SUPREME COURT OF Nova Scotia
Citation: R v. Stark, 2021 NSSC 303
Docket: Pt. Hawk. No. 486410
Registry: Port Hawkesbury
Between:
Her Majesty the Queen
v.
Adam Chester Stark
Defendant
Restriction on Publication: Criminal Code s. 486.5
By court order made under subsection 486.5(2) of the Criminal Code, the identity of the undercover police officers or any information that could disclose their identity shall not be published, broadcast, or transmitted in any manner..
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Judge: |
The Honourable Justice Patrick J. Murray |
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Heard: |
August 6, 2021, in Port Hawkesbury, Nova Scotia |
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Oral Decision: |
August 16, 2021 |
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Counsel: |
Wayne MacMillan for the Crown Douglas MacKinlay for Mr. Stark
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Order restricting publication — victims and witnesses
486.5 (1) Unless an order is made under section 486.4, on application of the prosecutor in respect of a victim or a witness, or on application of a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice.
Justice system participants
(2) On application of the prosecutor in respect of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection (2.1), or on application of such a justice system participant, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice.
Offences
(2.1) The offences for the purposes of subsection (2) are
(a) an offence under section 423.1, 467.11, 467.111, 467.12 or 467.13, or a serious offence committed for the benefit of, at the direction of, or in association with, a criminal organization;
(b) a terrorism offence;
(c) an offence under subsection 16(1) or (2), 17(1), 19(1), 20(1) or 22(1) of the Security of Information Act; or
(d) an offence under subsection 21(1) or section 23 of the Security of Information Act that is committed in relation to an offence referred to in paragraph (c).
Limitation
(3) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice if it is not the purpose of the disclosure to make the information known in the community.
Application and notice
(4) An applicant for an order shall
(a) apply in writing to the presiding judge or justice or, if the judge or justice has not been determined, to a judge of a superior court of criminal jurisdiction in the judicial district where the proceedings will take place; and
(b) provide notice of the application to the prosecutor, the accused and any other person affected by the order that the judge or justice specifies.
Grounds
(5) An applicant for an order shall set out the grounds on which the applicant relies to establish that the order is necessary for the proper administration of justice.
Hearing may be held
(6) The judge or justice may hold a hearing to determine whether an order should be made, and the hearing may be in private.
Factors to be considered
(7) In determining whether to make an order, the judge or justice shall consider
(a) the right to a fair and public hearing;
(b) whether there is a real and substantial risk that the victim, witness or justice system participant would suffer harm if their identity were disclosed;
(c) whether the victim, witness or justice system participant needs the order for their security or to protect them from intimidation or retaliation;
(d) society’s interest in encouraging the reporting of offences and the participation of victims, witnesses and justice system participants in the criminal justice process;
(e) whether effective alternatives are available to protect the identity of the victim, witness or justice system participant;
(f) the salutary and deleterious effects of the proposed order;
(g) the impact of the proposed order on the freedom of expression of those affected by it; and
(h) any other factor that the judge or justice considers relevant.
Conditions
(8) An order may be subject to any conditions that the judge or justice thinks fit.
Publication prohibited
(9) Unless the judge or justice refuses to make an order, no person shall publish in any document or broadcast or transmit in any way
(a) the contents of an application;
(b) any evidence taken, information given or submissions made at a hearing under subsection (6); or
(c) any other information that could identify the person to whom the application relates as a victim, witness or justice system participant in the proceedings.
By the Court:
Introduction
[1] This is my sentencing decision with respect to her Majesty the Queen v. Adam Chester Stark, as Defendant. I will be providing a written copy, within a short time following today.
[2] Mr. Stark has entered a guilty plea to the charge of possession of a controlled substance, namely cocaine, contrary to section 5(2) of the Controlled Drugs and Substances Act, SC 1996, c. 19.
[3] This is a serious charge. Prior to this offence Mr. Stark had no prior record. He is currently 30 years of age, and 27 years at the time of the offence which occurred on May 16, 2018 at or near Port Hawkesbury.
[4] With respect to the facts, those are outlined in the Crown’s brief, at paragraphs 1-8, with the noted amendment to paragraph 8. These are essentially agreed to by the Defence in paragraph (b) of their brief.
1. In the early part of 2018 the Port Hawkesbury RCMP carried out an undercover operation under the name […] in the Port Hawkesbury area.
