an experience that no law-abiding person should ever be put through, and that is traceable to the cowardly actions of Mr. Mauro on February 3rd of 2013. Mr.

Mauro's actions in that regard are aggravating for sentencing purposes. [ 32 ] I consider it an aggravating factor that Mr. Mauro's actions on February 3rd of 2013 in possessing just slightly less than 1.3 kilograms of cocaine for the purpose of trafficking were motivated by profit-seeking. That subject, of course, greatly occupied the court during the course of these sentencing proceedings. Evidence was called. I am stating now my conclusion that Mr. Mauro's actions were motivated by profit and profit-seeking. I will give a full explication of how I came to that conclusion further on in these reasons.

THE STATUTORY FRAMEWORK FOR SENTENCING [ 33 ] I turn to a discussion of the various statutory provisions that speak in a general way to the sentencing process. [ 34 ]

Section 718 of the Criminal Code provides that the fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to a respect for the law and to the maintenance of a just and peaceful society by imposing just sanctions. I have that statutory purpose of sentencing clearly in view as I proceed with the sentencing of Mr. Mauro. The sentence I ultimately impose upon Mr. Mauro must bear the imprint of that purpose. [ 35 ] Parliament has prescribed a number of statutory objectives for sentencing under s. 718 of the Criminal Code .

These include denunciation, which is a form of formal condemnation. A sentence denunciates by making a formal and emphatic expression of the court's disapproval of the law-breaking that lies at the heart of the subject offending. [ 36 ] Deterrence is another statutory objective of sentencing. A sentence must exert a deterrent effect, both specifically and generally. The sentence I impose upon Mr.

Mauro will be aimed at making it less likely that he will commit like offences in the future, and will also be aimed at conveying to society as a whole the clear message that offending of this nature draws a meaningful consequence from the criminal justice system in order that others minded to follow Mr. Mauro's example might think twice and be deterred from committing such offences themselves. [ 37 ] The Criminal Code provides that where a case can be made for doing so, offenders may be removed from society, may be separated from society for society's protection.

Rehabilitation is another important element in the sentencing equation; it is a statutorily- identified objective of sentencing. [ 38 ] Making reparations for harm done to victims or to the community is a sentencing objective that sometimes figures prominently in sentencing. The promotion of a sense of responsibility on the part of offenders, together with an acknowledgement of the harm those offenders have done to their victims and society is yet another statutory objective of sentencing. [ 39 ] Sentencing judges are obliged to have their sentences reflect the principle of proportionality.

Section 718.1 provides that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. And I pause to say, as I have said already, that we are dealing, in Mr. Mauro's case, with an offence of very significant gravity, and his moral blameworthiness, that is to say, his degree of responsibility as the offender, is considerable, the more so by reason of the fact that his actions were propelled by the profit motive. [ 40 ] Parliament prescribes, in s. 718.2(d), that an offender must not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances, and I am alive to that prescription. [ 41 ]

Section 718.2(

b) provides that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. Here Parliament is aiming to achieve a degree of continuity and coherence in the law to afford all citizens an ability to make a rational assessment of what the likely consequence will be if one engages in particular type of offending in

particular circumstances. I will spend some considerable time explaining how I ultimately have come to the conclusions I have come toby recourse to the guidance that I have been able to take from the authorities that have been cited to me that have been most helpful. POSITIONS OF COUNSEL [42] I think this is the appropriate time for me to summarize the positions taken by first Crown counsel, then Mr. Gill, counsel forMr. Mauro, as to what they recommend the court impose by way of sentence upon Mr. Mauro. [43] The Crown urges the court to sentence Mr.

Mauro to a term of imprisonment of four years: conventional imprisonment. Instark contrast to that submission, Mr. Mauro, through his counsel, urges the court to suspend the passing of sentence and place Mr.Mauro on a lengthy period of probation in the expectation that, with appropriate restrictions, and with other appropriate elements in theprobationary terms, Mr. Mauro would derive all of the benefit that he can from the sentence imposed, and the public's interest would alsobe served in fulfilling all of the other requirements and expectations of sentencing.

These, as I have said, are dramatically differentperspectives on the appropriate pathway forward with respect to Mr. Mauro. WHAT WAS MR. MAURO'S MOTIVATION FOR POSSESSING COCAINE AT THE TIME OF THE OFFENCE? [44] I have already mentioned a factual conclusion that I have reached as a point of aggravation, that being that Mr. Mauro'soffending was profit-driven. I am now going to devote some considerable time to going through the process of my reasoning, and toexplaining the conclusion I have reached based on the evidence I heard in coming to that conclusion. [45] The Crown contends that Mr.

Mauro's offending was driven principally by greed and the pursuit of profit. For example, atparagraph 58 of its written submission the Crown argues: "The facts to be drawn from the evidence before the court support the inference that Mr. Mauro was engaged in a large-scale, for-profit,commercial venture as opposed to one that is determined in a personal need driven by addiction." [46] Mr. Mauro, contrariwise, submits that his offending was driven by and was a product of his own addiction. Paragraph 27 of hiswritten argument says this: Mr.

Mauro submits that he has established on a balance of probabilities that 1) he was addicted to drugs at the time of the offence, and 2)feeding the addiction was his motivation for engaging in the illicit activity. [47] The question of motivation is an important one in sentencing for drug-related offences generally, and it attained a particularlyhigh level of importance in the case at bar. Indeed, it attained such a high level of importance that Mr. Mauro and the Crown both calledevidence to address it.

Analysing Offender Motivation for the Purposes of PPT Sentencing: A Preliminary Point [48] Before turning to a factual determination of what the evidence before me did and did not establish in his regard, I find it usefulto address the role that an offender's motivation in possessing an illicit substance like cocaine in quantity for sentencing plays in thesentencing process. [49] I begin with the proposition that the motivations of profit-seeking on the one hand and feeding one's own habit on the other canlargely been seen as mutually exclusive reasons for an offender's involvement in the drug trade.

I say "largely" because these twomotivations can and do sometimes co-exist in the same offender. However, the cases generally tend to show that where the quantity ofthe drugs in an offender's possession at the time of arrest significantly exceeds what the offender would require to generate revenue tomeet his or her own needs for drugs, the profit motive will generally be taken to be the primary or controlling motivation for thepossession of such larger quantities, even though some comparatively small part of the revenue generated may in fact fund the offender'shabit: see for example R. v.

Smith, (SCC), [1987] 1 S.C.R. 1045 at para. 2, R. v. Johnson, [1996] Y.J. No. 13 at paras.27 to 25 (Terr. Ct.) and, more recently R. v. Terezakis, [2010] B.C.J. No. 1175 (C.A.).

