R. v. Cassell, 2023 NLSC 155

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Cassell , 2023 NLSC 155 Date : December 8, 2023 Docket : 202204G0236 His Majesty the King v. Fredrick GEORGE Cassell Before: Justice Thomas J. Johnson Place of Hearing: Corner Brook, Newfoundland and Labrador Date of Hearing: October 24, 2023

Summary: The offender was sentenced on two counts of possession of a controlled substance for the purpose of trafficking contrary to the Controlled Drugs and Substances Act and on one count under the Excise Act, 2001 for possession of unstamped tobacco. Upon arrest, the following items were found in the offender’s home: 291 Percocet (oxycodone) tablets, 8.8 grams of cocaine and 10,244 unstamped cigarettes.

The sentence imposed was: for Count 1, possession of oxycodone for the purpose of trafficking – 16 months’ imprisonment; for Count 2, possession of cocaine for the purpose of trafficking – 14 months’ imprisonment to be served concurrently with the sentence of imprisonment for Count 1; for Count 3, possession of unstamped cigarettes – a fine of $2,979.98. A number of ancillary orders were also made. Appearances:

Jonathan M. Andrews Appearing on behalf of the Crown Courtney O. Mills Appearing on behalf of the Offender Authorities Cited: CASES CONSIDERED: R. v. Drake (2012), 320 Nfld. & P.E.I.R. 1 (NL Prov. Ct.); R. v. Ivey, 2018 NLSC 58; R. v. Stewart, 2012NLTD(G) 187; R. v. Hillier, 2015 NLPC 0814; R. v. Moores, 2013 NLTD(G) 10; R. v. Taylor, 2012 NLTD(G) 9; R. v. Woodford (2013),335 Nfld. & P.E.I.R. 336, (NL Prov. Ct.); R. v. Leonard, 2023 NLSC 27; R. v. Bearns (1989), 77 Nfld. & P.E.I.R.103, (Nfld. C.A.); R. v. Strickland, 2010 NLTD 2; R. v. Ramos, 2023 ONSC 1094; R. v. DiPasquale, 2023 ONSC758; R. v.

Byrne, 2009 NLCA 3; R. v. Brown (1997), (NL CA), 119 C.C.C. (3d) 147, 155 Nfld. & P.E.I.R. 188(Nfld. C.A.); R. v. Ramos, 2023 ONSC 1094; R. v. Kebede, 2021 ONCA 283 and R. v. McMahon, 2022 ONCA 459; R. v. Gorman, 2023NLSC 34; R. v. Hewlett, 2013 NLTD(G) 66; R. v. Kirk, 2023 BCSC 301; R. v. Stulec, 2022 BCPC 301; R. v. Kienapple (SCC), [1975], 1 S.C.R. 729; R. v. Parsons, 2017 NLCA 64; 2008 Nfld. & P.E.I.R. 308 (NLCA); 2008 Nfld. & P.E.I.R. 308 (NLCA); R.v. Barrett, 2008 NLCA 23; R. v. Proulx, 2000 SCC 5; R. v. Mitchell, 2017 NLCA 26; R. v. Lacosse, 2015 SCC 64; R. v.

Oates (1992), (NL CA), 100 Nfld. & P.E.I.R. 289, 74 C.C.C. (3d) 360 (Nfld. C.A); and R. v. Nasogaluk, 2010 SCC STATUTES CONSIDERED: Controlled Drugs and Substances Act, S.C. 1996, c. 19; Excise Act, 2001, S.C. 2002, c. 22; CriminalCode, R.S.C. 1985, c. C-46 REASONS FOR JUDGMENT Johnson, J.: INTRODUCTION [1] On October 24, 2023, Mr.

Cassell was convicted, following the entry of guilty pleas on June 5, 2023, on two counts ofpossession of a controlled substance for the purpose of trafficking, pursuant to s. 5(2) of the Controlled Drugs and Substances Act, S.C.1996, c. 19 (the “CDSA”) and one count of possessing tobacco products not stamped in accordance with the Excise Act, 2001, S.C. 2002,c. 22 contrary to s. 32 of the Excise Act, 2001. His sentencing occurred on December 8, 2023. Mr.

Cassell had originally been scheduledto be sentenced on August 30, 2023 but when the Court reviewed the Pre-Sentence Report (“PSR”), certain statements attributed to Mr.Cassell in which he asserted that the drugs were intended for his personal use were inconsistent with his guilty pleas on June 5, 2023 tothe drug charges. [2] I had the matter re-called in court on September 8, 2023 in order to clarify Mr. Cassell’s intent and to determine whether hewas indeed prepared to admit to the elements of the offences or whether he wished to apply to withdraw his guilty pleas and proceed totrial. Mr.

Cassell again acknowledged his guilt to all elements of the offences and stated he wished to proceed to sentencing. [3] The sentencing hearing was held on October 24, 2023, at which time Mr. Cassell confirmed his acceptance of the AgreedStatement of Facts. [4] The Counts state as follows: Count 1 On or about the 20th day of July, A.D. 2021, at or near Howley in the Province of Newfoundland and Labrador, did possess a substanceincluded in

Schedule I to wit Oxycodone for the purpose of trafficking contrary to Section 5(2) of the Controlled Drugs and SubstancesAct. Count 2

On or about the 20th day of July, A.D. 2021, at or near Howley in the Province of Newfoundland and Labrador, did possess a substance included in

Schedule I to wit Cocaine for the purpose of trafficking contrary to Section 5(2) of the Controlled Drugs and Substances Act . Count 3 On or about the 20th day of July, A.D. 2021, at or near Howley in the Province of Newfoundland and Labrador, did without lawful excuse have in his possession tobacco not stamped in accordance with the Excise Act, 2001 , thereby committing an offence contrary to

Section 32 of the Excise Act, 2001 , punishable by

Section 216 of the Excise Act, 2001 . issue [ 5 ] The issue is determination of a fit and proper sentence for these offences. facts [ 6 ] At the sentencing hearing, the Crown and Defence provided the Court with the following Agreed Statement of Facts: 1. On July 20th, 2021 Deer Lake RCMP received Confidential Informant Information reporting that Frederick George Cassell is in possession of cocaine and “ice pills” which he is selling from his residence in Howley, NL. On July 20, 2021, RCMP members from the Deer Lake Detachment executed a Search Warrant pursuant to

Section 11 of the CDSA at the residence of Frederick George Cassell at 1 Third Avenue, Howley, NL. During the execution of the Search Warrant the following items were seized: (1) 291 Percocet (oxycodone) tablets; (2) 8.8 grams of cocaine; (3) 143 grams of glutamine; (4) 11 tramadol tablets;

(5) Plastic baggies;

(6) Digital scale, razor blade and measuring scoops;

(7) Two cell phone (sic) and (8) 10,244 contraband & unstamped tobacco cigarettes. (9) $25,247.15 in Cash (a) $1050 – Located in an Envelope in Cassells pants; (b) $1870.00 – Located in and (sic) envelope in a bedroom dresser; and (c) $22,327.15 located in a bedroom safe. 2. An Expert opinion Report of Corporal Chris Harris was provided in relation to Mr. Cassell.

Corporal Harris (sic) conclusion based off of the evidence collected in this case was that: “taking into consideration the totality of the evidence provided to me, I am of the opinion the possession of the cocaine and oxycodone were for the purpose (sic) street level trafficking.

