R. v. Hickey, 2023 NSSC 33

SUPREME COURT OF Nova Scotia Citation: R. v. Hickey , 2023 NSSC 33 Date: 20230201 Docket: Hfx , No. 500238 Registry: Halifax Between: His Majesty the King v. Philip Hickey Sentencing Decision Judge: The Honourable Justice Christa M. Brothers Heard: February 1, 2023, in Halifax, Nova Scotia Counsel: Jill Hartlen and Maile Graham-Laidlaw, for the Crown Patrick Atherton, for Mr. Hickey By the Court: Overview [ 1 ] Mr. Hickey was charged on what became a one count indictment. The indictment charged him as follows: On or about November 14, 2018, at or near Dartmouth, Nova Scotia, Phillip Hickey did unlawfully possess a substance included in

Schedule 1 of the Controlled Drugs and Substances Act , to wit: cocaine, for the purpose of trafficking contrary to Section 5(2) of the Controlled Drugs and Substances Act , S.C. 1996, c. 19 . [ 2 ] Mr. Hickey was found guilty of possession of cocaine for the purposes of trafficking in my decision R. v. Hickey, 2022 NSSC 235 . This is the sentencing decision in relation to that conviction. The following is the background to the charge and conviction. [ 3 ] A kilogram of cocaine was found in the offender’s garage, inside a “shop vac”.

He denied knowledge of the cocaine and provided viva voce evidence that other people had access to his home. Mr. Hickey was originally charged alongside multiple co- accused. He advanced a Charter application to exclude evidence, including the evidence obtained via a search of his home. Mr. Hickey’s rationale for exclusion was that the evidence had been obtained in breach of his co-accused’s Charter rights. As stated in R. v. Colegrove, 2022 NSSC 132 : 315 Phillip Hickey has filed an application for relief that depends on the outcome of Mr. Colegrove's application. He submits that if the court finds that Mr.

Colegrove's Charter rights were breached and that the Donnacona interceptions should be excluded from evidence at Mr. Colegrove's trial, it would bring the administration of justice into disrepute if the Crown were permitted to use the same evidence against him. Mr. Hickey submits that without the Donnacona interceptions, there is no evidence connecting him to Mr. Colegrove. 316 Mr. Hickey seeks one of two remedies: (1) an order excluding any and all unlawfully obtained evidence as a consequence of any violations of the Charter against either Mr. Colegrove or Mr.

Hickey; or (2) an order staying the proceedings against him on the basis that it would be an abuse of process to permit the Crown to rely on evidence that has been found to have been obtained in breach of his co-accused's constitutional rights.

[ 4 ] While the Donnacona interceptions were excluded as evidence against Mr. Hickey, a stay of proceedings was denied and the matter proceeded to trial. [ 5 ] I concluded my decision convicting Mr. Hickey as follows: 112. There is no other rational conclusion other than that Hickey was in constructive possession of the cocaine, and furthermore, that he possessed the cocaine for the purposes of trafficking. A one-kilogram brick of cocaine with an 89% purity level is not for personal use. The purity and quantity prove beyond a reasonable doubt that the cocaine was possessed for the purpose of trafficking.

I reject Hickey’s meagre attempts to feign a lack of knowledge of these items in his home. I do not accept what seemed to be an attempt to advance a third-party suspect defence. As the Court of Appeal stated in R. v. Ritch and Sparks, 2022 NSCA 52 : 158 When the defence of third party suspects is advanced at trial, the question for the trier of fact is whether, on the evidence as a whole, the possible involvement of the third party raises a reasonable doubt about the guilt of the accused. All third party suspect evidence needs to do is raise a reasonable doubt. 113.

The Court of Appeal continued at para 160: The claim that another individual perpetrated the offence, raising a reasonable doubt about the accused's involvement, may be "overwhelmingly defeated by the evidence pointing to the accused as the perpetrator". Offender’s position [ 6 ] Mr. Hickey maintains that an appropriate sentence for this offence is a sentence of two years less one day, to be served as a conditional sentence. The offender argues that such a punishment would be sufficient to ensure the purpose and principles of sentencing are met, while respecting the pro-social ties he has with his community.

Crown’s Position [ 7 ] The Crown submits that, given the quantity of drugs involved and the clear evidence of sophistication such as the encrypted cellphone, Mr. Hickey was involved in the drug trade as more than a petty retailer. The Crown has consistently attempted to categorize Mr. Hickey as a mid to upper-level drug trafficker. The Crown submits that Mr. Hickey should be sentenced to six-seven year custodial sentence. [ 8 ] The Crown argues that Mr. Hickey’s circumstances do not support a conditional sentence order. Mr. Hickey has a lengthy related record that requires specific deterrence.

He was found in possession of a kilogram of high purity cocaine. He possessed a specialized encrypted phone that indicated entrenched participation in the drug trade. Wanting to provide for one’s family does not detract from the seriousness of the offence. There is no evidence that there was any coercion, duress or any other motivation besides profit. The Crown relies on R. v.

White, 2020 NSCA 33 , wherein the Nova Scotia Court of Appeal recognized that “the primary goal of sentencing in ‘hard drug’ cases … is to protect our community by the application of strong measures intended to denounce and deter” (para. 119). Circumstances of the Offender/ Pre-Sentence Report [ 9 ] I turn to Mr. Hickey’s circumstances, which were canvassed in the pre-sentence report prepared on October 26, 2022. [ 10 ] Mr. Hickey is 57 years of age. Mr. Hickey is described as having a normal upbringing.

While he has three siblings (two sisters and one brother), he is not close with any of them. [ 11 ] The offender is currently single. His first wife passed away and they had no children together. His relationship with Ms. Slade in 2001 resulted in the birth of his daughter, Amy, who is currently 19 years of age. His daughter remains very supportive of him and is aware of the current conviction. The two have a very close relationship speaking daily and see each other every week. She described him as an extremely caring and thoughtful father.

The following is an excerpt from the pre-sentence report summarizing some of what Amy Hickey said about her father: Ms. Hickey feels her father is too consumed with her well-being and he worries about being able to provide for her. She explained her mother does not have much money and her father feels the responsibility to make up the difference so she can have a better upbringing than he did. Ms. Hickey said her father may have an issue with gambling and thinks he does it as another way to obtain more money to help her financially.

She expressed her father is a genuinely caring person who has made some poor decisions with the thought he is helping his family. [ 12 ] In 2010, Mr. Hickey was married to Ms. Armstrong. The marriage ended in 2013. Ms. Armstrong was contacted for the purposes of the pre-sentence report. She maintains a close relationship with Mr. Hickey, who she has known for 38 years. She reported that their relationship ended due to Mr. Hickey’s legal troubles at the time. Contrary to the offender’s rendition, Ms. Armstrong advised that Mr.

