R. v. Scott, 2013 NSCA 28

NOVA SCOTIA COURT OF APPEAL Citation: R. v. Scott , 2013 NSCA 28 Date: 20130227 Docket: CA 379239 Registry: Halifax Between: Her Majesty the Queen Appellant v. Jeremy James Scott Respondent Judge: The Honourable Justice Duncan R. Beveridge The Honourable Justice Jamie W.S. Saunders (Dissenting) Appeal Heard: September 17, 2012 Subject: Sentencing. Cocaine. Possession for the Purpose of Trafficking. Section 5(2) Controlled Drugs and Substances Act . Error in Principle. Unfit Sentence. Principles of Sentencing for Re-Incarceration.

Summary: Mr. Scott pled guilty to possession of cocaine for the purpose of trafficking. The trial judge sentenced him to a term of two years less a day, to be served in the community under a conditional sentence order. The Crown appealed. Held: (Majority per Beveridge, J.A., MacDonald, C.J.N.S. concurring): Appeal dismissed. The majority concluded there was no error in the way in which the trial judge interpreted or applied the law. The trial judge carefully considered the principles of sentencing and the sentence he imposed of two years less a day was not outside the range.

While this Court has long stressed the need to emphasize deterrence and denunciation for offences involving the trafficking in cocaine, there is no requirement or principle of law that a mandatory federal prison term can only be avoided if the offender can demonstrate “ exceptional circumstances ” .

In his dissenting reasons, Saunders, J.A. found the trial judge erred in principle and imposed a demonstrably unfit sentence, by interpreting binding precedent to mean that exceptional circumstances need not be shown before this offender could be considered for a sentence that was less than two years in a federal prison. In his view, any person convicted of trafficking in cocaine, or possessing cocaine for the purpose of trafficking, will face incarceration in a federal penitentiary, absent exceptional circumstances. Such a case will be rare.

Here there were no exceptional circumstances relied upon, or arising from the evidence. Therefore, a substantial term in penitentiary ought to have been imposed. However, because Mr. Scott had begun his sentence almost a year ago, and had completed some, but not all of its length, he would have allowed the appeal but would not re-incarcerate the appellant. Instead, a new conditional sentence order would be imposed with strict terms, including resumed house arrest, and the term of his probation increased from one year to two years. This information sheet does not form part of the court ​ s judgment.

Quotes must be from the judgment, not this cover sheet. The full court judgment consists of 50 pages. NOVA SCOTIA COURT OF APPEAL Citation: R. v. Scott , 2013 NSCA 28 Date: 20130227 Docket: CAC 379239 Registry: Halifax Between: Her Majesty the Queen Appellant v.

Jeremy James Scott Respondent Judges: MacDonald, C.J.N.S.; Saunders and Beveridge, JJ.A. Appeal Heard: September 17, 2012 Held: Leave to appeal sentence is granted but the appeal is dismissed per reasons for judgment of Beveridge, J.A.; MacDonald, C.J.N.S. concurring; Saunders, J.A. dissenting on the grounds that the trial judge erred in principle and the sentence is demonstrably unfit. Counsel: Monica McQueen, for the appellant Robert Stewart, Q.C., for the respondent Reasons for Judgment: Introduction [ 1 ] The appropriate outcome in this case hinges on deference.

Specifically, does this Court defer to a lawful sentence imposed by a trial judge who has considered and weighed all of the appropriate principles of sentence? [ 2 ] This case is not about whether or not the sentence of two years less one day should have been allowed to have been served by way of a conditional sentence. There is absolutely no complaint in the notice of appeal to that effect, nor in the crown ’ s factum.

During oral argument, Crown counsel specifically acknowledged they were not seeking to have this Court consider if the trial judge made a reversible error in selecting that option. [ 3 ] In other words the sole issue is: can a sentence of under two years be imposed for anyone convicted of trafficking or possession for the purpose of trafficking in cocaine, absent a sustainable finding that exceptional circumstances exist? [ 4 ] My colleague Justice Saunders says the answer is no. With respect, I find myself unable to agree with his analysis or conclusion.

He says the trial judge asked himself the wrong question, when he said: “ Does this mean any offence involving cocaine trafficking requires a federal sentence unless exceptional circumstances can be demonstrated? ” My colleague says this was a rhetorical question that need not have been asked, as the answer is, yes it is required. [ 5 ] With respect, I do not view the question as rhetorical in the least.

And I agree with the answer provided by the learned trial judge – trafficking in cocaine, depending on the factors present with respect to the circumstances of the offence and of the offender, will frequently attract a period of federal incarceration. In fact, the trial judge acknowledged this. Judge Tufts, after correctly directing himself on all of the appropriate principles and objectives of sentence, found that they could be met by a sentence of two years less a day. I see no reversible error in the trial judge ’ s careful and thorough analysis nor in his conclusion.

I say nothing about whether a conditional sentence could or should have been ordered. [ 6 ] I had the privilege of reading my colleague ’ s draft reasons. I respectfully agree with his concise factual outline and his

statement of the issues presented by this appeal: did the judge err in his

interpretation and application of the law in sentencing this offender? Second, and quite apart from any error in principle, are we satisfied that the sentence imposed is demonstrably unfit? If either of these questions is answered in the affirmative, then what is a fit and proper sentence in this case? ANALYSIS [ 7 ] It cannot be gainsaid that appellate courts are required to defer to a lawful sentence imposed by a trial judge. Sentencing a particular offender is a highly individualized process.

It requires a judge to be alive to all of the relevant facts, circumstances and, applying the legislated framework that defines the objectives and principles of sentence, arrive at a disposition that she in the exercise of her discretion, considers the best to try to achieve those objectives. The problem is that these are frequently in contraindication. The trial judge is undoubtedly in the best position to strike the appropriate balance. He hears the case firsthand, and has an opportunity to observe the offender.

He usually presides in the community where the offence occurred and has a better appreciation of the appropriate balance that must be struck. [ 8 ] These principles are found repeatedly in the pronouncements of the Supreme Court of Canada. In R. v. L.M. , 2008 SCC 31 LeBel J., for the majority (Fish J., in dissent, took no issue with the reasons of LeBel J. on the legal principles) wrote: [15] Owing to the profoundly contextual nature of the sentencing process, in which the trier of fact has broad discretion, the standard of review to be applied by an appellate court is one based on deference.

The sentencing judge has “served on the front lines of our criminal justice system” and possesses unique qualifications in terms of experience and the ability to assess the submissions of the Crown and the offender ( M. (C.A. ), at para. 91).

In sum, in the case at bar, the Court of Appeal was required – for practical reasons, since the trier of fact was in the best position to determine the appropriate sentence for L.M. – to show deference to the sentence imposed by the trial judge. [ 9 ] In terms of the procedure a trial judge goes through in determining the appropriate sentence, LeBel J. explained: [17] Far from being an exact science or an inflexible predetermined procedure, sentencing is primarily a matter for the trial judge’s competence and expertise.

The trial judge enjoys considerable discretion because of the individualized nature of the process (s. 718.1 Cr. C. ; R. v. Johnson , [2003] 2 S.C.R. 357, 2003 SCC 46 , at para. 22 ; R. v. Proulx , [2000] 1 S.C.R. 61, 2000 SCC 5 , at para. 82 ).

To arrive at an appropriate sentence in light of the complexity of the factors related to the nature of the offence and the personal characteristics of the offender, the judge must weigh the normative principles set out by Parliament in the Criminal Code : - the objectives of denunciation, deterrence, separation of offenders from society, rehabilitation of offenders, and acknowledgment of and reparations for the harm they have done (s. 718 Cr.

C. ) (see Appendix); - the fundamental principle that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender (s. 718.1 Cr. C. ); and - the principles that a sentence should be increased or reduced to account for aggravating or mitigating circumstances, that a sentence should be similar to other sentences imposed in similar circumstances, that the least restrictive sanctions should be identified and that available sanctions other than imprisonment should be considered (s. 718.2 Cr. C.). [ 10 ] LeBel J., for an unanimous Court in R. v.

Nasogaluak , 2010 SCC 6 revisited this subject. It is a lengthy extract but worth repeating: [39] The central issue in this appeal concerns the possibility of reducing an offender’s sentence to take account of a violation of his or her constitutional rights. Our Court must determine whether a s. 24(1) remedy is necessary to address the consequences of a Charter breach or whether this can be accomplished through the sentencing process. In addressing this issue, it is necessary first to review the principles that guide the sentencing process under Canadian law.