I form this opinion in part for the following reasons: • The amount of cocaine seized is more than what a typical user would have for personal use; • There was a digital scale seized consistent with the type used by traffickers to weigh cocaine when preparing it for sale; • In the same location as the digital scale, there were razor blades and measuring scoops, giving the area an appearance where cocaine would be weighted and packaged in preparation for sale; • There were numerous new small baggies seized, consistent with the type used to package small amounts of cocaine for sale; • There was a quantity of a commonly used cocaine cutting agent seized from the residence;

• The quantity of oxycodone pills was quite large and more than what would typically be possessed for personal use pain relief; • The oxycodone pills were not contained in legitimate prescription bottles with the suspects (sic) name in it; • There was content on the cell phone seized consistent with the trafficking of oxycodone and cocaine; • The amount of case (sic) seized from the residence was more than what a person would typically possess and consistent with proceeds of drug trafficking. 2.

On August 23, 2023 a pre-sentence report was completed by Heather Roach of the Department of Justice and Public Safety, Corrections & Community Services. In this report Mr. Cassell indicated that due to a back injury several years ago he began using opiates for pain. Mr. Cassell has since seen Dr. Young and participated in the opioid agonist therapy program and indicated that his pain management is now under control with prescribed medications. PSR [ 7 ] The PSR of August 23, 2023 was prepared by Heather Roach, Adult Probation Officer. The PSR states that Mr. Cassell was born in July of 1951.

He is now 72 years of age. Heather Roach stated that most of the information in the PSR was self-reported. [ 8 ] He was one of six children and he grew up in Howley. He described his childhood as normal and his family in positive terms. [ 9 ] After grade 9, he left Howley and relocated to Ontario. He married and had four children. He and his wife divorced after five years but he remained in his children’s lives with regular visitation. He reported a good relationship with his children. [ 10 ] While in Ontario, Mr. Cassell lived in Brampton, Mississauga, Oakville and Burlington.

He was employed as a labourer and in painting and welding. He relocated back to Newfoundland and Labrador in 2010 and moved to Howley where he obtained a position at a local powerhouse before retiring. [ 11 ] He has a prior conviction for impaired operation of a vehicle for which he was sentenced 14 days in custody, placed on probation and prohibited from driving. [ 12 ] He resides in his own home in Howley and receives a pension of $1,400 per month. [ 13 ] Mr. Cassell described a number of medical issues that impact his daily life.

He reported taking insulin for type 2 diabetes and he uses a walker due to problems with his knees. [ 14 ] He reported that due to a back injury several years ago, he began using opioids for pain. He reported that he began to see a doctor and participated in a opioid agonist therapy program and indicated that his pain management is more under control with prescribed medication. [ 15 ] He minimized his culpability in his interview for the PSR stating to the author that he had been using drugs to help with his pain management and, despite having a significant amount, it was intended for personal use.

He also noted that by buying it in bulk, he saved money. [ 16 ] Mr. Cassell indicated he has never seen a psychologist or psychiatrist and has no mental health diagnosis. [ 17 ] Mr. Cassell was deemed to be a suitable candidate for community supervision. The PSR states that policies and procedures governing probation and conditional sentence supervision were reviewed and Mr.

Cassell agreed to comply with any conditions deemed appropriate by the Court should a conditional sentence be imposed. position of the PARTIES The Crown [ 18 ] The Crown requests a sentence of incarceration of two years less a day on the drug charges. The Crown also seeks a forfeiture order and a 10-year weapons (and other related items) prohibition under s. 109(1) (

c) of the Criminal Code , R.S.C. 1985, c. C-46 . [ 19 ] Though acknowledging that Mr. Cassell was operating at street level, the Crown submitted that the 291 oxycodone pills he possessed for the purpose of trafficking was considerably more than in R. v. Drake (2012), 320 Nfld. & P.E.I.R. 1 (NL Prov. Ct.) where the offender had 89 tablets of oxycodone for which he received a sentence of 13 months’ imprisonment. In R. v. Ivey , 2018 NLSC 58 , the offender had 25 oxycodone pills and was sentenced by Stack, J. to 16 months’ imprisonment on the count of trafficking oxycodone. [ 20 ] The Crown states that while Mr.

Cassell did not have a large amount of cocaine (8.8 grams), he had a quantity of cutting agents to permit a quantity of cocaine to be cut. The Crown also says that Mr. Cassell minimized his conduct in the PSR. [ 21 ] On the tobacco charge involving the 10,244 unstamped cigarettes, the Crown seeks a fine of $2,979.98 under s. 216(2) and

Schedule I of the Excise Act, 2001 . The Defence [ 22 ] On the drug offences, the Defence requests a conditional sentence of two years less a day followed by probation. [ 23 ] The Defence submits that the Court should consider Mr. Cassell’s guilty pleas as mitigating. Though not made at the earliest

opportunity, the Defence submits that the guilty pleas show his taking responsibility for his actions and they also avoided the need for a trial. Mr. Cassell has not committed any offences since he was charged. Though the PSR could have demonstrated more insight, he is on the path to rehabilitation after developing an addiction to opiates. Counsel submits that Mr. Cassell dealt in drugs to gain monies to acquire drugs for himself. Other than a non-related record, Mr. Cassell has lived a law-abiding life.

He is 72 years old and his health issues make him better suited to a conditional sentence as he poses no danger to society and he was involved in a low-level drug operation. [ 24 ] As regards the ancillary orders, the Defence requests a two or three year weapons prohibition instead of a ten year prohibition. I note, however, that a ten year prohibition is the minimum provided for in s. 109(2) of the Criminal Code . [ 25 ] Finally, as regards the Crown’s proposed fine on the tobacco related offence, the Defence took no issue. applicable legislation CDSA [ 26 ] For each contravention of s. 5(2) of the CDSA , Mr.

Cassell is, pursuant to s. 5(3)(a), guilty of an indictable offence and liable to a minimum sentence of imprisonment for life. Since Royal Assent to Bill C-5 on November 17, 2022, there is no longer a mandatory minimum penalty. [ 27 ] Section 10(1) of the CDSA provides that the fundamental purpose of any sentence for an offence under

Part I is to contribute to the respect for the law and the maintenance of a just, peaceful and safe society while encouraging rehabilitation and treatment, in appropriate circumstances, of offenders and acknowledging the harm done to victims and to the community. [ 28 ] Parliament in s. 10(2)(

a) has directed courts in imposing sentence to consider any relevant aggravating factors including that the offence involved a weapon, violence or took place in or near a place frequented by persons under 18 years of age or that a substance was trafficked or possessed for the purpose of trafficking to a person under the age of 18. None of these listed aggravating factors are present in this case.

The Criminal Code [ 29 ] The fundamental purpose of sentencing, as stated in s. 718 of the Criminal Code , is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions.

The just sanctions imposed are to have one or more of the following objectives: denunciation of the unlawful conduct and the harm done to victims or the community; deterrence (of the offender and others); when necessary, the separation of offenders from society; to assist in rehabilitating offenders; to provide reparations for harm done; and to promote a sense of responsibility in offenders and acknowledgement of harm done to victims or to the community. [ 30 ]

Section 718.1 mandates that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 31 ]

Section 718.2 sets out a number of principles that a sentencing judge must take into consideration in imposing sentence: • The first principle is that a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender. While a number of specifically enumerated circumstances set out in 718.2(

i) to (vii) are deemed to be aggravating circumstances, none of these apply to this case. • The second principle, set out in s. 718.2(b), is that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. • The third principle, set out in s. 718.2(c), is that when consecutive sentences are imposed, the combined sentence should not be unduly long or harsh. • The fourth principle, set out in s. 718.2(d), is that an offender shall not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances. • The fifth principle, set out in s. 718.(2)(e), is that all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to the victims or to the community should be considered for all offences, with particular attention to the circumstances of aboriginal offenders.

