R. v. Kane

Date: 20120808 Docket: 11/97 Citation: R. v. Kane, 2012 NLCA 53 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN: HER MAJESTY THE QUEEN APPELLANT AND: MARK KANE RESPONDENT Coram: Wells, Welsh and White JJ.A. Court Appealed From: Supreme Court of Newfoundland and Labrador Trial Division (G) 200901T4633 Appeal Heard: June 22, 2012 Judgment Rendered: August 8, 2012 Reasons for Judgment by Welsh J.A. Concurred in by Wells and White JJ.A. Counsel for the Appellant: Mark Covan Counsel for the Respondent: Derek Hogan Welsh J.A.: [1] Mr. Kane pleaded guilty to conspiracy to traffic in cocaine and marihuana. The conspiracy, involving large amounts of drugs, was controlled by an individual in Quebec. Mr. Kane was involved primarily in setting up ‘stash houses’ and directing the dispersal of the drugs to traffickers. He was sentenced to two years less a day, to be served in the community. The Crown seeks to appeal the sentence. Page: 2 [2] Because this is an appeal against sentence alone, leave to appeal is required pursuant to section 676(1)(d) of the Criminal Code. Counsel for Mr. Kane conceded that, in this case, the appeal presents an arguable case such that the threshold for granting leave is met. The Court agreed and leave to appeal was granted at the commencement of the hearing. BACKGROUND [3] The trial judge summarized the nature of the conspiracy (2011 NLTD(G) 159, 316 Nfld. & P.E.I.R. 140): [3] The charges arose following a major investigation by the Royal Newfoundland Constabulary into drug trafficking in 2007 between Quebec and this Province, which was referred to as “Operation Roadrunner”. The investigation resulted in the laying of charges against a number of accused alleging participation in a conspiracy which involved the distribution of drugs in this Province following their importation, and storage awaiting distribution and sale. It also involved the collection of funds and sending the money to other participants in Quebec. [4] On October 11, 2007, Mr. Kane and several others were arrested. Mr. Kane was charged with one count of conspiracy to traffic in cocaine and one count of conspiracy to traffic in marihuana, contrary to section 465(1)(c) of the Criminal Code and section 5(1) of the Controlled Drugs and Substances Act. More than three years later, on February 2, 2011, Mr. Kane pleaded guilty to both charges. A pre-sentence report was filed on April 5, 2011. On October 28, 2011, the trial judge entered convictions, and on November 29, 2011, Mr. Kane was sentenced to two years less a day, to be served in the community, on each count, the sentences to be served concurrently. [5] The sentencing hearing proceeded on the basis of an agreed statement of facts which set out the following information: 1. The investigation [by police] concerned both conspiracy and trafficking whereby drugs were sent to NL; [a] drug distribution network was organized whereby the drugs were distributed to traffickers; prepared for use; and stashed in various houses in the City of St. John’s. Monies were collected and eventually sent back to Quebec. … 3. [The head of the conspiracy resided in Quebec.] Dickson [who resided in St. John’s] was in charge of NL operations and reporting to him was John Stanley who in turn recruited and instructed Mark Kane. Stanley was involved with the Page: 3 overall logistics of drug trafficking as part of the drug distribution network in St. John’s. 4. Mark Kane reported to John Stanley and was also involved in collecting monies from drug trafficking; at times providing drugs to drug traffickers, assisting in setting up stash houses at 13A Thomas Street and 251 Anspach Street and directing the preparation of drugs for sale on the street to Stephen Browne. … 7. … In particular, there were numerous conversations between John Stanley and Mark Kane about such things as money collections, the price and quality of cocaine, and the price of a key of cocaine. Intercepts also indicated instructions given to or received by Mark Kane; such as dealings with Shawn Squires and Stephen Browne. [6] The agreed statement of facts includes examples of Mr. Kane’s involvement in the conspiracy. His participation was for the purpose of monetary gain. He did not claim that he had an addiction problem himself. He was listed as the tenant at the Thomas Street stash house. The house was largely uninhabited. Mr. Kane, Mr. Stanley and others were seen entering the house from time to time. On surreptitious entries, the police found amounts of cocaine and marihuana, related drug paraphernalia, score sheets, cutting agents and scales. As well, Mr. Kane instructed others regarding the distribution of the drugs: 10. … (e) April 29, 2007 – During the latter part of April, intercepts indicate Mark Kane was instructing Stephen Browne (stash house occupant at 251 Anspach Street) to meet Person 1, then to get cutting agents and