The objectives and principles of sentencing were recently codified in ss.

718 to 718.2 of the Criminal Code to bring greater consistency and clarity to sentencing decisions. Judges are now directed in s. 718 toconsider the fundamental purpose of sentencing as that of contributing, along with crime prevention measures, to “respect for the law andthe maintenance of a just, peaceful and safe society”.

This purpose is met by the imposition of “just sanctions” that reflect the usual arrayof sentencing objectives, as set out in the same provision: denunciation, general and specific deterrence, separation of offenders,rehabilitation, reparation, and a recent addition: the promotion of a sense of responsibility in the offender and acknowledgement of theharm caused to the victim and to the community. [40] The objectives of sentencing are given sharper focus in s. 718.1, which mandates that a sentence be “proportionate to the gravityof the offence and the degree of responsibility of the offender”.

Thus, whatever weight a judge may wish to accord to the objectiveslisted above, the resulting sentence must respect the fundamental principle of proportionality.

Section 718.2 provides a non-exhaustivelist of secondary sentencing principles, including the consideration of aggravating and mitigating circumstances, the principles of parityand totality, and the instruction to consider “all available sanctions other than imprisonment that are reasonable in the circumstances”,with particular attention paid to the circumstances of aboriginal offenders. [41] It is clear from these provisions that the principle of proportionality is central to the sentencing process R. v. Solowan, 2008 SCC62, [2008] 3 S.C.R. 309, at para. 12).

This emphasis was not borne of the 1996 amendments to the Code but, rather, reflects its longhistory as a guiding principle in sentencing (e.g. R. v. Wilmott (1966), (ON CA), 58 D.L.R. (2d) 33 (Ont. C.A.)). It hasa constitutional dimension, in that s. 12 of the Charter forbids the imposition of a grossly disproportionate sentence that would outragesociety’s standards of decency. But what does proportionality mean in the context of sentencing? [42] For one, it requires that a sentence not exceed what is just and appropriate, given the moral blameworthiness of the offender andthe gravity of the offence.

In this sense, the principle serves a limiting or restraining function. However, the rights-based, protectiveangle of proportionality is counter-balanced by its alignment with the “just deserts” philosophy of sentencing, which seeks to ensure thatoffenders are held responsible for their actions and that the sentence properly reflects and condemns their role in the offence and theharm they caused R. v. M. (C.A.), (SCC), [1996] 1 S.C.R. 500, at para. 81; Re B.C. Motor Vehicle Act, (SCC), [1985] 2 S.C.R. 486, at pp. 533-34, per Wilson J., concurring).

Understood in this latter sense, sentencing is a form of judicialand social censure (J. V. Roberts and D. P. Cole, “Introduction to Sentencing and Parole”, in Roberts and Cole, eds., Making Sense ofSentencing (1999), 3, at p. 10). Whatever the rationale for proportionality, however, the degree of censure required to express society’scondemnation of the offence is always limited by the principle that an offender’s sentence must be equivalent to his or her moralculpability, and not greater than it.

The two perspectives on proportionality thus converge in a sentence that both speaks out against theoffence and punishes the offender no more than is necessary. [43] The language in ss. 718 to 718.2 of the Code is sufficiently general to ensure that sentencing judges enjoy a broad discretion tocraft a sentence that is tailored to the nature of the offence and the circumstances of the offender.

The determination of a “fit” sentenceis, subject to some specific statutory rules, an individualized process that requires the judge to weigh the objectives of sentencing in amanner that best reflects the circumstances of the case R. v. Lyons, (SCC), [1987] 2 S.C.R. 309; M. (C.A.); R. v.Hamilton (2004), (ON CA), 72 O.R. (3d) 1 (C.A.)). No one sentencing objective trumps the others and it falls to thesentencing judge to determine which objective or objectives merit the greatest weight, given the particulars of the case.

The relativeimportance of any mitigating or aggravating factors will then push the sentence up or down the scale of appropriate sentences for similaroffences. The judge’s discretion to decide on the particular blend of sentencing goals and the relevant aggravating or mitigating factorsensures that each case is decided on its facts, subject to the overarching guidelines and principles in the Code and in the case law. [44] The wide discretion granted to sentencing judges has limits.

It is fettered in part by the case law that has set down, in somecircumstances, general ranges of sentences for particular offences, to encourage greater consistency between sentencing decisions inaccordance with the principle of parity enshrined in the Code. But it must be remembered that, while courts should pay heed to theseranges, they are guidelines rather than hard and fast rules. A judge can order a sentence outside that range as long as it is in accordancewith the principles and objectives of sentencing. Thus, a sentence falling outside the regular range of appropriate sentences is notnecessarily unfit.

Regard must be had to all the circumstances of the offence and the offender, and to the needs of the community inwhich the offence occurred. [45] The discretion of a sentencing judge is also constrained by statute, not only through the general sentencing principles andobjectives enshrined in ss. 718 to 718.2 articulated above but also through the restricted availability of certain sanctions in the Code. Forinstance, s. 732 prohibits a court from ordering that a sentence of imprisonment exceeding 90 days be served intermittently.

Similarrestrictions exist for sanctions such as discharges (s. 730), fines (s. 734), conditional sentences (s. 742.1) and probationary terms (s. 731).Parliament has also seen fit to reduce the scope of available sanctions for certain offences through the enactment of mandatory minimumsentences. A relatively new phenomenon in Canadian law, the minimum sentence is a forceful expression of governmental policy in thearea of criminal law.

Certain minimum sentences have been successfully challenged under s. 12 of the Charter on the basis that theyconstituted grossly disproportionate punishment in the circumstances of the case R. v. Smith, (SCC), [1987] 1 S.C.R.1045; R. v. Bill (1998), (BC SC), 13 C.R. (5th) 125 (B.C.S.C.)), while others have been upheld R. v. Morrisey, 2000SCC 39, [2000] 2 S.C.R. 90). Absent a declaration of unconstitutionality, minimum sentences must be ordered where so provided in the

Code. A judge’s discretion does not extend so far as to override this clear statement of legislative intent. [46] Appellate courts grant sentencing judges considerable deference when reviewing the fitness of a sentence. In M. (C.A.), LamerC.J. cautioned that a sentence could only be interfered with if it was “demonstrably unfit” or if it reflected an error in principle, thefailure to consider a relevant factor, or the over-emphasis of a relevant factor (para. 90; see also R. v. L.M., 2008 SCC 31, [2008] 2 S.C.R.163, at paras. 14-15; R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at paras. 123-26; R. v.

McDonnell, (SCC), [1997] 1S.C.R. 948, at paras. 14-17; R. v. Shropshire, (SCC), [1995] 4 S.C.R. 227). As Laskin J.A. explained in R. v. McKnight(1999), (ON CA), 135 C.C.C. (3d) 41 (Ont. C.A.), at para. 35, however, this does not mean that appellate courts caninterfere with a sentence simply because they would have weighed the relevant factors differently: To suggest that a trial judge commits an error in principle because in an appellate court’s opinion the trial judge gave too much weight toone relevant factor or not enough weight to another is to abandon deference altogether.

The weighing of relevant factors, the balancingprocess is what the exercise of discretion is all about. To maintain deference to the trial judge’s exercise of discretion, the weighing orbalancing of relevant factors must be assessed against the reasonableness standard of review.

Only if by emphasizing one factor or by notgiving enough weight to another, the trial judge exercises his or her discretion unreasonably should an appellate court interfere with thesentence on the ground the trial judge erred in principle. [11] Although clearly obiter dicta, the Crown and defence take no issue with this articulate and comprehensive explanation byLeBel J. as to the objectives and principles of sentence and how they are to be applied by trial judges and appellate courts.

Error in principle [12] Before turning to this topic it is useful to understand how this issue came to be the focus and what is really being asked. TheCrown’s notice of appeal set out the following grounds of appeal: 1. That the sentencing judge erred in principle in characterizing the respondent as a “petty retailer” who falls outside of theconsidered range of sentence established by this Court. 2.

The sentence was manifestly unfit. [13] However, the Crown in its factum and oral argument did not suggest that the “Fifield” categories were not relevantconsiderations where the offender was involved in drugs such as cocaine. Nor did the Crown advance any argument that the learned trialjudge erred in his determination that the appellant was a petty retailer. In a nutshell, it abandoned this contention. Instead, the Crownargued: 39. There is only one range for cocaine traffickers, regardless of their position in the Fifield categories, and it starts at two years.