Conditional sentence [ 32 ] On November 17, 2022, Bill C-5 received Royal Assent. As a result, the minimum period of imprisonment mandated by s. 5(3) (

a) of the CDSA was abolished. Thus, conditional sentences are once again available for the drug offences before the Court in this case in appropriate circumstances. [ 33 ] As long as an offence is not ineligible, where a person is convicted of an offence and the Court imposes a sentence of imprisonment of less than two years, the Court may order that the offender serve the sentence in the community, subject to conditions imposed under s. 742.3.

In order to impose a conditional sentence order, the Court must be satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2. Decisions cited by the Crown [ 34 ] The Crown provided a number of decisions for the consideration of the Court. These were:

• R. v. Stewart, 2012 NLTD(G) 187; • R. v. Hillier, 2015 NLPC 0814; • R. v. Moores, 2013 NLTD(G) 10; • R. v. Taylor, 2012 NLTD(G) 9; • R. v. Ivey, 2018 NLSC 58; • R. v. Drake (2012), 320 Nfld. & P.E.I.R. 1 (NL Prov. Ct.); • R. v. Woodford (2013), 335 Nfld. & P.E.I.R. 336, (NL Prov. Ct.); • R. v. Leonard, 2023 NLSC 27; • R. v. Bearns (1989), 77 Nfld. & P.E.I.R. 103, (Nfld. C.A.); • R. v. Strickland, 2010 NLTD 2; • R. v. Ramos, 2023 ONSC 1094; and • R. v. DiPasquale, 2023 ONSC 758. [35] In R. v.

Stewart, the offender, age 44, was convicted of possession of cocaine for the purpose of trafficking and sentenced totwo years’ imprisonment. He was on probation at the time of the offence. He had a criminal record for drug-related offences, includingtrafficking. For offences in 2003 he received a 18 month conditional sentence for producing, trafficking and possession for the purpose oftrafficking of a controlled substance. The police stopped his vehicle while driving back to Corner Brook from the east coast and he wasfound with 116.7 grams of cocaine (just over four ounces) and approximately $1,000 in cash.

Goodridge, J. accepted that the quantity ofcocaine was typical of a mid-level drug dealer as opposed to a wholesaler. Since charged, the offender had kept his distance fromassociates and had made progress toward rehabilitation by completing an electrical program and setting up a contracting business.

TheCourt declined to sentence the offender to two years less a day and imposed a conditional sentence as requested by the Defence.Goodridge, J. stated that possession of cocaine for the purpose of trafficking is a very serious offence and the volume, purity and recentcriminal record warranted a penitentiary term of two years or more to satisfy the sentencing objectives of denunciation and deterrence.As can be seen, unlike the case of Mr. Cassell, Mr. Stewart was not in possession of oxycodone. On the other hand, Mr. Stewart had arecord and a larger quantity of cocaine than Mr. Cassell. [36] In R. v.

Hillier, the accused, a 32-year-old first time offender, pleaded guilty to trafficking in cocaine, possession of cannabismarihuana for the purpose of trafficking, possessing brass knuckles (Criminal Code, s. 92(2)) and possession of a throwing star (s.92(2)). The amount of marihuana in possession was 62 grams. While he was a low-level dealer of marihuana, the offender was a mid-level dealer of cocaine, an upper-level street dealer. He was also found in possession of an extendable baton, a starter pistol andammunition.

He acknowledged his actions were financially motivated; however, he supported some of his own drug use as well. At thetime, a conditional sentence was not available. Judge Porter stated that sentencing decisions which did not involve the combination ofcocaine and weapons were distinguishable from the case before him as the authorities hold that the involvement of weapons is anaggravating factor on sentencing. For the offence of trafficking in cocaine, the offender was sentenced to 2 years’ imprisonment.

JudgePorter stated that were it not for the guilty pleas, the positive pre-sentence report and the s. 726 allocution (wherein the offenderapologized to his family and said he would never do it again), a sentence of 30 months would have been imposed. For possession for thepurpose of trafficking in marihuana, a sentence of 3 months concurrent was imposed. [37] Again, as can be seen, there are distinguishing factors, most notably the presence of weapons and the fact that Mr. Hillier wasan upper-level street dealer. On the other hand, Mr.

Hillier’s case did not involve oxycodone. [38] While Hillier was a sentence involving trafficking in cocaine, the former Chief Justice Goodridge stated that “no greatdistinction need be drawn” between sentencing for trafficking and sentencing for possession for the purpose of trafficking when “theevidence discloses that the possession is part of an ongoing business operation as opposed to an isolated transaction. . . .” (R. v. Bearns,para. 14). [39] In R. v.

Moores, Kayla Moores, the 29-year-old offender, pleaded guilty to possession of cocaine for the purpose of trafficking.The sentence was six months’ imprisonment and 18 months of probation. She was caught in a Deer Lake lounge with six plastic packetsof cocaine and a coin holder containing approximately another two grams of cocaine. In all, she had approximately seven grams ofcocaine. She was selling each packet for $100. She said she was engaged in cocaine trafficking to finance her own cocaine addiction andto help pay her bills.

The Crown sought a jail term of 12 to 24 months arguing that imprisonment was necessary to achieve thesentencing objectives of deterrence and denunciation. The Defence sought a conditional sentence of 6 to 12 months on strict conditionsfollowed by 18 months of probation, arguing that the strict conditions would be adequate to address the sentencing objectives ofdeterrence and denunciation. [40] The offender had a difficult childhood and was expelled from school before finishing grade 10. She said she was sexuallyabused from age 12 to 16. She had a son at a young age who lived with her parents in Alberta.

She had cocaine addiction but haddiscontinued her cocaine habit after her arrest and had plans to attend a parenting course. She suffered anxiety and depression most of heradult life. She had a criminal record, including nine convictions for offences in 2005 and 2006. The offences for which she had beenconvicted included assault, assault with a weapon, breaches of court undertakings, breaches of conditions and failure to appear. The pre-sentence report concluded that Ms.

Moores was a suitable candidate for community supervision. [41] Goodridge, J. stated at para. 35 that “. . . the overwhelming majority of court decisions dealing with trafficking in small

quantities of cocaine have resulted in jail terms. The conditional sentence is the exception and is typically imposed only where the mitigating factors predominate. ” At para. 46, Goodridge, J. stated: [46] Cocaine is an extremely dangerous drug and that typically those who are involved in selling it are dealt with severely by the courts. While I am impressed and encouraged by recent steps taken by Ms. Moores toward rehabilitation, I have arrived at the conclusion that a jail term is necessary to achieve the sentencing objectives of denunciation and deterrence.

These sentencing objectives are usually the paramount considerations for this type of offence, especially where monetary gain was part of the motivation. [1] Although the conditional sentence was an option for me, it is an option which I reject in these circumstances. I am not of the view that mitigating circumstances predominate and I am not comfortable allowing ‘house arrest’ on conditions for a woman who has not so long ago shown considerable lack of respect for court imposed conditions and undertakings. The minor issues experienced by Corrections and Community Services with Ms.

Moores during the time frame 2006 to 2009 (lapses in her reporting in) is also a factor for me in deciding that a conditional sentence is not appropriate in this case. [ 42 ] In R. v. Taylor , Mr. Taylor was a 32-year-old warden at Her Majesty’s Penitentiary who was fired after being charged with drug-related offences. The offences for which he pleaded guilty included four counts of possession for the purpose of trafficking. The drugs involved were of small quantities including 31 oxycodone pills (a

Schedule I drug), 38 morphine pills (a

Schedule I drug), 3 ecstasy pills and marihuana. The sentence was 16 months’ imprisonment followed by 18 months’ probation. Mr. Taylor had bipolar disorder, depression and attention deficit disorder. He was using cocaine leading up to the time of his arrest. After the charges, he attended counselling where he made progress. [ 43 ] Diamond, J. rejected the Defence request for a conditional sentence. He stated at para. 33: [33] As stated earlier in this decision, deterrence and renunciation are the overall fundamental principles when it comes to drug trafficking cases.