2. On February 16, 2018 an undercover police officer offered to purchase 3 grams of cocaine from […].
3. Thereafter, Adam Stark, as a result of a phone call from […], met with the undercover officer and delivered 3 grams of cocaine to him in exchange for which the officer gave $300 to […].
4. On March 6, 2018 […] traded 2 grams of cocaine for “stolen” tools in the presence of Mr. Stark, who said the stuff is “good shit”.
5. On March 7, 2018 […] took the undercover officer to Port Hastings where […] sold 1 gram of cocaine to the undercover officer for $80.
6. On March 16, 22, 24 and 29, 2018, Adam Stark sold substantial amounts of cocaine to the undercover police officer, being 7 grams, 1 ounce, 1 ounce, and 1 ounce, respectively.
7. On May 16, 2018, the undercover police officer entered into an agreement to purchase 100 grams of cocaine from Adam Stark. The Police then arranged to stop Adam Stark’s vehicle before he arrived at the place where the transaction was to take place. Mr. Stark was operating the vehicle and a […] was a passenger. The police found 100 grams of cocaine in the vehicle.
8. The police then searched […] Stark’s residence where they discovered 5.94 grams of cocaine, 800 grams of what is thought to be a cutting agent, a hydraulic jack believed to be for pressing cocaine, a scale with white residue on it, dime baggies, and a vacuum sealer.
[5] I am not going to repeat the facts at this time. They are known to the parties and the submissions only occurred approximately 12 days ago, on August 4, 2021. I will be commenting on the facts in more detail in my decision.
[6] A pre-sentence report has been prepared and I have reviewed same. Mr. Stark has been in a relationship with his common law partner for about 10 years. He has recently obtained employment. Mr. Stark reported having a difficult childhood, he struggled in school.
[7] The Crown is seeking a three (3) year federal term of imprisonment. The Defence is seeking a suspended sentence and three (3) years of probation or alternatively a 90 day intermittent sentence followed by a two and a half (2.5) years of probation.
[8] The Controlled Drugs and Substances Act contains a provision related to sentence. Section 10 reads:
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.
[9] Sentencing is one of the more difficult tasks performed by a trial judge, and this case is no exception. The issue for the Court is what is a fit and proper sentence for Mr. Stark?
[10] This is a serious offence as pointed out by the Crown. Trafficking in cocaine has been an ongoing issue before the Courts and thus, in the communities they serve.
[11] Further, I accept, as expressed by the Nova Scotia Court of Appeal in R v. Oickle, 2015 NSCA 87, and other decisions, that in the majority of cases a federal term of imprisonment will be imposed, which means a minimum of two years and that sentences that are more lenient than that, such as the sentence sought here by the Defence, will be “rare” and imposed in only truly exceptional circumstances.
[12] I am particularly mindful of Justice Beveridge’s decision for the majority in R v. Scott, 2013 NSCA 28, as well as the dissent opinion of Justice Saunders, with respect to sentences to be imposed in Controlled Drugs and Substances Act matters. It has been said drugs are a scourge in society, destructive of peoples lives, and enhances or breeds further crime. Cocaine is listed as a Schedule 1 substance under the Act.
[13] In addition, I have reviewed and considered, the many other decisions provided to me including R v. Green, 2021 NSSC 134, submitted by the Crown, and R v. Chase, 2019 NSCA 36, submitted by the Defence.
[14] In Chase, Justice Saunders provides a thorough and clear review of the principles that must be emphasized, denunciation and deterrence, but further recognizes there will be cases that are either not the norm, or not typical or indeed exceptional. In such cases the sentencing judge does retain some discretion to impose the sentence which he/she finds to be a fit sentence, a proportionate sentence, and an appropriate one having regard to the sentencing principles contained in ss. 718-718.2 of the Criminal Code. The fundamental principle is that a sentence must reflect the gravity of the offence and the responsibility of the offender.
[15] Sentencing principles can be at odds, in a given case, making it difficult to find the right balance between the factors which are aggravating and those that are mitigating.