prepare drugs for sale in the stash house (cocaine). Instructions were given as to how many customers these are being prepared for. … (h) … On July 7th, Mark Kane describes to John Stanley his particular dealings with Squires. Kane says he gave the drugs to Squires to “sell, get rid of it, bring back the money and take more.” On July 9, 2007, Mr. Kane was involved in the transfer of $96,000 in small bills to the head of the operation in Quebec. Page: 4 [7] Pursuant to section 465(1)(c) of the Criminal Code and section 5(1) of the Controlled Drugs and Substances Act, a person who conspires to traffic in cocaine or marihuana is guilty of an indictable offence and “liable to the same punishment as that to which an accused who is guilty of that offence would, on conviction, be liable”, that is, life imprisonment. ISSUES [8] In appealing against the sentences imposed by the trial judge, the Crown submits that the sentences are demonstrably unfit, being outside the acceptable range of sentence, and that the trial judge erred in principle and in law by: (1) giving undue weight to Mr. Kane’s personal circumstances; (2) improperly considering Mr. Kane’s release conditions pending trial as a mitigating factor; (3) misapprehending the evidence and relying on evidence not properly before him; and (4) failing to adequately consider the sentences imposed on other offenders involved in the same conspiracy. ANALYSIS [9] The trial judge recognized that this was “a fairly large conspiracy with potentially broad impact” (paragraph 71). He indicated that a sentence for a “major player” in such a conspiracy would fall at the upper end of the sentencing range suggested by the Crown, in the case of Mr. Kane, in the range of four years. However, the trial judge concluded that Mr. Kane was not a major player. He described Mr. Kane’s role in the conspiracy as follows: [72] While the Crown suggests he was more than a minor player, the facts indicate to me that he was near the bottom of this hierarchy. Notwithstanding the fact that he was dealing with large amounts of drugs and significant sums of money, he acted on direction by others and was only marginally more than a courier or conduit for drugs and money. He was not at the lowest level of this conspiracy, but there is nothing in the facts to indicate he was a guiding mind. In my view his role was less significant than the Crown has suggested. [10] As set out in paragraph 5, above, according to the agreed statement of facts, there was a person in Quebec in charge of the conspiracy. Then, there was a man who was in charge of operations in this Province and, reporting to him, a man in charge of the overall logistics of the drug distribution network in St. John’s. The latter recruited Mr. Kane who was, thus, at the level below these three. Page: 5 [11] As a member of the conspiracy, Mr. Kane did more than carry drugs as in the case of a courier and more than act as a conduit for the drugs and money. He was responsible for setting up and maintaining a stash house, helping to set up a second stash house, and for seeing to the distribution of large amounts of drugs. He delivered drugs to traffickers, instructing them on how the drugs were to be mixed with cutting agents to obtain a specified number of portions to be sold to other traffickers or to purchasers. He had responsibility for and was trusted with significant sums of money. [12] Mr. Kane’s role was integral to the operation of the conspiracy and must be distinguished from, for example, the role of traffickers who, while taking advantage of the availability of the drugs provided by the conspirators, were not part of the organized importation and distribution scheme. The conspiracy involved commercial quantities of drugs and, as submitted by the Crown, required planning, deliberation, cooperation and trust among the co-conspirators, including Mr. Kane, over an extended period of time which ended only when the players were arrested. Mr. Kane was an active and key participant in the conspiracy. His legal responsibility must be assessed from that perspective (R. v. Oates (1992), 100 Nfld. & P.E.I.R. 289 (NLCA), at paragraph 58). Paramount Considerations – General Deterrence and Protection of the Public [13] A conspiracy of the type in which Mr. Kane participated is a serious offence. General deterrence and protection of the public are the paramount considerations in sentencing. The rationale for that is discussed in the Oates decision. Mr. Oates, for the purpose of monetary gain, conspired with two others in Toronto and two in St. John’s to import cocaine for sale in the Province. Marshall J.A. described the operation, which involved several shipments of cocaine, as “a fairly substantial commercial venture”, which was “carried out with some degree of sophistication through a compact network of people” (paragraph 24). Mr. Oates pleaded guilty at the