R. v. Cuvelier, 2024 NSSC 28

SUPREME COURT OF Nova Scotia Citation: R. v. Cuvelier , 2024 NSSC 28 Date: 20240123 Docket: CRH No. 523082 Registry: Halifax Between: His Majesty the King v. Jacob Thomas Cuvelier SENTENCING DECISION Judge: The Honourable Justice Christa M.

Brothers Heard: October 23, 24 and 25, November 8, 2023 and January 5, 2024, in Halifax, Nova Scotia Oral Decision: January 23, 2024 Written Decision: January 25, 2024 Counsel: Leonard MacKay, David Schermbrucker and Terri Lipton for the Crown Hanna Garson for Jacob Cuvelier By the Court: OVERVIEW [ 1 ] For over 30 years, the courts in Nova Scotia have expressed their revulsion for the offence of trafficking in cocaine and, while sentencing for this offence, have rightfully emphasized denunciation, deterrence and protection of the public.

The usual sentence where the offender is a low-mid level retailer has been a federal sentence of anywhere between two to seven years.

[ 2 ] Over the years, there have been some outliers to this range. These cases have involved younger offenders (18-19), petty retailers, offenders who trafficked to fund their own addictions, and those without a related criminal record. Provincial sentences of less than two years have been ordered. I acknowledge, however, that they are not the norm. [ 3 ] Following amendments to the Criminal Code in November 2022, a Conditional Sentence Order (“CSO”) is once again a legally permissible sentence for the offence of conspiracy to traffic in cocaine. Mr.

Cuvelier’s case requires this court to decide whether his mitigating circumstances and remarkable efforts at rehabilitation warrant consideration of a sentence of less than two years and, if so, whether that sentence can be served in the community. [ 4 ] It has been said that sentencing, a highly individualized process, is one of the most difficult challenges faced by trial judges. Mr. Cuvelier’s case has been an exceptionally challenging one. BACKGROUND [ 5 ] Mr. Cuvelier has pled guilty to the following two charges: 1.

He did conspire together with [C.M.] and [C.D.] to commit the indictable offence of trafficking in a controlled substance, to wit, cocaine, a substance included in

Schedule I of the Controlled Drugs and Substances Act , contrary to section 5(1) of the Controlled Drugs and Substances Act , an offence contrary to Section 465(1) (

c) of the Criminal Code ; 5. On or about December 9, 2020, at or near Halifax, in the Province of Nova Scotia, did have in his possession property, to wit: Canadian currency of a value exceeding five thousand dollars knowing that all or part of the property was obtained by the commission in Canada of an offence punishable by indictment, contrary to section 354(1) (

a) of the Criminal Code ; [ 6 ] An Agreed Statement of Facts was entered into evidence. The Agreed Statement of Facts gave an overview of the RCMP Federal Serious and Organized Crime Unit’s investigation of “mid-to-high level” cocaine trafficking in Halifax and surrounding areas. While Mr. Cuvelier was not an initial target of the investigation, he came to the attention of the investigators on September 1, 2020, after they were able to put a probe in his supplier’s vehicle. Intercepted conversations revealed that Mr. Cuvelier and his supplier, “C.M.”, considered themselves to be partners.

According to the Agreed Statement of Facts, however, Mr. Cuvelier “was clearly lower in the conspiracy - at a low-mid rank of the broader organization targeted by the RCMP investigation”. Intercepts from September 1 to December 4, 2020 demonstrate that Mr. Cuvelier, C.M. and C.D. conspired to traffic cocaine, with C.M. supplying the two others. A takedown occurred on December 9, 2020 with the police executing Controlled Drugs and Substances Act (" CDSA ") Search Warrants. [ 7 ] The Crown sought to call wiretap evidence to supplement the Agreed Statement of Facts.

The Defence consented to the admission of most of the intercepts by way of a formal Admission of Wiretaps for Sentencing document dated November 8, 2023. The Defence objected, however, to the admission of four of the intercepts the Crown wished to rely on. On December 6, 2023, I rendered an oral decision admitting one of those intercepts, identified as session 1074. [ 8 ] Not all of the amounts of cocaine trafficked can clearly be established by the intercepts, but it is agreed that the intercepts clearly demonstrate the conspiracy to traffic 700 grams of cocaine.

This is not an insubstantial amount and certainly engages the principles of denunciation and deterrence. [ 9 ] As a result of the takedown on December 9, 2020, the police seized the following items: • $8,000 cash bundled in elastic bands found inside a handgun case; • $800 in elastic bands in Christmas cards; • An iPhone; • A digital scale. [ 10 ] A search of another Halifax location resulted in the seizure of: • A safe found in a basement crawlspace that police accessed through a trap door, containing: o $30,400 cash; o Tupperware with a white substance; o a small electronic scale. • Information related to a safety deposit box at the TD Bank which was later searched and found to contain $40,040 of Canadian currency and $20 in US funds. • $325 cash and a cell phone found on Mr.

Cuvelier's person. Defence Position [ 11 ] The Defence maintains that a 24-month (less a day) CSO is appropriate for conspiracy to traffic cocaine in the particular circumstances of this offence, and a 12-month CSO, running concurrently, for possessing the proceeds of crime. The 24-month less a day CSO would be followed by 24 months of probation. [ 12 ] The Defence looks for what they characterize as “stringent” house arrest, with exceptions for employment and volunteering commitments, along with the usual exceptions for personal care and medical and legal appointments. The Defence also asks that Mr.

Cuvelier be permitted to attend the birth of his second child. [ 13 ] Given that Mr. Cuvelier lives with his common-law spouse, the Defence says it would be difficult to police people coming into the house and there should therefore be no restriction on visitors. Crown Position [ 14 ] The Crown rightly maintains that Mr. Cuvelier made a deliberate choice to traffic in cocaine and was motivated solely by profit. The offence was not an isolated incident or the product of a momentary lapse in judgment. Mr. Cuvelier was not trafficking to feed his own addiction. Put simply, he was motivated by greed. Mr.

Cuvelier was entrenched in trafficking and part of the conspiracy. The Crown also maintains, and I accept, that the offence is very serious, with Mr. Cuvelier conspiring to traffic and trafficking at least 700 grams of cocaine. His moral blameworthiness is high. [ 15 ] In light of Mr. Cuvelier’s circumstances, and taking into account his guilty plea, the Crown suggests that a four-year sentence is a fit and proper sentence for the conspiracy to traffic cocaine offence.

With regard to the possession of proceeds of crime, the Crown maintains that a one-year sentence, consecutive to the sentence for conspiracy, is a fit and proper sentence. Applying the totality principle, the Crown submits that the sentence for conspiracy should be reduced to three years, resulting in a total sentence of four years. [ 16 ] The Crown rejects the Defence’s argument that this is an appropriate case for a CSO. The Crown distinguished the facts of Mr. Cuvelier’s case from those in R. v.

Rushton, 2017 NSPC 2 , where an offender received a suspended sentence after pleading guilty to multiple drug-related offences, including possession of cocaine for the purpose of trafficking. The Crown noted that Rushton involved a youthful offender who fell within the “petty retailer” category and who was struggling with his own addiction issues. The Crown added that the offender in Rushton had turned his life around to an even greater degree than Mr. Cuvelier. The Crown submitted that if Mr.