Hickey had a difficult upbringing and believes counselling may be beneficial for him to address trauma from his childhood. She disclosed that Mr. Hickey neither drinks nor uses illicit drugs. She reported that Mr. Hickey’s daughter is very important to him, and he does whatever he can do to help support her. [ 13 ] Mr. Hickey obtained his GED from the New Brunswick Community College in 1998, while serving time in the Dorchester Penitentiary. The highest grade he completed in public school was grade eight. While Mr. Hickey enjoyed school, he found it very difficult once he reached grade eight. [ 14 ] Mr.

Hickey is currently employed as an environmental worker with Rhyno Environmental Services. He began employment there in September 2000, and is a full-time employee. Ms. Val Mannette, who is employed in Human Resources at Rhyno Environmental Services, was contacted and confirmed the details of Mr. Hickey’s employment. She advised that the company considers Mr. Hickey a

valuable employee. Mr. Hickey earns approximately $50,000 a year from this employment. [15] Mr. Hickey reported that he is in good physical health but does have a diabetes diagnosis and thyroid issues for which he isprescribed medication. Mr. Hickey disclosed no concerns with his mental health. He gambles as a form of entertainment, playing tvbingo weekly and using VLT machines. Mr. Hickey spends approximately $250.00 a month on gambling, but does not feel it is aproblem. He does not have much of a peer base and spends a lot of his time alone or with his daughter. [16] Mr.

Hickey was described as polite and cooperative throughout the interview. He indicated that he took responsibility forplacing himself in this situation. The report notes, however, that “he was upset about the criminal investigation, court process andoutcome.” [17] The writer of the pre-sentence report, probation officer John Currie, noted that Mr. Hickey was previously under a conditionalsentence order which commenced on March 30, 2015. In particular, the pre-sentence report states the following: This writer supervised Mr.

Hickey on a two years less a day Conditional Sentence Order which commenced on March 30, 2015, forCDSA 5(2) and expired on March 29, 2017. Reporting was consistent throughout the order. Mr. Hickey was in compliance with HouseArrest and Curfew when Halifax Regional Police conducted their checks. He was employed full-time for Rhyno Environmental Servicesthroughout the order. No concerns during the supervision period with no new criminal charges and no breaches. Based on thissupervision period, Mr.

Hickey would be a suitable candidate for future community supervision. [18] The report states as follows with regards to the assessment of community alternatives: The subject reported he is willing to follow through with any recommendations made to him by the Court. Should the Court deem aperiod of Community Supervision as a viable option, the supervising Probation Officer may conduct a more complete analysis todetermine any modes of intervention that would be beneficial to the subject. There does not appear to be any barriers preventing Mr.Hickey with participating in Community Service Work.

Mitigating Factors [19] Overall, Mr. Hickey’s PSR is very positive. He has held full-time employment since 2000. He has a strong relationship with hisdaughter and appears to be a very caring and doting father. These are mitigating factors. Mr. Hickey is obviously someone who is notbeyond rehabilitation. He has loving and supportive relationships and important reasons to make different decisions. In his comments tothe court, Mr. Hickey acknowledged that in that last few years, the death of his mother, his father’s ailing heath and his daughtergrowing from a young teenager to a young woman have all impacted him.

He says he knows that there is more to life than his pastdecisions. His young daughter is in court with him today supporting Mr. Hickey. [20] The defence argues that one of the mitigating circumstances in this case is that Mr. Hickey has been “on strict conditions ofrelease”. The courts have considered pre-sentence release conditions when fashioning a fit and appropriate sentence. In R. v. Gibbons,2018 NSSC 202, the court, relying on Lever v. The Queen, 2014 SKCA 58, reviewed when and how pre-sentence release conditionsshould be considered at sentencing: 66. In Lever v.

The Queen, 2014 SKCA 58, Chief Justice Richards provided a concise

summary of the key factors in determiningwhat effect pre-sentence release conditions should have, if any, on the determination of an appropriate sentence: [9]… the extent to which the terms and duration of pre-sentence release might mitigate a sentence is something which falls to bedetermined according to the discretionary judgement of the sentencing judge. See, for example: R. v. Nghiem, 2009 BCCA 170 at para.11; R. v. Dragos, 2012 ONCA 538, 291 C.C.C. (3d) 350 at para. 84.

That said, the cases also reveal a number of principles which guidethe exercises of a trial judge’s discretion in relation to this issue. [10] First, pre-sentence release should not be seen as the necessary equivalent of pre-sentence custody and it obviously does notautomatically reduce what would otherwise be a fit sentence. See, for example: R. v Walsh, 2011 ONCA 3254 at para. 10; R. v. Voeller,2008 NBCA 37, N.B.R. (2d) 143 at para. 21. [11] Second, pre-sentence release does not generate sentencing “credits” in the same way as pre-sentence custody.

Rather, it is one ofmany potentially mitigating factors to consider when formulating an appropriate sentence. See, R. v. Irvine, 2008 MBCA 34, [2008] 6W.W.R. 438 at para. 27; R. v. Knockwood, 2009 NSCA 98, N.S.R. (2d) 156 at para. 33; R. v. Nghiem, supra at para. 16. [12] Third, the harsher and more burdensome the pre-sentence release conditions, the more likely they are to have a valid mitigatingeffect.

The factors to be taken into account in this regard include (but are not limited to) the length of time spent on release, thestringency of the release conditions, and the impact of those conditions on the offender’s ability to carry on normal personalrelationships, employment and the like. See, for example, R. v. Irvine, supra at para. 29. [13] Fourth, and speaking generally, time spent on pre-sentence release can reduce an otherwise appropriate sentence only if it involvesmeaningful hardship or important limitations on the offender’s liberty.

Those kinds of impacts should be clearly explained ordemonstrated to the sentencing judge. Scott C.J.M. said this in R. v. Irvine, supra: 30 While the accused’s counsel referred on a number of occasions at the sentencing hearing and before this court to the “strict” terms ofbail constituting “effectively house arrest”, no further details with respect to any alleged undue hardship were provided. For bailconditions to be considered as a mitigating factor they must impose significant custodial and penal attributes. As this court said in R. v.Higgins, 2001 MBCA 177, 160 Man.

R. (2d) 105 (Man C.A.), when the terms “merely mimic the conditions of ordinary life for theaccused … [they] do not contain any punitive sanction” (at para.17), nor do they if the “house arrest required duplicates the hours whenmost working people are at home in any case” (at para. 20). See also: R. v. Knockwood, supra at par. 34; R. v. Kane, 2012 NLCA 53 , 325 Nfld. & P.E.I.R. 78 at para. 36; R. v. Ijam, 2007

ONCA 597 (CanLII, 226 C.C.C. (3d) 376 at para. 29. [ 21 ] In R. v. Gibbons , supra , the accused’s pre-sentence release conditions consisted of an 18-month period of full house arrest. Those conditions and their effect were described at para. 67: Mr. Gibbons was under a period of full house arrest subject to conditions that permitted him to attend for necessary medical programming and treatment, to meet with legal counsel and otherwise to fulfill his legal responsibilities. He has also been permitted to attend to his personal needs when accompanied by his mother for four hours a week.