Regarding Terezakis, I make particular mentionof the references to situations where an addiction, although present, is not the "driving force behind the offender's involvement in thedrug trade" (at para. 17). [50] Somewhat confusingly, profit-seeking and feeding one's own habit – which can be viewed as constituting two sides of the samemotivation coin – are often treated as if they are discrete and unconnected concepts. [51] Profit-seeking or greed are frequently cited to the court and accepted as an aggravating factor in drug offence sentencing: see,for example, R. v. Radjenovic, [2011] B.C.J.

No. 2654 (S.C.), R. v. Adam, 2007 BCSC 764 , [2007] B.C.J. No. 1189, (S.C.), R.v. Gill, [2015] BCSC 1556, and R. v. Valentini, (ON CA), [1999] O.J.

No. 251, (C.A.). (I should add that byreferring to the term "aggravating" in these reasons, I include aggravating in effect so as to take in those cases where the term"aggravating" may not be employed specifically by the sentencing judge, but where profit-taking and greed are invoked as a basis forimposing stricter sanctions.) [52] Profit-seeking's opposite number, feeding one's own habit, is sometimes cited to the court and accepted as a mitigating factor insentencing: see, for example, R. v. Dixon, [1991] B.C.J. No. 278, (C.A.), and R. v. Kumar, [2013] B.C.J.

No. 2598, (S.C.). [53] In my respectful view, this heterogeneous classification of PPT offenders' motivations within the authorities in relation tonotions of aggravation and mitigation creates mischief where, as here, conflicting evidence regarding offender motivation is presented ata sentencing hearing and the court must approach that evidence with a clear sense of who has the onus of proof of a factor affectingsentencing and what the governing standard of proof must be. [54] To illustrate, in circumstances where offender motivation is disputed, if the sentencing judge were to view the onus as beingborne by the offender to prove the existence of an addiction, and that he or she was driven to possess illicit substances in quantity in order

to feed that addiction (a point in mitigation), then the offender: (

a) is the party wishing to rely on a relevant fact and has the burden of proving it for the purposes of s. 724(3)(b), and (

b) must prove that disputed mitigating fact on a balance of probabilities for the purposes of s. 724(3)(d). [ 55 ] Alternatively, in circumstances where offender motivation is disputed, if the sentencing judge were to view the onus as being borne by the Crown to prove a profit motive for the possession of illicit substances in quantity, a point in de facto aggravation, then the Crown : (

a) is the party wishing to rely on a relevant fact and has the burden of proving it for the purpose of s. 724(3)(b), and (

b) must prove that disputed aggravating fact "beyond a reasonable doubt" for the purposes of s. 724(3)(3). [ 56 ] Whether it tends to prove a profit motive or a feeding-one's-own-habit motive, what ultimately comes before the court for consideration in all situations where PPT offenders are sentenced, their motivations are disputed and evidence going to that question is called, is the subject of the offender's motivation, full stop.

It is neither helpful nor correct in law, in my respectful opinion, to divide offender motivation into its alternative manifestations (feeding one's habit versus profit motive) and then address those alternative presentations differently as to onus and burden of proof. [ 57 ] It ought not to matter in principle which – defence or Crown – first puts the matter of offender motivation in issue by adducing evidence at sentencing hearing.

Whether the Crown takes the first step and tenders evidence to support its profit-motive submission, or only presents evidence to respond to and contradict an offender's feeding-one's-own-habit evidence in argument (as occurred here) must surely be immaterial. In either case, the Crown seeks to "establish… the existence of a[n] aggravating fact", either pro-actively or responsively, and the de facto aggravating fact of the profit motive remains the Crown's to establish by recourse to evidence sufficient to prove that fact beyond a reasonable doubt.

To state it somewhat differently, for onus and burden of proof purposes, whenever the issue of offender motivation is disputed in PPT sentencing, the analysis should necessarily default to a consideration of whether the Crown has established the aggravating factor of a profit motive beyond a reasonable doubt. [ 58 ] Parliament plainly intended that offenders should enjoy the benefit of having the Crown held to an exacting standard when any factors in de facto aggravation of sentence are sought to be established at a sentencing hearing. If it were otherwise, s. 724(3)(

e) would not have been enacted. As regards offender motivation in PPT cases, where the issue of motivation is the subject of conflicting evidence led at a sentencing hearing, then on the analysis employed here, the profit-making motive is always in play and that forces the conclusion that the offender has no s. 724(3)(

b) onus to discharge; the burden would always be on the Crown to prove a profit-making motivation beyond a reasonable doubt. At most, a PPT offender may, in some cases, face an evidentiary onus where he or she perceives there may be a risk in leaving the evidence or inferences that lie behind the Crown's profit-motive arguments unanswered. But even there, the question remains one that, in my respectful view, must be viewed through the lens of s. 724(3)(e), and that

section confirms that it is always the Crown's onus to prove a de facto aggravating factor beyond a reasonable doubt. [ 59 ] Thus it follows that – even though it was Mr. Mauro who first led evidence seeking to establish that it was his own alleged addiction and the need to feed it that drove him to be in possession of approximately 1.3 kilograms of cocaine for the purpose of trafficking – because the Crown contended throughout that Mr. Mauro's offending was in fact actuated by a profit motive and called evidence to rebut the evidence he called concerning his own alleged addiction, Mr.

Mauro's motivation must be placed on the aggravating factor side of the sentencing ledger, and that it is the Crown that must establish the existence of a profit motive on his part beyond a reasonable doubt. What the Evidence of Motivation Actually Established at the Present Sentencing Hearing [ 60 ] The defence evidence led at Mr. Mauro's sentencing hearing was given by Mr. Mauro himself and his counsellor, Nola Dorine Johnson. It was introduced, his counsel argues, in order that the court might "accept that [Mr.

Mauro] was in the midst of a serious drug addiction when the offence occurred … [and that he] was not primarily motivated by greed in committing the offence." That statement comes from Mr. Mauro's written argument at paragraph 2. [ 61 ] The Crown responded to the defence evidence on sentencing by pointing to inculpatory inferences that it says can be drawn from facts that are not controversial (such as the mere quantity of the cocaine at issue here). It also called the rebuttal evidence of two witnesses on the sentencing. The first was Cst.

Brian Wong of the Port Moody Police Department who testified as to his observations of Mr. Mauro's condition at the time of his arrest. The second was Wayne Jeffery who was qualified as an expert in the area of pharmacology and toxicology with specialized knowledge concerning the pharmacological and toxicological effects of drugs on the human body. [ 62 ] Mr. Mauro's evidence was to the effect that he began using a variety of illicit drugs from the age of 13, and that by February of 2013 – when the offence occurred – he was a profligate user of cocaine and OxyContin.

