2012 QCCQ 9774, 2012 QCCQ 9774

R. c. Lombardi JM2240 Sentence. Possession of marijuana for the purposes of trafficking. «Dial-a-dealer». Discharge not available. Moral culpability. 2012 QCCQ 9774 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Criminal Division No: 500-01-026229-093 DATE: September, 14, 2012 ______________________________________________________________________ BY THE HONOURABLE SALVATORE MASCIA, J.C.Q. ______________________________________________________________________ HER MAJESTY THE QUEEN Plaintiff v.

EMILIO LOMBARDI Petitioner-Accused _____________________________________________________________________ REASONS FOR SENTENCE [1] ______________________________________________________________________ Introduction [ 1 ] The defendant, Mr. Lombardi, entered a plea of guilty to a charge of possession of marijuana for the purposes of trafficking (section 5(2)4) of the Controlled Drugs and Substances Act). In essence, the accused was part of a « dial-a-dealer» operation: that is, from his cell phone he would receive orders for the purchase of marijuana. Then, he would deliver the drug at the arranged time and place.

Issue [ 2 ] The issue in the present matter is whether or not the accused—the delivery man in a «dial-a-dealer» operation—could benefit from the discharge provisions set out at

section 730 of the Criminal Code . Circumstances of the case [ 3 ] In the course of a routine traffic stop, the police intercepted the vehicle driven by the accused. During the stop, the police noted a transparent bag that appeared to contain marijuana. The accused was promptly arrested. A search of the vehicle (and of the accused) disclosed 144.28g of marijuana (contained in several packets), 225$ in cash and four cell phones. [ 4 ] From the outset, the accused has assumed his responsibility and acknowledged his participation in the «dial-a-dealer» trafficking scheme. According to his account, he received from a distributor circa 220 grams of marijuana that he had to sell in the course

of multiple deliveries to various customers. [ 5 ] In order to service his customers' needs, the accused worked a «shift» from noon to midnight, seven days per week. For his efforts, he earned circa 100 to 150 dollars per day. This amounted to a 15 per cent return on sales. The rest of the money was remitted to his «distributor». His implication in the «dial-a-dealer» scheme lasted three weeks.

Position of the parties Position of the Crown [ 6 ] The Crown, represented by Me Claudine Charest, seeks a criminal conviction by way of a suspended sentence accompanied by an order to perform 100 hours of community service along with a fine of 500 dollars. The Crown argued that denunciation and deterrence must be the guiding principles in sentencing the accused. [ 7 ] Me Charest acknowledged the considerable efforts of the accused to turn his life around. Indeed, the pre-sentence report concluded that the accused is well on his way to becoming a productive, law-abiding citizen.

Despite the accused having found the «road to Damascus», the Crown argued that it would be contrary to the interests of society to discharge an accused involved in a «dial-a-dealer» scheme. Position of the defence [ 8 ] The accused, represented by Me Franco B. Iezzoni, seeks a discharge. Essentially, defence counsel argued that a criminal record would impact unfavourably on the accused's employment opportunities.

Me Iezzoni also highlighted the positive aspects of the presentence report in an effort to show that the accused—since his arrest—has espoused pro-social values and that the risk of re- offending is extremely slight. Circumstances of the offender [ 9 ] The accused is 24 years of age. At the time of the commission of the offence, he was but 21 years old. He has no criminal record. [ 10 ] Except for a brief interlude in the «dial-a-dealer» operation, the accused was always gainfully employed. The jobs he has held in the past, however, were not conducive to work stability.

On average, the work-stints at a particular employer lasted but a few months at a time. No matter, defence counsel made the point that the accused did not shy away from legitimate employment. [ 11 ] The accused's job prospects were probably hampered by his inability to complete his high-school leaving certificate. In an effort to remedy this problem, he is presently taking courses at an adult education centre. Once the certificate is obtained, he plans to enrol in a technical program that would qualify him to work as an electrician. [ 12 ] The accused does not consume illicit drugs.

His involvement in the present matter was driven strictly by the need to make easy money in order to pay off certain debts. [ 13 ] According to the drafter of the presentence report, the accused is remorseful and has learned his lesson. The risk of recidivism is low. Applicable law [ 14 ] The absolute and conditional discharge option is found at s. 730(1) of the Criminal Code : 730 .