I am told that she was not always available to allow him to exercise this option. These conditions constituted a significant limit on his liberty. They would be stringent conditions on a Conditional Sentence Order, which the courts accept has, when imposed as a penalty, penal consequences that address issues of deterrence.

In saying this, I am not equating the calculation of pre-sentence restrictions on liberty with the effects of a conditional sentence order. [ 22 ] The court concluded that a nine-month mitigation of sentence was appropriate, given the imposed conditions significantly inhibited the offender’s ability to carry on ordinary and everyday activities. The defence suggests that Mr. Hickey deserves mitigation of two years, in recognition of the lengthy period he has spent subjected to strict pre-sentence release conditions. [ 23 ] A review of the conditions applicable to Mr.

Hickey since his arrest on November 13, 2018, belies the suggestion that they are strict. On November 20, 2018, Mr. Hickey agreed to his release on the condition that he abide by a curfew and be in his residence from 11:00 pm to 5:00 am each day. Other conditions included that he remain in Nova Scotia, report by telephone once per week to the RCMP, and that he turn in his passport. Additionally, he was not to associate with any co-accused or unindicted co-conspirators at the time. In November 2019, Mr. Hickey requested a variation of his release conditions to permit an exception to his curfew for employment.

The Crown consented to the variation. Mr. Hickey’s curfew remained in place for 28 months until April 1, 2021, at which time the curfew condition was removed. In May 2022, the Crown agreed that Mr. Hickey could leave the province to travel to Moncton with his daughter. In addition, in October 2022, the Crown agreed that Mr. Hickey could have an exception from the condition prohibiting him from contact with Frank Osso so that he could attend Mr. Osso’s wedding. [ 24 ] Mr. Hickey’s conditions were such that he could effectively live a normal life day to day.

The situations in which courts have reduced sentences to account for strict pre-sentence conditions usually involve total house arrest and drastic curtailment in liberties. Below I have reproduced a helpful chart prepared by the Crown summarizing the case law on the type of pre-sentence conditions and circumstances that have been held to require sentence reductions: CASE RELEASE CONDITIONS SENTENCE REDUCTION NOTES R v Gibbons , 2018 NSSC 202 (included with Mr. Hickey’s material) Strict House arrest for 18 months 9 months Justice Duncan found that the conditions: “significantly limited the ability of Mr.

Gibbons to carry on ordinary and everyday activities that others regularly enjoy” Lever v the Queen, 2014 SKCA 58 (included with Mr. Hickey’s material) 47 days in custody followed by 11 months (prior to guilty plea) of release conditions: live with grandparents, stay in a particular town; curfew 7 pm to 6 am, subject to electronic monitoring None Sentencing judge refused to give credit.

Court of Appeal agreed with sentencing judge and said the key point for sentencing judges to consider is: the harshness of the release terms and the extent to which they affect liberty: “… time spent on pre-sentence release can reduce an otherwise appropriate sentence only if it involves meaningful hardship or important limitations on the offender’s liberty. Those kinds of impacts should be clearly explained or demonstrated to the sentencing judge.” (para 13)

R. v. Nghiem 2009 BCCA 170 “…the accused was under quite strict conditions of house arrest for a period of one year, and under only somewhat less stringent conditions also involving house arrest, for a further period of approximately seven months.

He also spent 82 days in actual custody.” (para 17) The trial judge did not give the accused any specific credit for his time under strict house arrest (para 19) None Court of Appeal held that it was within the sentencing judge’s discretion to not give credit for time spent on bail conditions and that pre-trial bail conditions (adherence to) should arguably be considered a mitigating factor not a factor that gets a formulaic reduction in sentence the way pre-trial custody can… R v Knockwood 2009 NSCA 98 19 months “house arrest type conditions” with an exception for employment None After canvassing the approaches taken in other provinces on this issue (paras 28-32), our Court of Appeal held: [33] From these authorities I will take the present state of the law to be such that the impact of strict release conditions may be considered or “put into the mix”, together with all other mitigating factors, in arriving at a fit sentence. [34] Assuming that to be so, I would conclude that the impact of the particular conditions of release upon the accused must be demonstrated in each case.

That is, there must be some information before the sentencing court which would describe the substantial hardship the accused actually suffered while on release because of the conditions of that release… Our Court of Appeal found no error on the part of the sentencing judge who did not give any mitigating credit for the conditions of release: “The sentencing judge was asked to infer from the conditions themselves, without more, that the appellant had suffered hardship, which then ought to be taken into account as a mitigating factor.

In my opinion the mere reference to the terms of pre-trial release will not satisfy the onus to demonstrate actual hardship as a result of those pre-trial conditions. I see no error on the part of the sentencing judge” (para 36).

R v Arsenault 2022 NSSC 325 House arrest from August 2019 to November 2022 (except for 1 year spent in custody during that time) None Justice Norton did not give any credit for pre-trial release conditions finding he had no evidentiary foundation to support the claim of hardship: [19] There was no additional information provided to me about the extent of the hardship alleged to have been caused by the release conditions. I am not satisfied that the offender has demonstrated the impact of any particular condition of release as amounting to substantial hardship.

R v MacDermid 2022 NSPC 38 2 years and 3 months of release conditions. The release conditions became more stringent after the alleged commission of another offence. Variations were made along the way. “the order has not been one of unrelenting restriction” (para 41) None per se . However, the sentencing judge factored it in, in a “limited way”, in situating the sentence at the lower end of the range (para 42). Judge Atwood distinguished Mr. MacDermid’s case from Gibbons. Judge Atwood was not satisfied that there was “an evidentiary basis that would support a reduction of sentence”.

R v Higgins , 2011 MBCA 177 *the issue in this case was the conditions of a CSO – this case does not deal with pre-trial release conditions* The final year of a CSO had a curfew of 10pm [11pm for the final 6 months] during the work week and window of time on Sunday that Mr. Higgins was permitted to leave his house. N/A “For the last six months of the sentence, the curfew during the week is 11:00 p.m. and there is no curfew at all on Sunday until 6:00 p.m. One would suppose that an individual of 50 would normally be in his house at 10:00 or 11:00 p.m. during his workweek” (para 17).

An external observer would have had trouble determining that the accused was serving any sentence at all (para 20). [ 25 ] I also refer and rely on R. v. Simmonds 2021 NSSC 54 wherein Arnold, J. commented that curfews in the range of 10:00 pm to 7:00 am are generally consistent with the hours when most working people are at home in any event. [ 26 ] Mr. Hickey has not presented any evidence that the release conditions to which he was subject caused him any “meaningful hardships or important limitations on liberty”.