Aperson may be given a sentence outside the range, and even a CSO, if they find themselves in exceptional circumstances. [14] Since the trial judge did not find ‘exceptional circumstances’ the sentence of less than two years amounted to an error inprinciple, and was demonstrably unfit. With this background, I return to how the trial judge approached his difficult task. [15] There is no question that the trial judge was well aware of the objectives and principles of sentence set out in the CriminalCode, and the case law that have applied them for offences of this nature.

He recognized the importance of emphasizing deterrence anddenunciation in cases involving trafficking and possession for the purpose of trafficking. But he was also mindful that deterrence anddenunciation are not the only objectives of sentence. Early on in his reasons the trial judge said: [3] Our Court of Appeal has repeatedly emphasized the objectives of deterrence and denunciation when reviewing sentences foroffences involving the trafficking of or possession for the purposes of trafficking in cocaine and has, in many cases, found that terms offederal custody are required.

However, those comments and directions from our Appeal Court have arisen in cases where thecircumstances of the offence are more serious than those here or the background or circumstances of the offender are much differentthan this offender. The primary issue in this sentence proceeding is whether a federal term of custody is required in every case which

involves cocaine trafficking and if not, when and under what circumstances would a sentence below that threshold be appropriate andcould it be served in the community. In short, does this case require the imposition of a federal term of custody? [16] The trial judge was acutely aware of the pronouncements of this Court about the seriousness of the offence. He said: [4] Sentencing is one of the most difficult tasks for a trial judge. This case is a good example of this. On the one hand, cocaine andother

Schedule I drugs can have a devastating effect on our community. In some cases I have seen the effect of drug addiction onmembers of our community in my experience as a Provincial Court Judge. Our Appeal Court has repeatedly reminded lower courts ofthat. On the other hand, this offender appears to have turned his life around, rid himself of his former associates and is now in along-term and supportive relationship with his spouse, who is expecting their child. Is a federal term of custody a proportionate responseto his conduct and his circumstances?

Is this the least restrictive sentence that meets the purpose and principles of sentence or can aconditional sentence order meet these purposes and be in accordance with these principles? [17] The trial judge made findings that absent palpable and overriding error we are not at liberty to disturb. He found that therespondent was a petty retailer at the lower end of the range and that the primary purpose of his drug trafficking was to feed his ownhabit.

My colleague’s reasons do not challenge these findings. [18] The learned trial judge then thoroughly canvassed all of the decisions from this Court with respect to offenders involved incocaine trafficking (paras. 17-59). The Crown has not pointed to any error in his analysis. I see none. While this Court has rightly saidthat trafficking in drugs such as cocaine is a serious offence for which deterrence and denunciation should be emphasized, it has itselfimposed less than federal incarceration - including cases where the quantity of cocaine was larger and there were other aggravatingcircumstances present.

For example, in R. v. Merlin, (NS CA), [1984] N.S.J. No. 346 (C.A.), a 24-year-old offenderpled guilty to trafficking in 70 grams of cocaine worth $9,000. She had no previous record. The offence was committed simply for themoney. The trial judge imposed a 90-day intermittent sentence. The Crown appealed. The sentence was increased to nine months. [19] In R. v. Robins, [1993] N.S.J. No.152 (C.A.), the offender was found with 23.57 grams of cocaine, coke decks, some withcocaine residue, scales covered with residue and some cash.

The trial judge, impressed by the mitigating circumstances of the offender(not described) imposed eight months imprisonment. On appeal this Court found the sentence not fit as being inadequate and increasedthe sentence to eighteen months imprisonment. [20] It is certainly common for sentences of federal incarceration to be imposed where the offender has a significant prior record, orthere are aggravating features such as larger quantities of the drug, involvement beyond a mere petty retailer, or the offence occurred inrelation to a prison facility. Examples of these are R. v Byers, [1989] N.S.J.

No. 168 (C.A.); R. v. Huskins, [1990] N.S.J. No. 46 (C.A.);R. v. Carvery, [1991] N.S.J. No. 501 (C.A.); R. v. Crossman, [1993] N.S.J. No. 19 (C.A.); R. v. Clarke, [1994] N.S.J. No. 474 (C.A.); R.v. J.B.M., 2003 NSCA 142; R. v. Calder, 2012 NSCA 3. [21] However, my colleague concludes that the trial judge fell into error.

He expresses this view as follows: [22] From this canvas of binding precedent the judge concluded that while federal prison terms frequently follow convictions forcocaine trafficking related offences, and because conditional sentences were not precluded for such offences under the Criminal Code,and because “other Courts of Appeal have approved conditional sentences for cocaine trafficking” (at ¶ 57 of his reasons) that thereforehe was free to consider such a sentence in this case, notwithstanding the fact that no exceptional circumstances had been established. Inreaching this conclusion the judge said: [33] R. v.

Steeves, 2007 NSCA 130 is the first in a series of Court of Appeal decisions which are often now referred to in cocainetrafficking sentencings. ... The Court ... indicated that trafficking in cocaine, “generally attracts a sentence of two years or more”,however the Court pointed out that while a federal assessment is the norm, conditional sentence orders are not precluded. At para. 20 theCourt says, While time served in a federal penitentiary is the norm, this is not to say that conditional sentences are precluded for trafficking incocaine.

Conditional sentences have been imposed where the judge has determined that exceptional circumstances exist. See, forexample R. v. Cameron, [2002] N.S.J. No. 163 (S.C.); R. v. Provo, [2001] N.S.J. No. 526, 2001 NSSC 189; R. v. Messervey, [2004]N.S.J. No. 520 (P.C.); and R. v. Coombs, [2005] N.S.J. No. 158, 2005 NSSC 90. Circumstances that are sufficiently exceptional as to

change a sentence of incarceration for such a serious offence to one that can be served in the community are rare. ... [53] How does one interpret the words “typically” or the word “norm” in this context? Does this mean any offence involving cocainetrafficking requires a federal sentence unless exceptional circumstances can be demonstrated? Does it mean cases which are not the“norm” or “typical” do not necessarily require a federal sentence and “exceptional circumstances” need not be shown? .... [54] In my view this may be two sides of the same coin.

Most, if not all, of the cases cited above and those that I will refer to belowfrom trial courts where federal sentences are imposed or reviewed have in varying degrees the presences of different aggravatingfeatures, which I will refer to later. A case which has few or no aggravating features beyond the presence of the cocaine itself may be“exceptional” or it may simply mean the case is not the “norm” or “typical.

In either event, in my view, there are cases involvingcocaine trafficking which fall outside the range which starts at two years. [23] With great respect, I think the sentencing judge erred when he interpreted the case law of this Court to mean that exceptionalcircumstances need not be shown before the offender could be considered for a sentence that is less than a term of two years in a federalpenitentiary. With respect, such a requirement is precisely the direction given by this Court both explicitly and implicitly in a host ofcases. See for example Steeves, supra; R. v. Knickle, 2009 NSCA 59; R. v.

Conway, 2009 NSCA 95; R. v. Butt, 2010 NSCA 56; R.v. Jamieson, 2011 NSCA 122; and R. v. Calder, 2012 NSCA 3. [22] With great respect for the views of my colleague, I must disagree that the trial judge approached his task as described or erredin misinterpreting the case law of this Court. I will elaborate. [23] The trial judge, given the positions of the Crown and defence viewed the primary task for him to address as: [48] What I must determine is: 1. Is a federal sentence required for any offence of trafficking or possession for the purposes of trafficking in cocaine?

Does therange begin at two years subject to “exceptional circumstances” or can the range include terms of imprisonment of less than two years?and 2. If a sentence of less than two years is appropriate can it be served in the community and what are the primary factors whichdetermine that analysis? [24] As already explained, the second question is not in issue on this appeal. The trial judge did refer to a number of cases fromother provinces where Crown appeals from conditional sentences were dismissed, including several where detailed consideration wasgiven to many authorities. These included R. v.

Kosanouvong, 2002 MBCA 144; R. v. Ramos, 2007 MBCA 87; R. v. Byrne, 2009 NLCA3; R. v. Brown (1997), (NL CA), 119 C.C.C. (3d) 147 (NLCA); R. v. MacKinnon, 2009 PECA 3 , 2009PECA. 3. I fail to see how referring to case law from other jurisdictions to inform the question as to the appropriate range of sentenceamounts to error. Nova Scotia is not a separate jurisprudential island divorced from the rest of Canada.