(1) Where an accused, other than a corporation, pleads guilty to or is found guilty of an offence, other than an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life, the court before which the accused appears may, if it considers it to be in the best interests of the accused and not contrary to the public interest, instead of convicting the accused, by order direct that the accused be discharged absolutely or on the conditions prescribed in a probation order made under subsection 731(2). [ 15 ] In short, there are two essential criteria for a discharge : (

i) that it be in the best interests of the accused and (ii) that it not be contrary to the public interest.

The accused's best interests [16] Arguments on the first ground usually center on whether or not the accused figures among that group of individuals who wouldbe affected disproportionately by the registration of a conviction. For instance, an accused may tender evidence that a criminal recordwould result in the loss of his job or compromise his career advancement opportunities. [17] It must be noted, however, that the accused does not bear the burden of establishing that his employment was in danger in orderfor the discharge application to apply. As Justice Rothman explained in R .v.

Moreau (QC CA), [1992] 76 C.C.C.181, at page 185: [T]here is no burden on an accused to establish that his or her employment would be endangered by a criminal conviction in order toobtain a discharge. Although this may be one appropriate reason for granting a discharge, it is certainly not the only ground possible. InR. v. Meyers (ON CA), [1977] 37 C.C.C. (2d) 182, 185, (Ont. C.A.), Mr.

Justice Martin noted: In our view, the trial judge, in declining to grant appellant a discharge because the registration of a conviction would have no immediateeffect upon his employment, applied much too narrow a test in deciding whether the granting of a discharge was in the best interest ofappellant. [18] Thus, a discharge under

section 730 should be considered where the conditions of the

section are met and where, having regardto the nature of the offence and the age, character and circumstances of the accused, the registering of a criminal conviction, in itself,would have a prejudicial impact on the accused that is disproportionate to the offence he or she committed. (From Moreau, supra, atpages 185-186, where Rothman J.A. refers to R. v. Scheper, 1986] J.Q. no. 1806 (Qué. C.A.); R. v. Meneses (ON CA),[1976] 25 C.C.C. (2d) 115 (Ont. C.A.); R. v. Meyers, supra; R. v. Fallofield, (1973) 13 CCC (2d), (B.C. C.A.); R. v. Sanchez-Pino (ON CA), [1973] 11 C.C.C. (2d) 53 (Ont. C.A.); Dubuc v.

R. (QC CS), [1978] 4 C.R. (3d) 275 (Que.S.C.). Not contrary to the interests of society [19] The second criteria invites consideration of the principles of general deterrence and denunciation with attention being paid tothe gravity of the offence, its incidence in the community, public attitudes towards it and public confidence in the effective enforcementof the criminal law[2].

Case law has also held that societal interests includes giving the accused every opportunity to become a usefulperson in the community and to earn a livelihood for her/himself and her/his family[3]. [20] The decision whether or not to grant a conditional discharge is not determined by the category of the offence[4]. Thus, adischarge is not reserved for trifling offences. Nor should a discharge be considered an exceptional measure[5].

Barring any statutoryimpediment, a discharge may be granted so long as the two conditions set out at s. 730 have been met. [21] In the present matter, the charge against the accused does not bar him from applying for a discharge. The attorney for thedefence has even submitted a number of cases where our courts have granted discharges to individuals charged with trafficking innarcotics (marijuana and ecstasy) and in the production of narcotics (marijuana): R. c. Houle, 2008 QCCQ 4811 ; X. c. SaMajesté la Reine, 2007 QCCA 1340 ; R. v. Idris, 2007 ABPC 211 ; R. v. Moore, 2005 YKTC 10 .

These caseswill be discussed in the last

section of this judgement. [22] In some cases, however, the nature of the offence will be such that the principles of sentencing set out in the Criminal Codewould be offended by the granting of a discharge, particularly the sentencing principles of general deterrence.[6] In R. v. Sanchez-Pino,supra, Arnup J, writing for the Court of Appeal of Ontario, at paragraph 18, explained the matter as follows: It is only common sense that the more serious the offence, the less likely it will appear that an absolute discharge, or even a conditionalone, is “not contrary to the public interest”.