For example, during his evidence in chief on the sentencing, he testified as follows: "MR. GILL: Q Let's, Mr. Mauro, skip now to the year, within a year prior to this incident, so from February of 2012, let's say, to February 2013, which is when things came to a head and why you're here today. I want you to focus on that time frame, okay? During that period what was your drug usage like? A From the minute I woke up to the minute I went to sleep, if I slept. Q And what type of quantities and types of drugs would you be using?

A Just on an average day I would take about a gram-and-a-half of cocaine and anywhere from three to five Oxy 80's. Q What is, in your understanding, an Oxy 80? A Any Oxy 80 is the equivalent of one dose of heroin. Q Okay. Now, is that an average amount? A No, that's probably an understatement. Q What -- at your very worst, what was your consumption of drugs in the period? Like -- A The very worst I ever got was -- as I can recall was a couple of weeks spanned anywhere from 400 to $600 worth of OxyContin and probably 500 to $1,000 worth of cocaine every day.

And at that point I was -- wasn't just taking the pills and snorting the coke, I was smoking the cocaine and I was smoking the pills on tinfoil. And, yeah, sure got real messy there. Q Now, you said $400 a day of OxyContin. How many OxyContin -- A It's about ten Oxy 80's. Q Okay. And how much -- you mentioned, I think, 500, if my note's right, of -- dollars in cocaine per day. THE COURT: He gave a range of 500 to $ 1,000 . MR. GILL: Q 500 to $1,000. A I did as much as I could snort. Q Okay. A Snort or smoke. Q Okay. Do you recall the range of grams that would be? A Half ounce to an ounce. " [ 63 ] Mr.

Mauro testified that during the year leading up to the offence he would use a half-ounce of cocaine and ten OxyContin pills per day over binging periods lasting up to 21 days each: Transcript July 15, 2014, page 10. These binges, he said, occurred six to 12 times over the course of the year leading up to his arrest: Transcript July 15, 2014, page 16. Mr. Mauro also gave evidence that he was haphazard about the amounts of drugs he consumed, aiming only to keep ingesting enough to block out his psychological problems: Transcript July 15, 2014, page 10. [ 64 ] It was Mr.

Mauro's evidence that on the offence date of February 3, 2013 – in keeping with what he had said was the general pattern of his life at and around that time – he had been using drugs all night and decided to go out just prior to the motor vehicle accident which brought police to the scene and led ultimately to his arrest: Transcript July 15, 2014, page 12. [ 65 ] Overall, the evidence described above together with the remainder of Mr.

Mauro's testimony during the sentencing hearing was tendered by him for the purpose of persuading the court that he had a feeding-his-own-habit motivation for possessing the approximately 1.3 kilos of cocaine on the offence date of February 3rd, 2013, and not a profit-seeking motivation. [ 66 ] The other defence witness at the sentencing hearing – a counsellor with a one-year diploma and less than a year's experience at the relevant time – gave evidence about Mr. Mauro having approached her to work on his addiction issues shortly after the offence date in February of 2013. Of the 16 courses counsellor Ms.

Johnson took to obtain her diploma, only one was concerned with drug and alcohol counselling, although she did say that she has dealt with other addicts and people with addiction problems within her practice. [ 67 ] Ms. Johnson was not qualified as an expert witness. Her evidence was very skeletal. She did not report any observations of behaviours or physical attributes consistent with the presence of a severe addiction, or the process of withdrawal from it. While she noted that Mr. Mauro was very tired, she ascribed that to the fact that he had started working.

Sometime during her bi-weekly session she found him to be anxious and tearful: Transcript July 15, 2014,

Part 2, pages 8 to 9. [ 68 ] Ms. Johnson confirmed during cross-examination that she did no formalized testing of Mr. Mauro, and that while her mandate was to do drug-related counselling with him, she had been told only that he used drugs like cocaine, OxyContin and Xanax daily and did not know the quantities: Transcript July 15, 2014,

Part 2, pages 7 and 9. [ 69 ] The Crown's lay evidence on sentencing spoke to how Mr. Mauro appeared to an investigating officer on the day he had the motor vehicle accident that led ultimately to the discovery of approximately 1.3 kilograms of cocaine in his possession. Cst. Wong's observations covered Mr. Mauro's overall appearance from a fitness and health perspective, and his general demeanour throughout the interactions Mr. Mauro had with him at scene and at the police station afterward. [ 70 ] Cst.

Wong brought to his assignment on the offence date approximately 18 years of past experience in policing, including experience in dealing with drivers whose ability to drive is impaired by alcohol and drugs. When he attended at the scene and first

encountered Mr. Mauro he found him to be fit-looking and muscular: Transcript March 18, 2015, page 3. Overall, the constable's observations of Mr. Mauro over a two-to-three-hour period were unremarkable as regards indicia of impairment – a factor that he said explained the fact that he had minimal notes on Mr. Mauro's condition. There was nothing unusual, from Cst. Wong's perspective, about the pacing or clarity of Mr. Mauro's speech. His balance was normal, his skin and eyes were normal, and his comprehension during conversation was normal. These are aspects of Mr.

Mauro's presentation that one would think would have been of particular interest to Cst. Wong, given that the investigation he had been mandated to carry out flowed out of a motor vehicle accident. [ 71 ] This exchange occurred regarding what Cst. Wong observed and did not observe in relation to drugs and withdrawal. "MR. IP: Q In that time, almost three hours, did you have any concerns about Mr. Mauro's state of sobriety? A No. He never gave any indication that he was under the influence or not sober or anything like that.

Q During that time, did you have any concerns at all about his mental state or medical state? A No. Q In your roughly almost 19 years of police experience, have you dealt with individuals who are suffering from withdrawal from drugs? A Yes. Q And what symptoms do those individuals exhibit? A They tend to be sweating, they tend to be very nervous. Their whole body -- they can't stand still, they're twitching around. Just the way they speak, very fast speaking, they have trouble understanding a conversation or even holding a normal conversation.

Pupil- wise, sometimes they can be restricted, sometimes they can be dilated depending on what type of drug they're on, what type of influence they're under. Q Did Mr. Mauro display any of those symptoms to you? A No, none of those. The only time was after he got arrested he became agitated, and that's quite normal when someone's been told they're under arrest and they -- sometimes you see they're annoyed or starting to get angry or frustrated. So that was just a normal reaction to being told he was under arrest. MR.