Courts in Nova Scotia may notbe bound to follow the pronouncements of courts outside of Nova Scotia (aside from the Supreme Court of Canada), but considereddecisions from other provinces can be of assistance. This is made clear by the comments of Lamer C.J., writing for the unanimous courtin R. v. M. (C.A.), supra: [92] Appellate courts, of course, serve an important function in reviewing and minimizing the disparity of sentences imposed bysentencing judges for similar offenders and similar offences committed throughout Canada. See, e.g., R. v. Knife (1982), (SK KB), 16 Sask.R. 40 (C.A.), at p. 43; R. v.

Wood (1979), 21 Crim. L.Q. 423 (Ont. C.A.), at p. 424; R. v. Mellstrom (1975), (AB CA), 22 C.C.C. (2d) 472 (Alta. C.A.), at p. 485; R. v. Morrissette (1970), (SK CA), 1 C.C.C. (2d)307 (Sask. C.A.), at pp. 311-12; R. v. Baldhead, (SK CA), [1966] 4 C.C.C. 183 (Sask. C.A.), at p. 187. But inexercising this role, courts of appeal must still exercise a margin of deference before intervening in the specialized discretion thatParliament has explicitly vested in sentencing judges. It has been repeatedly stressed that there is no such thing as a uniform sentence for

a particular crime. See Mellstrom , Morrissette and Baldhead . Sentencing is an inherently individualized process, and the search for a single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise of academic abstraction. As well, sentences for a particular offence should be expected to vary to some degree across various communities and regions in this country, as the "just and appropriate" mix of accepted sentencing goals will depend on the needs and current conditions of and in the particular community where the crime occurred.

For these reasons, consistent with the general standard of review we articulated in Shropshire , I believe that a court of appeal should only intervene to minimize the disparity of sentences where the sentence imposed by the trial judge is in substantial and marked departure from the sentences customarily imposed for similar offenders committing similar crimes . [My emphasis] [ 25 ] There was no evidence nor submissions before the trial judge or in this Court that there was a pressing local need in the Annapolis Valley or in Nova Scotia to justify being dismissive of what appears to be the majority of the considered opinion of other appellate courts: sentences below federal time can be imposed for offenders who traffic or possess cocaine for the purposes of trafficking, not to mention sentences of imprisonment being served by way of a conditional sentence order. [ 26 ] What sentence is to be imposed is informed by the trial judge considering all of the relevant objectives and principles of sentence as set out in the Criminal Code , balancing those and arriving at what that judge concludes is a proper sentence.

Absent some error of law or imposition of sentence that is not fit, deference must be accorded to such a sentence. [ 27 ] However, the reasons by my respected colleague say Nova Scotia has established a different paradigm. The sentence for anyone convicted of trafficking or possession of trafficking in cocaine is guaranteed a sentence of at least two years unless a judge makes a finding of exceptional circumstances. A trial judge ’ s comprehensive consideration of the objectives and principles of sentence are to be supplanted by a new enquiry: are there exceptional circumstances?

My colleague at para. 23 of his reasons insists that this requirement is explicitly and implicitly directed by this Court in R. v. Steeves , 2007 NSCA 130 , R. v. Knickle , 2009 NSCA 59 ; R. v. Conway , 2009 NSCA 95 ; R. v. Butt , 2010 NSCA 56 ; R. v. Jamieson , 2011 NSCA 122 ; and R. v. Calder , 2012 NSCA 3 . [ 28 ] Before turning to these authorities it is useful to enquire, where did any notion of exceptional circumstances come from?

I can find no explicit requirement in any decision by this Court that requires ‘ exceptional circumstances ’ before a sentence of less than two years can be imposed. [ 29 ] The earliest arguably implicit suggestion I could find is that it would be ‘ rare ’ to have a sentence of less than two years. This comment was in R. v. Huskins , supra . Macdonald J.A., rendered an oral decision for the Court. The offender had pled guilty to trafficking in three ounces of cocaine. The trial judge sentenced him to eighteen months incarceration. The Crown appealed.

Macdonald J.A. set out the circumstances of the offender: The respondent is now 42 years of age and has a criminal record dating back to 1965. This record reveals approximately 29 prior convictions, spanning a variety of offences from causing a disturbance to armed robbery. Included in the respondent’s prior criminal record are four convictions for possession of a narcotic, one conviction for possession of a narcotic for the purpose of trafficking, and two convictions for possession of a restricted drug for the purpose of trafficking under s. 42(2) of the Food and Drugs Act. Mr.

Huskins was on parole in relation to one of the latter convictions when the present offence was committed. [ 30 ] After referring to recent pronouncements by the Court that general deterrence needs to be emphasized in sentencing those involved in cocaine trafficking, Macdonald J.A. commented: No one can seriously dispute that cocaine is an extremely dangerous drug and that society demands that those who are involved in selling it must be dealt with severely. Rare indeed will be the case where less than federal time should be considered as a proper sanction for such offence.

In view of all of the circumstances here present, both of the offence and of Mr. Huskins, it is our opinion that a fit and proper sentence for this offence for this offender is three years imprisonment in a federal institution. [ 31 ] The next is R. v. Robins , supra where, as described earlier, this Court increased the sentence from nine months to eighteen months incarceration for a comparable amount of cocaine as in the case at bar. Clarke C.J.N.S., in delivering brief oral reasons for allowing the appeal, said:

The trial judge was impressed by the mitigating circumstances of the offender upon which he placed great emphasis. He characterizedthe case as one having exceptional circumstances that caused him to impose a sentence considerably lighter than that which this Courthas been advocating in its decisions where cocaine is involved, principally beginning with R. v. Byers (1989), (NSCA), 90 N.S.R. (2d) 263. The position of this Court, repeated in many of our decisions since Byers, is that there are no exceptionalcircumstances where cocaine is involved.

We are persuaded that general deterrence must be prominently addressed if the public is tobe protected from the nefarious trade that has developed in this drug that is so crippling to our society. [My emphasis] [32] There being little to differentiate the circumstances from another case where eighteen months had recently been imposed, theCourt found the sentence for Mr. Robins to be unfit and increased it to eighteen months. [33] Important changes in the law on sentencing were introduced by the 1996 amendments to the Criminal Code. The changes wereby no means revolutionary, but still significant.

Courts were instructed in a variety of ways to be less reliant on incarceration to achievethe objectives of sentence. Principles such as parity in sentencing offenders (s. 718.2(b)) and restraint in deprivation of liberty (s. 718.2(

d) and (e)) were codified. Caution is therefore called for when relying on on pre-1996 case law (see: R. v. S.P.C. (1999), 1999 NSCA82 , 175 N.S.R. (2d) 158 (C.A.); R. v. Longaphy, 2000 NSCA 136; R. v. Bratzer, 2001 NSCA 166). [34] No particular caution is required for pre 1996 cases in this area, since they do not expressly say that federal incarceration mustbe imposed absent exceptional circumstances. The most that can be said was that it was recognized that deterrence should beemphasized in sentencing offenders involved in cocaine trafficking. The comment by Macdonald J.A. in R. v.

Huskins that it would berare that less than federal time should be considered is obviously obiter dicta. It had nothing to do with determining the appropriatesentence for a mature seasoned offender trafficking in multiple ounces of cocaine, while on parole for trafficking in other bannedsubstances. For such an offender it certainly would be rare that less than federal incarceration would be considered. I will now turn tothe cases said to have established the need for exceptional circumstances to avoid federal incarceration for every offender and offenceinvolving cocaine. [35] R. v.

Steeves, 2007 NSCA 130 is an unusual case. The Crown appealed a decision by a trial judge who, without any analysisor reference to the objectives and principles of sentence, in a four-paragraph decision, imposed a sentence of two years less a day to beserved by way of a conditional sentence order. The offender was 29 years of age and on a disability pension. He pled guilty to twocounts of possession for the purpose of trafficking of cocaine (14 grams of powdered cocaine and 63 grams of crack cocaine) and 100pills of ecstasy.

Subsequent to the conditional sentence, he admitted to two breaches of his conditional sentence order and was thereforeordered to serve the balance of his sentence in jail. He was unrepresented on appeal, but requested that the Crown appeal be allowed sothat he could serve his sentence in a federal institution. [36] Oland J.A. wrote for the Court. She referenced R. v. Dawe, 2002 NSCA 147, where the offender appealed a 15-monthsentence of incarceration for offences involving trafficking in cocaine, marijuana and hashish.