Cuvelier was a youthful offender with addiction issues who had made significant efforts to rehabilitate himself, a CSO would be appropriate. But those are not the facts. [ 17 ] The Crown advised that it now participates in joint recommendations for CSOs in appropriate cases, but there is no room for a CSO in a case involving the conspiracy to traffic 700 grams of cocaine by a low-mid level retailer. In fact, the Crown says, the four-year sentence it is recommending would fall below the usual range established by the case law. [ 18 ] The Crown fairly addressed the issues in this case.

It acknowledged the challenge of fashioning an individualized sentence that gives proper effect to competing, and sometimes antagonistic, sentencing principles and objectives. It conceded that Mr. Cuvelier’s case is a particularly difficult one and that he has “made a spectacular effort to reform himself.” The Crown argued that the Court must concern itself with two things - the protection of the public and the need to craft a fit and appropriate sentence for the circumstances of the offence and the offender.

Admission of Expert Evidence [ 19 ] The Defence submits that I should admit and rely on the purported expert evidence of Dr. Anthony N. Doob, Professor Emeritus of Criminology at the University of Toronto. The Defence proposes to qualify Dr. Doob “to provide expert evidence with respect to the causal relationship between harsher sentences and general deterrence, and between carceral sentences and specific deterrence.” [ 20 ] There is no question that Dr. Doob is a respected expert in the field of criminology.

In 1984, he was appointed by the Government of Canada to serve as a member of the Canadian Sentencing Commission. Although he described himself as “officially retired”, Dr. Doob remains involved in several criminology-related activities, including as a member of a panel established by the Minister of Public Safety on the replacement of solitary confinement in federal penitentiaries. [ 21 ] The Crown concedes that Dr. Doob has impressive qualifications in the area of criminology and sentencing policy.

His research conclusions have been accepted in committee proceedings before Parliament and by the Supreme Court of Canada in relation to mandatory minimum sentences ( R. v. Nur , 2015 SCC 15 ). In Nur , the majority held that the mandatory minimum sentences imposed by s. 95(2) (a)(

i) and (ii) of the Criminal Code violated s. 12 of the Charter . As part of the

section 1 analysis, the majority considered whether the mandatory minimum sentence provisions were rationally connected to the goals of denunciation, deterrence, and retribution. Citing Dr. Doob, the majority noted that “[t]he empirical evidence ‘is clear: mandatory minimum sentences do not deter more than less harsh, proportionate, sentences’” (para. 114). [ 22 ] The thrust of the evidence sought to be introduced by the Defence through Dr.

Doob is as follows: • Increasing the harshness of a sentence (e.g., imposing imprisonment where non-prison or community sanctions are an option) will not increase the deterrent impact of the sentence; • Increasing the severity of the sentences will not reduce the likelihood that the person being sentenced will commit another offence.

Some research suggests that increasing severity of sentence (prison versus community sanction) increases the likelihood that a person will reoffend; • There are collateral harmful impacts of imprisonment on offenders and their loved ones. [ 23 ] For example, the abstract to Anthony N. Doob and Cheryl Marie Webster. “Sentence Severity and Crime: Accepting the Null Hypothesis” (2003), 30 Crime & Just. 143, states: The literature on the effects of sentence severity on crime levels has been reviewed numerous times in the past twenty-five years.

Most reviews conclude that there is little or no consistent evidence that harsher sanctions reduce crime in Western populations. Nevertheless, most reviewers have been reluctant to conclude that variation in the severity of sentence does not have differential deterrent impacts. A reasonable assessment of the research to date - with a particular focus on studies conducted in the past decade - is that sentence severity

has no effect on the level of crime in society. It is time to accept the null hypothesis. [24] Essentially, Dr. Doob opines that the empirical research does not support the use of deterrence-based sentencing. [25] The Nova Scotia Court of Appeal summarized the framework for admitting expert evidence in R. v. Pearce, 2021 NSCA 37, atpara. 260: The framework for admitting expert evidence is set out in White Burgess. The threshold requirements to be met for the admission ofD/Sgt.

Isnor's evidence were: (1) relevance; (2) necessity; (3) absence of an exclusionary rule; and (4) a properly qualified expert. [26] The Defence has established the third and fourth threshold requirements - Dr. Doob is a properly qualified expert and there isno exclusionary rule. But is his evidence relevant and necessary to assist the trier of fact? [27] The Defence, at page 3 of its brief dated October 17, 2023, says Dr. Doob’s evidence is relevant for the following reasons: Dr.

Doob's expert opinion addresses the causal relationship between harsher sentences and general deterrence, and between carceralsentences and specific deterrence. The capacity of a sentence to achieve its intended purposes is a priority of this Honourable Court.Thus, that harsher and custodial sentences do not accomplish general, nor individual deterrence is a fact in issue. The proof or disproof ofthis fact, and understanding this proof or disproof, is indispensable to the central determination of what sentence will best accomplish thepurposes and principles of sentencing in the case of Jacob Cuvelier, pursuant to

section 718 of the Criminal Code. [Emphasis added] [28] I cannot agree that whether harsher and custodial sentences accomplish general or specific deterrence is a fact in issue in thisproceeding. The Court’s task is to determine a fit sentence, taking into account the circumstances of the offence and this particularoffender. In making that assessment, I am bound to apply the sentencing provisions of the Criminal Code, including s. 718, whichrecognizes general and specific deterrence as valid sentencing objectives.

I am also bound by the directions of the Nova Scotia Court ofAppeal, which has repeatedly emphasized that in sentencing for trafficking in cocaine, the primary considerations are denunciation anddeterrence and that, in many cases, giving effect to these objectives requires a lengthy period of imprisonment. In other words, the Courtof Appeal, through its sentencing decisions, has repeatedly accepted that harsh sentences have a generally deterrent effect. It is not opento this Court, in sentencing Mr. Cuvelier, to ignore these directions.

That said, the Supreme Court of Canada and our Court of Appealhave previously acknowledged that “[t]he empirical evidence suggests that the deterrent effect of incarceration is uncertain” and that“[d]oubts concerning the effectiveness of incarceration as a deterrent have been longstanding” (R. v. Proulx, 2000 SCC 5 ,[2000] 1 S.C.R. 61, at para. 107; R. v. Nur, supra, at para. 113; R. v. Anderson, 2021 NSCA 62, at para. 151). [29] For these reasons, I am not satisfied that Dr. Doob’s evidence is relevant to the Court’s task.

It inevitably follows that Dr.Doob’s evidence is not necessary to assist the trier of fact. The evidence is inadmissible. [30] If I am wrong and the evidence should be admitted, it would not change the outcome of my decision. On cross-examination,Dr. Doob conceded that there is no empirical data on whether offenders who commit offences requiring significant planning andforethought, like white collar crimes or drug trafficking, are susceptible to general deterrence. I would therefore not feel comfortableapplying Dr. Doob’s null hypothesis in sentencing Mr. Cuvelier for conspiracy to traffic in cocaine.

Circumstances of the Offender/Pre-Sentence Report [31] I turn to Mr. Cuvelier’s circumstances which were canvassed in the Pre-Sentence Report prepared on November 4, 2023, aswell as in a number of letters filed in support of Mr. Cuvelier. [32] Mr. Cuvelier is now 30 years of age. He was 26 at the time of his arrest. He is currently in a relationship with ShavonteParsons, with whom he shares a seven-year-old son. The couple are expecting another child in May 2024. [33] Mr. Cuvelier has described having a normal and supportive upbringing. He has no siblings.