I understand from his evidence that the random police checks during the first year interfered with his sleep. I understand he could not spend time with Mr. Osso as he would have liked. However, he was able to attend Mr. Osso’s wedding and the Crown agreed to that variation. In fact every variation requested was agreed to by the Crown. While Mr. Hickey says he missed spending time going on trips with his daughter and going to hockey games, he did not ask for a variation to accommodate this. I accept the conditions had an impact on him and his family.

However, I do not accept that the impact rose to the level where a reduction in sentence is called for. He has not demonstrated that his release conditions limited his ability to carry on normal personal relationships or employment. In fact, Mr. Hickey’s pre-sentence report demonstrates the contrary. Aggravating Factors [ 27 ] Pursuant to s. 10(2)(

b) of the CDSA there is a requirement to consider the offender’s prior designated substance offences as aggravating in nature. Furthermore, the nature of the illicit drug, that is cocaine, and the quantity of the drug, being one kilogram, in Mr. Hickey’s possession is obviously serious and requires consideration as an aggravating factor. [ 28 ] Mr. Hickey has prior criminal convictions for trafficking and possession for the purpose of trafficking. The following is a

summary of his prior convictions. Offence Offence Date Date of Sentence Sentence

Possession of cocaine for the purpose of trafficking Possession of marihuana for the purpose of trafficking Possession of resin February 23, 2012 March 30, 2015 Guilty plea, joint recommendation, CSO – 2 years less a day concurrent for all three charges. Carry a concealed weapon March 6, 1998 March 25, 1998 4 months consecutive Fail to comply with recognizance June 28, 1996 – June 8, 1997 March 25, 1998 2 months consecutive Possession of a prohibited weapon March 4, 1998 March 25, 1998 4 months consecutive Traffick in

Schedule I substance March 4, 1998 March25, 1998 2 years concurrent to above Traffick in

Schedule I substance March 3, 1998 March 25, 1998 2 years concurrent to above Traffick in

Schedule I substance September 19, 1997 March 25, 1998 2 years consecutive to the five years below Possession of narcotic for purpose of trafficking August 9, 1995 March 25, 1998 5 years Assault Mischief under $5000 March 19, 1997 October 29, 1997 12 months probation Personation with intent x 2; Possession of property obtained by crime June 5, 1992 90 days intermittent each – concurrent 1 day and 1 year probation Robbery x 2 December 6, 1985 4 years custody each, concurrent to each other Theft over $200 Damage to property March 31, 1983 6 months; 1 month B & E March 10, 1983 2 years custody Theft under $200 March 2, 1983 60 days B & E and theft Attempt B & E with intent December 9, 1982 2 days on each Theft under $200 May 21, 1982 2 years probation [ 29 ] Mr.

Hickey has a related criminal record. He has been convicted of similar offences and sentenced to periods of incarceration for those offences. Law and Analysis [ 30 ] The offender was convicted under s. 5(2) of the Controlled Drug and Substances Act which states as follows: Possession for the purpose of trafficking 5(2) No person shall, for the purpose of trafficking possess a substance included in

Schedule I, II, III, IV or V. [ 31 ] Possession for the purpose of trafficking in cocaine, a

Schedule 1 drug, exposes as offender to a maximum sentence of life in prison. [ 32 ] I start by reviewing the general principles of sentencing. The general purpose and principles of sentencing are found in s. 718 of the Criminal Code , which states: 718. The fundamental purpose of sentencing 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 that have one or more of the following objectives: (

a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary;

(

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. … Fundamental principle 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Other sentencing principles 718.2 A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing, (

i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or gender identity or expression, or on any other similar factor, (ii) evidence that the offender, in committing the offence, abused the offender’s intimate partner or a member of the victim or the offender’s family, (ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years, (iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim, (iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation, (iii.2) evidence that the offence was committed against a person who, in the performance of their duties and functions, was providing health services, including personal care services, (iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization, (

v) evidence that the offence was a terrorism offence, (vi) evidence that the offence was committed while the offender was subject to a conditional sentence order made under

section 742.1 or released on parole, statutory release or unescorted temporary absence under the Corrections and Conditional Release Act , and (vii) evidence that the commission of the offence had the effect of impeding another person from obtaining health services, including personal care services, shall be deemed to be aggravating circumstances; (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (

c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders. [ 33 ] I have considered s. 718 with regards to denunciation, deterrence, and rehabilitation, and I refer also to

section 718.1, which provides that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

Section 718.2 identifies other specific sentencing principles which must be considered, including the following: 1. The sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender (s. 718.2(a)); 2. The sentence should be similar to sentences imposed on similar offenders for similar offences, committed in similar circumstances (s. 718.2(b)); 3. An offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances (s. 718.2(d)); and, 4.

All available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders (s. 718.2(e)). [ 34 ] Any sentencing hearing requires a careful consideration of the unique circumstances of each offender and the offence. It requires the balancing of sentencing objectives.

[35] Our courts have regularly accepted that trafficking in

Schedule I drugs such as cocaine is not a victimless crime, but rather asource of “insidious harm” to our communities (R. v. Butt, 2010 NSCA 56; R. v. Scott, 2013 NSCA 28; R. v. Downey, [1989] N.S.J. No.368 (C.A.)). Over the years, our Court of Appeal has used strong language to describe the damage inflicted by trafficking cocaine,including “deadly and devastating…ravages lives”, “ruinous to our communities”, “crippling to our society” (See R. v. Butt, supra, para.13; R. v. Scott, supra, para. 94; R. v.

Downey, supra, page 3). [36] There is a 30-year history of jurisprudence from the Nova Scotia Court of Appeal consistently and repeatedly emphasising theextremely serious nature of cocaine trafficking offences. Consequently, denunciation, deterrence and protection of the public have beenthe focus and paramount objectives when sentencing for trafficking in substances like cocaine. [37] In R. v. Butt supra, the successful appeal was advanced in relation to a 3.5 year sentence imposed after a guilty plea to onecount of possession of cocaine for the purpose of trafficking contrary to s. 5(2) of the CDSA.

The offender was found in possession oftwo 1 kilogram bricks of cocaine. The offender was 35 years at the time. He had previous convictions spanning a twenty-year period,resulting in both custodial and non-custodial sentences. He pleaded guilty. The Court of Appeal said the following about the seriousnessof an offence involving trafficking and possession for the purpose of trafficking in cocaine: I would agree with the Crown that cocaine has consistently been recognized by this Court as a deadly and devastating drug that ravageslives.