This has been emphasized over and over in the case law. [ 44 ] At para. 34, Diamond, J. continued: [34] Mr. Taylor has the support from his family, and he has potential to again become a productive member of society. I do not believe that the proper sentencing principles would be met by allowing Mr. Taylor to serve the 16 months in the community. I say this, knowing that he is presently being treated for his addictions and mental health issues. [ 45 ] In R. v. Ivey , the offender was sentenced on two counts of trafficking and one count of possession for the purpose of trafficking.

At para 35, Stack, J. stated that “The evidence at trial disclosed that Mr. Ivey was running a small retail business in prescription drugs from his apartment.” Upon arrest, the police found in his apartment: 25 oxycodone pills, 37 clonazepam pills, 57 temazepam pills and 37 Seroquel (quetiapine) pills. Also found were digital scales, a pill crusher, scoresheets and $450 in small bills.

Stack, J. held that oxycodone is more akin to heroin than it is to cocaine and stated that as the controlled substance involved moves up the scale of seriousness, so too should the sentence imposed (para. 18). [ 46 ] A conditional sentence was not a consideration in Ivey as the Criminal Code did not then allow a conditional sentence for convictions on offences where the maximum term of imprisonment was life.

The custodial sentences imposed were: • Count 1, trafficking in oxycodone – imprisonment for 16 months; • Count 3, trafficking in clonazepam – imprisonment for 6 months to be served concurrently; • Count 2, possession of temazepam for the purpose of trafficking – imprisonment for 6 months to be served concurrently. [ 47 ] In R. v. Drake , the offender was found with 89 oxycodone tablets, 59 morphine tablets, a set of weigh scales, $4,000 in cash, a set of brass knuckles and improperly stored shotgun shells. He had a criminal record dating back to 1998.

Judge Porter found the trafficking operation to be motivated by profit. He was sentenced to 16 months for the oxycodone offence, 6 months concurrent for the morphine possession and 30 days each for the offences involving the brass knuckles and the shells. [ 48 ] In R. v. Woodford , the 25-year-old offender pleaded guilty to several charges of possession for the purpose of trafficking involving a number of controlled substances, including methylphenidate, diazepam, oxycodone, morphine, cocaine and cannabis marihuana . He was also convicted of possession of a number of other controlled substances.

Walsh, P.C.J. said the offender was operating a “mobile drug store”. A search of his vehicle incidental to his arrest found a set of scales, brass knuckles, a hammer and $2,000 in cash. The offender was employed and was in a stable relationship. They had a child. The offender was addicted to OxyContin and Percocet. His criminal record included four other drug-related offences. He was sentenced to 15 months in prison in relation to the

Schedule I controlled substances and 3 months for the cannabis marihuana. [ 49 ] Although the sentencing decision in R. v. Leonard is dated 2023, the trafficking offence took place several years earlier in 2015. Originally, Mr. Leonard was acquitted at trial. On appeal, the Court of Appeal set aside the acquittal, entered a verdict of guilty and remitted the case back to the trial court for sentencing. The offender was involved in the sale of Percocet, a drug containing oxycodone. He was involved in transactions totaling $480.

However, there was reference in the Agreement Statement of Facts to his having to move 300 pills worth $2,000. [ 50 ] At the time of the offence, the offender was 32 years of age. He had been prescribed Percocet for a work injury. He had no criminal record. He had been unable to complete high school on account of ADHD and dyslexia. The offender had made strides to turn his life around. He had two young children and had been living with his partner for 10 years. He operated a successful contracting company. Khaladkar, J. found no aggravating circumstances. He found Mr.

Leonard’s lack of a criminal record, the fact he turned his life around and had responsibility for his family and his employees to be mitigating circumstances. Also mitigating was that the offender had been subject to very stringent release conditions, including an order he dissociate from his parents and siblings for three years. Khaladkar, J. imposed a term of imprisonment of 16 months but was of the view that justice would be best served by imposing a conditional sentence order.

[51] In R. v. Bearns, a 1989 decision, the offender, age 33, appealed his sentence of 18 months’ imprisonment for possession ofcocaine for the purpose of trafficking. A police search of his residence found 21 grams of cocaine, scales, scoresheets and $827 in cash.The offender had no record relating to drugs. The Court dismissed his appeal.

Goodridge, C.J.N. for the court emphasized the importanceof deterrence in drug offences stating at para. 13: [13] While a review of the reports indicates that many of the longer sentences involved crimes that were more serious than the onenow before the Court, nevertheless some of the sentences in the middle area of the range are similar. It must never be forgotten thatdeterrence in respect of drugs is of paramount importance. Those at the top of the drug pyramid operate with virtual impunity beyonddetection and frequently beyond the territorial limits of Canada.

They can only exist as long as there are people near the bottom of thepyramid to sell the drugs on the street and to buy those drugs. Notwithstanding the jail sentences that have been imposed in the past,dealing in drugs continues. Courts can only make a positive step in the supression of crimes of this nature by imposing sentences thathave a real deterrent value. [52] In R. v. Strickland, the offender pleaded guilty to three counts of possession of cocaine, oxycontin and ecstasy for the purposeof trafficking.

He also pleaded guilty to possessing tobacco products unlawfully imported into Canada contrary to s. 32(1) of the ExciseAct, 2001. The RCMP seized: 9.6 grams of cocaine, 66 ecstasy pills, 2 oxycontin pills, 18 bags of contraband tobacco, $3,100 in cash,scoresheets, digital scales and baggies. The value of the ecstasy, cocaine and oxycontin was $1,320, $1,000 and $50, in that order. Hehad no criminal record.

Though the offender requested a conditional sentence order, Handrigan, J. declined to do so and sentenced him to16 months’ imprisonment on each count to be served concurrently. [53] Handrigan, J. in the course of his decision discussed the then recent sentence appeal decision of the Court of Appeal in R. v.Byrne, 2009 NLCA 3. In Bryne, the 28-year-old offender pleaded guilty to possession of cocaine for the purpose of trafficking. He had10 ounces (approximately 280 grams) of cocaine worth $18,000 and $10,410 cash in his possession as well as scales, scoresheets andother drug paraphernalia.

I note that the amount of cocaine involved in Byrne was of course much more than the 8.8 grams (1/3 of anounce) that Mr. Cassell had. Mr. Byrne, who had no criminal record, sold drugs to get a new car. The trial judge sentenced Mr. Byrne totwo years less a day to be served in the community.

The Crown appealed and leave was granted because the Court perceived a need “. . .to clarify the low end of the sentencing range for offences of this nature.” Rowe, J.A. stated, in agreement with the trial judge, that thelower end of the sentencing range for trafficking in cocaine in an amount such as in the case before him includes two years less a dayconditional.

Rowe, J.A. then added: [42] Being at the lower end of the sentencing range, a sentence of two years less a day conditional should be imposed only when, on thefacts of the case, mitigating factors predominate. [54] Handrigan, J. also compared and contrasted the matter before him with the Court of Appeal’s affirming of a conditionalsentence in the 1997 case of R. v. Brown (1997), (NL CA), 119 C.C.C. (3d) 147, 155 Nfld. & P.E.I.R. 188 (Nfld.C.A.). In Brown, the 33-year-old sold crack cocaine on two occasions to an undercover police agent for $20 and $40.