Although his parents divorcedwhen he was five years old, Mr. Cuvelier said he had a very good childhood and spent time between his mother’s and father’s respectivehouseholds. He described them as having been very supportive and great parents to him. He said he was never subjected to physicaldiscipline as a child. Mr. Cuvelier reported that his mother was not much of a disciplinarian and his father would discipline him bygiving him a stern talking-to and taking away privileges. [34] Growing up, Mr. Cuvelier was involved in a band and played sports.

He said he was a good child and that his parents strived toraise him as a positive member of society. [35] Mr. Cuvelier reported that his life took a negative turn in high school, when he was the victim of two random and significantacts of violence. These incidents led him to associate with negative influences as a means of protecting himself, which in turn led to himbecoming involved in anti-social behaviours. [36] In 2012, Mr. Cuvelier attended Acadia University. He described having anger management issues which he attributed to theviolent incidents he experienced in high school.

It was around this time that Mr. Cuvelier met Shavonte Parsons. The two began arelationship and had their son, who is now seven years of age. While the relationship ended for a period of time, they continued to stayclose and co-parent together. They resumed their relationship a year and a half ago. They are expecting their second child and Mr.Cuvelier reported that Ms. Parsons is a very strong support system for him. [37] Both of Mr. Cuvelier’s parents were contacted and gave information for the Pre-Sentence Report. His mother, Mrs.MacGregor, said Mr. Cuvelier did not have any behavioural issues while growing up.

She said he was bullied in junior high and highschool, which she said “was awful.” Around this time, Mrs. MacGregor noticed a change in Mr. Cuvelier’s behaviour. She said he wasfrightened and began to surround himself with negative influences for protection. She believed that these individuals fed Mr. Cuvelier’sego in a negative way, which led him to make poor decisions. She also suspected that Mr. Cuvelier’s lack of siblings left him searching

for a sense of belonging. Mrs. MacGregor said Mr. Cuvelier became secretive and vigilant and refused to listen to his parents’ disapproval of his friend group. He was angry and reactive, which resulted in his having a “rough” relationship with his parents during high school and college. Ms. MacGregor reported that her relationship with Mr. Cuvelier has improved immensely; they speak often and enjoy a close and supportive relationship. Mrs. MacGregor is very supportive of her son and “admires him for the progress he has made as a father, partner, son and business man”. [ 38 ] Ms.

Parsons was contacted for the Pre-Sentence Report. She confirmed that she and Mr. Cuvelier have been back together for over a year and described it as being a “good, healthy, simple” relationship. She noted that Mr. Cuvelier has shown significant growth as a partner and father to their son. He no longer has issues with substance abuse or anger management. Ms. Parsons confirmed that Mr. Cuvelier addressed his anger through counselling and has shown great improvement in his communication. Ms. Parsons has witnessed Mr. Cuvelier's positive relationship with his parents.

She noted that she “is very worried about the subject being incarcerated as Mr. Cuvelier has made efforts to no longer associate with negative influences and she believes being surrounded by negative influences may impact Mr. Cuvelier’s growth.” [ 39 ] Mr. Cuvelier graduated from Acadia University in 2017 with a Bachelor of Arts in Political Science. Currently, Mr. Cuvelier owns Cuv’s Cookin’, a meal prepping service. The business began as a pop-up kitchen over two years ago. Mr. Cuvelier had previously been employed by reachAbility, but he was let go due to his criminal charges.

As a result of losing his employment, he decided to pivot the business from a pop-up kitchen to a meal prepping service. His business has been registered since January 2023 and serves roughly 500-600 meals per week to 60-70 clients. Mr. Cuvelier reported employing seven employees: three cooks and four drivers. Mr. Cuvelier said he takes home between $11,000 to $14,000 per month after taxes. In his Pre-Sentence Report, Mr. Cuvelier is noted to have said: I can't stress enough how crucial this business has been to our family's stability.

It started as just an outlet for me to stay out of trouble, now it is literally the financial engine that powers our family unit, it allows my son's mother to focus solely on school and could be something I pass down to my son … [ 40 ] Mr. Cuvelier was previously employed as a program coordinator at reachAbility from June 2020 until June 2021. Mr. Cuvelier started off by attending an anger management program and was offered a position as a coordinator. He created a program called “Hello Reach”, in which he taught cooking skills to people with disabilities and other barriers. Before working with reachAbility, Mr.

Cuvelier was employed as an Admissions Recruiter at Maritime Business College from July 2019 to May 2020 but was laid off as a result of COVID. [ 41 ] Mr. Dicks, an employee of Cuv’s Cookin’, provided information to the probation officer for the Pre-Sentence Report. He has been employed by Mr. Cuvelier for one and a half years as a sous chef. They have been friends for 25 years. Mr. Dicks described Mr. Cuvelier as “a very good friend and employer who treats everyone with respect.” [ 42 ] While Mr.

Cuvelier does not have any formal mental health diagnosis, he said his current therapist believes he may have post- traumatic stress disorder connected to the two assaults he suffered while he was in high school and the subsequent violent deaths of some of his friends. [ 43 ] Mr. Cuvelier has past substance abuse issues. He advised that after two of his closest friends were murdered, he developed heavy drinking and marijuana smoking habits. He advised that he has neither consumed alcohol nor smoked cannabis since 2021. [ 44 ] Mr.

Cuvelier is in weekly counselling with Robert Payne and attends a 7th Step Society for two hours every Tuesday evening. He advised that the 7th Step Society has been very helpful for him to take accountability for his actions. It has helped him to humanize people with addictions and have remorse towards others. Through his participation in the program, he has witnessed the harm that drug trafficking and addiction wreaks on the lives of real people. He plans to stay involved with the community long-term. He has been learning and taking responsibility in these meetings.

He has been provided with support and given support to others. [ 45 ] Mr. Cuvelier’s current therapist, Mr. Payne, was contacted by Probation Services for the Pre-Sentence Report. Mr. Cuvelier has attended virtual counselling sessions since February 1, 2023. Mr. Payne explained that he and Mr. Cuvelier have spoken extensively about how Mr. Cuvelier has been affected by bullying and his gravitation toward “tough guys” as a form of validation. He noted that he believes Mr. Cuvelier is suffering from post-traumatic stress disorder. [ 46 ] Mr.

Cuvelier has been involved in volunteer work and plans to continue his involvement going forward. He has been invited to speak and has spoken at multiple schools, connecting with 300 children in the last year through the 7th Step Society. He also volunteers by sitting down one-on-one with young offenders to speak to them about his past in an effort to share the lessons he has learned from his own trauma. He has been invited to speak at Woodlawn, Halifax West, Citadel and Sackville high schools and to speak to a first-year class at the Schulich School of Law.

He has cooked and provided meals for the homeless, as well as for kids at the IWK in partnership with Blue Olive restaurant owner Jimmy Zelios. He recently began volunteering with the Youth Advocate Program where he hopes to create programming for at-risk youth to help them learn skills relating to cooking, boxing, and anger management. [ 47 ] The Executive Director of the 7th Step Society, Steven Deveau, reported that Mr. Cuvelier has been attending the 7th Step Program for approximately two years. He is a very active and consistent member who is highly regarded and respected. Mr. Deveau indicated that Mr.

Cuvelier has been a positive asset to the peer support meetings as he is very open and honest about his own actions and struggles. Mr. Deveau confirmed that Mr. Cuvelier is a good public speaker who regularly speaks to junior high and high school students as a representative of the 7th Step Society. Mr. Deveau noted that Mr. Cuvelier is currently a contributing member of the community and is living a pro-social life. [ 48 ] Jimmy Zelios has known Mr. Cuvelier for 18 years. He confirmed that Mr. Cuvelier volunteers with him to provide meals to the IWK pediatric hospital and the Oxford School on occasion. Mr.