Involvement in the cocaine trade, at any level, attracts substantial penalties (see, for example, R. v. Conway, 2009 NSCA 95; R. v.Knickle, 2009 NSCA 59; R. v. Steeves, 2007 NSCA 130; R. v. Dawe, 2002 NSCA 147; R. v. Robins, [1993] N.S.J. No. 152 (Q.L.)(C.A.); R. v. Huskins, [1990] N.S.J. No. 46 (Q.L.)(C.A.); and R. v. Smith, 1990 NSCA 4 , [1990] N.S.J. No. 30 (Q.L.)(C.A.)).

Itis significant that the CDSA classifies cocaine as one of the drugs for which trafficking can attract a life sentence. [38] In allowing the appeal and imposing a five year sentence, the Court of Appeal took the following circumstances into account: 1. The drug involved was cocaine; 2. The substantial amount of the drug (two kilograms); 3. Mr. Butt’s lengthy prior record, including drug convictions; and, 4. The need for deterrence both general and specific. [39] The bulk value of the cocaine in R. v. Butt, supra was between $70,000 and $100,000, with a street value of twice that amount.

The bulk value of the cocaine found in Mr. Hickey’s home was valued by Sgt. Nelson at between $50,000 - $65,000. When cut, thestreet value rose to between $90,000 and $120,000. [40] In R. v. Carvery, (NSCA), the court noted that “[t]rafficking in crack cocaine is a crime so corrosive to thesocial fabric that sentences must reflect deterrence above all other considerations, even when the offender … has no previous record”(page 6).

In this older case, a three-year sentence was increased to five years for trafficking in crack cocaine. [41] In fashioning a fit and appropriate sentence, I must ensure that the sentence is proportionate to the gravity of the crime and theoffender’s culpability in committing it. In drug cases, the degree of the offender’s moral culpability is reflected by the type and amountof the drug involved, and the offender’s level of involvement in the business of drug trafficking. In R. v.

Shields, 2014 NSPC 69, at para.37, Judge Derrick, as she then was, discussed the various categories of traffickers: The categorizations set out by the Nova Scotia Court of Appeal in R. v. Fifield, [1978] N.S.J.

No. 42 continue to be relevant.The Fifield Court identified an escalating list of traffickers: “...the isolated accommodator of a friend, the petty retailer, the large retaileror small wholesaler, or the big-time operator.” The Court went on to note: “The categories respectively have broad and overlappingranges of sentence into which the individual offender must be appropriately placed, depending on his age, background, criminal record,and all surrounding circumstances.” (Fifield, paragraph 10) [42] R. v. Heickert, 2020 NSPC 9, Judge Hoskins (as he then was) sentenced Mr.

Heickert to five years in custody for his role inselling 4 kilograms of cocaine to an undercover officer (three transactions in total over several months; 1 kilogram; 1 kilogram; and, 2kilograms). Mr. Heickert had a minor and unrelated record. Judge Hoskins agreed that the established range for trafficking of single-digitkilograms of cocaine is 4 to 8 years. There were several significant mitigating factors in Mr. Heickert’s case. Judge Hoskins concludedthat although these factors did not warrant a departure from the established range of sentencing, they did justify a sentence at the lowerend of the range.

But for the significant mitigating factors, Judge Hoskins would have imposed a much higher sentence. Mr. Hickey doesnot have the types of mitigating factors that were present in Heickert, like the offender’s meritorious desire to assist and care for hisdisabled son. Unlike Mr. Hickey, Mr. Heickret He pleaded guilty, accepting responsibility for the offences. He had also sustained seriouspersonal injury which would cause additional hardship during is incarceration. [43] Through the course of the trial, there was evidence concerning the nature of the trafficking involved in this matter.

Given thequantity of the cocaine found, the encrypted cell phone, passwords for the phone, and the empty packaging materials, Mr. Hickey wasnot a petty retailer but at the least a mid-larger retailer or small wholesaler. In R. v. Kleykens, 2020 NSCA 49, the court, at para. 50,reviewed cases that went beyond “petty retailing” and fell within the larger retailer or small wholesaler category.

This is a succinctsummary that I have reviewed and rely on: Compounding the judge’s failure to properly situate the respondent’s offences in the hierarchy of drug trafficking crimes was his failureto consider any number of leading cases in Nova Scotia involving offenders whose trafficking crimes went beyond “petty retailing” andfell within the “larger retailer or small wholesaler” category. Simply to illustrate the point I refer to: • R. v. Fifield, - 7 pounds of hashish, 8 pounds of marihuana - wholesaler or large retailer - related priorrecord - 2 months increased to 2 years imprisonment;

• R v. Carvery, (NSCA) - 6.5 ounces/184g of cocaine - high level retailer - no prior record - 3 yearsincreased to 5 years imprisonment; • R. v. O'Toole, (NS CA)- 2043g cannabis resin (estimated street value $140,000) - "quantity of cannabisresin seized is far in excess of that which would classify the respondent as a petty retailer. The quantity bespeaks that of a wholesaler or aretailer on a large scale …" - no prior record - 12 month sentence increased to 2 years imprisonment; • R v.

Smith, 1992 NSCA 73 - 28.75g crack cocaine, 372g powder cocaine - "upper end of the scale as a retailer" - minorunrelated prior record - 2.5 years increased to 5 years imprisonment; • R v. Stokes, 1993 NSCA 195 - sold approximately 6 ounces of cocaine to undercover officers - "more than a petty retailer"- lengthy prior record - 7 years imprisonment; • R. v. McCurdy, 2002 NSCA 132 - 500 plant marihuana grow-op - "commercial distributor" - dated unrelated prior record -18 month conditional sentence increased to 3 years imprisonment; • R. v.

Jones, 2003 NSCA 48 - 4.6 kg marihuana - large retailer or small wholesaler - "the typical range of sentences for smallwholesalers or large retailers, the people on the third of the four rungs of the ladder identified in Fifield, is two to five years’incarceration." - related prior record - 18 month conditional sentence increased to 3 years imprisonment; • R v. Steeves, 2007 NSCA 130 , 2007 NSCA130 - 77g cocaine, 100 ecstasy pills - "amounts in his possession were….sufficient to take him outside the lower categories of drug traffickers described in R v.

Fifield" - minor unrelated prior record - 2 yearconditional sentence increased to 2.5 years imprisonment; • R. v. Knickle, 2009 NSCA 59 - approximately 11 ounces of cocaine - "placed in the higher retail level ofthe Fifield categories" - no prior record - 2 year conditional sentence increased to 3.5 years imprisonment; • R. v. Conway, 2009 NSCA 95 - 103g crack cocaine, 264g marihuana - "mid to high level retailer" - 65 year old with noprior record - 2 year conditional sentence increased to 2.5 years’ incarceration; • R. v.

