



COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Lazo, 2012 ONCA
    389

DATE: 20120607

DOCKET: C53810

Gillese, Epstein and Ducharme JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Roger Lazo

Appellant

Timothy E. Breen, for the appellant

Kevin Wilson, for the respondent

Heard and released orally: May 25, 2012

On appeal from the sentence imposed on May 30, 2011 by
    Justice T. Culver of the Ontario Court of Justice, sitting without a jury.

Gillese J.A.:

[1]

Roger Lazo (the appellant) seeks leave to appeal against sentence.  The
    Crown concedes that the appeal should be allowed.  Both parties submit that the
    original joint submission in this matter should be accepted by this court.

[2]

The appellant was a first offender who sold $40 of crack cocaine to an
    undercover officer.  He was addicted to cocaine.  The appellant was approved by
    the Crown to participate in SURCH,
[1]
an addiction treatment rehabilitation program aimed at offenders whose criminal
    conduct is driven by drug addiction.  The program involved four months of individual
    counselling designed to address addictive behaviour and lifestyle.  It is based
    on: abstinence, development of healthy supports, addressing addictive
    behaviours and lifestyle, and developing healthy boundaries.

[3]

The appellant actively participated in the program and made positive
    steps towards rehabilitation.  He met the expectations that had been set for
    him as part of the program, including attending scheduled sessions and
    maintaining abstinence from cocaine.  He has abstained from drug use since his
    arrest.  He enjoys strong family support.

[4]

The appellant pleaded guilty to one count of trafficking in a controlled
    substance.  Upon his successful completion of the program, the Crown joined
    with defence counsel in recommending the imposition of an eight-month
    conditional sentence, with four months of house arrest with exceptions for employment.

[5]

At the sentencing hearing, the Crown conceded that the appellant was a
    cocaine addict who was trafficking at the street level.  There was no evidence
    to the contrary.

[6]

The sentencing judge rejected the joint submission and imposed a
    six-month jail term, followed by two years of probation.  He did so based on a
    mistaken finding that the appellant had admitted to being a middleman in the
    business of trafficking in cocaine.  This was a misapprehension of the
    evidence.  The agreed-on facts were that the appellant was an addict trafficker
    at street level.

[7]

Moreover, although the sentencing judge acknowledged the appellants
    participation in SURCH, in my view it was an error on his part to fail to
    consider that the appellant met the programs expectations and successfully
    completed it.  In so doing, the appellant demonstrated a genuine effort and
    progress toward his rehabilitation.  Furthermore, his steps towards rehabilitation
    will be encouraged by a conditional sentence, given the likelihood of incarceration
    in the event of a breach.

[8]

A joint submission should not be departed from unless it is contrary to
    the public interest and would bring the administration of justice into
    disrepute: see
R. v. Cerasuolo
(2001), 151 C.C.C. (3d) 445 (Ont. C.A.),
    at para. 8.  This is a high threshold.  Successful treatment of addiction is
    the best means of addressing drug crime. The public interest is served by
    diverting individuals in the appellants situation into drug treatment programs
    that address the addictions which fuel their criminal activity.

[9]

Accordingly, I would grant leave to appeal sentence and allow the appeal. 
    I would accept the joint submission on sentence and, accordingly, vary the six-month
    jail term to an eight-month conditional sentence on the terms proposed at the
    sentencing hearing, less 11 days credit, for time already spent in custody.

Released: June 7, 2012 (E.E.G.)

E.E. Gillese
    J.A.

I agree G.J. Epstein J.A.

I agree E. Ducharme J.A.





[1]
Substance Use Related Crime, Hamilton.