The offenceoccurred outside the province but the charges were transferred to this province so he could plead guilty. He had no prior record for drugtrafficking and had withdrawn from the drug community for three and one-half years by the time he was sentenced. He entered rehab onhis own initiative after the incident. The trial judge sentenced Mr. Brown to six months’ imprisonment consecutive on each count butallowed the sentence to be served conditionally. The Crown appealed the sentence on the issue of whether it should have beenconditional.

Marshall, J.A. in upholding the conditional sentence noted at para. 20 that while cocaine trafficking is a serious crime, theamount involved was small and the offender was a “somewhat fragile personality who had suffered some reverses in his life but appearswell on the way to rehabilitation in the secure and supportive environment of his family.” [55] Cameron, J.A. also agreed with the trial judge’s conditional sentence and dismissed the Crown’s appeal.

However, Cameron, J.made it clear that the conditional sentence would not be the usual sentence for cocaine trafficking stating at para. 32: 32 While I would not go so far as Austin J.A. in Ly and relegate the use of s. 742.1 in drug trafficking to "rare" cases, because of thenature of the offence, I do not anticipate widespread use of conditional sentencing in such cases. The character of the offence should leada sentencing judge to emphasize protection of the public. Also, I continue to hold the view that trafficking is an offence in whichdeterrence is an important factor to be emphasized in sentencing.

The damage done to society by the drugs, the monetary rewards whichlure otherwise law abiding citizens to become involved in the trade require that the consequences of violation of the law be so great as tocause persons who might be tempted to become involved in the drug trade to weigh those consequences in deciding whether to take uptrafficking. However, as discussed in Walsh, deterrence does not always have to be equated with incarceration, and those who strugglewith addiction are unlikely to be deterred by imprisonment however long the sentence.

Where the principles of sentencing can be servedwith a sentence which imposes less restrictions on the offender's freedoms, this should be done. I am satisfied that this is such a case.Considering the factors noted by the trial judge, the principles of sentencing are adequately served if Mr. Brown serves his sentence inthe community. I would have made the conditions more restrictive than the trial judge did, but as Mr.

Brown has complied with theorder of the court and performed the community service, I would not alter the sentence. [56] In Strickland, the pre-sentence report concluded there was a medium risk that he would become involved in other criminalactivities. Handrigan, J. held that there was a risk that the community would be endangered if Mr. Strickland was allowed to serve hissentence conditionally. [57] In addition, Handrigan, J. did not agree that a conditional sentence would be consistent with the fundamental purposes andprinciples of sentencing set out in ss. 718 to 718.2 of the Criminal Code.

At para. 47, Handrigan, J. continued: 47 . . . There is a pressing need here to emphasize both specific deterrence because of the many factors which Mr. Strickland says leadhim to criminal activity and general deterrence because the offence involves the "hard", and recognizably destructive, drugs, cocaine,oxycontin and ecstasy. Incarceration will provide the deterrent and denunciatory qualities that a conditional sentence would not deliver inthis case. [58] At para. 51, Handrigan, J. stated:

51 I am fully aware of the countervailing considerations when ordering incarceration instead of conditional sentences: conditional sentences with stringent restrictive conditions are punitive and carry a significant social stigma; no crime, subject to the first two criteria from

section 742.1 of the Criminal Code , including offences involving hard drugs, is excluded from consideration for a conditional sentence; and, conditional sentences can sometimes achieve denunciation and deterrence as effectively as incarceration. But this is not a case where those countervailing considerations offset the protection to society, deterrence to the offender and the public and denunciation that attends a sentence of imprisonment to be served in an institution. [ 59 ] The Crown also provided the recent decision of the Ontario Superior Court of Justice in R. v.

Ramos , 2023 ONSC 1094 where the Court imposed a conditional sentence of two years less a day for possession of cocaine for the purpose of trafficking and possession of a loaded prohibited firearm. Ms. Ramos was found with 9.45 grams of cocaine, a digital scale and $1,930 in cash. Ms. Ramos was 25 years of age and at the time of the offences had no criminal record. She was raised by a mother who used drugs and she began using drugs when she became involved in the sex trade through an abusive former partner who acted as her pimp. At the time of the offences, Ms.

Ramos was addicted to hard drugs and she sold drugs and participated in the sex trade to maintain her addiction. While on bail, she was charged with trafficking a small amount of fentanyl for which she pleaded guilty and given a suspended sentence and placed on probation. [ 60 ] Goldstein, J. found that there were exceptional circumstances in Ms. Ramos’ case arising from the unusual nature of her possession of the drugs and the gun such that her moral blameworthiness was relatively low (para. 51). The Court stated that the true owner of the gun was a Mr.

Williams, who was also the principal drug dealer. [ 61 ] Lastly, in R. v. DiPasquale , 2023 ONSC 758 , the offender pleaded guilty to a charge of possession of cocaine for the purpose of trafficking. He had been arrested in November 2019. In a search, police located 200 grams of cocaine and 40 Xanax pills. He was 24 and had no criminal record. He did not suffer from drug addiction. He was gainfully employed as an electrician. While released on bail, he was required to live with his mother and he had complied with all conditions.

I note that DiPasquale involved a joint submission that an appropriate sentence was a period of imprisonment served as a conditional sentence in the community. However, the Crown sought a conditional sentence of two years less a day and the Defence sought a sentence of six months with strict terms of house arrest or nine months with a graduated approach in the conditions. A 12 month conditional sentence was imposed. [ 62 ] Himel, J. paid particular regard to the Ontario Court of Appeal decisions, R. v. Kebede , 2021 ONCA 283 and R. v.

McMahon , 2022 ONCA 459 , stating: 28 The cases of Kebede and McMahon from the Court of Appeal provide guidance as to sentencing offenders in more similar circumstances to Mr. DiPasquale. In Kebede , the appellant was convicted of possession of cocaine for the purpose of trafficking after police found 15.4 grams of crack cocaine in his pocket in a search incident to arrest. He was sentenced to nine months in jail. He had no criminal record, support in the community, and his role in the drug operation was near the bottom of the hierarchy.

Though a conditional sentence was not available for the offence at the time of sentencing, his sentence appeal came after the Court of Appeal's decision in Sharma , which made conditional sentences available for possession for the purpose of trafficking offences. The Court of Appeal found that "none of the principles of sentencing would be served by reincarcerating the appellant" and that "there [were] very good reasons to believe [he could] be a valuable member of the community": at para. 23.

Ultimately, the Court of Appeal imposed a nine-month conditional sentence, with house arrest for six months and a curfew for the remaining three. 29 The appeal in McMahon also occurred after the Court of Appeal's ruling in Sharma . The appellant pleaded guilty to possession for the purpose of trafficking for 138 grams of methamphetamine and originally received an eight-month custodial sentence. At the time of the offence, she was addicted to methamphetamine and sold it to support her habit.

The Court of Appeal accepted fresh evidence that spoke to the appellant's rehabilitation efforts: she had remained sober since charges were laid, demonstrated remorse in her plea, and had been on bail pending appeal for over a year without incident. The Court of Appeal substituted a conditional sentence of 23 months and 12 months' probation. [ 63 ] Himel, J. (para. 39) stated the mitigating factors present “. . . demonstrate exceptional circumstances that warrant a sentence outside of the usual range for this offence.” Decisions cited by the Defence [ 64 ] Ms.

Mills provided the following decisions in support of the Defence’s sentencing position on the drug charges: • R. v. Gorman , 2023 NLSC 34 ; • R. v. Hewlett , 2013 NLTD(G) 66; • R. v. Kirk , 2023 BCSC 301 ; and • R. v. Stulec , 2022 BCPC 301 . [ 65 ] In R. v. Gorman , a jury found Mr. Gorman, age 34, guilty of trafficking in cocaine and possession of cocaine for the purpose of trafficking. As the counts related to the same conduct with the same drugs on the same date, the Kineapple principle was applied and a conviction was entered for trafficking.