earliest opportunity resulting in severance of his charges from those of the other conspirators. He was sentenced to imprisonment for two years less a day. [14] On appeal by the Crown, Goodridge C.J.N., in one of the three concurring reasons for decision, considered that three and one-half to four years would have been an appropriate range of sentence given that general deterrence must be a dominant consideration. However, he agreed that the appeal should be dismissed because Mr. Oates had already been released from prison and, in the circumstances, to reincarcerate him would be Page: 6 counterproductive given the apparent steps to rehabilitation taken by Mr. Oates. [15] Marshall J.A. also considered that the sentence was “much too lenient”, and that appropriate weight had not been given to general deterrence (paragraph 28). Nonetheless, he concluded that Mr. Oates had demonstrated a commitment to reforming, and that, since he had been released from custody, the circumstances did not justify reincarceration. [16] Steele J.A. also considered that a sentence of imprisonment for up to four years would have been appropriate given the need for general deterrence particularly where a conspiracy, amounting to a commercial enterprise with the object of monetary gain, was involved in the delivery and distribution of significant amounts of cocaine. He noted that “the operation likely existed before the first delivery and but for the police intervention would have continued” (paragraph 59). Steele J.A. emphasized that deterrence and protection of the public are the dominant considerations when sentence is imposed for conspiracy to traffic drugs such as cocaine. In agreeing that the appeal should be dismissed, Steele J.A. commented: [68] … On the facts of this case rehabilitation was, or should have been, a secondary concern. I suppose it may be argued that, firstly, the sentencing judge had the wisdom and foresight, as did the Parole Board, to realize that the respondent was sincerely remorseful and genuine in his stated intention to reform and rebuild his life; and secondly, that events to date, by all accounts, exonerate that decision. With respect, that is not the question. The point is that trafficking in drugs or conspiring to traffic in drugs and [in] particular in “hard” drugs such as cocaine, is a very serious offence where, as I have already stated, deterrence is, or ought to be, the paramount consideration. The respondent’s good prospects for rehabilitation did not constitute the necessary exceptional or unusual circumstances necessary to allow the sentencing judge to pass a lenient sentence thereby departing from the principles of sentencing reflected in the decisions of Canadian courts for offences of this kind. [17] Counsel for Mr. Kane relied on the decision in R. v. Carter, 2005 NLTD 108, 248 Nfld. & P.E.I.R. 191, in submitting that, in this case, a sentence of two years less a day to be served in the community constituted a sentence within the appropriate range. However, Carter is distinguishable in many respects. Mr. Carter was supplied with cocaine which he then sold to individuals for distribution on the street. He was unable to pay his supplier because he was owed substantial sums from those to whom he sold the drugs. Unlike Mr. Kane, there was no evidence that Mr. Carter was Page: 7 involved with maintaining stash houses and directing others regarding the preparation and distribution of the drugs. At the time of his arrest Mr. Carter had, in preceding months, taken steps to try to extricate himself from the drug trade. By contrast, if Mr. Kane had not been arrested, in the absence of evidence to the contrary, it could be inferred that he would have persevered with his role in the conspiracy, continuing to ensure that significant amounts of drugs would be stored, prepared and distributed for the monetary benefit of the conspirators, including himself. Goulding J. commented on the nature of the offence in Carter: [40] This offence involving a conspiracy to traffic in cocaine is a very serious offence. Cocaine is considered to be a hard drug and the destruction caused to users has been well documented. I refer particularly to the evidence accepted by Hyslop, P.C.J. in Bishop [(1990), 79 Nfld. & P.E.I.R. 231] and subsequently by the NLCA in Oates. The quantity sold by Carter to Heffernan and to Chaytor had a street value of a little less than $4,000. It was not an isolated transaction nor was it a minimal amount. However it was not the substantial amount as in Oates and nor was it a commercial trafficking that had reached the level of organized distribution. It was more on the level of a small time operation to provide additional monies to the offender. The intercepted conversations between P.C. and Carter revealed that Carter was somewhat unsophisticated in his trafficking endeavours, giving drugs to persons without