Zelios described Mr. Cuvelier as a “good kid” who has made mistakes in the past but is trying to give back to the community now. [ 49 ] The Pre-Sentence Report contained the following “offender profile”:

Mr. Cuvelier presented himself in a very mature, polite and personable manner when reporting for his Pre-sentence Report and was very co-operative. Mr. Cuvelier appears to be confident and noted he believes his strengths are being a great father, being a leader and public speaking. Regarding his weaknesses, Mr. Cuvelier noted he can be very self-critical and anxious. Mr. Cuvelier does accept responsibility for the offence and stated at the time he wanted money and wanted to be a part of something which would make him feel "respected and tough." Mr.

Cuvelier stated he did not believe he could be financially successful elsewhere and stated in retrospect, he was mainly influenced by his own greed. Mr. Cuvelier noted he is very upset at the impact his offences has had on his family as well as feeling a great deal of remorse for the community. The subject stated participating in the 7 Steps Program has opened his eyes to the impact which addiction has on others and he is very remorseful for contributing to the issue. Mr.

Cuvelier does appear to be genuine in his comments. [ 50 ] This was a robust report with many people being contacted to provide information on Mr. Cuvelier’s current circumstances. Mitigating Factors [ 51 ] It is without question that Mr. Cuvelier’s Pre-Sentence Report is extremely positive. He has held full-time employment with a successful entrepreneurial venture for the last year and a half. He has strong relationships with his common-law partner, his son and his parents. He also enjoys a tremendous amount of support from the community, including members of the 7th Step Society.

I found the level of support for Mr. Cuvelier to be impactful and noteworthy. There were many letters of support prepared and submitted by community members. From the 7th Step Society, these included the Executive Director and three volunteer core group members. There were also letters from multiple teachers who attested to the impact of Mr. Cuvelier's public speaking at various high schools. These 13 letters of support were all exhibited on the sentencing.

I will not be able to review them all in great detail in this decision; however, I will highlight several relevant portions. [ 52 ] One of the support letters is from Sarah Coley, Manager of the Youth Advocate Program (“YAP”). She described YAP as a municipal crime prevention program that works with youth aged 9 through 15, who are engaging in or at high risk of engaging in criminal activity. YAP’s goal is to increase the capabilities of youth, families and communities through advocacy, connections to community resources, and service provision.

YAP offers intensive and integrated interventions to prevent youth from being charged with future crimes. [ 53 ] One of the interventions offered to youth through YAP is education around the negative impacts of engaging in anti-social behaviour. The following is an excerpt from Ms. Coley’s letter: We have connected with Jacob through his community work in schools and through the 7th Step Society of Nova Scotia. His passion and commitment to mentoring young people is clear and his willingness to share his lived experience is an asset to the community.

I believe that the youth in our program would benefit from connecting with a mentor like Jacob. In conversation with Jacob, it became clear that he had various skills to offer in addition to his willingness to share his story. We are developing programming in collaboration with our staff team to offer opportunities for youth to engage in pro-social, employment, and recreational programs though which Jacob could connect with the youth. Our hope is that these programs would start in the new year and be offered across HRM.

Each of these programs would be offered in multiple locations and Jacob has committed to volunteering his time to support these sessions. There is a need in the community for youth to engage with positive role models who can connect them to pro-social life skills and who can educate them on the negative impacts of anti-social behaviour. [ 54 ] The programming that YAP intends to develop with Mr. Cuvelier includes an introduction to boxing, cooking classes, as well as anger management support.

These programs would provide meaningful support and connection for youth in their time of need and hopefully prevent any future involvement with the criminal justice system. [ 55 ] The letter of support from Robert Payne, the licensed counselor and social worker who has been working with Mr. Cuvelier, provides additional detail about the circumstances which led to Mr. Cuvelier becoming involved in an anti-social lifestyle: Mr. Cuvelier and I have discussed the impact on him of being small for his age. Bullying and physical intimidation followed him from elementary school to junior high.

This caused what is best described as a "reaction formation." This is a defense mechanism to cover anxiety and feelings of inadequacy. He sought out the tough guys in high school to feel protected, accepted and hide his fear. At age 16 he was attacked, robbed and stabbed by a group. In another incident, his best friend died in his arms after being shot. All these events resulted in Mr. Cuvelier developing Post Traumatic Stress Disorder, PTSD. Mr. Cuvelier still exhibits some of the classic symptoms of PTSD: hypervigilance, difficulty sleeping and is easily startled.

In the ten months we have been working together, Mr. Cuvelier has made significant progress addressing these issues. [ 56 ] Another letter of support is from Felix A. Cacchione, in his capacity as a volunteer core group member of the 7th Steps Society of Nova Scotia. Mr. Cacchione has been a core group member of the Society since 2018 and has known Mr. Cuvelier since 2022, when Mr. Cuvelier first began attending the Society’s weekly meetings. [ 57 ] In his letter, Mr.

Cacchione explained that the 7th Step Society is composed of ex-offenders and volunteers who help connect offenders with pro-social ex-offenders and volunteers in order to learn coping mechanisms and different perspectives. As a peer support group, the Society helps fulfill the need for friendship, trust building and emotional support. [ 58 ] Mr. Cacchione noted that Mr. Cuvelier has regularly attended weekly meetings since 2022 and has become a core group member.

He has assisted in making presentations to high school students about how his pro-social life went off the rails, his conflicts with the law, the results of those conflicts, what led him to change and how the Society has assisted him in his return to a pro-social lifestyle.

[ 59 ] Mr. Cacchione described the impact of one of Mr. Cuvelier’s presentations to high school students, which he witnessed firsthand: I witnessed firsthand the impact of Jacob's presentation on students when we both were making a presentation to a class at Sackville High School. A student was so moved by Jacob's presentation that he began to cry and left the classroom before the presentation ended. Jacob and I found the student afterward and Jacob spoke to the student for a long time pointing out various resources that could help him with the difficulties he was facing.

The student left this conversation with a healthier and more positive outlook. [ 60 ] Mr. Cacchione went on to add: Through private conversations with Jacob and things he has spoken about during the Society's weekly meetings, I have come to believe that Jacob is committed and motivated to continue living a prosocial life.

This motivation stems from a combination of various factors; the acknowledgement of the damage done to family, friends and others caused by his previous lifestyle, his daily involvement in the life of his young son, his role as a father and supportive common law partner of his son's mother, the pending arrival of their second child, his continuing contact with a therapist, the establishment and growth of a successful legitimate meal preparation/catering business and his continued [sic] with the Society.

These factors, in my opinion, point to Jacob being invested in establishing a prosocial identity and being a contributing member of society. [ 61 ] Steven Deveau, Executive Director of the 7th Step Society of Nova Scotia, also wrote a letter of support. He described the 7th Step Society, its meetings, the underpinning of the Society’s work, and its community engagement. Mr. Deveau first met with Mr. Cuvelier in November 2022 and said Mr. Cuvelier has attended weekly meetings ever since. Mr. Deveau indicated that Mr.

Cuvelier committed himself to eight school visits per semester and that, according to the teachers and students, he has been a huge asset to the classroom. Mr. Deveau stated the following in his letter: I understand that establishing prosocial bonds to conventional society (e.g., healthy intimate relationships, legitimate employment, prosocial peer network) is critical for criminal desistance. It is clear to me that Jacob has worked incredibly hard at creating a positive social role and establishing a prosocial identity. He is invested in his recovery as well as being a contributing member of society.

