Court Information
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Lloyd Wayne Williamson
Before: Justice Peter Harris
Reasons for Sentence
Counsel
For the Public Prosecution Service of Canada: Ian Bell
For the Defendant: Paul Lewin
Endorsement
Introduction
1Lloyd Williamson entered pleas of guilty to three charges of trafficking in cocaine in respect to five transactions that form the basis of this sentence hearing between the dates October 22, 2010 and April 11th, 2011. The prosecutor takes the position that the global sentence for these offences should be thirty (30) months imprisonment. Counsel for the Defendant submits that the appropriate sentence for these offences should be a conditional sentence of maximum duration, two years less one day.
Facts
2On October 22, 2010, an undercover police officer had a drug-related telephone conversation with the Defendant and subsequently attended his apartment at 88 Erskine Avenue in Toronto where he purchased 22 grams of powder cocaine for the sum of $1020.00. The officer then began a pattern of weekly telephone contact with the defendant to discuss the purchase of drugs. Most often, the undercover officer was told: "nothing's happening". The next incident was a "trafficking by offer scenario" on November 2nd, 2010, whereby the defendant met with the undercover officer and as a result of a misunderstanding, he had obtained ½ ounce of cocaine to sell to the officer for $650.00 but for some reason, the officer declined to purchase the drugs and they discussed the purchase of larger quantities. The third transaction on January 13th, 2011, involved the defendant directing the officer to a series of locations to meet with a supplier after which the Defendant took $3600.00 from the officer and left the vehicle and returned with 80 grams of powder cocaine.
3The fourth transaction on April 6th, 2011, involved the officer coming to Mr. Williamson's apartment after which he was driven to a condominium on the Toronto waterfront at which time a transaction (27.83 grams of cocaine for $1650.00) with another supplier was arranged by the Defendant. The officer took note of the address and subsequently police obtained a search warrant for that residence. The fifth transaction on April 11, 2011, was to be a purchase of 1.5 ounces of powder cocaine for $2150.00 and with the undercover officer standing by, Mr. Williamson entered the same condominium to meet the supplier and arrange the purchase of drugs at which time police executed a search warrant and arrests were made.
Circumstances of Mr. Williamson
4Based on Mr. Williamson's seventeen character references from family, friends, community work and business associates one can readily conclude he is a family man who is devoted to his daughters, his step-son, his community and his employment with Air Heat Supplies. All reports indicate he has been an exceptional "girls softball" coach from 1992 to 2010. Mr. Williamson was an active member of the School Advisory Council at Heather Heights Public School in Toronto (where his daughter attended) for a number of years prior to 2008 and was a key organizer in terms of fundraising and community events. Additionally, the defendant has been a regular weekly volunteer at Sea Cadets (Navy league Toronto East Branch) for many years. Prior to his arrest, Mr. Williamson was a member of a local band which, as a result of his influence, performed at charity events on a regular basis. The house arrest conditions of his bail release prevented him from continuing to perform with this group. Friends, neighbours, local parents, fellow volunteers describe Mr. Williamson as conscientious, responsible, a great organizer, committed, selfless, caring, a role model, fair, creative, dedicated and inspiring. The collective opinion is that he is deeply ashamed of his involvement in these offences.
5At tab 16 of his Book of Letters of Support, Mr. Williamson's family law lawyer states that at the time of the Defendant's arrest on these charges, he had recently separated from his spouse and was providing regular support and maintaining access to his daughters. He states that his spouse used the charges as a justification to terminate access and contact with the children, and given his previous level of involvement with them, this level of separation has had a significant impact on his personal life. He advises that Mr. Williamson has always presented as a caring and loving parent and these observations were confirmed through third party contacts. Additionally, in 2011, Mr. Williamson re-married and his current spouse and surety, Peatra Miller-Williamson states at tab 2 that he "has bonded as a father" with her 10 year-old son Wyatt, and adhered to all his bail conditions. She believes he will do everything in his power to rehabilitate himself, make amends to all he has affected by his actions and remain a contributing member of society. She states that while on bail, Mr. Williamson has taken advantage of counseling for drug use, depression and anxiety.