receiving payment and then, having a difficult time collecting. He had to explain this to his supplier who was rather manipulative and intimidating in suggesting that ways could be used in order to obtain monies from persons who may owe monies to drug suppliers. It is noteworthy that Carter did not involve himself in any of this [sic] conversations indicating the use of violence. [41] The conversations are rather pathetic in that they depict a person who is in well over his head. … [18] However, Goulding J. noted that Mr. Carter committed the offence for monetary gain, involving himself in an enterprise “that preyed upon vulnerable persons within our society who have unfortunately, severe addiction to hard drugs such as cocaine” (paragraph 41). [19] Applying the above considerations, together with Mr. Carter’s guilty plea and the lack of a prior related criminal record, Goulding J. sentenced Mr. Carter to two years less a day to be served in the community which, she indicated, was on the low end of the appropriate range of sentence. [20] In R. v. Snow, 2006 NLTD 3, 252 Nfld. & P.E.I.R. 351, Mr. Snow was convicted of conspiracy to traffic in cocaine. He arranged to have Page: 8 delivered to him from a source in Quebec more than a quarter of a kilogram of high grade cocaine for distribution in the Province. The package was intercepted and Mr. Snow was arrested while in the process of attempting to dispose of the packages that had been substituted by the police. Dymond J. commented on the nature and effect of the trafficking of cocaine in this Province: [10] … The distribution of cocaine is a very lucrative business. It would appear to be the drug of choice for dealers, because a small quantity has a high yield in dollars. It is light and takes up small amounts of space as compared to the more bulky drug, marijuana. It can also be broken down into crack cocaine, a highly addictive offshoot, which is usually heated and smoked. It is the versatility of this drug for users and the ability to move larger quantities in small packages which makes it so attractive to drug dealers. Much money can be made for those willing to risk becoming involved with the drug. … See also: R. v. Pearson, [1992] 3 S.C.R. 665, at pages 694 to 695. [21] Dymond J. also commented on the tension that may arise between the focus on general deterrence and protection of the public on the one hand and rehabilitation of the offender on the other, particularly where there is good reason to infer that the offender has reformed: [35] It is not unusual in conspiracy cases, to take several years to work through the courts, often controlled to a large degree by the accused’s own decision as to how he or she will proceed. Often it allows a person time to craft a new life in the interim. That in and of itself is not a bad thing and society benefits in some micro-manner from that change. [36] Should this, however, be the catalyst that directs the court to emphasize rehabilitation over punishment. It is like the old proverb of the tail wagging the dog. If the court looks at the case from the Accused’s perspective, including his antecedents, family and employment situation only, the court can miss the bigger picture of general deterrence to the population as a whole. This is the trial judge’s dilemma. [22] In the result in Snow, Dymond J. imposed a sentence of three and one- half years in prison, which he described as “in the lower end of the spectrum for these types of offence”, that is, conspiracy to traffic in cocaine (paragraph 43). [23] Finally, I note, the case law also supports a higher range of sentence where the charge involves, not simply trafficking, but a conspiracy to import large quantities of cocaine. (See, for example, Snow, supra, at paragraph Page: 9 42.) In the case now before this Court, the decisions referenced by the trial judge in determining an appropriate sentence dealt with trafficking offences rather than a commercial level conspiracy. [24] It is clear, for the reasons stated in Oates, Snow and others, that general deterrence and protection of the public are the paramount considerations where sentence is imposed for conspiracy to traffic in cocaine, with rehabilitation playing a secondary role. An appropriate sentence for an offender like Mr. Kane who, for the purpose of monetary gain, has played a trusted and necessary role in a sophisticated, commercial level conspiracy to traffic in significant amounts of cocaine, would be in the range of four years imprisonment. A person who engages in this type of conduct, absent other mitigating or aggravating circumstances, must expect that the risk associated with such criminal activity is a sentence of that length. On the facts of this case, the question is whether the trial judge erred by imposing a sentence of two years less a day to be served in the community. The Sentence Imposed in this Case Parity in