Emperical or statistical evidence is required to advance, as an aggravating factor, that a given offense is so prevalent in the community as to be merit a sentence which may be more punitive than it might otherwise be

R. v. Julien, 2011 ONSC 5989 seems to hold that emperical or statistical evidence is required to advance, as an aggravating factor, that a given offense is so prevalent in the community as to be merit a sentence which may be more punitive than it might otherwise be.  However, the Court goes on the note, almost in passing, that a Court will be familiar with the cases before it and can “consider whether the prosecution of a particular crime represents either an isolated or frequent occurrence”.  What that means practically it unclear.  The Court holds:

 

[3]               In each of those cases, the prevalence of the offense in question was established by evidence presented to the sentencing court.  Most notably, in R. v. Petrovic the Court observed that the evidence presented was insufficient for the Court to conclude that there has been a marked increase in the incidence of domestic assault – observing at paragraph 34:

“Further, in his reasons for sentence, the learned judge took into consideration the evidence with respect to an increase of “wife beating” cases in the City of Toronto.  To the extent that the statement was based on the statistics related by a supervisor of the coding unit of the Metropolitan Toronto Police Department, untrained in statistics, and based upon a compilation of police investigations during the period from 1981, without regard to population growth, it is based on evidence which I would regard as insufficient and inherently unreliable.”

 

[4]               I would therefore conclude that emperical or statistical evidence is required to advance, as an aggravating factor, that a given offense is so prevalent in the community as to be merit a sentence which may be more punitive than it might otherwise be.  While it stands to reason that accentuating denunciation and deterrence should be a sentencing measure used to confront a disproportionately grave problem in a given community, I would conclude that a sentencing Court can only invoke harsher sentences if it is proven, as with all aggravating factors, beyond a reasonable doubt, that the particular community is confronted with an incidence of the given crime that exceeds what can normally be expected.

[5]               That said, I would add that a Court is capable, as an observer of its own process, to consider whether the prosecution of a particular crime represents either an isolated or frequent occurrence.

[6]               While the recurrence of a certain type of prosecution cannot be viewed as an aggravating factor absent evidence showing that it is disproportionately frequent, it can nonetheless be examined and, if appropriate, considered as one factor in balancing the various sentencing objectives.  Stated otherwise, a Court dealing with an offense seldom before the Courts may be less inclined to consider denunciation and deterrence as primary sentencing objectives, depending of course on the seriousness and nature of the offense.  Conversely, a Court dealing with the disposition of an offense that is frequently before the Court would, logically, consider that the public safety objectives of the sentencing exercise call for a sentence with a sufficient denunciatory and deterrent effect.  In all of the circumstances, I have concluded that there is no factual foundation for concluding that the possession of cocaine for the purposes of trafficking represents a societal problem in Cornwall and the surrounding area beyond what is being experienced in other communities in Ontario and the rest of the country.  That said, offenses of trafficking in hard drugs are frequently before the Courts in this community.  In addition, the Court is regularly confronted with cases involving serious offenses against the person, including homicides, where drugs are a central feature of the commission of the offense.  Cases involving drug trafficking are not isolated matters before this Court, nor are cases where drugs figure prominently in related property and serious personal injury offenses.

[7]               Accordingly, the determination of an appropriate sentence in the present case takes into consideration, along with other factors, that the use and sale of addictive and destructive drugs is a societal problem that has not escaped the City of Cornwall and the surrounding area; and one which must be confronted having regard to need to denounce and deter the conduct as a means of promoting a safe and peaceful community.