6Mr. Williamson advises that he was introduced to cocaine by a co-worker in 2008 and continued using the drug on a recreational basis to the date of his arrest. He has provided bank statements and apartment dimensions to demonstrate that he was not enjoying a lavish lifestyle prior to his arrest. He attended drug counseling while on bail and states that he has not used illegal drugs of any kind since his arrest. Three negative drug screens are included at tabs 21 to 23. Tab 17 indicates that the Defendant was found guilty of "assault causing bodily harm" in 2002 and complied fully with all of the conditions of the suspended sentence and two years of probation that was imposed at that time, according to his probation officer. In addition, he received a fine for possession of a narcotic in 1989. Following his arrest on April 11, 2010, the Defendant was held in custody for five days and then released on house arrest. Since that date to the present, he is permitted to be outside of his residence for employment purposes and in the presence of his surety, only. A number of close family friends are prepared to act in a supervisory capacity, post-sentence, in respect to Mr. Williamson.
Mitigating and Aggravating Factors
7There are several mitigating factors in this case:
(1) Mr. Williamson entered a plea of guilty to three charges of trafficking in cocaine and expressed remorse and a determination to avoid any offending behavior in the future.
(2) While Mr. Williamson is not a first offender, his past breaches of the law could be said to be dated and unrelated (see para. 6, above).
(3) While he was arranging the sale of fairly significant amounts of cocaine (1/2 oz. to just under 3 oz.), he was not a particularly sophisticated dealer – it seems that undercover officer often met him at his own residence and on most occasions he would call a supplier and then take the officer to the place where the supplier was located ─ which eventually led to a search of the supplier's residence and drug seizures and arrests. Mr. Williamson's involvement, while not selfless by any means, appeared to be more in the nature of "assisting a friend" than a major commercial enterprise. Instead of arresting him after the first transaction, as they sometimes do, they cultivated a relationship and used him for weekly reports on the drug scene for close to six months, with a view to identifying and arresting suppliers. While this approach is certainly a legitimate police investigation technique, the Defendant's drug involvement was as much a function of police strategy as it was about his active participation.
(4) It is apparent that Mr. Williamson has strong family and community support and has been employed as a shipper / receiver since February, 2011 with Air Heat Supplies. His branch manager, Ward Day, describes him as a valuable asset and a team player. He is punctual, ready to work and has "stepped up" and is looking after the branch's "health and safety". Mr. Day says that Mr. Williamson is a well-rounded individual with his priorities in place who he believes can change and become a model citizen. He is prepared to assure Mr. Williamson long-term employment.
(5) Mr. Williamson has been under "house arrest" since his release in April 2011 (21 months) without any breaches of bail conditions and despite the restrictions placed on his freedom for this period ("house arrest except for employment and while in company of surety) which can be considered a factor on sentence (see R. v. Downes 2006 CanLII 3957 (ON CA), [2006] O.J. No.555 (Ont. C.A.)), he has proven that he is capable of following court orders.
8The aggravating factors are as follows:
(1) The quantity of powder cocaine being discussed, whether or not that actual amount was sold, would suggest Mr. Williamson was involved with ounce level transactions, and certainly operating well above the weights bought and sold at the street level. That having been said, most of his involvement took the form of leading the undercover officer to other suppliers.
(2) The nature of the substance trafficked has been described in case law as pernicious, extremely dangerous and damaging to the community.
(3) Mr. Williamson could not be described as a drug dependent addict and consequently it could be inferred that his involvement with cocaine was at least partly for financial gain.
Analysis
Conditional Sentencing Framework
9A new form of sentence, the conditional sentence, came into being when section 742.1 of the Criminal Code was proclaimed in 1996. In enacting this section, "Parliament declared that certain offenders who used to go to prison should now serve their sentence in the community:" R. v. Proulx (2000) 140 C.C.C. (2d) 449. The Supreme Court held that the principles of general deterrence and denunciation can be met by a conditional sentence and that s.742.1 does not exclude any offences from the conditional sentencing regime except those with a minimum term of imprisonment.