[16] In Oickle, relied upon by the Crown, the Court discussed at some length, (citing authority such as R v. Nasogaluak, 2010 SCC 6, to illustrate) that sentencing is an individual process. In Nasogaluak, at paragraph 43, the Court stated:
[43] The language in ss. 718 to 718.2 of the Code is sufficiently general to ensure that sentencing judges enjoy a broad discretion to craft a sentence that is tailored to the nature of the offence and the circumstances of the offender. The determination of a “fit” sentence is, subject to some specific statutory rules, an individualized process that requires the judge to weigh the objectives of sentencing in a manner that best reflects the circumstances of the case (R. v. Lyons, 1987 CanLII 25 (SCC), [1987] 2 S.C.R. 309; M. (C.A.); R. v. Hamilton (2004), 2004 CanLII 5549 (ON CA), 72 O.R. (3d) 1 (C.A.)). No one sentencing objective trumps the others and it falls to the sentencing judge to determine which objective or objectives merit the greatest weight, given the particulars of the case. The relative importance of any mitigating or aggravating factors will then push the sentence up or down the scale of appropriate sentences for similar offences. The judge’s discretion to decide on the particular blend of sentencing goals and the relevant aggravating or mitigating factors ensures that each case is decided on its facts, subject to the overarching guidelines and principles in the Code and in the case law.
[17] As stated by the Court in Chase, there is no uniform sentence for a particular offence.
[18] I am further cognizant of the position taken by the Crown in Chase, which informed the Court of an alarming trend toward lenient sentences involving trafficking in hard drugs. The supposition was rejected by the Court.
[19] In those cases where a sentencing judge found it appropriate to impose a conditional sentence order (no longer available), a suspended sentence, or something less than federal time, the Courts were mindful of the fact that rehabilitation as well as denunciation and deterrence remains an important principle of sentencing.
[20] Typically these involve situations, of persons who have worked hard to “reverse the cycle” or reverse the situation in which they have found themselves. They have often sought out counselling for an addiction or mental health issues, have found employment, have begun or are in a stable relationship, they may have started a family. The most common phrase, is that the individual being sentenced has been able, (with discipline) to turn their life around, or have placed themselves in a position to be a good and contributing member of society.
[21] There is, of course, “no guarantee” of that going forward. None of these situations is necessarily unique, special or exceptional (except for the effort that often accompanies this type of individual progress). They rely on the support of friends, family and professionals.
[22] Enough said on that, I am alive to the need to recognize the seriousness of Controlled Drugs and Substances Act offences, the need for general, if not, specific deterrence, denunciation, and the parity principle.
[23] Section 718.2(b) recites that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.
[24] Society is in essence, fair. The public expects the Courts to recognize those situations which require some degree of leniency, while employing stare decisis, in cases that warrant a harsher sentence.
[25] While the public is capable of seeing “both sides” they also expect a Court will not allow the “wool to be pulled” in assessing the circumstances of both the offender and the offence.
[26] The Court must be capable of following the principles contained in s. 718.2(d) that an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances, and in s. 718.2(e), that all available sanctions, other than imprisonment, that are reasonable in the circumstances, and consistent with harm done to victims or to the community be considered for offenders, with particular attention to circumstances of Aboriginal offenders.
[27] Mr. Stark is not aboriginal, but his counsel has referred the Court to cases that did involved aboriginal offenders. R v. Chase, is an example of the approach the Defence recommends. That is, an extended period of probation combined with 90 days incarceration, if the Court deems it necessary.
[28] The Crown did not consider that Chase was persuasive authority in the present case, citing that, sentences for aboriginal offenders present a different situation for the Court. That may be, but a close reading of the decision reveals that while Gladue Factors were considered, they were not given “the same weight as one would if there were a clear bright line to (those) factors” present in that case. The sentence imposed in Chase at trial was a 90 day intermittent jail sentence, following a guilty plea. The Crown argued the sentence was “out of step” with binding precedent, and virtually ignored the principal objectives of denunciation and deterrence. The Court of Appeal dismissed the Crown’s appeal.
[29] An important feature which does, in my view, distinguish Chase from this case, is the amount of drugs involved, which was 6 grams compared to the amount being relied upon here by the Crown. The Crown states Mr. Stark had possession of 100 grams, and had previously sold one ounce of cocaine on three occasions in March, 2018.
[30] To some extent there is not complete agreement as to the actual amount of cocaine involved, although it is clear the Crown states it was 100 grams. The Defence submits that Mr. Stark clearly attempted to sell 100 grams, but the actual concentration was less, by a large percentage, arguing it mostly consisted of sugar. I will return to this discussion.
[31] Section 718.2 of the Criminal Code states that a sentence shall also take into consideration, that a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence of the offender.
[32] I turn to address the aggravating and mitigating factors in this case.
Aggravating Factors
• The type of drug, cocaine, a hard drug.