In some cases the trivial nature of the offence will be an important consideration; in others,unusual circumstances peculiar to the offender in question may lead to an order that would not be made in the case of another offender. [23] Thus, one must temper the usual caveat that no category of offence is exempt from the discharge provisions set out at s. 730 ofthe Criminal Code. The more serious the offence, the less the likelihood that a discharge would be an appropriate sentencing measure.

Inthe face of a serious offence, the accused must make a compelling case on the «best interests» criteria if he hopes to benefit from adischarge. Application Is a discharge in the accused's best interests? [24] Mr. Lombardi is presently completing the course requirements for his high school leaving certificate. Upon receiving said

certificate, he plans to enrol in a vocational program to qualify as an electrician. [25] According to Me Iezzoni, the accused's employment prospects as an electrician would be severely compromised if he wereconvicted in the present matter. Thus, it is in the accused's interests that he be granted a discharge, absolute or conditional. [26] The case for the accused's best interests is far from compelling. I note, firstly, that the accused has yet to fulfill the basicrequirements to be considered for the vocational training of his choice.

Then, assuming he fulfills the basic academic requirements,nothing guarantees that he will figure among the limited number of applicants accepted for training as electricians. In short, the accused'sbest interests are predicated upon conditions that do not exist at present and where there is no guarantee that they will exist in the future. [27] Finally, the defence did not present any evidence to the effect that a criminal record would preclude the accused from beinggainfully employed as an electrician.

At first blush, it does not appear that the accused is amongst that group of individuals who wouldbe affected disproportionately by the registration of a conviction. The effect on him is much the same as any other individual. [28] This being said, however, I must be mindful of case law to the effect that the accused has no burden of establishing employmentjeopardy for the discharge provisions of the Criminal Code to apply. The mere risk of professional consequences may be sufficient toestablish the best interests of the accused.

Nor should the concept of an accused's best interests be strictly limited to professionalconsiderations. Hence, for the purposes of this judgement, a liberal

interpretation of the accused's «best interests» favours the granting ofa discharge. [29] The question then turns on the second prong of the test at s. 730 which is predicated upon the public interest. Is the granting of a discharge contrary to the public interest? [30] In sentencing matters, societal interest is usually—though not solely—concerned with deterrence and denunciation. As notedearlier, there are certain cases where the principles of sentencing would be offended by the granting of a discharge.

Generally, the moreserious the offence, the less likely a discharge should be granted. [31] In the case at bar, a determination that a discharge is not contrary to the public interest requires that I assess the gravity of theoffence and the degree of responsibility or moral culpability of the offender. To assess the extent of moral culpability in a particular case,due regard must be given to “the intentional risk-taking of the offender, the consequential harm caused by the offender, and thenormative character of the offender’s conduct” (R. v.

M. (C.A.), (SCC), [1996] 1 SCR 500, at par. 80). [32] In this case, the moral culpability of the offender is relatively high. His criminal activity was essential in the delivery of illicitdrugs from waypoint to waypoint. He was, in effect, the last link in the distribution chain. [33] Delivering drugs is not an activity one falls into by happenstance. It involves planning, active participation and deliberate risktaking. According to the pre-sentence report, the accused was readily available to serve his customers: working a shift from noon tomidnight.

When arrested, the police found in the accused's vehicle four cell phones, numerous baggies containing marijuana and 225dollars in cash. [34] The illicit transportation of marijuana went on for three weeks. It only ceased because of his arrest following a fortuitous trafficstop. [35] The accused, in short, was extremely organized and participated willingly in the commercial distribution of an illicit drug.

Hisactions have to be placed on the higher rungs of the moral culpability ladder. [36] Where the crime is serious and the moral culpability or responsibility of the accused is high, the need for denunciation ordeterrence is so pressing that a discharge—conditional or absolute—could not properly reflect society's condemnation of the offender'sconduct nor could it serve to deter similar conduct in the future.

Transporting drugs from waypoint to waypoint is a very serious offenceand the responsibility of those who undertake that task for those higher up in the drug trade should not be minimized. [37] The reputation of the criminal justice system also requires that the offender's punishment be proportionate to his responsibility.The expectation of reasonable and fair-minded people is that punishment will bear some direct proportionality to the moral culpability ofthe offence: R. v. Sweeney , (BC CA), (1992), 71 C.C.C. (3d) 82 (B.C.C.A.) at 91.