10Section 742.1 sets out five criteria that a court must consider before deciding to impose a conditional sentence. These are:
the offender must be convicted of an offence that is not specifically excluded under the legislation;
the offender must be convicted of an offence that is not punishable by a minimum term of imprisonment;
the court must impose a term of imprisonment of less than two years;
the safety of the community would not be endangered by the offender serving the sentence in the community; and
a conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2.
11The Supreme Court of Canada in Proulx has carefully articulated the considerations in play in any determination of whether a conditional sentence is appropriate in the individual case:
(1) A conditional sentence should be distinguished from probationary measures. Probation is primarily a rehabilitative sentencing tool. By contrast, Parliament intended conditional sentences to include both punitive and rehabilitative aspects. Therefore, conditional sentences should generally include punitive conditions that are restrictive of the offender's liberty. Conditions such as house arrest should be the norm, not the exception.
(2) No offences are excluded from the conditional sentencing regime except those with a minimum term of imprisonment, nor should there be presumptions in favour of or against a conditional sentence for specific offences.
(3) The requirement in s. 742.1(a) that the judge impose a sentence of imprisonment of less than two years does not require the judge to first impose a sentence of imprisonment of a fixed duration before considering whether that sentence can be served in the community. Although this approach is suggested by the text of s. 742.1(a), it is unrealistic and could lead to unfit sentences in some cases. Instead, a purposive interpretation of s. 742.1(a) should be adopted. In a preliminary determination, the sentencing judge should reject a penitentiary term and probationary measures 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 whether it is appropriate for the offender to serve his or her sentence in the community.
The Appropriate Length of Sentence in this Case
12I have undertaken an extensive review of cocaine trafficking sentences in Ontario and I have concluded that the range of sentence for the offences in the instant case lies between 20 months and five years imprisonment. For example, three counts of trafficking in cocaine in amounts totaling 10 ½ ounces, following a trial in which the accused was additionally found guilty of conspiracy to traffic in cocaine, has resulted in a sentence of five years imprisonment: R. v. Murray (2007) 74 WCB (2d) 385 (Ont. S.C.J.)
13The decision that most clearly identifies the lower end of the cocaine trafficking range is R. v. Migalski (1999) 42 WCB (2d) 102 (Ont. C.A.), a case in which the accused pleaded guilty to two counts of trafficking in cocaine in amounts that totaled 13.5 ounces. The Ontario Court of Appeal upheld the sentence of 20 months imprisonment and found that the trial judge gave adequate consideration to the circumstances of the offence and offender.
14In addition, the fundamental principle of sentencing is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender (s.718.1) and further, s.718.2(b)(c) and (d) of the Code provide that: a sentence should be similar to sentences imposed for similar offences committed in similar circumstances; where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; and an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances.
15Trafficking in cocaine is a very serious offence. The Ontario Court of Appeal in R. v. Daya [2007] O.J. No. 3865 (C.A.) has recently described the perils of cocaine trafficking and the immeasurable harm it causes. Every jurist in Canada is well aware of the physical damage cocaine addiction causes and the often-fatal gun violence that is associated with this drug. As well, the Ontario Court of Appeal in R. v. Woolcock [2002] O.J. No.4927, stated that the seriousness of the offences of trafficking and possession of cocaine for the purpose of trafficking warrants an emphasis on the principles of deterrence and denunciation but that it is still incumbent on the sentencing judge to consider all the principles of sentencing – including the accused's prospects for rehabilitation.