In dismissing the appeal, Hamilton J.A.had written: [6] The appellant has not satisfied us that the sentence is demonstrably unfit. To the contrary, the sentence is, if anything, undulylenient. Possession of cocaine for the purposes of trafficking typically results in sentences of two years or more, as the judge pointed out. [37] From this, Justice Oland commented: [20] While time served in a federal penitentiary is the norm, this is not to say that conditional sentences are precluded for traffickingin cocaine.

Conditional sentences have been imposed where the judge has determined that exceptional circumstances exist. See, forexample R. v. Cameron, [2002] N.S.J. No. 80 (S.C.); R. v. Provo, 2001 NSSC 189, R. v. Messervey, [2004] N.S.J. No. 520 (P.C.); and R.v. Coombs, 2005 NSSC 90. Circumstances that are sufficiently exceptional as to change a sentence of incarceration for such a seriousoffence to one that can be served in the community are rare. [38] The trial judge in Steeves was found to have erred in a number of respects, not the least of which was a failure to consider that

the offender had also been convicted of the serious offence of possession of ecstasy for the purpose of trafficking. The extent of the trial judge ’ s flawed approach was explained as follows: [23] In addition to failing to consider deterrence and the range of sentences for these offences, the sentencing judge erred in principle by failing to follow the approach judges are to use in determining whether to impose a conditional sentence described by the Supreme Court of Canada in Proulx , supra at ¶ 58-63. The judge begins by excluding probationary measures and a penitentiary term.

In making this determination, he or she is to consider the fundamental purpose and principles of sentencing as set out in ss. 718 to 718.2 of the Code only to the extent necessary to narrow the range of sentence. If either of those sentences is appropriate, a conditional sentence should not be imposed. If neither is appropriate, the judge then determines whether a conditional sentence would be consistent with the fundamental purpose and principles of sentencing as set out in those provisions.

In doing so, he or she considers those principles comprehensively, determines the duration and venue of the sentence and, if a conditional sentence, the appropriate conditions. Before imposing a conditional sentence, a sentencing judge must be satisfied that the safety of the community would not be endangered. [24] With respect, nothing in his reasons indicates that in determining that a conditional sentence was appropriate, the sentencing judge here considered the approach in Proulx , supra . He did not reject both a penitentiary term and probation as appropriate dispositions.

His decision failed to include any consideration as to whether a conditional sentence was consistent with the principles and purposes of sentencing. In particular, it was silent in regard to deterrence and denunciation which are so significant in cases involving drug trafficking. Moreover, his conclusion that the respondent is not a danger to society was not grounded on any assessment of the risk of his re-offending or the gravity of the damage that could ensue were he to re-offend. [ 39 ] In R. v.

Knickle , 2009 NSCA 59 a trial judge sentenced an offender to two years for possession of cocaine for the purpose of trafficking but ordered it to be served in the community. He was also given a concurrent sentence for a firearms offence. The circumstances were egregious. A search warrant of the offender ’ s $500,000 home revealed approximately 11 ounces of cocaine, multiple scales, baggies and related paraphernalia and 19 firearms, four of which stored improperly. Mr. Knickle was 43 years of age, no prior record, who trafficked to make money.

His teenaged children were present in the home when it was searched. [ 40 ] The trial judge acknowledged that the normal range of sentence for this offence was two to five years, but appeared to find exceptional circumstances. On appeal, the conditional sentence order was quashed and a sentence of three and a half years imposed. Roscoe J.A. wrote for the Court. She described the errors as follows: [16] The first step of the analysis is a consideration of the appropriate range of sentence for the offence.

Here the judge briefly commented that the sentencing range in Nova Scotia for cocaine trafficking is a penitentiary term in the range of two to five years.

Then without further analysis, indicated that there was nothing to warrant a sentence in a three and a half year range, and finally concluded that the defence had satisfied her that a sentence of two years less a day would be appropriate because of exceptional circumstances. [17] The judge failed to recognize how this court has consistently categorized drug traffickers, based on the type and amount of drug involved and the level of involvement in the drug business, to assist in placing them within the range. In R. v. Fifield , [1978] N.S.J.

No. 42 , the court described the following general categories of drug traffickers: the young user sharing marijuana with a companion; the petty retailer who is not shown to be involved full-time or in a large-scale commercial distribution; the large-scale retailers and commercial wholesalers. Chief Justice MacKeigan noted that the amount of drugs involved helps determine the quality of the act or the probable category of trafficker. The Fifield categories have also been applied by this court to cocaine and crack cocaine trafficking cases. See, for example: R. v. Carvery , [1991] N.S.J.

No. 501 - high level retailer - 6 ½ ounces cocaine - five years’ incarceration; R. v. Steeves , 2007 NSCA 130 - not a lower level trafficker - 77 grams of cocaine, and 100 pills of ecstasy - 2 years, six months’ incarceration; R. v. Sparks , [1993] N.S.J.

No. 448 - four counts of selling small amounts of crack cocaine and one count of possession for the purpose - totalling just over 1.5 grams - not a petty retailer - 32 months’ incarceration. [18] Numerous other sentencing decisions from this court repeatedly and consistently emphasize that persons involved in trafficking in cocaine will be subject to sentences of incarceration. This has been absolutely clear since the very first case heard by this court

involving trafficking in cocaine: R. v. Merlin, (NS CA), [1984] N.S.J. No. 346, 63 N.S.R. (2d) 78. See also, forexample: R. v. Dawe, 2002 NSCA 147; R. v. Jones, 2008 NSCA 99; R. v. Stokes, 1993 NSCA 195 , [1993] N.S.J. No. 412,126 N.S.R. (2d) 66; and R. v. J.B.M., 2003 NSCA 142. This court has never approved or endorsed a conditional sentence on charges ofpossession for the purpose of trafficking or trafficking in cocaine. As well, we have regularly allowed appeals from conditional sentenceorders for trafficking in large amounts marijuana and substituted penitentiary terms. See for example: R. v.

Hill, 1999 NSCA 118; R. v.McCurdy, 2002 NSCA 132; R. v. Jones, 2003 NSCA 48. The sentencing judge in this case did not refer to any decisions of this court. [41] Roscoe J.A. distinguished a number of cases where trial judges had ordered conditional sentences. She noted that those casesinvolved very low level or petty retailers. Mr. Knickle was not in the same category – he properly belonged in the higher retail level ofthe Fifield categories (para. 25).

After emphasizing the importance of deterrence in sentencing cocaine traffickers, Roscoe J.A. wrote: [28] In this case the sentencing judge erred in principle by imposing a conditional sentence to be served in the community. The rangeof sentencing for a higher level retailer of cocaine starts at two years in penitentiary. It does not include two years less a day or anyother sentence that is available to be served in the community. The judge erred in excluding the penitentiary term in the first stage and itwas not necessary to consider the second stage of the Proulx analysis.

There are no extraordinary or exceptional circumstances in thiscase that deserve any consideration of the possibility of deviation from the normal range of sentence. The sentence is excessively lenientand demonstrably unfit. It was, as mentioned above, also an illegal sentence because conditional sentences are only available forsentences of less than two years. [My emphasis] [42] In R. v. Conway, 2009 NSCA 95 the offender pled guilty to two counts of possession of cocaine and marijuana. He was foundin personal possession of packaged crack cocaine, marijuana and cash.

In his bedroom, bulk cocaine, scales, baggies, marijuana, drugparaphernalia and cash, were found. The total amounted to 103 grams of crack cocaine, and a half pound of marijuana. The offenderwas 65 years of age who had health problems that limited his ability to earn a living. He was obviously engaged in the drug enterprise forone purpose, to make money. In what was described as exceedingly brief reasons, the trial judge elected to impose a conditionalsentence of two years less a day.

Bateman J.A., for the Court, noted the sophistication and planning in the offender’s long termpremeditated course of criminal conduct. There was no suggestion of drug addiction – only his financial circumstances motivated theoffence. [43] Bateman J.A., said: [9] While sentencing is an individualized process and there can be exceptions to what would otherwise be a fit sentence, there wereno exceptional factors apparent here sufficient to take this sentence out of the usual range for a mid to high level retailer. Nor did thesentencing judge refer to any such circumstances.