His commitment to helping others and making amends is demonstrated when he shares his story with students at schools and supports 7th Step Society members who may be struggling. Jacob is a role model who inspires hope in others who are similarly situated. This writer believes that Jacob is an asset to both the community and the 7th Step Society. [ 62 ] Dr. Alexa Dodge, an Associate Professor in the Department of Criminology at Saint Mary’s University, also provided a support letter. She too is a volunteer at the 7th Step Society and has engaged with Mr. Cuvelier through its meetings.

She indicated that she has witnessed a great deal of growth in Mr. Cuvelier and described his efforts to help others avoid making the same mistakes that he made. [ 63 ] High school teachers from Citadel High School, Woodlawn High School, and Halifax West High School also provided letters of support. All spoke to the work that Mr. Cuvelier does in speaking to young students.

One teacher wrote: … I am writing to express my since admiration and gratitude for the impactful contributions of Jacob Cuvelier to my classes … As a seasoned educator with over 16 years of experience, I have had the privilege of witnessing numerous guest speakers, but Jacob's presentations stand out as exceptionally insightful and beneficial for our students . I first had the pleasure of meeting Jacob approximately two years ago through a colleague, who recommended him as a speaker. After meeting him, he informed me of the work that he does with the 7th Step Society of Nova Scotia program.

He meticulously walked me through his journey, with every care taken not to leave anything out. Since then, Jacob has become a valued guest in my classes, particularly in the Law 12 cohort. Jacob's journey, shared with our students, has proven to be both compelling and inspiring. His ability to connect with students on a personal level, coupled with his genuine sincerity, has left a lasting impact . … The effect of Jacob's story on the students was evident in the engagement during the Q&A session and the subsequent discussions that followed.

Many of our students, particularly the young men who could relate to his journey, found resonance in his words and were motivated to reconsider their paths. So profound was his message that what was supposed to have been a 15-minute Q&A session, turned into a 30-minute that continued well after the closing bell. [Emphasis added] [ 64 ] Another teacher wrote: Students rarely have the opportunity to listen and talk with someone like Jacob. Jacob lays plain the consequences of his decisions; he does not blame but takes full responsibility. High school students are just beginning to make decisions for themselves.

Jacob's life is a case study for decision making. The students he presents to certainly recognize the value of what he has to share and appreciate his humble, no nonsense approach.

What better way to offer guidance than to lay bare your life's path as a lesson for others? … [Jacob] has demonstrated through his actions of the past two years that he not only knows how to earn a living the right way but he is unashamed to share his life lessons for the benefit of the next generation. [ 65 ] A third teacher wrote: My observation was that Jacob sincerely wanted to help my students avoid making similar choices, and he stressed that they seek support if they were feeling vulnerable in that regard.

He was especially encouraging of the boys in the classes to let go of the kind of "masculinity" that negatively affects their lives and others.

I found my students to be very frank in the questions they asked of Jacob, and I appreciated that he responded to all of them in a way that was equally direct. In my debrief with the students the next day, many revealed that they were quite moved by Jacob's story and they wondered what kinds of consequences are appropriate for someone who is trying so hard to improve and build his life . I feel we all benefited from Jacob's visit that day . It helped students become aware that good people can make poor choices.

When I later asked the students to articulate their thoughts in writing, some shared that after meeting Jacob, they resolved to be more reflective in their thoughts and deliberate in their actions. [Emphasis added] [ 66 ] All of these reports demonstrate that Mr. Cuvelier is highly committed to his own person growth and rehabilitation and has dedicated considerable time and effort to deterring others from making the same mistakes. [ 67 ] Mr. Cuvelier’s guilty plea, his acceptance of responsibility, and his deep remorse are significant mitigating factors. Mr.

Cuvelier addressed the Court at the sentencing hearing on January 5, 2024. He acknowledged the damage that he has done to his family, friends and the community. He has maintained continuous weekly contact with his therapist. Mr. Cuvelier has established and grown a successful, legitimate meal preparation and catering business which supports his family and provides an income for several employees. He continues to volunteer with the 7th Step Society and intends to create programming for the YAP. He regularly speaks to students in schools.

To date, I have not seen such impressive rehabilitative efforts from any other offender who has come before me for sentencing. Nor have I read any comparable cases. Even the Crown acknowledged that Mr. Cuvelier has put forth nothing short of a “spectacular” effort. I agree. [ 68 ] While I have considered all of Mr. Cuvelier’s allocution, I wish to highlight the following portions: I wanna start by saying that the depiction that the - the Crown gave of who I was is fair. I appreciate not - I appreciate they're not being like an unfair, sort of villainizing. It just - it was what it was.

That's what I was doing and I appreciate it and I'm more so today wanting to give you sort of a - a look at who I am now 'cuz that is a very very different individual before you but the remorse is - is deep and there is a community level of remorse that comes from being a Core group member of the 7th Step program. When I'm there I'm in a room of people who have suffered from addiction for years and I feel that. It humanizes it for me. I - I feel culpable of being a part of that machine that - that would have created certain addictions similar to - to theirs.

The obvious remorse and the one that hits me the deepest is my - how this affects my child, my son. …. He - he deserves better. He deserves better than my actions, my choices and my decisions and that's what - that's what got me here was my choices. There's no way around it.

There is factors that my therapist who - God, do I ever appreciate him and am I ever a - I champion therapy whenever I go to these schools and talk to these kids because it's - it's commonly stigmatized within the - especially males and it's helped me immensely come to terms with a lot with the accountability and remorse factor as well as sort of self- forgiveness. But he talks about in his letter I do believe the incidents that happened to me at a young age. Now they were serious and they were traumatizing of course.

I mean my life was almost taken from me and it happened at time where I was that prototypical good kid. … These things are understandable as to why I might have gone a certain way but they're not excusable at all. That's why I in my Pre- Sentence Report took full accountability and just - just sort of inserted those as contexts but not explanations as to why I made said decision because I made said decision consciously to do what I did. And December 9, 2020 was most certainly rock bottom for me. I know that. I felt it. No one to blame but myself and I lost a great job that day.

I had a great job with reachAbility, man but that, you know, that's where I developed my love for cooking - for reachAbility. I was teaching the disabled, members of the disabled community how to cook and how to - and how to shop and how to budget. That set the stage for where I'm at now with Cuv’s Cookin'. But that was rock bottom. I lost my job, I lost - rightfully so I lost access to my child 'cuz at that point I was not a fit father. … Being with the 7th Step program, going to the schools has been huge and when I - when I talk to these kids as - as Ms.

Garson reflected on, you know the - the inevitability of apprehend ability is - is - is what I push also the effect that it's had on - on people around me and I do feel like I give these students also - also a unique look at somebody who has really hit that bottom but - but has effectively turned a lot of things around and you know my Cuv's Cookin' business is such a contrasting lifestyle to what I would have been living 2020 and - and before you know.

I can't stress it enough. … a wise man, Steve Deveau, my man, Director of 7th Steps, he told me people, places and things most important - is - and - and I've lived by that. Who you're with, where you are and what you're doing, what you're consuming directly impacts what your life is gonna be. Now, I've - I've made a drastic drastic and it's hard to even properly reflect on paper the change of who I surround myself with. I've alienated myself from a lot of people, well everyone who's in that life and it wasn't as hard as I thought it would be.