Sentencing [25] It is a fundamental principle of sentencing, the principle of parity, that “a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances” (section 718.2(b) of the Criminal Code). In this case: (1) The head of the conspiracy in Quebec was convicted of two conspiracies, had a prior related criminal record, and was sentenced to five years imprisonment based on a joint submission; (2) The head of the conspiracy in this Province was convicted of two conspiracies, had a prior related criminal record, and was sentenced to seven years imprisonment, again based on a joint submission; (3) Mr. Stanley, from whom Mr. Kane received his instructions, was convicted of two conspiracies, had no prior criminal record, and was sentenced to five years imprisonment, again based on a joint submission; (4) Mr. Browne, who received instructions and assistance from Mr. Kane, was convicted of two conspiracies, had no adult criminal Page: 10 record, and was sentenced to two and one-half years imprisonment, again based on a joint submission. [26] The trial judge did not reference the principle of parity, other than to state: [37] The Crown also acknowledged that while parity with sentences imposed on other participants in the conspiracy is important, a sentence arrived at as a result of a joint submission must be viewed differently, and does not bind a sentencing judge. [27] A statement that sentences based on joint submissions are, as a general rule, not of much assistance is found in R. v. Johnston, 2011 NLCA 56, 311 Nfld. & P.E.I.R. 129: [58] … It is noted that sentences resulting from an accepted joint submission are considered to have little or no precedential value. … [59] Neither Butler nor Barrett can stand for any more than what was decided: that the joint submission did not “bring the administration of justice into disrepute” and was not “contrary to the public interest”. … [28] Underlying these comments is the fact that, in a sentencing decision based on a joint submission, the judge is presented with a conclusion that he or she must assess for acceptability, applying considerations related to the administration of justice and the public interest. This is a different focus from the ordinary case where the judge, with the assistance of counsel, determines a fit sentence. [29] However, this is not to say that a decision based on a joint submission is of no value for particular purposes. For example, a joint submission may be indicative of an appropriate range of sentence (R. v. Johnson, 2010 ABQB 546, at paragraph 28, appeal dismissed, 2010 ABCA 392, 265 C.C.C. (3d) 443, referenced in the Johnston decision at paragraph 58). Most often, the sentence will indicate the lower end of the range since the defendant would have no reason to accept a sentence that did not provide him with a quid pro quo for his agreement to forego a trial, plead guilty, and agree to a particular sentence. (See: R. v. Druken, 2006 NLCA 67, 261 Nfld. & P.E.I.R. 271, at paragraph 19.) Indeed, for this reason, a joint submission may, depending on the circumstances, fall below the lower end of the Page: 11 ordinary range. Such a sentence would be of little assistance. Nonetheless, sentences based on a joint submission may prove useful where the trial judge has provided reasons for accepting the submission, and in so doing gives valuable guidance for future courts. (See, for example, R. v. Bremner, 2005 NSSC 163, 234 N.S.R. (2d) 95.) [30] The particular circumstance of co-accuseds or co-conspirators engages the sentencing principle of parity specified in section 718.2(b) of the Criminal Code in a special way. Sentences based on joint submissions have relevance particularly in this context because an unjustified disparity among sentences imposed on co-conspirators may not only be viewed by the offenders and others as unjust, but such disparity may also tend to bring the administration of justice into disrepute. This is not to say that differences in circumstances of the offenders and their roles in the conspiracy should not be taken into account and may result in disparate sentences. However, the sentences imposed on co-conspirators, including sentences imposed as a result of joint submissions, should be taken into account. This proposition is stated plainly in R. v. Bremner, supra, where a co-conspirator had received a sentence based on a joint submission. In discussing the decision on a similar point in R. v. LeBlanc, 2003 NBCA 75, 264 N.B.R. (2d) 341, Moir J., in Bremner, explained: [26] … If [the LeBlanc] decision stands for the proposition that a sentencing judge must not ignore the fact that a sentence in similar circumstances resulted from a joint recommendation, then I follow it. If it says that I should give less weight to a sentence resulting from a joint recommendation, then it would depend on how much disclosure had been made about plea agreements