A legal system that condonesexcessively harsh, or for that matter, lenient sentences, will eventually lose the support of many members of the community: R. v. Wust,2000 SCC 18 , 2000 SCC 18, [2000] 1 S.C.R. 455 at para. 21.[7] [38] In the case at bar, a discharge would have two drawbacks from a societal interest point of view. Firstly, it would not addresssentencing factors relating to deterrence and denunciation. Secondly, the fair-minded and informed citizen would perceive the dischargeas a mere slap on the wrists.

Such a disposition would depreciate the gravity of the offence and undercut public confidence in the legalsystem. Commentary on the jurisprudence submitted by the accused [39] Counsel for defendant submitted several cases in which our courts have granted discharges in matters relating to the traffic ofnarcotics (marijuana and ecstasy) and to the production of drugs (marijuana plantation).

I am of the opinion, however, that thosedecisions are distinguishable on their facts and cannot support the granting of a discharge in the present matter. [40] For the most part, the case law is distinguishable from the case at bar in terms of the implication or moral culpability of the

offender in the commission of the crime. In R . c. Houle , supra, the accused's participation in a marijuana plantation was limited to watering the plants on two separate occasions. In X. v. Sa Majesté la Reine, supra , the accused was but 13 years of age and the infraction involved but one transaction in which the offender sold 1 gram of cannabis to an undercover officer. [ 41 ] Similarly, in R. v. Idris , supra, the accused's involvement in drug trafficking was limited to an isolated incident in which he sold 6 ecstasy pills to an undercover officer.

This is a far cry from the little cottage industry in marijuana purveying performed by the accused in the present matter. [ 42 ] In Idris , moreover, the defence presentend a particularly compelling case on the frist criteria set out at

section 730 , the «best interests of the accused». Mr. Idris was married with four children. At the sentencing hearing, evidence was adduced that a criminal record would have a serious and negative effect on the accused's job as a computer technician. [ 43 ] In R. v. Moore , the granting of a conditional discharge hinged, in part, on the judge's conclusions that the accused was not involved in the commercial distribution of drugs.

As Lille J. explained at para. 6 of his decision: Where the offender is engaged in a commercial operation reaching the level of organized distribution, a period of incarceration, sometimes substantive, is often imposed. In the case at bar, the amount of marihuana is modest and I am satisfied that Mr. Moore was not part of an organized distribution scheme. [ 44 ] While the Court in Moore could find no evidence that the accused was involved in an organized distribution operation, the same cannot be said of the accused's implication in the case at bar. As mentioned earlier, Mr.

Lombardi distributed marijuana from waypoint to waypoint to serve his customer's needs. He was organized: he had four cell phones, a car, and was available 12 hours a day. He even had a regular distributor who supplied him with the drugs. His activity, though at the low end of the trafficking scheme, was essential to its operation. Indeed, without his active and willing participation, the distribution scheme could not operate. Conclusion [ 45 ] The task of the sentencing judge is to take all relevant factors into consideration and having done so to determine the appropriate sentence to be granted.

All the factors relating to both the crime and the criminal must be considered and given the weight which the circumstances may from time to time demand. In the circumstances of the present case, the dominant sentencing principles have to be deterrence and denunciation. Given the accused's moral culpability in the commission of the offence, these specific sentencing principles would not be achieved by granting the accused a discharge. [ 46 ] In consideration or the above, I rule that it is not in the public interest to grant the accused a discharge.

Accordingly, the request for a discharge is denied and my sentence is as follows: I suspend the passing of sentence and impose a term of probation for 18 months. The mandatory conditions referred to in s. 732.1(2) apply: the accused must keep the peace and be of good behaviour. The additional conditions on the probation order include that Mr. Lombardi perform 75 hours of community service over a period not exceeding 15 months.

The accused will have to report to the probation office within 72 hours of these reasons for sentence , and thereafter as directed by the probation officer in order to ensure that he completes the mandated 75 hours of community service. The accused will have to pay a fine of 250 dollars to be paid within a six-month period. The accused is exempt from payment of the victim surcharge fee and other court costs if applicable. __________________________________ SALVATORE MASCIA, J.C.Q. Me Claudine Charest Attorney for the Plaintiff Me Franco B. Iezzoni Attorney for the Petitioner-Accused