I thought it was gonna be harder than what it was because I - I just - when you decide that something's a right thing to do everything just kinda falls into place. It's creating a better life for my son to not be around these influences and who you're around is of course a direct reflection of - of who you are and who you - who you become and the places.

I mean my life is quite simple now. … It's a life that I never would have deemed possible and when you're around certain bad influences and I think people back here can - can agree you're - you're almost brainwashed into thinking that being in the position I'm in right now and being arrested, being imprisoned like - it's this - like this badge of honour that they brainwash you into thinking it creates and the irony in it all is that there's nothing more dishonorable in the world than that life that I'm speaking on and I couldn't be more happy that I've - that I've landed where I've landed. [ 69 ] In

summary, the many mitigating factors present in this case include: • Guilty plea • “Relative” or “somewhat” youthfulness (26 years old at the time of the offences) ( R. v. Waterhouse , 2021 NSCA 23 )

• Remorse and acceptance of responsibility • Significant efforts at rehabilitation • High level of community support • Demonstrated commitment to making reparations to the community through engagement with youth • Viable business that supports his family and employs others • Abided by bail conditions and no other charges for over three years Aggravating Factors [70] The substance being trafficked - cocaine - is itself an aggravating factor. Cocaine has been described by the Court of Appeal asa “deadly and devastating drug that ravages lives” (R. v.

Butt, 2010 NSCA 56, at para. 13) that “is ruinous to our communities” (R. v.Scott, 2013 NSCA 28, at para. 94). The substantial quantity of the drug identified in the conspiracy - almost 700 grams - is alsoaggravating. While the Agreed Statement of Facts indicates that Mr. Cuvelier was at a lower end of the organization, this amount ofcocaine takes Mr. Cuvelier's involvement outside the “petty retailer” category described in R. v. Fifield, [1978] N.S.J. No. 42 (C.A). [71] In addition, the nature of the offence of conspiracy to traffic in cocaine is aggravating because it requires forethought andplanning (R. v.

Masters, 2017 NSPC 75). Mr. Cuvelier did not shy away from this reality in his address to the Court, conceding that hewas motivated by profit and that he made a conscious choice to conspire to traffic in cocaine. [72] While Mr. Cuvelier has a prior criminal record, it does not contain any offences for trafficking. Mr. Cuvelier's CDSAconviction in 2019 involved a search warrant executed at his residence at the time in Wolfville and the seizure of 1.4 grams of cocaine,$2,810 and a digital scale. He was charged with possession. [73] Mr.

Cuvelier does not have a related trafficking criminal record and has not been charged nor convicted of similar offencessince. [74] Another aggravating factor is the evidence from the admissible wiretaps. The intercepts demonstrate that Mr. Cuvelier wasearning significant profits. He discussed prices and purity of the product, as well as how much to cut the cocaine in order to have a goodproduct. He spoke about fronting product, as well as obtaining new phones and discussing who may have spoken to police in relation tocustomers who were arrested. Mr.

Cuvelier also participated in discussions about how to best satisfy customers, including those whowanted to purchase crack cocaine, as opposed to powder cocaine. LAW AND ANALYSIS Availability of a Conditional Sentence [75] Mr. Cuvelier asks the Court to impose a conditional sentence. [76] Conditional sentences were introduced in September 1996 when Parliament passed the Act to amend the Criminal Code(sentencing) and other Acts in consequence thereof, S.C. 1995, c. 22 (“Bill C-41”). As the Supreme Court of Canda noted in R. v.Proulx, 2000 SCC 5 , [2000] 1 S.C.R. 61, Bill C-41 “substantially reformed

Part XXIII of the Code, and introduced, inter alia,an express statement of the purposes and principles of sentencing, provisions for alternative measures for adult offenders and a new typeof sanction, the conditional sentence of imprisonment” (para. 14). Chief Justice Lamer stated that by passing Bill C-41, “Parliament hassent a clear message to all Canadian judges that too many people are being sent to prison” (para. 1). [77] The Supreme Court of Canada in Proulx, supra, rejected the notion that the proportionality principle presumptively excludescertain offences from the conditional sentencing regime: 79

Section 742.1 does not exclude any offences from the conditional sentencing regime except those with a minimum term ofimprisonment. Parliament could have easily excluded specific offences in addition to those with a mandatory minimum term ofimprisonment but chose not to. … Thus, a conditional sentence is available in principle for all offences in which the statutory prerequisites are satisfied. [Emphasis in original] [78] The Chief Justice added at para. 81: Offence-specific presumptions introduce unwarranted rigidity in the determination of whether a conditional sentence is a just andappropriate sanction.

Such presumptions do not accord with the principle of proportionality set out in s. 718.1 and the value ofindividualization in sentencing, nor are they necessary to achieve the important objectives of uniformity and consistency in the use ofconditional sentences. [79] In November 2012, there were significant changes to sentencing provisions in both the Criminal Code and the CDSA with theimplementation of the Safe Streets and Communities Act, S.C. 2012, c.

Section 742.1 eliminated conditional sentences as an option inrelation to s. 5(2) of the CDSA offences. [80] On November 17, 2022,

An Act to amend the Criminal Code and the Controlled Drug and Substances Act, S.C. 2022, c. 15,came into force upon receiving Royal Assent. The

summary to the Act states:

This enactment amends the Criminal Code and the Controlled Drugs and Substances Act to, among other things, repeal certain mandatory minimum penalties, allow for a greater use of conditional sentences and establish diversion measures for simple drug possession offences. [ 81 ] As a result of these amendments, a CSO is once again a possible sentence for the offence of conspiracy to traffic in cocaine. [ 82 ] Section 742(1) of the Criminal Code governs the availability of conditional sentences. The

section sets out the requirements that must be satisfied for a conditional sentence to be available: 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). [ 83 ]

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, for the 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 be consistent 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 maximum term of imprisonment is 10 years or more. (e) [Repealed, 2022, c. 15, s. 14 ] (f) [Repealed, 2022, c. 15, s. 14 ] [ 84 ] In Proulx , supra , Lamer C.J. said the following about the nature of a conditional sentence: 22. The conditional sentence incorporates some elements of non-custodial measures and some others of incarceration.

Because it is served 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 punitive sanction capable of achieving the objectives of denunciation and deterrence .

It is this punitive aspect that distinguishes the conditional sentence from probation, and it is to this issue that I now turn. [Emphasis in original] [ 85 ] Lamer C.J. 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 a preliminary determination of the appropriate range of available sentences. Thus, the approach I suggest still requires the judge to proceed 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 of these 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 out in ss. 718 to 718.2 to the extent necessary to narrow the range of sentence for the offender. ... [60] Once that preliminary determination is made, and assuming the other statutory prerequisites are met, the judge should then proceed to the second stage of the analysis: determining whether a conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2 .

Unlike the first stage, the principles of sentencing are now considered comprehensively. Further, it is at the second stage that the duration and venue of the sentence should be determined, and, if a conditional sentence, the conditions to be imposed. [ 86 ] In R. v. R.B.W., 2023 NSCA 58 , Derrick J.A., for the majority, summarized the Proulx analysis as follows:

[53] It is helpful at this stage to set out the Proulx framework a sentencing judge is required to follow before a conditional sentence can be imposed. • In a preliminary determination, a penitentiary term and probation must be rejected as inappropriate. • Having determined that the appropriate range of sentence is a term of imprisonment of less than two years, the judge should then consider if it is appropriate for the offender to serve their sentence in the community. • It is a condition precedent to the imposition of a conditional sentence that the judge must be satisfied the safety of the community will not be endangered by the offender serving their sentence in the community.