and what the sentencing judge gave as his or her reasons for accepting the recommendation. If LeBlanc stands for the proposition that sentencing decisions based on the acceptance of joint recommendations never have precedential value, then I respectfully say LeBlanc was wrongly decided. Firstly, a joint recommendation demands judicial scrutiny as to whether the sentence is within the bounds of reasonableness or fitness: [citations omitted]. Secondly, the principle enacted by s. 718.2(b) calls for parity of sentences. A jointly recommended sentence is a sentence within the meaning of s. 718.2(b). So, I shall consider Mr. Zimmer’s references, weighing the presence or absence of a joint recommendation in my assessment of the precedent’s value or weight just as I would weigh all relevant circumstances evident in a judge’s reasons for sentence. … [30] The principle of parity is especially applicable where a person is being sentenced for the same crime for which another has already been sentenced. … Page: 12 Moir J. went on to assess the particular circumstances of the offender, compared with the co-conspirator, taking into account the principle of parity along with other relevant sentencing principles. [31] Similarly, in R. v. Vermette, 2001 MBCA 64, 154 C.C.C. (3d) 193, Steel J.A., for the Court, affirmed the trial judge’s decision regarding credit given for presentence custody: [84] It is true that the other sentences referred to by the sentencing judge were based on a joint submission and, therefore, those judges did not have the same arguments in front of them as did Nurgitz J. Nonetheless, he heard all of the facts with respect to the length of custody, the conditions of detention and the special circumstances of Isadore Vermette and Garrett Courchene. He referred to the correct legal principles. He balanced that against the double credit already given and the principles of parity, and concluded that he would not grant any further credit. It cannot be said that in so exercising his discretion he erred. [32] In the case now before this Court, the trial judge erred by giving no consideration to the principle of parity because the other conspirators were sentenced on the basis of joint submissions. The judge may have determined that little weight should be assigned to the other sentences, but it was incumbent on him to consider them especially in light of the lengthy sentences given to the others and the comparatively light sentences he imposed on Mr. Kane. [33] I would note in passing that the trial judge did not consider whether a different sentence would be appropriate for the offence of conspiracy to traffic in marihuana as opposed to cocaine. He imposed the same sentence for each charge to run concurrently. Given the result in this case, it is unnecessary to comment on possible differences in sentence depending on the nature of the drug involved in the conspiracy. Release Conditions Pending Trial [34] In imposing a sentence of two years less a day to be served conditionally, the trial judge relied primarily on two factors: (1) the nature of the conditions that had been imposed on Mr. Kane during the time he was on judicial interim release pending disposition of his charges; and (2) indications of Mr. Kane’s rehabilitation during that period. Regarding the first, the trial judge explained: [68] In view of the fact that both the Crown and the Defence agree to consider this as a mitigating factor, it remains just how I should apply it. Following the Page: 13 approach in the Downes case in the Ontario Court of Appeal, I will consider giving credit based on the factors outlined therein. First, the length of time spend [sic] on bail; second, the stringency of the conditions; third, the impact on the offender’s liberty; fourth the ability of the offender to carry on normal relationships, employment and activity. [69] In this case, all of these factors support consideration of this time as a significant mitigating factor. The time on bail, over 4 years, while not unusual in conspiracy cases, is a long time to be under the supervision of the court before a conviction has been entered. Both sides say that the conditions were stringent, and I agree with their assessment. His liberty has been curtailed, even if he had been able to maintain some aspects of his life. The evidence before me shows the impact on his employment; however he seems to have been able to maintain and develop his personal life. … [74] The time he has spent under court-imposed conditions bring him to the lowest part of the [sentencing] range. While I believe, in the absence of this factor, a sentence in the range of 24 to 36 months is appropriate, when one considers the length of time spent on stringent bail conditions, it is appropriate to move to the low end of this range. I am satisfied from Mr. Kane’s clean record of performance while on bail that the period