IP: Thank you, sir, those are my questions." [ 72 ] The Crown's key witness on the sentencing and on Mr. Mauro's motivation for possessing almost 1.3 kilograms of cocaine was its expert, Wayne Jeffery. In a word, Mr. Jeffrey's expert opinion was to the effect that Mr. Mauro's reported pattern of drug use and addiction cannot be reconciled with what the relevant science has to say about how drug use involving the claimed quantities and substances over the claimed period would affect a person in his or her ability to function. [ 73 ] I do not propose to recount Mr. Jeffery's expert opinion evidence in great detail.

That evidence was well presented and essentially unshaken during cross-examination. An essential element of it was that the amounts of cocaine and OxyContin Mr. Mauro claimed to be ingesting would have produced debilitating effects that would have compromised his health severely, interfered significantly with his basic functioning, and been plainly manifest in his outward behaviour, both while under the influence of the substances and during the course of any efforts to wean himself off them. [ 74 ] Mr.

Jeffery did acknowledge that drug users are poor historians, have impaired memory functions, and are not reliable in their estimates and recollections of time. He further acknowledged that it is entirely possible that the amounts of illicit substances Mr. Mauro was actually consuming during the period leading up to his arrest could have been different and likely less than the amounts he reported. But even with those acknowledgements, and accepting hypothetically that Mr.

Mauro used considerably less cocaine and OxyContin per unit time than he claimed, I do not find credible his assertion that he was a heavy user whose life had been entirely overtaken by addiction. A person who was, around the time of the offence, using these substances "From the minute I woke up to the minute I went to sleep, if I slept" (Transcript July 15, 2014, page 3) could not, in Mr. Jeffery's opinion, have presented in the way Mr. Mauro did to Cst.

Wong – that is, as a fit, muscular individual whose functioning in all domains appeared perfectly normal. [ 75 ] A person whose pattern of consumption was anywhere near what Mr. Mauro contended it was would, in Mr. Jeffery's opinion, have presented differently to his counsellor, Ms. Johnson, than he did – that is, as a person who was anxious, tired from having resumed work, and sometimes tearful, but otherwise not showing any of the symptoms of addiction or withdrawal that were so graphically described by Mr. Jeffery. [ 76 ] It must be recalled that until about three months before the offence date, Mr.

Mauro had been working as a plumber's apprentice. He lived on his own and was paying $1,100 per month in rent for his own apartment. He was accumulating credits towards his journeyman's ticket as a plumber both in terms of the schooling aspect and the work in the field. That process began in about 2011 and by January of 2014, about a year after the offence, he had accumulated 4,500 hours of supervised hours in the field. While it is not clear how many of those hours were logged before the offence date, it is a reasonable surmise that many, if not most of them, were. Mr.

Mauro had to have been functioning at a high level to have fulfilled so many work and apprenticeship requirements, yet he testified that he was almost fully debilitated by his addiction during a large part of that time. Moreover, he had been working steadily enough and for long enough to qualify for the Employment Insurance benefits that he said he had been drawing for the three months immediately prior to the offence date.

[ 77 ] These facts do not square with what Mr. Mauro claims about being debilitated by psychological distress and a crippling addiction during the year or more leading up to the offence date. Neither does the fact that by the latter part of February 2013 – a couple of weeks at most after the motor vehicle accident that led to his arrest and the seizure of approximately 1.3 kilograms of cocaine in his possession, Mr. Mauro was able to return to work – support his contention that he was as deeply mired in a long-term and paralyzing addiction as he would have the court believe: Transcript July 15, 2014, page 9.

Indeed, on his counsel's submissions he has in the 22 months or so logged no fewer than 4,500 hours further of supervised work in the field as credit towards his apprenticeship requirements – this without any significant treatment for his addiction. That Mr. Mauro could return to work so quickly and function at such a high level cannot be reconciled with Mr. Jeffery's evidence about the time it takes to work through withdrawal symptoms and progress toward recovery from an addiction, even with skilled professional help. [ 78 ] It was surprising to me to hear Mr.

Mauro testify that someone so burdened with the effects of profligate and sustained drug use – punctuated by frequent, multi-week binges – would choose as his plan of rehabilitation a series of bi-weekly sessions with an undoubtedly well-meaning but nevertheless very inexperienced counsellor who had only taken one course dealing with addictions. Patterns of drug use even remotely comparable to those described by Mr.

Mauro typically require intensive intervention by highly- trained specialists – some from the medical profession – that can take years, some spent in residential environments, to be brought under control. Ms. Johnson was not trained to carry out any formalized assessment of Mr. Mauro – physically, chemically or otherwise – nor did she purport to do so. It beggars belief that a person in as much trouble with drugs as Mr.

Mauro claimed he was, and with such pronounced needs, would not have sought professional assistance that was commensurate with those needs and then had a parade of professionals to attest to his having done so as witnesses at his sentencing hearing. [ 79 ] Neither did Mr.

Mauro provide the court with evidence during his own testimony, or that of his other witnesses, explaining how or why a person as addled by excessive use of cocaine and OxyContin as he claimed to be would ever be entrusted by others further up the supply chain with responsibility for delivering cocaine in a quantity having a value between $70,000 and $100,000. [ 80 ] At the end of the day, the evidence before me as a whole leaves me persuaded that Mr.

Mauro – who admitted to being a drug courier or a drug transporter – had almost 1.3 kilograms of cocaine in his possession on February 3, 2013 because he was playing his

part in an illicit, drug-related business that yielded him a profit. I do not believe him when he says he was a heavy drug user at or around the time of his arrest. While I do not doubt that he may, and likely was, a recreational drug user, and possibly even an addicted one, I do not find credible his contention that he had approximately 1.3 kilograms of cocaine in his possession solely (or even primarily) in order to generate revenues to feed an intractable and deep-seated addiction. [ 81 ] While Mr.

Mauro took the initiative to put his motivation possessing a large quantity of cocaine into issue for sentencing purposes by tendering evidence of his claimed addiction, applying the logic outlined earlier in these reasons I still consider that the onus to prove that he was motivated by the pursuit of profit when he was found with that cocaine is the Crown's. Moreover it is, by my reasoning, incumbent on the Crown to prove the existence of the profit motive that it says was the animating force behind Mr. Mauro's offending, beyond a reasonable doubt. [ 82 ] The quantity and value of the cocaine Mr.