Boone, J. presided over the jury trial and sentencing and issued his decision on March 3, 2023, by which date he had been appointed to the Court of Appeal. The sentence imposed was two years less a day to be served conditionally, followed by a two year term of probation. [ 66 ] Mr. Gorman, who had no prior convictions, arranged for the opening of a UPS mailbox under his name as part of a drug delivery scheme. Mr. Gorman was paid for his participation in the transaction and was to receive further payment for further packages he was to receive. The police on September 7, 2019 observed Mr.

Gorman attend UPS and leave with a package that contained two

kilograms of cocaine. He carried the package into his house where it remained unopened until the next day when another person came to the house and the package was moved and opened while the police surveilled the house. The police moved in and the other person fled, evading police pursuit. Mr. Gorman was arrested. [ 67 ] Justice Boone in reviewing sentencing precedents, considered Mr. Gorman’s level of moral blameworthiness as measured by his participation and the quantity of the drugs involved to be similar to that of the offence in R. v.

Parsons , 2017 NLCA 64 , a case in which the Court of Appeal set aside a sentence of 25 months of imprisonment and substituted a conditional sentence of two years less a day followed by a one year term of probation. Mr. Parsons was convicted of conspiracy to traffic 305 grams of cocaine. He picked up the cocaine at a warehouse and then concealed and transported it in his car. At his premises, there were weigh scales and several thousand dollars in cash. Mr. Parsons had a favourable pre-sentence report that emphasized his prospects of rehabilitation.

In sentencing him to 25 months incarceration, the trial judge noted that general deterrence was the primary purpose and imprisonment the normal penalty for trafficking significant quantities of cocaine. [ 68 ] The Court of Appeal at paras. 53 to 55 of Parsons stated: 53 As referenced by the trial judge, this Court has emphasized that general deterrence is a paramount consideration in cases involving conspiracy to traffic in cocaine, with rehabilitation being a secondary consideration. (See, for example, R. v.

Kane , 2012 NLCA 53 , 325 Nfld. & P.E.I.R. 78.) However, that proposition does not foreclose a focus on rehabilitation where the circumstances warrant. This is such a case. 54 As set out at paragraph 48, above, after his arrest, Mr. Parsons took steps to become a contributing member of society through further education and regular employment. During the five years between his arrest and sentencing, he continued on this path and was not involved in further criminal activity.

As stated in the pre-sentence report, this offence was "an outlier incident in an otherwise non- criminal life". 55 In the circumstances, and applying the principles set out in Proulx , I am satisfied that the trial judge erred in principle by focusing on the general deterrence purpose of sentencing to the exclusion of rehabilitation in the particular circumstances of this offender; and, in applying the principle of parity, by failing to distinguish the circumstances of Mr. Parsons from those of Mr.

Lundrigan, who had a prior conviction for trafficking and did not accept responsibility for his conduct. [ 69 ] In varying the sentence to two years less a day to be served conditionally, the Court of Appeal stated: 56 . . . This result is not inconsistent with this Court's determination that general deterrence is a paramount consideration in cases involving conspiracy to traffic in cocaine, with rehabilitation being a secondary consideration.

The particular circumstances here are such that the sentencing principles of general deterrence and rehabilitation are best achieved by means of a lengthy conditional sentence with appropriate conditions. [ 70 ] Justice Boone was satisfied based on Mr. Gorman’s antecedents and the conclusions of the pre-sentence report that after the punitive effects of a conditional sentence, he was at low risk to reoffend or engage in other criminal activity.

He also found that a conditional sentence in the case before him could serve the sentencing objectives of denunciation and deterrence and could better serve the objectives of rehabilitation than incarceration. He also found that the aggravating factors of the quantity of cocaine, lack of remorse and indications of planned ongoing criminal activity could be denounced and deterrence served by a longer period of probation. [ 71 ] In R. v.

Hewlett , Goulding, J. dealt with the sentencing of the 42-year-old offender who pleaded guilty to one count of possession of cocaine for the purpose of trafficking and to one count of possession of ecstasy. A search of Mr. Hewlett’s home revealed he had 9.5 grams of crack cocaine, 17 grams of powder cocaine and 7 ecstasy pills, $2,400 in cash as well as drug paraphernalia. The Crown sought two years less a day to be served in a penitentiary, while the Defence sought the same sentence to be served conditionally. He was sentenced to two years less a day to be served in the community. [ 72 ] Mr.

Hewlett was cooperative and admitted to his criminal behavior at the earliest possible opportunity. He expressed remorse and acknowledged his wrong-doing to the probation officer who prepared the pre-sentence report. Thirteen years prior, he had been convicted on two counts of possessing marihuana. His motive for the offences were financial and, to some extent, to fit in and have social contacts and a romantic relationship which had been missing in his life. He was willing to take counselling to assist him with the use of marihuana. Mr. Hewlett was single and lived alone.

He was working on a call-in basis with the Town of South Brook. He had a supportive family. A number of persons from the community provided information in support of Mr. Hewlett, including town councilors and the mayor who spoke to his work habits and the support he had in the town. [ 73 ] Goulding, J. stated that given the pre-sentence report and Mr. Hewlett’s current lifestyle and attitude, she was satisfied that Mr. Hewlett would not present a danger to the safety of the community if he received a conditional sentence order.

She also held that a conditional sentence was consistent with the fundamental purposes and principles of sentencing set out in s. 718 of the Criminal Code . In making that finding, Goulding, J. considered Mr. Hewlett’s remorse, guilty plea, cooperation with the police and his early acknowledgement of wrongdoing. His pre-sentence report was very positive and stated that he made a significant effort to improve his life and he presented as open and honest regarding his problem. Mr.

Hewlett was a valued employee and had the support of a loving family as well as the confidence of residents who were connected to the Town of South Brook. He was referred to as an excellent candidate for rehabilitation, given his honest and sincere attitude, his cooperation, family and community support and willingness to participate in counselling. Also noted was that the amount of drugs involved was considerably less than in R. v. Byrne (10 ounces) and R. v. Barrett , 2008 NLCA 23 ($2,900 street value of ecstasy, ketamine, mushrooms and cannabis) where a conditional sentence was upheld by the Court of Appeal.

Goulding, J. in reciting these factors at para. 41 stated, “The mitigating factors appear to predominate in this case.”

[ 74 ] R. v. Kirk was a sentencing decision involving a 38-year-old who had been found guilty of three counts of possession for the purpose of trafficking in fentanyl, cocaine and methamphetamine. The allegations dated back to 2018, five years prior to the sentencing. Mr. Kirk was described as an active participant in a mid-level narcotics distribution enterprise that dealt with significant amounts of fentanyl and other substances and was generating thousands of dollars a day in revenue at the time of his arrest.

The sentencing judge said that he was “the shipper/receiver of a de facto drug depot, and that he was a willing employee on a high-volume wholesale drug trade to street-level dial-a-dopers.” He had no criminal history and became involved in the drug trade to pay his bills and to support his own substance abuse. After his arrest, the offending and drug use stopped and he expressed repeated and sincere remorse. His pre- sentence psychiatric assessment stated he posed a low to low-medium risk to re-offend.

Baird, J. stated that he would have imposed a three to four year sentence without much compunction or hesitation had the trial taken place within a reasonable period of time. Instead, Baird, J. imposed a conditional sentence order of two years less a day followed by a three year probation order. [ 75 ] In R. v. Stulec , another decision from British Columbia, the offender was sentenced on counts of trafficking in fentanyl, possession of cocaine for the purpose of trafficking and for possession of heroin and/or fentanyl for the purpose of trafficking. Ms.