under conditions has served to promote his rehabilitation and thus warrants mitigation in sentence. [35] The Crown submits that the trial judge erred in this analysis. The conditions that were imposed on Mr. Kane’s release, in addition to the statutory conditions, are: a daily curfew between 10:30 p.m. and 7:00 a.m., together with prohibitions from entering a licensed drinking establishment, possessing, consuming or trafficking in any illegal drug or substance, contacting specified persons, possessing a firearm or other listed weapon, and possessing a cellular telephone or pager. The conditions that may be argued to be somewhat unusual are the curfew and the restriction regarding a cell phone or pager. [36] In considering whether the trial judge erred in determining that Mr. Kane’s conditions of release constituted “a significant mitigating factor” (paragraph 69), I begin by noting that the circumstances in which time on judicial interim release will be given effect as a mitigating factor in sentencing are limited. In R. v. Downes (2006), 205 C.C.C. (3d) 488 (ONCA), on which the trial judge relied, the Ontario Court of Appeal accepted that very restrictive conditions of house arrest imposed on Mr. Downes pending trial could be considered as a mitigating factor in his sentencing. Subsequently, that Court cautioned that Downes must be Page: 14 considered in context (R. v. Ijam, 2007 ONCA 597, 226 C.C.C. (3d) 376). MacPherson J.A., for the majority in Ijam, drew a distinction between the curfew imposed in Ijam and the very restrictive house arrest imposed in Downes. He also emphasized the difference between release pending trial, which permits the accused a large measure of liberty, and remittal of the accused on remand which, being imprisonment, amounts to “a profound loss of liberty” (paragraph 36). In summary, MacPherson J.A. wrote: [37] The import of the above reasoning is this: Pre-trial bail and pre-trial custody are very different concepts. Their foundations are different because their realities for accused persons are different. That said, there will be cases – Downes, with long-term house arrest bail conditions, is one – where a sentencing judge should give mitigation effect to pre-trial bail. However, there will be many other cases – Lawes and Hunjan are examples – where this factor will attract little, if any, weight. [37] To a similar effect, in R. v. Irvine, 2008 MBCA 34, 231 C.C.C. (3d) 69, Scott C.J.M., for the Court, explained: [30] While the accused’s counsel referred on a number of occasions at the sentencing hearing and before this court to the “strict” terms of bail constituting “effectively house arrest,” no further details with respect to any alleged undue hardship were provided. For bail conditions 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 the accused … [they] do not contain any punitive sanction” (at para. 17), nor do they if the “house arrest required duplicates the hours when most working people are at home in any case” (at para. 20). [38] Applying these principles, it cannot be said that the conditions of release were such as to warrant mitigation of the sentence in this case. As noted above, the only conditions that may be argued to be somewhat unusual are the curfew and the restriction regarding a cell phone or pager. [39] A curfew is not house arrest (R. v. R.J.H., 2012 NLCA 52). Indeed, a curfew from 10:30 p.m. to 7:00 a.m. as imposed in this case is generally consistent with the hours when most working people are at home in any event. Given the nature of the offence and the manner in which Mr. Kane got involved in the conspiracy through his work at a bar during the night, the curfew was intended to strike a balance between protection of the public by putting preventive measures in place and Mr. Kane’s right to the presumption of innocence until proven guilty. Page: 15 [40] Further, as a result of being released pending trial, Mr. Kane was able to maintain important aspects of his life. He stabilized his relationship with his girlfriend and they have a baby. He obtained employment. While he was subject to a daily curfew from 10:30 p.m. to 7:00 a.m., as stated in Irvine, this restriction duplicates the hours when most working people are at home in any event (paragraph 37, above). To the extent that the curfew interfered with valid circumstances such as the birth of the baby, he could have applied for a variation in the terms of his release to accommodate this event or related responsibilities. As to the restriction on his employment opportunities to work during the night at a bar, this was a preventive measure since it was during such employment that he became involved in the conspiracy. In any event, he obtained alternate employment that did not interfere with the curfew restriction. [41] In granting an accused judicial interim release pending trial, the court must strike a balance between