Mauro was transporting on February 3, 2013 – that is, almost 1.3 kilograms worth between $70,000 and $100,000 – virtually compels an inference that his motivation was profit-seeking. Mr. Mauro sought to displace that inference by presenting evidence of his own addiction that was weak, internally inconsistent and inherently lacking in credibility. The potential beneficial effects of that evidence to Mr. Mauro, such as they were, were in effect neutralized in their entirety by the evidence of the Crown witnesses Wayne Jeffery and Cst. Brian Wong. Viewed in that light, I find that I cannot believe Mr.

Mauro's evidence regarding his true motivation for possessing almost 1.3 kilograms of cocaine being to feed his own addiction. Neither does that evidence raise a reasonable doubt in my mind in that regard. [ 83 ] It follows from all of the foregoing that I conclude that the Crown has met its onus and persuaded me to the criminal standard of beyond a reasonable doubt that Mr. Mauro's motivation for possessing the subject 1.3 kilograms of cocaine was a commercial one, based on his intention and desire to turn a profit from his role as an above-street-level player in a multi-player drug-trafficking operation.

THE AUTHORITIES [ 84 ] I turn now to the authorities that have been placed before me, having regard to Parliament's requirement as expressed in s. 718.2(

b) that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. [ 85 ] I will say straightaway that a large number of cases has been referred to me by counsel to guide me in fixing a proper sentence to impose upon Mr. Mauro. While I will not refer to all of those cases in the course of these sentencing reasons, I can assure Mr.

Mauro and counsel that I have read all of them, and to the extent that I have found any particular cases to be of assistance to me, I will make specific mention of those. [ 86 ] I will begin by making reference to some of the general principles and guidelines that emerge from the authorities flowing from other occasions where persons who have committed possession for the purpose of trafficking offences have been sentenced. [ 87 ] As I have said, the drug trade exacts a very heavy toll on society at large, and upon the legions of persons who are enslaved to the illicit substances that are the subject matter of their addictions.

This is often acknowledged by sentencing judges in their sentencing reasons, and in the decisions of appellate courts which are called upon from time to time to review sentences passed by lower courts in drug cases. [ 88 ] Those who engage in the drug trade must expect sentences that reflect the abhorrence that society has for offending that generates suffering and ancillary law-breaking on such a large scale, and this is particularly so where, as here, the offending has a commercial or profit-seeking motivation.

Denunciation, specific deterrence and general deterrence are especially prominent in the sentencing logic in cases like the one before me now. I will just give a few quotations to provide the flavour of judicial commentary in other cases in this regard.

[89] In R. v. Shusterman 2012 BCSC 362, Mr. Justice Romilly quotes from two other cases, one called R. v. Butt and another calledR. v. Conyers. Those two cases in turn were referred to in a Newfoundland decision called R. v. Martin (NL PC),[2010] N.J. No. 332 (Prov. Ct.). This quotation I am about to read comes from Martin, but it was adopted by Justice Romilly inShusterman and it speaks about the cases Butt and Conyers. "In R. v. Butt, 2010 NSCA 56 , [2010] N.S.J.

No. 346 (C.A.), the Court of Appeal, at paragraph 43, noted that "cocaine hasconsistently been recognized by this Court as a deadly and devastating drug that ravages lives. Involvement in the cocaine trade, at anylevel, attracts substantial penalties ... It is significant that the CDSA classifies cocaine as one of the drugs for which trafficking can attracta life sentence." However, in R. v. L.M. (2008) 2008 SCC 31 , 231 C.C.C. (3d) 310, the Supreme Court of Canada, inconsidering the imposition of maximum sentences indicated that they had become "almost theoretical" (at paragraph 18). In R. v.

Conyers, [2010] A.J. No. 940 (Q.B.), it was noted that the "societal damage caused by [cocaine] is notorious." Similarly, inPushpanathan v. Canada (Minister of Citizenship and Immigration), (SCC), [1998] 1 S.C.R. 982, Mr. Justice Corydescribed the "costs to society of drug abuse and trafficking" as being "significant if not staggering." He indicated that there "is anestablished connection between heavy drug use and crimes motivated by the need to finance a drug habit." Finally, Mr.

Justice Corynoted that drug trafficking is a matter "of grave concern in Canada, as it is throughout the world: These significant and often tragic consequences serve to emphasize that the harm caused by trafficking in illicit drugs is very properly amatter of grave concern in Canada, as it is throughout the world." [90] I now turn to R. v. Ahmed 2001 BCCA 504. At paragraph 10 of that decision the court says, in part: "Denunciation and deterrence remain the most important factors in this case because Mr.

Ahmed acted entirely out of greed over severalweeks in a neighbourhood where there is a particular need to deter drug trafficking. The factors of denunciation, general deterrence andspecific deterrence simply cannot be met in this case by a non-custodial sentence." [91] In R. v. Smith, (SCC), [1987] 1 S.C.R. 1045, then Justice Lamer said at page 1053: "Those who import and market hard drugs for lucre are responsible for the gradual but inexorable degeneration of many of their fellowhuman beings as a result of their becoming drug addicts.

The direct cause of the hardship cast upon their victims and their families, theseimporters must also be made to bear their fair share of the guilt for the innumerable serious crimes of all sorts committed by addicts inorder to feed their demand for drugs.

Such persons, with few exceptions (as an example, the guilt of addicts who import not only to meetbut also to finance their needs is not necessarily the same in degree as that of cold-blooded non-users) should, upon conviction, in myrespectful view, be sentenced to and actually serve long periods of penal servitude." [92] Turning away now from general pronouncements and principles, and looking more particularly at the specifics of what kind ofsentence Mr. Mauro ought to be required to serve, I will first say very briefly that Mr.

Mauro cited a number of cases to me that involvedthe imposition of conditional sentence orders for drug offences at a time when such sentences were available. Amendments to theCriminal Code that have been made since those cases were decided have removed the CSO from consideration, a fact that, I know, isknown to Mr. Mauro and his counsel. But beyond that, the reasoning in those cases has, in my view, been superseded and supplanted bythe reasoning that governs the other community-based sentencing option that still remains available after those amendments wereenacted, that being the suspended sentence.

I shall not, therefore, give over any time to a consideration of the CSO cases themselves infavour of giving close attention to the recent appellate and trial-level authority concerning the appropriate use of the suspended sentencefor drug offenders. [93] I now propose to address the submission made on Mr. Mauro's behalf that a suspended sentence should be and is available inthe circumstances of this case. That proposition is advanced with vigour on Mr.

Mauro's behalf; it is resisted with equal vigour by theCrown. [94] There are very recent authorities to consider in this regard, all of which reiterate the importance of deterrence and denunciationas main sentencing objectives in cases of this kind. Those authorities make it plain that exceptional circumstances must be present inorder for the suspension of the passing of sentence to be a justifiable sentencing option in a case like the one at bar. I will read somepassages from the recent case law. [95] R. v.