Provincial Court judges, in particular, preside over exceptionally heavy dockets and, inthe interests of time must usually express their reasons concisely. However, when imposing a disposition outside the usual range, it iscritical that the judge clearly articulate the rationale which supports the sentence. [44] The Court increased his sentence to 30 months. [45] R. v. Butt, 2010 NSCA 56 is not a case that informs how a trial judge should approach his or her task in balancing theobjectives and principles of sentence for a petty retailer drug addict. It says nothing about exceptional circumstances. Mr.

Butt was 35years old. He had been continuously involved in criminal activity for 19 years for which he had received both custodial and non-custodial sentences. The police intercepted a package destined for the offender containing two one-kilogram bricks of cocaine ofsignificant purity. A search of his home turned up 196 grams of powder cocaine. The trial judge sentenced the offender to three and ahalf years. This was increased on appeal to five years.

It was clear the trial judge had been misled about the offender’s health and hisassurances of having changed his life and was no longer offending. [46] The remaining two cases that are relied upon to suggest ‘exceptional circumstances’ must be demonstrated to ever depart froma sentence of federal incarceration are R. v. Jamieson and R. v. Calder. I am unable to agree that these cases stand for that proposition. In Calder, a practising lawyer was convicted of smuggling hydromorphone (dilaudid) into a prison.

Other similar “prison packages”were found in her office, one containing dilaudid, the other marijuana and tobacco. She was sentenced to 30 months incarceration. Theoffender appealed alleging she should have received a conditional sentence. Hamilton J.A., for this Court disagreed. She noted that thetrial judge found that for this offender, and these offences, the range was two years at the lowest and four years at the highest (para. 36). In reaching this conclusion, Justice Hamilton noted that the trial judge placed considerable weight on the fact that Ms.

Calder tookadvantage of her privileged position as a lawyer to traffic in a

Schedule I drug, comparable to crack cocaine and oxycontin, by smuggling

the drug into a prison, and the particular problems caused by drug trafficking in prisons. This made the offence much more serious than the typical street offence. As Hamilton J.A. observed: [39] The judge imposed a total sentence of 30 months incarceration. This length of sentence is within the range of sentences imposed by courts in other jurisdictions for similar offences; see R. v. Li , supra (a defence lawyer was sentenced to four years imprisonment for smuggling marihuana and heroine to the Don Jail); R. v. Crough (unreported, April 20, 2011, Alta. Q.B.) (Ms. Crough was sentenced to 28 months imprisonment for smuggling a single package containing three types of drugs, including

Schedule I drugs, into a Federal Penitentiary) and R. v. Rathwell (unreported, July 7, 2004, Alta. Q.B.) (Rathwell was sentenced to a period of three years imprisonment for smuggling cocaine and marihuana into a Federal Penitentiary). [ 47 ] The Crown laid considerable stress on the decision of this Court in R. v. Jamieson , 2011 NSCA 122 . After referring to the comments by Roscoe J.A. in R. v.

Knickle , supra that “ The range of sentencing for a higher level retailer of cocaine starts at two years in penitentiary ” , the Crown submitted that this might be construed as too narrow a statement of the law which was corrected by R. v. Jamieson . The Crown ’ s factum put it this way: 28. Secondly, it is submitted that the Court later corrected what might have been construed as too narrow a statement of the law on cocaine sentencing when it released its reasons in R. v. Jamieson , 2011 NSCA 122 .

In that case, which dealt with what was clearly a "petty retailer", the Court, after recognizing an exceptional circumstance which will be addressed below, reiterated (at para. 38): Persons who seek to profit by trafficking in cocaine, or possessing it for the purpose of trafficking, will upon conviction, be virtually guaranteed a prison term in a federal penitentiary. [ 48 ] The reasons in Jamieson had nothing to do with determining what is or is not the range of sentence for Mr. Jamieson or any other offender who traffics in cocaine. Mr.

Jamieson was caught trafficking in cocaine and in ecstasy on six occasions. The allegations were amalgamated into two counts of trafficking in those substances between defined dates. He pled guilty. A joint recommendation of two years was submitted and accepted by the trial judge. The offender served his time and was released on parole. He was ordered deported as a result of his convictions on these offences as he was not a Canadian citizen. Further, and key to the appeal, the statutory regime precluded Mr. Jamieson from appealing the deportation order because his sentence was two years.

If it was two years less a day, there would be no impediment to his access to an appeal process. [ 49 ] By consent, the appellant ’ s application to extend time to appeal was granted. The Crown did not oppose the appellant ’ s request to admit fresh evidence that demonstrated the consequences for his immigration status should the sentence not be reduced. Finally, the Crown did not oppose the requested sentence reduction. My colleague, Saunders J.A., wrote the unanimous reasons for judgment. He quoted with approval from the factum of the respondent: [27] Ms.

Simmons, for the respondent, puts the point well in her factum: 27. The sentencing judge made her decision based upon incorrect information relating to the appellant’s immigration status. As a result, she did not have the benefit of submissions from counsel relating to the relevance of deportation consequences in fixing the appropriate sentence. The sentence imposed was viewed by all parties as a fit sentence. This Court is now asked to vary the sentence in light of the unintended collateral impact upon the appellant’s immigration status.

The appellant correctly points out that other provinces have wrestled with the issue in a variety of contexts. [ 50 ] After reviewing reported decisions from other appellate courts, Justice Saunders concluded: [34] Counsel concede that the sentencing judge was unaware of the consequences and based her decision on incorrect information relating to Mr. Jamieson’s immigration status. The judge was told that the appellant was a Canadian citizen when in fact he was a permanent resident of this country who had never applied for citizenship. She sentenced Mr.

Jamieson to prison for two years based on a joint recommendation of counsel when, had counsel and the judge been aware of the consequences, the issue would have undoubtedly been given serious consideration before sentence was imposed. In my view we ought to exercise our authority to relieve against such an unintended and disproportionately severe collateral sanction, by reducing Mr. Jamieson’s sentence to one which will allow him to exercise his immigration appeal rights.

[51] In my respectful view, the reasons for judgment in Jamieson did not correct the comments by Roscoe J.A. in R. v. Knickle. Those comments were not in issue. It is trite law that a case is authority for what it decided. What did this Court decide in Jamieson? The Court was not asked to decide if two years incarceration was the starting point for a petty retailer who traffics in cocaine to feed hishabit. It was not asked to consider if a sentence of 12, 15, 18 months or two years less a day was a sentence tainted by error in principleor unfit.

The two year sentence in Jamieson was a joint recommendation which, absent sound justification, the trial judge was requiredto accept (see R. v. Cromwell, 2005 NSCA 137; R. v. G.W.C., 2000 ABCA 333). The limited issue actually being decided in Jamiesonwas recognized. Justice Saunders wrote: [37] There can be no question that the sentence imposed by Beach, P.C.J., based on the joint recommendation of counsel, sentencingMr. Jamieson to two years’ imprisonment in a federal institution was a “fit” sentence.

The only issue in this case was whether theunintended deportation consequence, to which neither the judge nor counsel had turned their minds, qualified as a sufficient reason towarrant our intervention. It did. [Emphasis in original] [52] Nonetheless, Saunders J.A. added the following obiter comment: [38] Before concluding these reasons let me be clear. This case is truly exceptional for the single reason that Mr. Jamieson’s sentencedenied him an avenue of appeal from his deportation, which was, for the reasons I have outlined, an unintended result of greatsignificance.

It created a situation which called for the exercise of our judicial authority to intervene so as to avoid consequences thatwould be patently unjust. Nothing in these reasons should be taken as signalling a softening of this Court's view towards the seriousnessof trafficking in cocaine and the severity of sentences that will be imposed upon conviction. Such an approach has been consistentlytaken by the courts in this province for almost 35 years. See for example the inventory of cases chronicled by Roscoe, J.A. in R. v.Knickle, 2009 NSCA 59.

Persons who seek to profit by trafficking in cocaine, or possessing it for the purpose of trafficking, willupon conviction, be virtually guaranteed a prison term in a federal penitentiary. [My emphasis] [53] There is no question that this Court has long stressed the need to emphasize deterrence and denunciation for those that traffic incocaine, and depending on the circumstances of the offence and of the offender, may well mean that a sentence of federal incarcerationis called for.

With all due respect, what I cannot accept is that these or any other cases make a federal prison term mandatory – to beavoided only if an offender can demonstrate “exceptional circumstances”. [54] In my opinion, there are strong parallels between this case and R. v. McDonnell, (SCC), [1997] 1 S.C.R. 948where the Supreme Court of Canada concluded that the Alberta Court of Appeal had failed to defer to the sentence imposed at trial. Theoffender pled guilty to two counts of sexual assault.