Stulec completed two dial-a-doper street level sales of fentanyl and cocaine to undercover operators. She discussed the possible further sales of larger quantities. She sold drugs with her boyfriend, a co-accused. A search of their apartment recovered packaging material, cutting agents, $51,000 in cash, numerous electronic devices and scoresheets. Police also located quantities of cocaine, heroin, fentanyl and methamphetamines.

Located were 703.9 grams of cocaine and cocaine blended with phenacetin, 59.3 grams of fentanyl/caffeine blend, 120.8 grams of a variety of blends of heroin/fentanyl/caffeine/phenacetin/U-47700 and 21.26 grams of methamphetamine. [ 76 ] The Crown sought 36 months’ imprisonment. The Defence sought a conditional sentence in the range of 18 months to 2 years less a day. Ms. Stulec was 43 years old. Her mother, with whom she stayed after her parents divorced, struggled with cocaine addiction. She did not complete high school and began working as an exotic dancer in her early 20s.

From her early 20s to age 40, she worked in massage parlors and was employed as a sex trade worker by escort agencies. She developed an addiction to opioids which was active when the offences were committed. Despite previous failures in treatment, she completed a three month program in June of 2022. She was also attending counselling. She had no criminal record. She was found to be a vulnerable person, easily exploited by others, including her boyfriend who exploited her and to whom she was subservient.

The Court imposed a 22 month conditional sentence order on each count, concurrent with the other, to be followed by 12 months of probation. analysis Preliminary determination – a sentence less than two years’ imprisonment [ 77 ] The drug offences committed by Mr. Cassell are eligible for imprisonment to be served conditionally. Accordingly, as instructed by R. v. Proulx , 2000 SCC 5 , I need to make a preliminary determination as to whether I can exclude a term of imprisonment of two years or more ( R. v.

Proulx , para. 58 ). [ 78 ] To make the preliminary determination, I must only consider the fundamental purposes and principles of sentencing set out in ss. 718 to 718.2 to the extent necessary to narrow the range of sentence for Mr. Cassell (para. 59). The submissions of the parties in the case is that the appropriate range of sentence is a term of imprisonment of less than two years. While non-binding, the submissions are helpful in this preliminary determination. I conclude that a sentence of less than two years’ imprisonment is appropriate in this case. [ 79 ] Mr.

Cassell’s possession of cocaine and oxycodone was for the purpose of street level trafficking. Like Justice Stack in Ivey (para. 18 ), I agree that oxycodone is more akin to heroin than it is to cocaine. [ 80 ] Though Mr. Cassell was found with a quantity of cash, I cannot say how much of it was associated with the dealing in cocaine and oxycodone as he was also found in possession of 10,244 cigarettes (the equivalent of over 500 20-packs of cigarettes). [ 81 ] Certainly, the scales, cutting agents, razor blades and measuring scoops point to Mr.

Cassell’s active involvement in retailing in illegal drugs as part of an ongoing business operation. While Mr. Cassell initially began using opiates for pain arising from a back injury and participated in a therapy program, I do not believe that the evidence supports the notion that this ongoing business operation was solely in furtherance of Mr. Cassell’s obtaining funds sufficient to finance his own personal drug consumption. [ 82 ] The range of sentence for offences of this type is six months to three years ( R. v. Ivey , para. 20 ; R. v. Mitchell , 2017 NLCA 26 ; and R. v. Bearns ).

I am mindful that sentencing ranges are primarily guidelines, not hard and fast rules ( R. v. Lacosse , 2015 SCC 64 at para. 60 ). The period of imprisonment of two years less a day submitted by the Crown and Defence is within this guideline range. [ 83 ] As surveyed previously in these reasons, in R. v. Ivey , the sentence was 16 months for trafficking in oxycodone. In R. v. Strickland , the sentence was 16 months’ imprisonment on three counts of possession for the purpose of trafficking of oxycodone, cocaine and ecstasy to be served concurrently.

Would a conditional sentence endanger the safety of the community? [ 84 ] As a prerequisite to any conditional sentence, s. 742.1 (

c) requires the sentencing judge to be satisfied that having the offender serve the sentence in the community will not endanger its safety. I do not believe that the community would be endangered if Mr. Cassell served his sentence in the community. His record does not disclose a history of committing crimes. The PSR states that Mr. Cassell is a suitable candidate for community supervision.

Would a conditional sentence be consistent with the fundamental purposes and principles of sentencing set out in ss. 718 to 718.2 ? [ 85 ] Having determined that a sentence less than two years’ imprisonment is appropriate, I turn to a comprehensive consideration of whether a conditional sentence will be consistent with the fundamental purposes and principles of sentencing set out in 718 to 718.2. At this stage, I will determine the duration and venue of Mr. Cassell’s sentence ( R. v. Proulx , paras. 60 and 78 ). [ 86 ] Because Mr.

Cassell has met the statutory prerequisites, his request for a conditional sentence merits serious consideration

(Proulx, para. 90). I am obligated to consider all available sanctions other than imprisonment that are reasonable in the circumstances(Proulx, para. 91). The determination of when less restrictive sanctions are appropriate and alternatives to incarceration are reasonable inthe circumstances requires a consideration of the other principles of sentencing set out in ss. 718 to 718.2 (R. v. Proulx, para. 96). (

i) Denunciation [87] Cocaine and oxycodone are hard drugs. Their availability in a community as small and rural as Howley speaks to theirpervasiveness in our Province. Such hard drugs and their possession and trafficking have been variously described by the courts of thisProvince in stark terms. Goodridge, J. in R. v. Stewart said: [45] Possessing and trafficking cocaine have devastating individual and social consequences. The crime is a blight on society and everyeffort must be made to eradicate it, R. v. Silveira, (SCC), [1995] 2 S.C.R. 297 at paragraph 142. . . . [88] In R. v.

Mitchell, the Court of Appeal said at para. 31 “The Courts are well aware of the broadly-based social costs related totrafficking in prescription drugs such as oxycodone.” [89] In R. v. Ivey at para. 28, Stack, J. referred to “. . . the individual and societal havoc and destruction caused by oxycodoneabuse.” [90] In R. v. Oates (1992), (NL CA), 100 Nfld. & P.E.I.R. 289, 74 C.C.C. (3d) 360 (Nfld.

C.A), Marshall, J.A.stated that “Trafficking in cocaine in itself is grave as it preys upon the addiction of others for profit leaving in its wake inestimableindividual and social damage and desolation.” [91] Given these descriptions, it is clear that such crimes are properly to be denounced through the sentencing process. The crimesof Mr.

Cassell will not be as denounced under a conditional sentence order as they would be under a jail term. [92] However, a conditional sentence can still provide a significant amount of denunciation when onerous conditions are imposedand the duration of the conditional sentence is extended beyond the duration of the jail sentence that would ordinarily have been imposedin the circumstances (R. v. Proulx, para. 102 and R. v.

Gorman, para. 32). (ii) Deterrence of the offender and other persons from committing offences [93] Courts in the Province have repeatedly stressed the importance of deterrence in respect of drug crimes (R. v. Bearns; R. v.Oates at para. 4; R. v. Kane, 2012 NLCA 53 at para. 13; and R. v. Taylor, at para. 22). [94] That said, however, no one sentencing objective trumps the other objectives. The sentencing judge must determine whichsentencing objective or objectives merit the greatest weight, in the context of the particular case (R. v. Nasogaluk, 2010 SCC 6 at para.43). In R. v.