Voong, 2015 BCCA 285, though specifically concerned with dial-a-dope sentence appeals, is a case in which the courtnevertheless makes some statements of general application to drug-offence sentencing, including this description of the kinds ofcircumstances that would justify a departure from conventional incarceration, even for first offenders or offenders with minimal courtrecords.

Quoting from paragraph 59 of Voong: "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 sentences are not available. Thus, it will be the rare case where the standard of exceptionalcircumstances is met." [96] R. v.

Oates, 2015 BCCA 259, another dial-a-dope sentencing appeal case, contains language regarding the availability of asuspended sentence even for first-time offenders that I agree with the Crown is of assistance to me in this case of possession of cocaine atthe 1.3 kilogram level for the purpose of trafficking. Oates, like Voong, affirms the prominence of deterrence and denunciation asprimary sentencing objectives and speaks in terms of a requirement that offenders seeking suspended sentences for drug-related offencesmust demonstrate the presence of exceptional circumstances. Mr.

Oates – a first-time drug offender with a minimal record involved in adial-a-dope operation purely for profit – had his suspended sentence overturned on appeal and replaced by a prison sentence. He was a

street-level operator, trading in amounts of heroin with a street value of $330. He was not, like Mr. Mauro, a trusted transporter of cocaine with a street value of approximately $100,000. Nevertheless, a suspended sentence was not considered appropriate for Mr. Oates. His suspended sentence granted at first instance was overturned and he was sent to jail. No exceptional circumstances were made out concerning Mr.

Oates that were sufficient to constitute a "marked departure from the range of sentences imposed for similar offences and similar offenders" (paragraph 27) and accordingly a custodial sentence was substituted. [ 97 ] Cases like R. v. Voss , 2014 CarswellBC 805 (Prov. Ct.) , speak to the kinds of truly exceptional circumstances that must be present to justify the suspending of the passing of sentence in drug cases. With respect, there is nothing comparable to what arose in cases like Voss to be found in the picture of Mr. Mauro that emerged in the case at bar. [ 98 ] Mr.

Mauro's counsel was hard-pressed to point to exceptional circumstances to justify the imposition of a suspended sentence here. He refers to progress Mr. Mauro has made in dealing with his addiction; however, the significance of that pales when it is remembered that the court was unable to accept or believe his evidence that he was ever in the grip of the all-consuming and debilitating addiction that he claimed. Mr. Mauro has continued to make progress on the way to acquiring his journeyman plumber's ticket and completing his apprenticeship as he has waited for these proceedings to come to their conclusion.

That is undoubtedly commendable, as is the fact that he has a supportive and admiring employer and a supportive and loving family. But these facts, which in truth cut against what Mr. Mauro sought to prove he had by way of an intractable and paralyzing addiction in the years leading up to his offence date, do not stand out as making him or his circumstances exceptional. They in no way compare to what the court had to consider in Voss , for example, or in R. v. Orr and Lai, 2015 BCPC 206 , or R. v. Carrillo, 2015 BCCA 192 , for example. [ 99 ] Mr.

Mauro in fact calls in aid the recent decision of the Court of Appeal in Carrillo . In that case a mid-level trafficker who pleaded guilty to possession of three ounces of cocaine for the purposes of trafficking was given a suspended sentence and the Crown's appeal was dismissed. The court in Carrillo accepted that "highly exceptional circumstances" existed which justified the imposition of a sentence outside the typical range. [ 100 ] Like Mr. Mauro, Mr. Carrillo had no criminal record, although he was more than 20 years older. Unlike Mr. Mauro, on the facts as found at the sentencing hearing, Mr.

Carrillo was a landed refugee who had "serious physical, mental and personal difficulties". He had been found in possession of an amount of cocaine "not on the comparatively higher end of other more serious possession for the purpose of trafficking cases", that is to say, three ounces only (para. 8). If, as his counsel contends but I have not found, Mr. Mauro was indeed intractably addicted to cocaine and OxyContin at the time of his offence, then he certainly has not taken exemplary steps to deal with that addiction as might qualify as exceptional circumstances.

Rather, he has limited his proactive steps mainly to seeking counselling from a counsellor with little training and experience when a broad-based, highly professional frontal attack on his addiction was what was called for. However one looks at it – accepting hypothetically Mr. Mauro's claimed addiction or not – there is simply nothing exceptional in the Voong and Oates sense upon which a departure from the normative pattern of custodial sentences for offences of this kind could be based. [ 101 ] Mr. Mauro also refers the court to the decision of Judge Rideout of this court in the R. v.

Orr and Lai case, previously mentioned. The offender, Lai, like the offender Galang in the Voong appeal, was able to point to family factors that set his case apart from the general run of drug offence sentencings. Mr. Lai called the evidence of a psychologist at his sentencing who addressed, among other things, Mr. Lai's role as his mother's primary caregiver, and circumstantial factors relating to that which made it very unlikely that he would commit future offences by reason of the jeopardy that that would cause to his ability to continue to fulfil that role.

That, coupled with the fact that by comparison to Mr. Mauro, Mr.

Lai was involved in a less sophisticated operation involving drugs much lower in quantity and value, sets the Orr and Lai decision well apart from the case at bar which, as I have said, involves no comparably unique circumstances. [ 102 ] As the court said in Carrillo at paragraph 32 : "The sentencing judge hears the submissions at first instance, gauges the relevant factors, and assimilates impressions that can be difficult to articulate such as the sincerity of expressions of remorse, and whether there is a real possibility of rehabilitation and genuine motivation for it.

These factors may support “a justifiable case-specific basis” for imposing a sentence outside the identifiable range ( Nasogaluak at para 44)." [ 103 ] Unlike the trial judge in Carrillo , I have not been presented with anything that fits that description and which would justify the imposition of a suspended sentence on Mr. Mauro. [ 104 ] I cannot see anything before me that would warrant departing from the generally-accepted approach to sentencing a person like Mr.

Mauro – a first-time offender involved for profit-making reasons in the drug trade who possesses almost 1.3 kilograms of cocaine for the purposes of trafficking – in a way that reflects the way similarly-situated offenders have been sentenced before. [ 105 ] So, I now turn to sentences imposed on similarly-situated offenders for guidance. [ 106 ] I find that the decision of Ehrcke, J. in R. v.