Leblanc, 2019 NSSC 192 - 210g (7 ounces) cocaine - street value of between $16,800 - $21,000, over $6000 cashseized - "firmly within category 3 Fifield (large retailer) - related prior record - 5 years imprisonment; • R. v. White, supra – mid-level drug trafficker – lengthy prior record – combined weight of cocaine and crack cocaine was6.5 ounces – four years for cocaine possession increased to 5 years imprisonment (and 6 years for the fentanyl conviction increased to 8years, to be served concurrently). [44] In R. v.

Chevrefils, 2019 NSPC 16, Judge Buckle reviewed a plethora of caselaw, noting that sentences involving traffickingand possession of cocaine for the purposes of trafficking at the kilogram or single digit multikilogram level are typically in the range of 4to 8 years. Availability of a Conditional Sentence [45] I am asked by Mr. Hickey to impose a conditional sentence. A conditional sentence is a legislatively available with regards toan offence under s. 5(2) of the CDSA.

Section 742.1 of the Criminal Code governs the availability of conditional sentences. The sectionhighlights a number of requirements that must be satisfied for a conditional sentence to be available and they include: (1) the sentence is less than two years in duration; (2) the safety of the community would not be endangered; (3) the sentence upholds the objectives and principles articulated in s. 718-718.2 of the Criminal Code; (4) the offence does not carry a mandatory minimum sentence of imprisonment; and (5) the offence does not fall within the offences articulated in s. 742.1(c)-(d). [46]

Section 742.1 states: Imposing of conditional sentence 742.1 If a person is convicted of an offence and the court imposes a sentence of imprisonment of less than two years, the court may, forthe purpose of supervising the offender’s behaviour in the community, order that the offender serve the sentence in the community,subject to the conditions imposed under

section 742.3, if (

a) the court is satisfied that the service of the sentence in the community would not endanger the safety of the community and would beconsistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2; (

b) the offence is not an offence punishable by a minimum term of imprisonment; (

c) the offence is not an offence under any of the following provisions: (

i) section 239, for which a sentence is imposed under paragraph 239(1)(b) (attempt to commit murder), (ii)

section 269.1 (torture), or

(iii)

section 318 (advocating genocide); and (

d) the offence is not a terrorism offence, or a criminal organization offence, prosecuted by way of indictment, for which the maximumterm of imprisonment is 10 years or more. (e) [Repealed, 2022, c. 15, s. 14] (f) [Repealed, 2022, c. 15, s. 14] [47] The court in R. v. Proulx, 2000 SCC 5 , [2000] 1 S.C.R. 61, Lamer, C.J. said the following about the nature of aconditional sentence: 22 The conditional sentence incorporates some elements of non-custodial measures and some others of incarceration.

Because it isserved in the community, it will generally be more effective than incarceration at achieving the restorative objectives of rehabilitation,reparations to the victim and community, and the promotion of a sense of responsibility in the offender. However, it is also a punitivesanction capable of achieving the objectives of denunciation and deterrence.

It is this punitive aspect that distinguishes the conditionalsentence from probation, and it is to this issue that I now turn. [Emphasis in original] [48] He went on to summarize the proper approach for determining whether a conditional sentence is available: [58] ... In my view, the requirement that the court must impose a sentence of imprisonment of less than two years can be fulfilled by apreliminary determination of the appropriate range of available sentences. Thus, the approach I suggest still requires the judge toproceed in two stages.

However, the judge need not impose a term of imprisonment of a fixed duration at the first stage of the analysis.Rather, at this stage, the judge simply has to exclude two possibilities: (

a) probationary measures; and (

b) a penitentiary term. If either ofthese sentences is appropriate, then a conditional sentence should not be imposed. [59] In making this preliminary determination, the judge need only consider the fundamental purpose and principles of sentencing set outin ss. 718 to 718.2 to the extent necessary to narrow the range of sentence for the offender. ... [49] The defence relies on R. v. Provo, 2001 NSSC 189, in support of a conditional sentence. In this case, the offender wasconvicted of trafficking in crack cocaine. He was 25 years of age, with 16 previous offences. Mr.

Provo sold an undercover officer .67grams of crack cocaine. The offender was not involved in this transaction because he was supporting his drug addiction. The transactionwas purely for monetary gain. There was a very positive pre-sentence report. During the last few years, the offender had been operatinghis own business and he had solid family support and was living in a stable relationship. The court was focused on the pre-sentencereport and the likely loss of his business through a period of federal incarceration.

The court stated the following: [10] With that background and in light of the very positive pre-sentence report, the Court as is often the case, is faced with a dilemma.If the Court orders federal time under the direction of Huskins, supra then I find from the facts that clearly Mr.

Provo will lose hisbusiness which will not only affect him directly, it will affect his dependants, his common-law spouse and will very seriously jeopardizethe positive steps he has taken in the past couple of years to turn his life around. [11] Thus, if he loses his business through a period of federal incarceration, then the risk becomes very real that he will re-engage inthe type of criminal activity that he was engaged in prior to two years ago. This may provide indirectly a very serious risk to the public.

On that basis this case may very well be considered an exception to the Huskins case as was determined in numerous other cases sinceHuskins including R. v. Talbot (unreported, judgment of Kelly, J. released May 28, 1999, Cr. 146445) and R. v.

Robins, [1993] N.S.J.No. 152. [12] At the same time if a term of federal incarceration is not imposed, then the danger will be that the community will receive thewrong message vis à vis general deterrence. [13] I resolve this dilemma by directing a community sentence that will contain strict punitive terms; terms that will reflect as muchas possible a period of institutional incarceration while at the same time allowing Mr.

Provo to keep his business and hopefully tocontinue to be a positive member of the community. [14] I have reached this conclusion because the appropriate disposition, in light of the pre-sentence report and in light of Mr.Provo’s business, is a sentence of less than two years. [50] The court found that the offender had made significant positive changes in his life and was no longer a threat to thecommunity. In my view, the offender’s circumstances in R. v. Provo are not comparable to those of Mr. Hickey. [51] Nor are Mr. Hickey’s circumstances comparable to the offenders in R. v. Messervey, [2004] N.S.J.

No. 520 (Prov. Ct.), and R.v. Coombs, 2005 NSSC 90 , [2005] N.S.J. No. 158 (S.C.), who were both given conditional sentences. These decisions weresummarized in R. v. Knickle, 2009 NSCA 59: [21] The accused in Messervey was 21 years old, had no prior record, and over a period of four days acted as a courier deliveringsmall amounts of cocaine for which he received no share in the profit.

In the two years between the date of the offence and thesentencing he had abided by the terms of his release and commenced an employment training course, all of which led the sentencingjudge to conclude that there were exceptional circumstances justifying a two-year less a day conditional sentence. [22] In Coombs the 29 year old defendant pled guilty to trafficking in 50 grams of crack cocaine. The judge found that he was a“middle-man” in the transaction who had been approached by a police agent who sought to purchase cocaine in order to get closer to thetarget of a drug investigation. Mr.