Nasogaluk, the Court made it clear that whatever weight a judge may wish to accord to the objectives, the resulting sentencemust be proportionate to the gravity of the offence and the degree of responsibility of the offender, and thereby respect the fundamentalprinciple of proportionality (para. 40). In this case, I believe that the objectives of denunciation and deterrence merit the greatest weight. (iii) Rehabilitation objective [95] Rehabilitation is an important principle of sentencing. The PSR indicates that Mr.

Cassell has taken steps toward rehabilitation.He has participated in the opioid agonist therapy program and states his pain management is now under control with prescribedmedications. Since charged in September of 2021, he has not had further involvement in the criminal justice system. [96] I believe that the objectives of rehabilitation and a sense of responsibility may realistically be achieved in the case of Mr.Cassell.

This argues in favour of a conditional sentence being the appropriate sanction, but I would point out that this is, as noted by R. v.Proulx (para. 109), subject to the denunciation and deterrence considerations. As stated, I believe these merit the greatest weight in thiscase. Other sentencing principles under s. 718.2 [97] The aggravating circumstances set out in clause (

i) to (vii) of para. 718.2(

a) have no application to this case. [98] However, the type of drugs in Mr. Cassell’s possession for the purpose of trafficking, with cocaine being a hard drug andoxycodone being even harder than cocaine and more akin to heroin, is aggravating (R. v. Stewart, para. 26). [99] There are some mitigating factors. Mr. Cassell pleaded guilty. Other than an unrelated record for impaired driving, he has nocriminal history and lived a productive life. His opiate use began as a result of taking opiates for back pain following an injury.

Mr.Cassell attended an opioid therapy program and is now using medication as prescribed. conclusions [100] In determining whether a conditional sentence would be consistent with the fundamental purposes and principles of sentencing, Iam directed by R. v. Proulx (para. 113) to consider which sentencing objectives figure most prominently in the factual circumstances ofthe case before me. For the reasons discussed, denunciation and deterrence are particularly pressing in cases of possession of hard drugsfor the purpose of trafficking.

Denunciation and the deterrence of others is pressing in this case. [101] The evidence establishes a significant degree of moral responsibility on the part of Mr. Cassell. Mr. Cassell had in his possessionnearly 300 Percocet (oxycodone) tablets, 8.8 grams of cocaine, 143 grams of a cutting agent (glutamine), baggies, a digital scale, razorblades and measuring scoops. Content on his phone was consistent with trafficking. Such evidence points to possession as part of anactive, ongoing business operation as opposed to an isolated transaction (R. v. Bearns, para. 14). While Mr.

Cassell was operating atstreet level, it is at the level of the street where others obtain these hard drugs and the destructive effects on individuals, families and

society ensue. [ 102 ] In all of the circumstances, I do not believe that a conditional sentence of house arrest under strict conditions even to the duration of two years less a day would be consistent with the fundamental purposes and principles of sentencing set out in ss. 718 to 718.2 of the Criminal Code . I have concluded that on the facts of this case that the sentencing objectives meriting the greatest weight are denunciation and deterrence. I acknowledge and recognize that mitigating factors and positive rehabilitative indicators are also present.

However, they are not so countervailing as to offset the pressing need to denounce Mr. Cassell’s conduct and to deter this offender and, more particularly, others from possessing hard drugs to traffic to others through a sentence of imprisonment in an institution. Accordingly, I deny Mr. Cassell’s request to serve his sentence conditionally. [ 103 ] While the Defence has provided authorities where conditional sentences were imposed in the drug offence context, these cases have distinguishing factors which in each case were sufficient so as to persuade the sentencing judge to impose a conditional sentence.

Without being exhaustive as to the distinguishing factors of each case, I will note the following: In Gorman , the offender played a relatively minor role in the scheme; this was stated to be the most significant mitigating factor (para. 26). Justice Boone noted at para. 26, “Unlike other cases, there was no paraphernalia necessary for the cutting or processing of cocaine, nor any cash or weapons, seized from his home.” In Hewlett , oxycodone was not involved and the Court found that the mitigating factors predominated in the particular circumstances of the case (para. 41).

In Kirk , central to the decision to impose a conditional sentence was that the allegations dated back five years prior to the sentencing.

Justice Baird stated “. . . that if this trial had been launched and concluded within a period of time that I consider to be reasonable, I would have imposed a three to four-year sentence without much compunction or hesitation.” Incidentally, in Justice Khaladkar’s recent decision in Leonard , the context was also an eight year span from offence to sentence during which time the offender had turned his life around and was subject to a three year period of no contact with his family.

In Stulec , the offender’s tragic life experiences and vulnerability to her co-accused boyfriend who exploited her were significant factors in the Court’s decision to impose a conditional sentence. [ 104 ] In the context of a sentence of imprisonment in an institution, the sentence of 16 months’ imprisonment was given to the offender in R. v. Ivey who was found with 25 oxycodone pills and convicted for trafficking. Mr. Ivey had no prior drug related record but, unlike Mr. Cassell, he did not plead guilty. In light of Mr.

Cassell’s much larger quantity of pills but taking in consideration his guilty plea, which is mitigating, I impose a sentence of 16 months’ imprisonment on Count 1. [ 105 ] On Count 2, possession of cocaine for the purpose of trafficking, I impose a sentence of 14 months’ imprisonment. [ 106 ] Because I view the drug charges against the offender as belonging to one criminal enterprise, I will treat each of the drug counts as belonging to one transaction and concurrent sentences will be imposed in respect of same. disposition and sentence [ 107 ] Mr.

Cassell is sentenced as follows: [ 108 ] With respect to Count 1 – 16 months’ imprisonment for having in his possession for the purpose of trafficking, oxycodone, contrary to s. 5(2) of the CDSA . [ 109 ] With respect to Count 2 – 14 months’ imprisonment for having in his possession for the purpose of trafficking, cocaine, contrary to s. 5(2) of the CDSA to be served concurrently with the sentence for Count 1. [ 110 ] Pursuant to s. 731(1) (

b) of the Criminal Code , Mr. Cassell shall be subject to probation for 18 months following his release, subject to the following conditions: a. Keep the peace and be of good behavior. b. Appear before the Court when required to do so by the Court. c. Notify the probation officer in advance of any change of name or address, and promptly notify the probation officer of any change of employment or occupation. d.

Refrain absolutely from using, consuming, possessing or trafficking in all non-prescription drugs and all substances proscribed by the Controlled Drugs and Substances Act , as well as tobacco products unlawfully imported into Canada contrary to the Excise Act, 2001 . [ 111 ] Mr. Cassell shall also be subject to the following ancillary orders: a. Pursuant to s. 487.051, I order the taking of a number of samples of bodily substances from Mr.

Cassell reasonably required for the purpose of forensic DNA analysis based upon his conviction for secondary designated offences as set out in s. 487.04 of the Criminal Code . b. Section 109(1) (

c) of the Criminal Code requires that the Court prohibit an offender from possessing firearms and other related items if the person has been convicted of "an offence relating to the contravention of subsection 5(1) or (2) . . . of the Controlled Drugs and Substances Act . ” The minimum duration set out in s. 109(2) is ten years. I therefore order with immediate effect that Mr.

Cassell is prohibited from possessing any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition or an explosive substance for a period of ten years after his release from imprisonment and from possessing any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life. c. Pursuant to s. 16 of the CDSA and s. 462.37 of the Criminal Code , all offence-related property seized by the police shall be forfeited to His Majesty the King in Right of Canada. d.

A victim surcharge pursuant to s. 737(2) (b)(ii) of the Criminal Code in the amount of $200 per offence is ordered and is to be paid

within 30 days. [ 112 ] Mr. Cassell shall pay a fine of $2,979.98 for the offence under s. 32(1) of the Excise Act, 2001 and I allow him two years to pay the fine. _____________________________ Thomas J. Johnson Justice