Turner, 2010 BCSC 1690 , provides a good starting point for a review of the authorities because, while different (no two cases are wholly alike) it nevertheless compares closely to the case at bar in several important respects. Like Mr. Mauro, the offender in Turner did not have a criminal record at the time he committed his offence of possessing drugs in considerable quantity for the purposes of trafficking. The total street value of the drugs at issue in Turner of approximately $182,000, is meaningfully greater than the total street value of the approximately 1.3 kilograms that Mr.

Mauro had in his possession, that being approximately $100,000, and so some adjustment would have to be made to take that difference into account. [ 107 ] The amount and value of the drugs were considered aggravating factors in Turner , as was the fact that the offender possessed them in the context of an organized and sophisticated operation. The same can be said here.

Anyone entrusted to transport $100,000 worth of cocaine is, as Crown counsel says at paragraph 59 of his written argument, "an important cog in someone’s trafficking operation ... a pipeline from the bulk suppliers to individuals who would re-package the cocaine to street level quantities for resale". Though he was a drug user, there is no suggestion in the reasons in the Turner case that Mr. Turner's possession of large quantities of illicit drugs was motivated by a need to feed an addiction. Similarly, I have found as a fact that the making of profit as opposed to the feeding of an

addiction was the primary motivator of Mr. Mauro's offending. [ 108 ] Ehrcke, J. imposed a three-year period of incarceration upon Mr. Turner in his case for the possession for the purposes of trafficking offence, but required that he serve only one year of new time after credit was given for pre-sentence custody. Altogether, I consider that Turner provides a helpful benchmark as I strive to fashion a sentence that matches the contours of Mr. Mauro's offending. [ 109 ] The New Brunswick Court of Appeal in R. v. Vary , 2008 NBCA 19 is a very brief but still helpful decision.

There, the appellate court upheld the two-and-a-half-year sentence of imprisonment imposed upon a first-time offender who possessed one kilogram of cocaine for the purpose of trafficking. [ 110 ] Other Crown cases cited to me diverge somewhat more factually from the case at bar than did Turner ; some so much so that I need not mention them specifically. [ 111 ] The decision of Blair, J. in R. v.

Kydd, Russell and Way 2009 BCSC 1955 , for example, was concerned with the offender Russell who was convicted of two counts of actual trafficking in cocaine, and another count of possession of one kilogram of cocaine for the purpose of trafficking. The sentence imposed for the possession for the purpose of trafficking conviction was four years of incarceration to run concurrent with five years imposed for actual trafficking. While the quantity in Mr.

Russell's possession was comparable to that in the present case, and while his business motivation and involvement in a higher-level operation make his case somewhat comparable to Mr. Mauro's case, there are other factors that distinguish the two cases and suggest that Mr. Mauro should receive a less strict sanction than did Mr. Russell. [ 112 ] Mr. Russell had a record for trafficking in the same substance before, for which he had previously served two years in prison. As well, he committed the subject offences while on bail. These distinguishing factors lead me to conclude that a sentence for Mr.

Mauro that is closer to those imposed in Turner and Vary would likely be more fit than the four years imposed upon Mr. Russell which the Crown argues, in my view wrongly, would be the proper sanction for Mr. Mauro. [ 113 ] So I will ask you to stand please, Mr. Mauro.

SENTENCE [ 114 ] Based on all of the foregoing, and taking guidance from the applicable authorities that I have reviewed and considered and discussed in these reasons, I find that I am unable to accept the submissions made on your behalf that the passing of sentence should be suspended, given that the exceptional circumstances that must be established to justify a suspended sentence in a case of possession for the purpose of trafficking have not been made out.

The general run of the sentencing cases, for all of the reasons having to do with the vast societal cost of the illicit drug trade, require that offending like yours attract a custodial sentence.

While I do not agree with Crown counsel that a four-year sentence would be appropriate, I do consider that a significant period of incarceration is essential if the objectives of denunciation and deterrence particularly are to be properly weighted in the sentencing equation. [ 115 ] In order to serve all of the statutory sentencing objectives that govern – in particular the most prominent objectives in cases of this kind, those being denunciation and deterrence, both specific and general, and taking considerable guidance from the Turner , Vary and Kydd, Russell and Way decisions – I sentence you to serve a period of 34 months, that is, two years and ten months, in conventional custody as your sentence for possessing approximately 1.3 kilograms of cocaine for the purpose of trafficking.

That is two months' time in custody less than what was imposed in the Turner case where the street value of the drugs in question exceeded the cocaine at issue here by approximately $80,000. [ 116 ] I would have fixed a time in custody that deducted even more than two months from the Turner provisional benchmark of 36 months to reflect that street value difference; however, nothing comparable to the uniquely and seriously aggravating factor of your having placed the almost 1.3 kilograms of cocaine in your mother's possession when she responded by coming to your aid when you called her to tell her that you had been in a motor vehicle accident, was present in Turner .

That unique and very troubling point in aggravation offsets some of what I would otherwise have deducted from the provisional benchmark of 36 months from Turner to take account of the street value differences. [ 117 ] So to repeat, you will serve a period of 34 months in conventional custody, that is, two years and ten months. [ 118 ] Now, is there any time-served credit that I should be deducting from that? [ 119 ] MR. IP: None, Your Honour. [ 120 ] THE COURT: You agree with that, Mr. Gill? [ 121 ] MR. GILL: I do. [ 122 ] THE COURT: We have to deal with the victim fine surcharge. Any submissions on that?

It is, on the strength of everything I have heard you say, Mr. Gill, a reasonable expectation that when Mr. Mauro is released from custody he will carry on and finish the relatively small number of prerequisites left to fulfil to establish himself as a journeyman plumber? [ 123 ] MR. GILL: I'll frame it this way; he's certainly not of indigent status, and I'll leave it at that. [ 124 ] THE COURT: What I will do, in the circumstances, is give him the maximum time available to pay the victim fine surcharge, which is two months from the time of his release from custody. Everyone content with that? [ 125 ] MR.

IP: Yes, thank you. [ 126 ] THE COURT: While you are in the institution, Mr. Mauro, you will have a wide spectrum of opportunities to add to your skill

set and deal with any issues you have to deal with. In other words, what I am trying to say is that within the institution there are resources available to you for your own rehabilitation and I urge and encourage you to take full advantage of those opportunities so that when you emerge, after having served your time in custody, you come away with all that you can by way of benefits from the experience. [ 127 ] Mr. Mauro, your mother, in her submissions (and this remains in my memory) said to me, "My son is not a horrible person." Undoubtedly she's right. You are not being sentenced for being a horrible person.