• The amount of the drug 3 x 1 ounce; 1 x 100 grams.
• Selling for profit, so as to relieve debt.
• Crown submits Mr. Stark was a mid-level trafficker, not a petty retailer.
Mitigating Factors
• Still a young man.
• This is his first offence. The offence appears out of character.
• Struggled with mental health issues. Seeking treatment for those issues.
• In a stable relationship.
• Has secured employment.
• Entered a guilty plea to the charge.
[33] There seems to be an issue of contention regarding the amount of cocaine involved, with the Crown asserting it was 100 grams, and the Defence stating, this is correct, but noting that it was diluted by 95%, meaning the actual amount was 5% of that.
[34] The Crown submits it is now to Mr. Stark’s advantage to take this position on sentencing. While he may now regret it, the amount of 100 grams was promoted as, “good shit”, and now it was “bad shit”.
[35] The Crown has further stated there is no expert evidence before the Court as to the actual breakdown of the amount of cutting agent, typically used when cocaine is distributed for sale. The Defence acknowledges this is not an excuse, but wanted the Court to be aware of their position that it was diluted.
[36] While it may be a consideration, it is not as much of a factor than if it was clear that Mr. Stark’s intention was to sell as a smaller amount. He appears to have held himself out as someone who could deliver this large quantity.
[37] When I consider all of the circumstances of the offence and the offender, as well as the objective to deter others, to contribute to respect for society, to provide reparations for harm done to the community, the principle of proportionality and moral blameworthiness, I have concluded that it is not necessary to separate Mr. Stark from society for a lengthy period in order for these objectives to be served.
[38] Mr. Stark is an individual attempting to get back on his feet, after a very difficult period in his life, mentally and financially. I would note, in particular, his decision to no longer associate with persons he has in the past that led him here.
[39] He was obviously motivated by personal gain and severe debt, he says, and looking to gain a profit. Apart from the breach since his arrest, he has no prior criminal record. As a first time offender, he says, he made a mistake. Indeed, he did, and a significant one.
[40] Whether his enterprise amounts to a mid level dealer, is arguable. In terms of what he sold to the public, the petty retailer label may hold some weight or merit.
[41] The difficulty, of course, is the message to the community at large. What does it say about this serious crime if only a short sharp term of imprisonment is imposed.
[42] To that I respond simply by stating that Mr. Stark had a positive pre-sentence report which in its concluding paragraphs contained the following:
Offender Stark recently secured employment, appears to be in a stable relationship, accepts responsibility for his actions and has taken steps to address the issues that have resulted in his involvement before the Court including disconnecting from his former peer group and seeking out individual counselling. The offender appears to have good insight into the impact his actions have had on himself and others. Collateral contacts have indicated this offence is out of character for the offender and are supportive of him moving forward.
[43] In summary, I sentence Mr. Stark to 90 days in custody, time to be served intermittently, together with probation for a period of 30 months, the terms of which include:
• Remain within the province of Nova Scotia unless written permission to go outside the jurisdiction is obtained from the Probation Officer or the Court.
• Abstain from the possession or consumption of alcohol or other intoxicating substances or the possession or consumption of drugs except in accordance with a medical prescription.
• Seek, accept and complete counselling as directed by your Probation Officer.
• Not to have in your possession any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition or explosive substance.
• You must not associate with, or be found in the company of or any person known by you to have a record under the Criminal Code, the Controlled Drug and Substances Act or the Youth Criminal Justice Act except as may be incidental through employment.
• You shall obey a curfew and be in your place of residence and surrounding property situate at 320 Granville Street, Port Hawkesbury, NS, daily between the hours of 11:00 p.m.. and 7 a.m., 7 days a week, except :
a) When engaged in paid employment and travelling by a direct route to and from that employment.
b) When attending any medical appointments or medical emergencies involving yourself or a family member and travelling by a direct route to and from such appointments.
c) When attending any court appearances and travelling to and from by a direct route.
d) When attending a regularly scheduled education program, which your probation officer knows about or at school or educational activity supervised by a principal or teacher, and traveling to and from the educational program or activity by a direct route.
• Report to a Probation Officer at 302, 15 Kennedy Street, Port Hawkesbury, NS, 902-625-2349 within 10 days from the date of sentence and thereafter as directed by the Probation Officer or someone acting in his/her stead and be under his/her supervision.
[44] The Ancillary orders sought by the Crown are granted.
Murray, J.