Two factors must be taken into account: (1) the risk of the offender reoffending; and (2) the gravity of the damage were the offender to reoffend. [ 87 ] At the first stage of the analysis, and considering the purposes and principles of sentencing, I must determine whether probationary measures or a penitentiary term can be excluded as appropriate sentences in this case. If either is appropriate, a conditional sentence is not available. [ 88 ] There has been no suggestion that probation is an appropriate sentence in this case. The relevant question, then, is whether the appropriate range of sentence for Mr.

Cuvelier is a term of imprisonment of less than two years. If so, then I must consider whether a conditional sentence would be consistent with the purposes and principles of sentencing. First Stage [ 89 ] Mr. Cuvelier has pled guilty to conspiracy to traffic in cocaine contrary to s. 5(1) of the Controlled Drugs and Substances Act and contrary to s. 465(1) (

c) of the Criminal Code . He has also pled guilty to having in his possession Canadian currency of a value exceeding $5,000 knowing that all or part of the property obtained was by the commission of an offence punishable by indictment contrary to s. 354(1) (

a) of the Criminal Code . [ 90 ] The serious nature of the offence of conspiracy to traffic in cocaine, a

Schedule I drug, is reflected in the potential maximum sentence of life in prison. [ 91 ] I will begin by reviewing the sentencing principles contained in the CDSA and the Criminal Code . The CDSA contains the following guidance for sentencing judges: Purpose of sentencing 10

(1) Without restricting the generality of the Criminal Code , the fundamental purpose of any sentence for an offence under this

Part is to contribute to the respect for the law and the maintenance of a just, peaceful and safe society while encouraging rehabilitation, and treatment in appropriate circumstances, of offenders and acknowledging the harm done to victims and to the community. Factors to take into consideration

(2) If a person is convicted of a designated substance offence, the court imposing sentence on the person shall consider any relevant aggravating factors including that the person (

a) in relation to the commission of the offence, (

i) carried, used or threatened to use a weapon, (ii) used or threatened to use violence, (iii) trafficked in a substance included in

Schedule I, II, III, IV or V, or possessed such a substance for the purpose of trafficking, in or near a school, on or near school grounds or in or near any other public place usually frequented by persons under the age of 18 years, or (iv) trafficked in a substance included in

Schedule I, II, III, IV or V, or possessed such a substance for the purpose of trafficking, to a person under the age of 18 years; (

b) was previously convicted of a designated substance offence, as defined in subsection 2(1) of this Act, or a designated offence, as defined in subsection 2(1) of the Cannabis Act ; (

c) used the services of a person under the age of eighteen years to commit, or involved such a person in the commission of, the offence. [ 92 ] A designated offence is defined as follows: 2

(1) In this Act, designated substance offence means (

a) an offence under

Part I, except subsection 4(1), or (

b) a conspiracy or an attempt to commit, being an accessory after the fact in relation to, or any counselling in relation to, an offence referred to in paragraph (a); ( infraction désignée ) [ 93 ] Section 4(1) states: Possession of substance

(1) Except as authorized under the regulations, no person shall possess a substance included in

Schedule I, II or III. [ 94 ] Mr. Cuvelier has not been previously convicted of a designated substance offence. [ 95 ] The general purpose and principles of sentencing are found in s. 718 of the Criminal Code : 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. [ 96 ]

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 similarcircumstances (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 alloffenders, with particular attention to the circumstances of Aboriginal offenders (s. 718.2(e)). [97] Over the last 30 years, our Court of Appeal “has consistently and repeatedly emphasized that protection of the public,denunciation and deterrence are the paramount sentencing objectives in cases involving trafficking in

Schedule I drugs” (R. v. Kleykens,2020 NSCA 49, at para. 66). In Kleykens, supra, at para. 67, Saunders J.A. adopted the following

summary of the Court of Appeal’sapproach to sentencing in drug cases: 53. To adequately address these primary sentencing objectives, this Court has emphasized that "even minor traffickers" should expectsignificant periods of incarceration. 54. Beginning with R. v. Byers, (NS CA) the Court has consistently warned of the "severe penalties" that will beimposed for cocaine trafficking, even when relatively small amounts of the drug are involved. In R. v. Huskins, , theCourt stated, "Rare indeed will be the case where less than federal time should be considered as a proper sanction for such offence." In R.v.

Dawe, 2002 NSCA 147, Justice Hamilton noted that, "Possession of cocaine for the purposes of trafficking typically results insentences of two years or more..." In R. v. Steeves, 2007 NSCA 130 the Court stated that "time served in a federal penitentiary is thenorm..." In R. v. Butt, 2010 NSCA 56, the Court underlined that "Involvement in the cocaine trade, at any level, attracts substantialpenalties." (emphasis added) 55. In R. v.

Oickle, 2015 NSCA 87, the Court reaffirmed that trafficking cocaine will "consistently attract sentences of imprisonment inthe range of two years even for first time offenders." More recently in R. v. Chase, 2019 NSCA 36 the Court reiterated that "nothing haschanged this Court's repeated and consistent warning that deterrence and denunciation will continue to be the primary objectives" andthat cocaine trafficking "will normally attract a federal prison term." 56. Both Chase (6g cocaine) and Oickle (11g cocaine, 23 morphine pills) were "petty retailers".

As outlined previously, the establishedsentencing range for offenders who traffick cocaine, marihuana or, as in the Respondent's case, both, at a higher level is broadly between2 and 7 years imprisonment. … [98] In R. v. Livingstone; R. v. Lungal; R. v. Terris, 2020 NSCA 5, Farrar J.A. noted: [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). [99] In Kleykens, supra, the Crown appealed from an intermittent sentence of 90 days' imprisonment and three years’ probation forpossession of cocaine, marihuana, and cannabis resin for the purpose of trafficking. Police found eight kilograms of marihuana, 144.5grams of cocaine and 56.6 grams of cannabis resin in Mr. Kleykens’ home and seized almost $6,000 in cash.

Police also seized ascoresheet, a digital scale and a money counter. Mr. Kleykens was 28 years old, with no prior record. He pled guilty. He was gainfullyemployed, earning a significant annual income. The judge referred to the offender as nothing more than a petty retailer.

The Crownargued the trial judge's analysis was fundamentally flawed by his failure to properly address proportionality by considering the gravity ofthe offence and the offender's culpability in its commission, as well as his failure to address parity by considering sentences incomparable circumstances. [100] In allowing the appeal, Saunders J.A. explained how trial judges are to address proportionality in sentencing for drug offences: [34] In satisfying their obligation to address the "fundamental principle" of proportionality, trial judges must ensure that the sentence beproportionate to the gravity of the crime and the offender's culpability in committing it.

The gravity of the offence and its consequenceswill be informed by the range of sentence prescribed in the applicable legislation. In drug cases, the dangerousness of the particular drug,as well as the quantity of drugs seized, will also be important considerations when addressing both gravity and moral culpability (White, ¶ 32). [35] It is obvious that in order to be "proportionate", a sentence must be based upon an accurate assessment of the seriousness of theoffence and the offender's degree of culpability. In my view, by any measure, Mr.

Kleykens' crimes were extremely serious and hisdegree of responsibility was very high. However, as I will explain, in sentencing the respondent, the judge mischaracterized anddiminished the seriousness of his offences and his degree of responsibility, in a number of ways. [36] In R. v. Fifield, (NSCA), this Court described the general categories of drug traffickers as "the isolatedaccommodator of a friend, the petty retailer, the large retailer or small wholesaler or the big-time operator".