16In terms of eligibility for a conditional sentence, I have concluded that a sentence of two years less a day is the appropriate proportionate sentence of imprisonment for these offences based on the offences, the offender and sentencing case law. Normally trafficking in this amount of cocaine would call for a penitentiary sentence in the range of the thirty (30) month sentence the Prosecution is seeking, but I have given adequate consideration to the mitigating circumstances of the particular offence(s), a "Downes" consideration for 11 months of house arrest while on bail, as well as the offender and his plea of guilty: (see analysis in R. v Migalski (supra)). The cases I found of most assistance were R. v. Saikaley [1999] O.J. No.5462 (S.C.J.) and R. v. Moore [2000] O.J. No.2260 (S.C.J.). In both decisions, the accused were charged with more than one count of trafficking in large amounts of cocaine and both Ontario Superior Court decisions resulted in conditional sentences of two years less a day. I am well aware of Ontario Court of Appeal sentencing authorities that have held that penitentiary sentences should be imposed for the trafficking in "hard" drugs such as cocaine and heroin in the absence of exceptional circumstances: R. v. Hogan [1976] O.J. No. 1087 (C.A.); R. v. Behari, [1994] O.J. No. 2625 (C.A.); R. v. Farizeh, [1994] O.J. No. 2624 (C.A.); R. v. Turner, [2003] O.J. No. 684 (C.A.). Nevertheless, on the basis of the Defendant's role in the offences best characterized, for the most part, as an agent for the purchaser, and the outstanding level of family, community and employer support, I am satisfied that the offences and the circumstances of the offender in combination with a "Downes" credit for stringent bail conditions, amount to exceptional circumstances in this case that would justify a decision to impose the maximum reformatory sentence.
Danger to the Community
17The criteria ─ the offender must be convicted of an offence that is not excluded under the legislation or punishable by a minimum term of imprisonment ─ do not apply in this case. However, the requirement in s. 742.1(b) that the judge be satisfied that the safety of the community would not be endangered by the offender serving his or her sentence in the community is a condition precedent to the imposition of a conditional sentence. In making this determination, the court should consider the risk posed by the specific offender, not the broader risk of whether the imposition of a conditional sentence would endanger the safety of the community by providing insufficient general deterrence or undermining general respect for the law. Two factors should be taken into account: (1) the risk of the offender re-offending; and (2) the gravity of the damage that could ensue in the event of re-offence. A consideration of the risk posed by the offender should include the risk of any criminal activity, and not be limited solely to the risk of physical or psychological harm to individuals: R. v. Proulx, supra.
18Mr. Williamson is a low risk for re-offending given his antecedents, family support, stated rehabilitative goals and I have concluded that the safety of the public would not be endangered by a conditional sentence. I am particularly impressed with the strength of character of his present sureties, his wife, Peatra Miller-Williamson and Sarah Mrakovcich, a retired Canadian Armed Forces Master-Corporal, and their willingness to monitor the Defendant's activities around-the-clock and report him to the authorities should there be the slightest deviation from court-ordered conditions.
Would a Conditional Sentence Be Consistent with the Fundamental Purpose and Principles of Sentencing set out in sections 718 to 718.2 of the Criminal Code?
19The Criminal Code provides that the fundamental purpose of sentencing (see section 718) is to contribute to respect for the law, the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the objectives of denunciation, deterrence, separating offenders from society, where necessary; assisting in rehabilitating offenders; providing reparation for harm done to victims or to the community; and promoting a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. Paragraph 14, supra, sets out the fundamental principle of sentencing.