The court does not view you as a horrible person. But you are a person who made a very grave mistake, and when you make mistakes of this kind there are formal, legal consequences that attach to your having made the mistake. Now it is necessary for you to answer for your mistake, to recommit yourself to living a law- abiding life, a productive life, when you return to society after you have served your sentence.

I expect you to continue to draw from your family the support that they have unfailingly been prepared to give you despite all of the grief and trauma that you have imposed upon them, and pick up and continue having answered for your error. I think that's all I need to say. [ 128 ] Anything further, Mr. Ip? [ 129 ] MR. IP: There are some ancillary orders that the Crown had sought in respect of a DNA order and a s. 109 mandatory ten-year firearm prohibition, and I do note that -- [ 130 ] THE COURT: I had forgotten you had asked for those, Mr. Ip. I'm sorry. [ 131 ] MR.

IP: Crown also sought forfeiture, but in reviewing the exhibits that were seized we're not seeking forfeiture of the board shorts that were in the bag. There were two cells phones and a USB memory stick that were seized; I don't see how the USB memory stick is related, but the cell phones could be related, and so the Crown does seek forfeiture of the cell phones. As far as the other exhibits, they are all drug-related and [indiscernible - rapid speech] automatically forfeited and destroyed.

So really the only forfeiture that the Crown is seeking is in relation to the two cell phones that were seized [ 132 ] THE COURT: Forfeiture, s. 109 firearms offence for ten years? [ 133 ] MR. IP: Yes. [ 134 ] THE COURT: The firearms prohibition, ten years? [ 135 ] MR. IP: Under s. 109. Forfeiture under s. 16 of the CDSA. [ 136 ] THE COURT: And you're asking for a DNA order? [ 137 ] MR. IP: I am. It's a secondary, so it's discretionary on Your Honour. [ 138 ] THE COURT: Submissions, Mr. Gill? [ 139 ] MR.

GILL: With respect to the forfeiture, I don't think that the -- it's necessary at this point to order forfeiture of the cell phones. There's no evidence that the cell phones were used in any commission of offence, there's no issue of a dial-a-dope allegation being put forward. What's clearly been found by this court is that Mr. Mauro was a -- certainly as the court has framed it as an important cog in the machine of drug trafficking, but with that said, it doesn't necessary follow that an individual in that situation will lose their cell phones.

Your Honour, in the big scheme of things it's a minor point, but I couldn't accept that -- we couldn’t acquiesce to that position. I just put it on record on that basis. So other than that, I have no formal submissions. [ 140 ] THE COURT: Any answer to that, Mr. Ip? [ 141 ] MR. IP: Simply that Mr. Mauro has to be given directions to deliver the drug from point A to point B somehow, and cell phones would be a common way of using that in -- in commerce, and really there's no reason for anyone to have two cell phones in Mr. Mauro's situation, given he was unemployed.

Sometimes people who work might have two cells phones, but I say that having two cell phones is indicative of involvement in the drug-trafficking business and it was a tool to be used in the transportation of drugs. [ 142 ] THE COURT: Well, let's start with the forfeiture order, and in the usual course of things, Mr. Ip, I think what happens is the prosecutor draws up the forfeiture order and submits it to the court for the sentencing judge's signature.

I am not going to make an order that the two cells phones be forfeited, and you are not asking me to make an order with respect to the forfeiture of the USB stick. [ 143 ] The case proceeded from top to bottom without any references whatsoever to dial-a-dope dimensions or aspects. Had there been a dial-a-dope dimension or aspect to the case, undoubtedly that would have figured prominently in the submissions of both counsel, and in particular, the Crown.

There is a whole added layer of concern when dial-a-dope convictions come before the court for sentencing, and none of that surfaced in this case, so I do not believe it would be consistent with the general outlines and character of the case for me to make a forfeiture order that in some implicit way might appear to reflect a recognition on the court's part of there being a dial-a-dope dimension, so to speak, to the case. [ 144 ] That is the only point in contention. I think anything else that might be on your forfeiture order -- is there anything else on your forfeiture order we — [ 145 ] MR. IP: No.

Anything that has drug residue on it would be automatically forfeited and destroyed, so… [ 146 ] THE COURT: So there is no discretionary forfeiture order subject matter left for us to talk about, so I just won't be making a forfeiture order at all. [ 147 ] MR. IP: Thank you.

[ 148 ] THE COURT: Thank you. I will impose a ten-year prohibition on the possession of firearms upon Mr. Mauro under s. 109 of the Criminal Code . [ 149 ] This being a secondary designated offence, I am satisfied that the relatively minimal intrusion into Mr.

Mauro's zone of privacy that would result from his having to surrender a sample of his DNA is a tolerable intrusion, having regard to the up-side benefits of enriching the DNA database which serves not only to contribute to the improvement of the prospects of conviction of those who deserve to be convicted, and should be convicted, but also serves a useful purpose in permitting the exoneration of those who are wrongfully charged. So I will make an order that Mr.

Mauro cooperate with the sheriffs here in Port Coquitlam who, as I understand it, will harvest a sample of his DNA while he is in custody awaiting transportation to the institution. [ 150 ] MR. GILL: The only thing I would suggest then, Your Honour, is that the order be made that it be taken through a swab which I think is more than sufficient, rather than any more intrusive issue of using needles. [ 151 ] THE COURT: Well, I've never been asked to be that precise in an order, but I think, if I'm not mistaken, Mr.

Sheriff, that that is the harvesting method that the sheriffs use? [ 152 ] THE SHERIFF: No, we don't deal in swabbing. [ 153 ] THE COURT: How do you do it? [ 154 ] THE SHERIFF: It's a simple pin prick on the tip of the finger with a sterile lancet [indiscernible] puts it onto a card. [ 155 ] THE COURT: All right. Mr. Gill? [ 156 ] MR. GILL: Well, I have no more to say on that. I think a swab is certainly -- you can get the same result.

A pin prick -- I'm not going to quibble about severity, but again, I think that the least intrusive method is through a swab, and I'll leave it at that. [ 157 ] THE COURT: Well, I'm not going to make it a stipulation in the order relating to the harvesting of a DNA sample that the sheriffs depart from their usual and ordinary practice.

A pin prick is, yes, an intrusion that might be characterized as more intrusive than a swab, but if it is the usual and ordinary method of harvesting the sample, I am not going to impose a requirement that the sheriffs do anything other than what they normally do. [ 158 ] THE SHERIFF: We just don't have the swab equipment, Your Honour. [ 159 ] THE COURT: All right. So the sheriffs will be free to use their usual practice, fall back on their usual practice in capturing that DNA sample. (REASONS FOR SENTENCE CONCLUDED)