The trial judge did not find either of the assaults were ‘major sexual assaults’ asdescribed by the Alberta Court of Appeal which would have triggered a starting point of three years incarceration. The judge imposed asentence of 12 months followed by two years of probation. The Court of Appeal substituted a sentence of five years. [55] Sopinka J. wrote the majority judgment.

After reviewing the recent decisions of the Supreme Court that emphasize thedeference owed to sentence decisions, he concluded that the Court of Appeal failed to point to a relevant factor not considered by thesentencing judge that would give rise to appellate review (para. 20). In my view, the same applies here. The trial judge was well awareof the dangerous nature of cocaine and the devastating effect it can have on people’s lives and, accordingly, deterrence is the primaryobjective.

Judge Tufts was well aware of the many decisions of this Court where, for many that traffic in cocaine, the usual sentence isone involving federal incarceration. In fact he said: “In my opinion, while a term of imprisonment is generally called for in cocainetrafficking cases a federal sentence is not always required for every offence” (para. 59). Deterrence is not the only objective andprinciple of sentence. The Criminal Code makes this clear. This legal reality is well expressed by Bateman J.A. in R. v.

Bratzer, 2001NSCA 166 where she wrote: [14] Protection of the public is the ultimate objective in sentencing the offender. This goal informs the exercise of a judge’s discretionin designing a sentence. As this court commented in R. v. Parker (1997), (NS CA), 159 N.S.R. (2d) 166; N.S.J. No.194 (Q.L.) (N.S.C.A.) at p. 179 (N.S.R.): [45] The challenge for the sentencing judge is, as it always has been, to balance the objectives of sentencing - this is not a newproblem. It is worthy of note, however, that the judge is directed, in s. 718, to impose a just sanction that has "one or more" of theenumerated objectives.

This, in my view, recognizes the irreconcilability of certain of the objectives and leaves to the court a reasonable

latitude in choosing the appropriate emphasis for this offence and this offender. Protection of the public - “the maintenance of a just, peaceful and safe society” - remains, as always, the overarching goal of sentencing. Rehabilitation of the offender, where achievable, is key to public protection. [ 56 ] The reasons by the trial judge reveal he was well aware of the task he was required to undertake and the relevant objectives and principles of sentence. His reasons were not off-the-cuff conclusions, but thoughtful and considered.

In his analysis section, he wrote: [71] Let me then return to the purposes, objectives and principles of sentencing I reviewed at the outset and apply them to this case using the guidelines of our Court of Appeal, as I have interpreted them, and the examples from other trial courts. Clearly the public must be protected and the law respected. This is the purpose of sentencing. For sentencing involving cocaine trafficking the primary objective must be deterrence and denunciation. Other objectives may apply as well in particular cases.

Finally, the fundamental principle when determining a “just” sanction is proportionality. Other principles of parity and restraint play a secondary, but important, role in crafting a sentence. [72] This case, like most cases, turns on those features or circumstances of the offence particularly, but also of the offender, to gauge the gravity of the offence and the degree of responsibility of the offender. [ 57 ] The trial judge found the offender to be a petty retailer with a drug addiction problem. He was not a greedy non-user selling for profit.

None of the aggravating features listed in s. 10 of the CDSA were present. There were no weapons. None of the other common aggravating features found in reported cases from our Court were found. The trial judge continued: [80] In my opinion the pre-sentence report is largely positive. It shows that Mr. Scott graduated from high school in 2005. He is currently employed. He was described by his employer as a good worker. It said since this matter arose he has had a positive change in attitude.

He has had a history of drug issues and has struggled in the past in maintaining his good standing in the methadone program. However, he has been drug-free since the matter arose and his acceptance with drug addiction services has been confirmed by Peter Kiefl, a clinical therapist with that service. His spouse is now expecting a child, which appears to have had a positive impact on him. [81] Finally, the writer attributed much of Mr. Scott’s drug issues to his choice of associates. To his credit Mr.

Scott appears to recognize this and has indicated to the Court that he is prepared to agree to disassociate himself with those named individuals. [82] Mr. Scott has no prior criminal convictions. He has pled guilty. He has made positive changes in his life. On his own initiative he enrolled in substance abuse counselling. He has a supportive family and spouse both of who were in Court with him. He is at the low end of the petty retailer category. The drugs were not crack cocaine, the more serious form of cocaine.

The amount of drugs is concerning but it is not clear how that determines his categorization as a drug trafficker. No weapons were found. Only a small amount of marihuana was found and no other so-called “hard” drugs were present.

He is a youthful offender. [ 58 ] Based on all of these factors the learned trial judge concluded: [83] In my opinion, for the reasons I detailed above, the range of sentencing for this offender, for this offence in these particular circumstances includes a term of imprisonment of less than two years. [ 59 ] As already explained, it is the selection of any sentence of less than two years that the Crown says is simply not allowed in this case because of what this Court, as interpreted by the Crown, has said in previous decisions about the mandated sentence for all cocaine traffickers.

My colleague has accepted this premise. However, even if one accepts that two years is the minimum starting point for all who traffic or possess cocaine for the purpose of trafficking, the selection of a lesser sentence is not per se legal error. This was clearly explained by Sopinka J. in McDonnell . Deviation from starting point sentences set by an appellate court is not an error in principle.

Sopinka J. wrote as follows: [32] In any event, in my view it can never be an error in principle in itself to fail to place a particular offence within a judicially created category of assault for the purposes of sentencing. There are two main reasons for this conclusion. First, Shropshire and M. (C.A.) , two recent and unanimous decisions of this Court, clearly indicate that deference should be shown to a lower court’s sentencing

decision. If an appellate court could simply create reviewable principles by creating categories of offences, deference is diminished in a manner that is inconsistent with Shropshire and M. (C.A.) . In order to circumvent deference and to enable appellate review of a particular sentence, a court may simply create a category of offence and a “starting point” for that offence, and treat as an error in principle any deviation in sentencing from the category so created. Indeed, that is what the Court of Appeal in Alberta has done in the present case.

If the categories are defined narrowly, and deviations from the categorization are generally reversed, the discretion that should be left in the hands of the trial and sentencing judges is shifted considerably to the appellate courts. [ 60 ] Justice Sopinka was careful not to suggest that appellate courts may not set out starting point sentences as a guide to lower courts. He explained: [43] I add that I do not disagree with McLachlin J. that appellate courts may set out starting-point sentences as guides to lower courts.

Moreover, the starting point may well be a factor to consider in determining whether a sentence is demonstrably unfit. If there is a wide disparity between the starting point for the offence and the sentence imposed, then, assuming that the Court of Appeal has set a reasonable starting point, the starting point certainly suggests, but is not determinative of, unfitness. In my view, however, the approach taken by McLachlin J. in the present case places too great an emphasis on the effect of deviation from the starting point.

Unless there otherwise is a reason under Shropshire or M. (C.A.) to interfere with the sentence, a sentence cannot be altered on appeal, notwithstanding deviation from a starting point. Deviation from a starting point may be a factor in considering demonstrable unfitness, but does not have the significance McLachlin J. gives it. [ 61 ] This fundamental concept was repeated by LeBel J. in R. v. Nasogaluak , supra . I earlier set out a lengthy quote from that decision ( infra , ¶ 10). For ease of reference, I will repeat one of those paragraphs: [44] The wide discretion granted to sentencing judges has limits.

It is fettered in part by the case law that has set down, in some circumstances, general ranges of sentences for particular offences, to encourage greater consistency between sentencing decisions in accordance with the principle of parity enshrined in the Code . But it must be remembered that, while courts should pay heed to these ranges, they are guidelines rather than hard and fast rules. A judge can order a sentence outside that range as long as it is in accordance with the principles and objectives of sentencing.

Thus, a sentence falling outside the regular range of appropriate sentences is not necessarily unfit. Regard must be had to all the circumstances of the offence and the offender, and to the needs of the community in which the offence occurred. [ 62 ] There have been a number of pre-1996 decisions of this Court set out starting points for break and enters and robberies.

There is no need to discuss them, nor the numerous examples of this Court upholding and imposing significantly lower sentences for those offences without ‘ exceptional circumstances ’ being demonstrated – all that was required was for the trial judge to have correctly identified and applied the relevant objectives and principles of sentence, including whatever general guidelines this Court may have articulated. In my opinion that is precisely what Judge Tufts did here. No error in law or principle has been established.