protection of the public by ensuring that adequate preventive measures are in place and the presumption that the accused is innocent until proven guilty. Pursuant to section 515 of the Criminal Code, the judge may order the accused to be released with or without conditions. The burden is on the Crown to show cause why the accused should be subject to conditions. Section 515(4) specifically addresses conditions with respect to requiring the accused to report to a designated person such as a police officer, to remain within the Province, to notify a designated person of a change of name, address or employment, to abstain from contacting specified persons such as a victim or potential witness, and to surrender his passport. The judge may also impose “such other reasonable conditions” as he or she “considers desirable” (section 515(4)(f)). [42] In practice, when an accused is released on conditions, the Crown and the accused have the opportunity to make submissions. The judge orders the appropriate conditions based on those submissions and on the circumstances existing at the time, as disclosed to the judge. [43] However, on occasion, circumstances change or it becomes apparent that a condition requires clarification or variation in order to achieve its purpose. Where the need for a change, clarification or variation arises, it is up to the party affected, either the Crown or the accused, to make the necessary application. For example, in this case, it was Mr. Kane who knew the birth of his child may have a potential impact in respect of his Page: 16 compliance with the curfew. Similarly, an employment opportunity may lead an accused to seek a variation in a condition of his release. [44] Applying the above principles in the circumstances of this case leads to the conclusion that the conditions of release imposed on Mr. Kane were not such as to warrant mitigation of his sentence. Personal Circumstances of Mr. Kane – Rehabilitation [45] It is clear from the foregoing that the trial judge made errors in the approach he applied in sentencing Mr. Kane. This Court has repeatedly emphasized that general deterrence and protection of the public are the paramount considerations in cases involving a commercial level conspiracy to traffic in cocaine, with rehabilitation of the offender being secondary. The sentence imposed on Mr. Kane was clearly unfit. Ordinarily, in such circumstances, this Court would allow the appeal and proceed to vary the sentence imposed by the trial judge by determining a fit sentence. Nonetheless, there are limited circumstances when “it is in the interests of justice to leave the sentence (flawed as it is) in place to run its course” (R. v. J.J., 2004 NLCA 81, 244 Nfld. & P.E.I.R. 24, at paragraph 76; see also, R. v. Oates, supra). [46] On November 29, 2011, Mr. Kane was sentenced to a conditional sentence of two years less a day on each charge, to run concurrently. He will have to serve the entire sentence, without the remission that would apply to a term of incarceration in a prison. He will be subject to completing his sentence in prison should he fail to comply with the sentencing conditions, including house arrest and refraining from the possession or use of prohibited drugs such as marihuana. At the completion of his sentence, including probation for two years, Mr. Kane would have been under court imposed restrictions for a period of approximately eight years, a significant period of time. [47] Accepting the trial judge’s determination that Mr. Kane has demonstrated that he is unlikely to re-offend, this is, of itself, a benefit to society. For purposes of the appeal, Mr. Kane provided a letter from the probation officer who has been supervising his conditional sentence order since it was imposed. The letter indicates no issues of concern and suggests a positive outlook as Mr. Kane is proceeding with educational opportunities. In these particular circumstances, I would not interfere with the sentence. Page: 17 SUMMARY AND DISPOSITION [48] The trial judge erred in his analysis in determining the sentences to be imposed in this case. An offender like Mr. Kane who, for the purpose of monetary gain, has played an active, trusted and necessary role in a sophisticated, commercial level conspiracy to traffic in significant amounts of cocaine, should expect a sentence in the range of four years imprisonment. The risk associated with such criminal activity is a sentence of that length. However, for the reasons discussed above, in the particular circumstances of this case, the interests of justice are best served by allowing the sentence imposed by the trial judge to run its course. [49] Accordingly, leave to appeal having been granted, the appeal is dismissed. __________________________ B.G. Welsh J.A. I Concur: ____________________________ C. K. Wells J.A. I Concur: ____________________________ C. W. White J.A.