Those falling within the"large retailer or small wholesaler" category "must be punished and, hopefully deterred by materially larger sentences than those imposedon the petty retailers". [37] In R. v. Knickle, 2009 NSCA 59, Roscoe, J.A. observed at ¶17: [17] ... this Court has consistently categorized drug traffickers, based on the type and amount of drug involved and the level ofinvolvement in the drug business, to assist in placing them within the range.

[38] Rather than properly reflecting upon the danger, type and quantity of drugs seized from Mr. Kleykens and then comparing thosevery serious circumstances to a host of binding and comparable decisions of this Court, the trial judge instead began his analysis byciting his own decisions which have subsequently been overturned by this Court. … [101] The Court of Appeal went on to provide the following helpful

summary of cases where, as in Mr. Cuvelier’s case, the offencewent beyond “petty retailing”: [50] Compounding the judge's failure to properly situate the respondent's offences in the hierarchy of drug trafficking crimes was hisfailure to consider any number of leading cases in Nova Scotia involving offenders whose trafficking crimes went beyond "pettyretailing" and fell 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 prior record - 2months increased to 2 years imprisonment; • R. v. Carvery, (NSCA) - 6.5 ounces/184g of cocaine - high level retailer - no prior record - 3 years increased to5 years imprisonment; • R. v. O'Toole, (NS CA)- 2043g cannabis resin (estimated street value $140,000) - "quantity of cannabis resinseized 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" - minor unrelatedprior 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 - 18month 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 - 77g cocaine, 100 ecstasy pills - "amounts in his possession were …. sufficient to take him outsidethe lower categories of drug traffickers described in R. v. Fifield" - minor unrelated prior record - 2 year conditional sentence increasedto 2.5 years imprisonment; • R. v. Knickle, 2009 NSCA 59 - approximately 11 ounces of cocaine - "placed in the higher retail level of the 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 no priorrecord - 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 $6,000 cash seized -"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 was 6.5ounces - four years for cocaine possession increased to 5 years imprisonment (and 6 years for the fentanyl conviction increased to 8years, to be served concurrently). [102] On the issue of parity, Saunders J.A. wrote: [74] In conclusion, the judge's mischaracterization of the seriousness of the respondent's offences; the undue weight he gave to therespondent's chances for rehabilitation; his failure to account for the type, quantity and dangerousness of the drugs seized; his unjustifieddepreciation of their devastating societal impact; and his over reliance upon his perception of the extent of the problem in his particularcommunity, necessarily distorted the application of the parity principle.

As a result of these errors, the applicable sentencing range of 2-7years' imprisonment for comparable drug retailers was never properly considered. [75] As noted by Wagner, J. at ¶58 of Lacasse, supra: [58] There will always be situations that call for a sentence outside a particular range: although ensuring parity in sentencing is in itself adesirable objective, the fact that each crime is committed in unique circumstances by an offender with a unique profile cannot bedisregarded....

Judge Atwood made no finding of any unique circumstances as justification for the sentence imposed, nor would such a finding havebeen sustainable. On the record here, there is nothing about the respondent's crimes, his motives for committing them, or his personalcircumstances, which would be capable of justifying such an extraordinarily lenient sentence. [Emphasis added] [103] The Court of Appeal went on to sentence the offender to two years’ imprisonment: [84] The respondent deliberately engaged in a business which leads to destroyed lives.

The discrepancy between his sentence and thoseimposed on similar offenders for similar offences is simply too large to ignore. In my view, a proper application of the paramount

principles and objectives of sentencing required a federal penitentiary sentence. I accept the Crown's submission that a sentence of twoyears' imprisonment -- while at the lowest end of the range of sentences based on the level of the respondent's trafficking operations --would remain proportionate to the gravity of his crimes and his high degree of moral culpability in their commission. [104] In R. v. Butt, supra, the Crown appealed from a 3.5-year sentence imposed after a guilty plea to one count of possession ofcocaine for the purpose of trafficking. Mr.

Butt was found in possession of two single kilogram bricks of cocaine. The 35-year-oldoffender had previous convictions spanning 20 years, resulting in both custodial and non-custodial sentences. [105] 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 specific and general deterrence. [106] The bulk value of the cocaine in R. v.

Butt, supra, was between $70,000 and $100,000 and had a street value of twice thatamount. This case establishes that the trafficking of cocaine in excess of one kilogram can result in a five-year federal sentence. [107] In R. v. Heickert, 2020 NSPC 9, Judge Hoskins (as he then was) sentenced Mr. Heickert to five years in custody for his role inselling four kilograms of cocaine to an undercover officer (three transactions in total over several months; one kilogram; one kilogram;and two kilograms). Mr. Heickert had a minor and unrelated record.

Judge Hoskins agreed that the established range for trafficking ofsingle-digit kilograms of cocaine is four to eight years. There were several significant mitigating factors in Mr. Heickert's case, includinghis guilty plea, his meritorious desire to care for his disabled son, his acceptance of responsibility and the fact that he sustained seriouspersonal injury which would cause additional hardship during his incarceration. Judge Hoskins concluded that although these factors didnot warrant a departure from the established range of sentencing, they did justify a sentence at the lower end of the range.

But for thesignificant mitigating factors, Judge Hoskins would have imposed a much higher sentence. [108] In R. v. Chevrefils, 2019 NSPC 16, Judge Buckle reviewed a plethora of caselaw and noted 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 offour to eight years. [109] In R. v. Boudreau, 2023 NSSC 13, Mr. Boudreau was convicted of possessing 775 grams of cocaine for the purpose of trafficking,in addition to a significant amount of other controlled substances.

The offender made no efforts at rehabilitation nor any investment in thecommunity before sentencing. He received a sentence of four years’ imprisonment. [110] In R. v. Chaisson, 2024 NSCA 11, the Court of Appeal upheld a five-year sentence for a single count of possession of cocaine forthe purpose of trafficking.

While executing a search warrant at the appellant's home, police located a number of items consistent withdrug trafficking, including two chunks of cocaine (31 grams and 102 grams respectively), a plastic bag containing 12 grams of cocaine,digital scales on which traces of cocaine were later detected, $400 in cash, a number of small baggies and multiple cellphones. Theappellant had two previous convictions for trafficking in cocaine. The appellant appealed from both the conviction and sentence.

Inupholding the sentence, the Court of Appeal stated: [69] Having reviewed the record, and considered the submissions of the parties, I am satisfied the appellant has failed to establishthe judge's reasons demonstrate an error in principle. I am further satisfied the sentence of 5 years in the circumstances of this case doesnot give rise to a demonstrably unfit sentence. In reaching this conclusion, I note: • In R. v.

Fifield, (NS CA), [1978] 25 N.S.R. (2d) 407, this Court described the general categories of drugtraffickers "as the isolated accommodator of a friend, the petty retailer, the large retailer or small wholesaler, or the big-time operator"; • There was evidence, accepted by the judge, that would place the appellant beyond the category of a petty retailer and firmlywithin the third Fifield category.

A sentence of 5 years would fall within the range of sentences for offenders in this category; • The nature of the drug here, cocaine, is one which attracts a significant term of incarceration given the well-known negativesocietal impacts of its distribution; and • The appellant has two previous convictions for trafficking in cocaine which are statutorily aggravating in terms of crafting a fitsentence. [111] Although federal sentences are considered the norm for cocaine trafficking offences, CSOs have been ordered in some cases. In R.v. Provo, 2

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