Demonstrably Unfit [ 63 ] The only basis for the Crown ’ s suggestion that the sentence was unfit was because it was less than two years incarceration. For the same reasons he found an error in principle, my colleague concludes the sentence is unfit. With respect, I am unable to agree. A sentence of less than two years incarceration is, for this offender and in the circumstances of this offence, not outside the range of sentence. [ 64 ] I would grant leave to appeal but dismiss the appeal. Beveridge, J.A.

Concurred in: MacDonald, C.J.N.S. Dissenting reasons for judgment: (Saunders, J.A.) [ 65 ] I dissent. With great respect, having had the opportunity to consider the reasons of my colleague, Justice Beveridge, it is obvious that he and I have a fundamentally different view of the sentence imposed in the court below. Beveridge, J.A. says it is a “ lawful sentence ” , faultless in law or principle, and therefore shielded from appellate interference. I say that a failure, or disinclination, to follow binding precedent is an error of law obliging us to intervene. [ 66 ] In sentencing Mr.

Scott on a charge of possession of cocaine for the purpose of trafficking the sentencing judge asked himself the following rhetorical question: Does this mean any offence involving cocaine trafficking requires a federal sentence unless exceptional circumstances can be demonstrated? [ 67 ] The judge answered that question in the negative and went on to impose a sentence of two years less a day to be served in the community under a conditional sentence order, followed by one year probation. [ 68 ] With respect, the question need not have been asked.

As this Court ’ s jurisprudence makes clear, the answer to the question posed is yes. The judge ’ s analysis ought to have begun with an inquiry as to whether - on the evidence - the offender had shown that his exceptional circumstances would save him from a federal prison term. [ 69 ] In my view, the judge erred. I would allow the appeal, set aside the conditional sentence order and replace it with a sentence this Court thinks fit. [ 70 ] I will start with a brief review of the facts to provide context for the analysis that follows.

Background [ 71 ] Jeremy Scott was arrested on January 11, 2011, in his vehicle on a country road in King ’ s County, Nova Scotia. Police had received reliable source information indicating that Mr. Scott was driving the vehicle and would be transporting drugs for the purpose of trafficking. Police searched Mr. Scott and his vehicle and found the following items:

a) In the centre console of the vehicle, a bag of powder cocaine weighing 30 grams; it was agreed that the cocaine was worth $3000;

b) In the respondent ’ s pocket, $280 cash;

c) Also in the vehicle, a working scale with white powder residue;

d) Also in the vehicle, six new and unused “ dime baggies ” ;

e) On the car seat, a cell phone said, after police examination, to contain text messages “ indicative of trafficking ” ;

f) A spoon;

g) Also in the console, a “ piece of marihuana ” . [ 72 ] None of these facts was challenged by the defence at the sentence hearing. [ 73 ] As a result of the drug seizure Mr. Scott was charged with possession of cocaine for the purpose of trafficking, as well as simple possession of marihuana, pursuant to ss. 5(2) and 4(1) of the Controlled Drugs and Substances Act , S.C. 1996, c. 19, as am. ( CDSA ) respectively. Mr. Scott was arraigned on these charges, elected trial in Provincial Court, and entered pleas of not guilty. The matter was set over to October 4, 2011, for trial. [ 74 ] On October 4, 2011, Mr.

Scott appeared before Nova Scotia Provincial Court Judge Alan T. Tufts, changed his plea to guilty and the matter was set over for sentencing. A pre-sentence report was ordered. [ 75 ] The sentencing hearing took place on January 10, 2012. Crown counsel recommended a sentence of 2 ½ years in prison, whereas defence counsel asked for a conditional sentence in the range of 18 to 24 months. After hearing counsels ’ submissions, Judge Tufts reserved his decision. [ 76 ] On February 1, 2012, ( 2012 NSPC 6 ) Tufts, P.C.J. sentenced the respondent to two years less a day imprisonment.

In accordance with s. 742.1 of the Criminal Code , the judge ordered that the sentence be served in the community pursuant to a Conditional Sentence Order (CSO) with the usual terms. These included a condition that Mr. Scott spend the first nine months under house arrest, and that he serve a second nine month period bound by a curfew prescribed by fixed hours which were to be relaxed, at specified intervals, gradually over time. The CSO was to be followed by an additional year of supervised probation.

Obviously, the term of house arrest, and the term of "relaxed" confinement to his home do not add up to 24 months and seem "short" by six months. I will assume that Judge Tufts intended the first nine months of the Conditional Sentence Order to be served under strict house arrest as he had directed, and that the remainder of the conditional sentence would be subject to the terms and the curfew he imposed with the intervals and fixed hours to be managed and modified (if need be) by Mr.

Scott's probation supervisor, with the ability to reappear before Judge Tufts for clarification, if necessary. [ 77 ] The Crown appeals pursuant to s. 676(1) (

d) of the Criminal Code of Canada , R.S.C. 1985, c. C-46 on two principal grounds. First, the Crown says the judge erred in his characterization of Mr. Scott as being nothing more than a “ petty retailer ” such that the judge was then able to place the offender outside the range of sentence established by this Court ’ s jurisprudence. Second, the Crown says that the sentence received by Mr. Scott is demonstrably unfit. Issues [ 78 ] The disposition of this appeal requires answers to the following questions: (

I) Did the judge err in his

interpretation and application of the law in sentencing this offender? (ii) Is the sentence manifestly unfit? (iii) What is a proper sentence in this case?

Standard of Review [79] In crafting a suitable sentence a judge is exercising a statutorily authorized discretion under s. 718.3(1) of the Criminal Code. As with other discretionary decisions, the standard of review we apply on appeal is a deferential one. This means that a sentence will notbe deemed improper simply because we would have imposed a different one.

Absent an error in principle, failure to consider a relevantfactor, or an over emphasis of the appropriate factors, we will only intervene to vary a sentence if we are satisfied that it is clearlyexcessive or inadequate having regard to the circumstances of the offence and the offender. See for example, R. v. Cormier (1975), (NS CA), 9 N.S.R. (2d) 687; R. v. M.(C.A.), (SCC), [1996] 1 S.C.R. 500; R. v. Knockwood, 2009NSCA 98; R. v. Adams, 2010 NSCA 42; and R. v.

Bernard, 2011 NSCA 53. [80] If, after review, we conclude that the sentencing judge has committed an error in principle, deference is ignored and we are freeto impose the sentence we think fit. See for example, R. v. Bernard, supra; R. v. Hawkins, 2011 NSCA 7; R. v. Brunet, 2010 ONCA781; R. v. MacDonald, 2009 MBCA 36; R. v. Provost, 2006 NLCA 30; and R. v. Rezaie (1996), (ON CA), 112C.C.C. (3d) 97 (Ont. C.A.). [81] To summarize, our consideration of the judge’s reasons in this case come down to three principal questions. First, did thejudge err in his

interpretation and application of the law when sentencing Mr. Scott following his conviction on a charge of possession ofcocaine for the purpose of trafficking? Second, and quite apart from any error in principle, are we satisfied that the sentence imposed isdemonstrably unfit? If either of these questions is answered in the affirmative, then what is a fit and proper sentence in this case? [82] Having identified the essential questions as well as the legal principles to be applied in answering them, I will turn now to ananalysis of the issues.

Analysis [83] As noted earlier, when the parties appeared at the sentencing hearing, the Crown sought a custodial term of 30 months in afederal institution. The defence argued that a term of imprisonment of less than two years was appropriate and that it ought to be servedin the community under a conditional sentence order. With these two positions staked out by counsel, the judge began his analysis byreferring to the circumstances of the offence and the offender. He observed that no viva voce testimony had been offered at the hearingand that “[a]ll the evidence was received by submissions”. The Crown said Mr.

Scott should be seen as a “player” in the drug trade, inthat this was one of the largest quantities of drugs ever seized by police in the region. Defence counsel on the other hand suggested that“at best” Mr.

Scott was a “petty retailer” and that while he was a heavy user of drugs, including cocaine, he sold the drugs to underwritethe cost of his own addiction. [84] Ultimately, after noting that the amount of drugs - 30 grams - and its estimated street value of up to $3,000 was cause forconcern, Judge Tufts accepted defence counsel’s submission, saying: [10] I accept that the primary purpose of the offender’s possession of these drugs was to feed his own habit and that he sold the drugsto offset his costs. Beyond this I cannot, given the lack of evidence, draw any

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