Coombs had a very positive pre-sentence report and the offence was found to be out of character. He

was remorseful and had been subject to strict conditions of release including house arrest for 2 1⁄2 years pending sentencing. [ 52 ] Over the years, the caselaw has developed concerning when a court can justify departing from the normal sentencing range for trafficking in cocaine. In R. v.

Scott , 2013 NSCA 28 , Beveridge J.A., for the majority, reiterated that federal sentences are common for cocaine trafficking: [20] It is certainly common for sentences of federal incarceration to be imposed where the offender has a significant prior record, or there are aggravating features such as larger quantities of the drug, involvement beyond a mere petty retailer, or the offence occurred in relation 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 . [ 53 ] However, Beveridge J.A. rejected the Crown proposition that federal incarceration is mandatory unless an offender can demonstrate exceptional circumstances: [53] There is no question that this Court has long stressed the need to emphasize deterrence and denunciation for those that traffic in cocaine, and depending on the circumstances of the offence and of the offender, may well mean that a sentence of federal incarceration is called for.

With all due respect, what I cannot accept is that these or any other cases make a federal prison term mandatory – to be avoided only if an offender can demonstrate “exceptional circumstances”. [ 54 ] More recently, in R. v. Livingstone ; R. v. Lungal ; R. v. Terris , 2020 NSCA 5 , the court said the following for ranges of sentences for

Schedule I trafficking: [8] The range of sentence in Nova Scotia for

Schedule I trafficking offences is typically a custodial sentence of two years or more: ( R. v. Butt , 2010 NSCA 56 ; R. v. Conway , 2009 NSCA 95 ; R. v. Knickle , 2009 NSCA 59 ; R. v. Steeves , 2007 NSCA 130 ; and R. v. Dawe , 2002 NSCA 147 ). [9] A deviation from a sentencing range is not an error in principle unless it "departs significantly and for no reason from the contemplated" range ( R. c. Lacasse , 2015 SCC 64 , para67). In other words, as succinctly stated by Green, J. of the Ontario Court of Justice in R. v.

McGill , 2016 ONCJ 138 : [46] The weight of appellate authority clearly favours sentences of incarceration, and often lengthy ones, for cocaine trafficking . Non- custodial dispositions represent a departure from this general rule. Accordingly, and independent of any statutory direction, a court bears a common law obligation to demonstrate, through its reasons, that a community-supervised sentence honours the recognized purposes and principles of sentencing in the individual case [Underlining by Farrar J.A.] [ 55 ] In that case, the three offenders were all charged with possession with intent to traffic a

Schedule I substance contrary to s. 5(2) of the CDSA. All three pleaded guilty to the offence. Although acknowledging that the circumstances of each of the offenders was different, Judge Atwood imposed the same sentence; a suspended sentence with three years’ probation for each of the respondents. The Crown appealed the three sentences on the basis that the judge erred in principle in imposing the sentence or the sentences were demonstrably unfit. [ 56 ] On appeal, only the appeal of Ms. Lungal’s sentence was dismissed. Ms.

Lungal had a total of a 105 methamphetamine pills in her possession for the purpose of trafficking. She was coping with a substance abuse problem that dated back to her teens. The Court of Appeal’s reasons for dismissing the sentence appeal were as follows: [26] With respect, I am not satisfied that the sentencing judge erred in his

interpretation and application of the applicable principles of sentencing or that Ms. Lungal’s sentence is otherwise demonstrably unfit or manifestly inadequate. [27] The sentencing judge outlined in detail the general sentencing principles ( 2018 NSPC 61 at ¶31-49). He clearly appreciated the principles and purposes of sentencing. He did not overemphasize the principles of restraint and rehabilitation. He acknowledged the seriousness of methamphetamine trafficking offences.

He did not minimize the seriousness or the gravity of the offence. [28] Judge Atwood considered the factors, which I have identified from the case law, where the sentence was suspended. He identified the following mitigating factors with respect to Ms.

Lungal: • low level addict retailer; • petty retailing in small quantities; • participating in a dial-a-dope operation due to financial difficulties and pressure from intimate partner; • lesser involvement then co-accused partner; • troubled upbringing including drug use at a young age; • addict relatively young (37 years of age); • first time offender; • timely guilty plea; • expression of remorse and understanding of responsibilities;

• excellent rehabilitative prospects; • no charges since arrest; and • compliance with strict release conditions including house arrest. [29] It was reasonable for the sentencing judge to determine that the mitigating factors outweighed the aggravating factors. [30] It was unnecessary to incarcerate her for specific deterrence, and the potential augmentation of general deterrence did notwarrant imprisonment (¶136, 137). [31] Finally, he found that imposing a sentence that would allow Ms.

Lungal to remain in the community would have a number ofpositive effects on her rehabilitative progress. [32] Rehabilitative progress is a key consideration as described by Clayton C. Ruby, Gerald J. Chan, and Nader R.

Hassan in Sentencing, 8th ed. (Markham, Ont: LexisNexis, 2012) at 1139: §23.784 Where the offender’s participation in moderate- to low-level cocaine trafficking is seen to result partly from drug dependency,brief incarceration or non-custodial sentences may be imposed when the offender shows potential to overcome the habit. [...] For low-level cocaine trafficking, weight will be given to evidence demonstrating that the offender wishes to reform his life, whether or not he isan addict [citations omitted]. [33] In addition, Ms.

Lungal has continued to make remarkable strides following her arrest in overcoming addiction issues that shehas been dealing with her entire adult life. This Court received a post-sentence report and letters of support from her employer, for whomshe has worked in a fulltime position since May 13, 2019.

She continues with rehabilitation to overcome her drug addiction. [57] As to the other two offenders, also deemed to be “petty retailers”, the Court of Appeal substituted sentences of 18 months’incarceration, but concluded that it was in the interests of justice to stay the imposition of those sentences. [58] There is no question that sentencing judges are given discretion and flexibility in order to consider the particular circumstancesof the offender and offence. While similar offences to those committed by Mr.

Hickey usually attract federal penitentiary terms, that isnot to say that in appropriate cases, depending on both the circumstances of the offence and the offender, that a lesser sentence would beunfit. [59] The question, then, is whether I can conclude, based on the guiding sentencing principles, the case law, and the circumstancesof this offender and this offence, that a sentence of less than 2 years is fit and appropriate. In my view, the answer is no.

This is despitethe mitigating factors, the prospects of rehabilitation, the pre-sentence report and the favourable comments therein concerning Mr.Hickey being a suitable candidate. [60] While federal sentences are not mandatory in drug trafficking cases, and some offenders have received sentences of less thantwo years, Mr. Hickey’s circumstances and the circumstances of his offence do not support a departure from the general rule favouringsentences of incarceration, and often lengthy ones, for cocaine trafficking. [61] As I sentence Mr.