In other cases involving trafficking in serious drugs such as cocaine and heroin, appellate courts have held that conditional sentences can meet the fundamental principles and purpose of sentencing in the individual case. (See R. v. Kerr 2001 CanLII 21142 (ON CA), [2001] O.J. No.5085 (Ont. C.A.) – three counts of trafficking in cocaine, one count of improper storage of a firearm; R. v. Hayes [2001] O.J. No.684 (Ont. C.A.) – one count of trafficking in cocaine; R. v. Tahal 1999 CanLII 2517 (ON CA), [1999] 137 C.C.C. (3d) 206 (Ont. C.A.) – one count of trafficking in cocaine, one count of possession for the purpose – cocaine. In R. v. Kerr, supra, Abella J.A. (as she then was) reiterated the principle that there is no presumption against conditional sentences for trafficking offences:
13 This court has affirmed the principle that there is no presumption against conditional sentences for trafficking offences in R. v. Wellington 1999 CanLII 3054 (ON CA), (1999), 132 C.C.C. (3d) 470, substituting a conditional sentence for a sentence of fifteen months' incarceration for importing hashish. The court emphasized that the particular circumstances of the offence and the offender should govern, at p. 475:
This court has not changed its policy of significant sentences for importing drugs into Canada with the advent of conditional sentences. However, where the sentencing judge determines that the appropriate duration of sentence in all the circumstances is less than two years, then the propriety of a conditional sentence to be served in the community instead of in custody must be considered in the usual manner. Therefore, although statistically conditional sentences will be less frequent in certain types of cases including drug trafficking and importing, the approach which a sentencing court is to take when considering imposing a conditional sentence in any particular case is the same for all offences. The court is not to begin with a rule that the circumstances of the case itself must be rare or unusual. Rather, each case must be approached on the basis that it will be considered on its particular facts taking into account the nature of the offence, the circumstances surrounding the commission of the offence, as well as the personal circumstances of the offender.
14 In other cases involving trafficking in serious drugs such as cocaine and heroin, appellate courts have held that conditional sentences can be imposed. (See R. v. Hayes, [2001] O.J. No. 684 (C.A.), R. v. Rahime, 2001 ABCA 203 (CanLII), [2001] A.J. No. 988 (C.A.), R. v. Tahal 1999 CanLII 2517 (ON CA), (1999), 137 C.C.C. (3d) 206 (Ont. C.A.), R. v. Nguyen (1998), 1998 CanLII 6126 (BC CA), 113 B.C.A.C. 56, and R. v. Browne 1997 CanLII 10869 (NL CA), (1997), 119 C.C.C. (3d) 147 (Nfld. C.A.).)
15 It is true that sentencing judges have wide discretion and are entitled to considerable deference in the imposition of sentences. But in my view, the application by the trial judge of a presumption against the possibility of a conditional sentence constituted an error in principle. By relying exclusively on general deterrence, he appeared to disregard the evidence suggesting that not only had this particular offender made dramatic and, to date, successful efforts to confront his addiction since being charged, there was also a real risk that his genuine progress would be entirely undermined by incarceration. The likelihood of re-offending, in other words, would be enhanced by incarceration and the continued possibility of rehabilitation for this young addict would be profoundly impaired.
16 The trial judge's rejection of the availability of a conditional sentence, and his corresponding unwillingness to take into sufficient account the particularly positive steps taken by this offender, constituted an inappropriate fettering of his own discretion. In my view, any risk to the safety of the community in imposing a conditional sentence in this case can be addressed by the imposition of appropriate conditions. In fact, based on the evidence, the long-term prospects for the community's safety are better served by not incarcerating the appellant, since this is the approach most likely to maintain the appellant's progress and prevent the risk of re-offending.
17 There is no doubt that this is a very serious offence. But the appellant's personal circumstances, the small quantity of drugs involved, and particularly Dr. Jollymore's evidence of the appellant's progress, which he feels incarceration would negate, argue for a conditional sentence with strict terms. There is, of course, no guarantee that the appellant's progress will continue indefinitely, but there is also a real risk, on the evidence, that incarceration will prematurely end it. Although the seriousness of the offence is clearly relevant, to under-emphasize rehabilitation in this case would, on the other hand, send the unwarranted signal that courts will sacrifice evidence of considerable rehabilitative progress on the altar of general deterrence.