Hickey, I bear in mind the Supreme Court of Canada’s comments at para. 53 in R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089: …the fact that each crime is committed in unique circumstances by an offender with a unique profile cannot be disregarded. Thedetermination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purely mathematical calculation. Itinvolves a variety of factors that are difficult to define with precision.

This is why it may happen that a sentence that, on it’s face, fallsoutside a particular range, and that they never have been imposed in the past for a similar crime, is not demonstrably unfit. Once again,everything depends on the gravity of the offence, the offenders degree of responsibility in the specific circumstances of each case. [62] While Mr. Hickey is gainfully employed and does have some stable and supportive relationships, he continues to return totrafficking in drugs. He has abided by his release conditions and tells the court he is ready to change and make different decisions.

Imust consider all the offender’s personal antecedents and put the present offences into that context in crafting a sentence whichunderscores the principle of restraint. One of the things to consider is fashioning a sentence which will promote self-rehabilitation andprotect the public in the long-term. [63] The fact that Mr. Hickey is gainfully employed is a relevant consideration, however. I take into account the comments bySaunders J. A. in R. v. Chase, 2019 NSCA 36, at para. 37: In its submissions the Crown says Mr.

Chase’s personal circumstances are insufficient to qualify for leniency and attract a softsentence. I agree that finding a job and providing some financial support for a pregnant girlfriend are, in and of themselves, hardlyenough to entitle a convicted cocaine trafficker to a “break” on sentence.

Such efforts, while laudable, should be expected. [64] Furthermore, Saunders, J.A stated the following with regards to appropriate sentencing for those who traffick in cocaine at para48: From all of this it can be said with certainty that nothing has changed this Court’s repeated and consistent warning that deterrence anddenunciation will continue to be the primary objectives when sentencing persons who choose to traffic in cocaine, and that convictionswill normally attract a federal prison term.

However, that does not mean that in an appropriate case, depending upon the particularcircumstances of the offence and the offender, a lesser sentence cannot be imposed. [65] In Kleykens, the court found the fact that the offender may lose his job as a result of the imposition of a lengthy period of

incarceration must not take precedent over the sentencing objectives of deterrence and denunciation. The court imposed a sentence of two-years imprisonment, acknowledging that that was at the lowest end of range of sentences based on the level of the offender’s trafficking operation. [ 66 ] Mr. Hickey’s prior record in these circumstances speaks to the need for greater emphasis on specific deterrence. The nature of the offences are serious requiring planning and forethought. Mr.

Hickey made a conscious and deliberate choice to engage in the offence, and to traffick in a large quantity. [ 67 ] Hoskins, J. as he then was in R. v. Heickert , supra, reviewed a variety of cases where the courts has stressed the importance of deterrence and denunciation for offences involving the trafficking of cocaine. In particular, Justice Hoskins said at para. 51: As previously mentioned, trafficking in cocaine is a very serious offence as reflected by Parliament’s imposition of a maximum sentence of life imprisonment.

Indeed, the Nova Scotia Court of Appeal has repeatedly stated, for more than 25 years (at least since 1984), that persons involved in trafficking in

Schedule 1 offences will be subject to sentences of incarceration. For example, in R. v . Steeves , 2007 NSCA 130 , at para. 18 , the Court stated: [18] This court has been steadfast in emphasizing that deterrence is a primary consideration in sentencing for drug offences. In R. v . Robins , [1993] N.S.J. No. 152 (C.A.) , Chief Justice Clarke stated at p. 1: . . . The position of this court, repeated in many of our decisions since Byers, is that there are no exceptional circumstances where cocaine is involved.

We are persuaded that general deterrence must be prominently addressed if the public is to be protected from the nefarious trade that has developed in this drug that is so crippling to our society. [ 68 ] While I am also mindful of the principle of restraint, which underlies the provisions of s. 718 of the Criminal Code ., in the present case there must be a strong emphasis on the principles of denunciation and deterrence. Denunciation and general deterrence often find their expression in the length of the jail term imposed. This sentence must attempt to discourage Mr.

Hickey, through specific deterrence, as well as deter other potential offenders from committing similar offences. The sentence must signal a strong condemnation of this type of behavior. [ 69 ] In sentencing for drug offences, characterizing the degree of the offender’s culpability is reflected by the type and amount of drug involved, and the level of involvement in the drug trade. I would not classify Mr. Hickey as a “petty retailer”, given the large quantity and the purity of the cocaine located in his constructive possession. I consider Mr.

Hickey to be a small wholesaler or mid to large level retailer. [ 70 ] There has been no indication that Mr. Hickey was selling to support his own habit, or because there were certain mitigating personal circumstances. Quite the opposite, he suggests he is not an abuser of illicit drugs and is gainfully employed.

There is no evidence of any motivation other than greed and the chance to profit from a commercial operation selling illicit and dangerous drugs. [ 71 ] The evidence at trial demonstrated the offence required considerable premeditation and planning, which included the use of a sophisticated encrypted cellphone. [ 72 ] A sentence less than two years would be demonstrably unfit and would not in any way support a meaningful consideration of the objectives of denunciation and deterrence.

Conclusion [ 73 ] Given the offender’s prior record, the level of sophistication, the amount and the purity of the cocaine, and taking into consideration the positive pre-sentence report, I have concluded that a fit and appropriate sentence is 4 years incarceration.

Ancillary Orders [ 74 ] The Crown also requests the following ancillary orders: • Lifetime weapons prohibition order pursuant to s. 109 of the Criminal Code ; • DNA order pursuant to s. 487.05 of the Criminal Code ; • Forfeiture order for the items seized. [ 75 ] The lifetime weapons prohibition order is mandatory, and I grant this order. [ 76 ] The DNA order is discretionary.

However, in the circumstances, I have no difficulty granting the order and the defence does not oppose this order. [ 77 ] The items seized which the Crown seeks forfeited include: • All controlled substances and packaging seized, including specifically: o One kilogram brick of cocaine (from the attached garage at 5518 Stoneham Court); o Used packaging consistent with two more kilograms of cocaine (from the attached garage at 5518 Stoneham Court); o 12 pills of fentanyl analogue (from Mr. Hickey’s person) • Containers with false bottoms (from inside the residence);

• Hard plastic box with magnets attached (from inside the residence); • Piece of paper with password, instructions, and emails on it (from inside the residence/kitchen); and, • Encrypted Samsung phone accessed through the use of the password (from inside the residence). [ 78 ] The defence agrees. I grant this forfeiture order. [ 79 ] Mr. Hickey, I expect this time will be difficult not only on you but on your loved ones and, in particular, on your daughter, who obviously supports and cares for you.

I hope when your time is served that you are able to maintain a life free from any further connection to the drug trade, not only for yourself, but especially for your young daughter. I am certain that she deserves for you to make better decisions and for you to ensure you are present for her. Brothers, J.