18 It seems to me that this is a case where the ultimate interests both of the community and of the appellant are best served by a sentence most conducive to eliminating the risk of re-offending. And that, in turn, argues for a sentence that both acknowledges and facilitates the ongoing rehabilitation of the appellant
20The fundamental principle of sentencing is that the punishment should be proportionate to the gravity of the offence and the degree of responsibility of the offender. In other words, the punishment should be appropriate for the crime. There is no single fit sentence for any particular offence, but the sentence should fall within a range of sentence outcomes for the particular offence(s). As noted above, the determination of an appropriate sentence involves an attempt to identify a just sanction by blending specific and general deterrence, denunciation, rehabilitation, and other principles such as consistency and restraint. In cases of drug trafficking, the over-arching principles of sentencing are deterrence and denunciation.
21Given that a conditional sentence can express significant levels of deterrence and denunciation by way of relatively punitive conditions, I would be remiss in not considering whether the protection of the public, an important sentencing principle ― would best be affected by a sentence that would more likely eliminate the risk of re-offending over the long term by encouraging and facilitating this defendant's reformation. In other words, a conditional sentence in this case could have the effect of achieving a proper balance of deterrence, denunciation, and rehabilitation in such a way that would enhance the long-term prospects for the community's safety. In my view, based on the circumstances of the offence and offender, this may be one of the exceptional cases in which a non-carceral approach would be more likely to maintain the appellant's progress and prevent the risk of re-offending. In conclusion, a conditional sentence in this case could not only represent a proportionate sentence, it would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2 of the Criminal Code.
Conclusion
21In imposing sentence, I must incorporate all of the circumstances of the offences, and the offender's personal situation including his prospects in the immediate and far future. Mr. Williamson has a strong support network and gainful employment available to him. He has contributed extensively to his community. He is an important care-giver to his two daughters and his step-son. As Belleghem J. in R. v. Mundle [2003] O.J. No.4392 (S.C.J.) so eloquently put it:
"All of these factors that I have outlined have varying weights, relative to the existence and extent of related factors. We are dealing in sentencing, here, as in many other cases of this sort, with a careful weighting in the balance, on the scales of justice, of two "clusters of competing values" and concerns, made up of factors, which themselves are variable in significance, and therefore of weight. In the end, sentencing particularly in a case of this sort, where it is a "close call", as I have indicated- demonstrates as much as anything the need for an exquisitely careful balance. It is difficult, if not impossible, to put any specific weight on any of the particular factors which are relevant in the case. It is impossible to point, with any specificity, to any particular pivotal factor".
22This is a close and difficult case. Both Crown and defence positions are not unreasonable. On balance, I am satisfied that a conditional sentence is required that both recognizes the seriousness of these offences and the paramount need for deterrence and denunciation – while at the same time addresses the principle of rehabilitation in a meaningful fashion. After carefully balancing all of the pertinent factors, I have concluded that given the serious nature of these crimes and the need to demonstrate that trafficking in cocaine, and its attendant negative social repercussions will not be tolerated, a conditional sentence incorporating stringent house arrest conditions in combination with a considerable quantum of community service hours, is required to give effect to all relevant sentencing principles.
23I have determined that the appropriate total sentence is two years less one day, as previously indicated. In my view, the need for a deterrent sentence for these crimes does not loom so large that every opportunity for a house arrest component of sentence must be entirely dismissed. Yet, a sentence of "house arrest in the community" without a significant degree of restorative justice in the form of community reparations seems inadequate to forcefully express society's intolerance for acts of trafficking in what has been described as a "pernicious substance."
24This case calls for a careful balancing of all sentencing purposes and principles. I first recognize the seriousness of these offences by imposing a deterrent sentence of two years less one day imprisonment to be served in the community on all offences, concurrently, the terms of which are set out below on Schedule 1. This sentence will contain conditions requiring a total of 240 hours of community service to be performed at a rate not less than ten (10) hours per month. In addition, Mr. Williamson will be placed on probation for a further period of three years to follow the conditional sentence, the terms of which will be that:
(1) You are to report to your probation officer forthwith at the conclusion of the conditional sentence and thereafter as required.
(2) In addition, you will not have in your possession any non-medically prescribed drugs within the meaning of the C.D.S.A. during the period of probation.
(3) Finally, you are to continue counseling for drug abuse IF recommended by your probation officer.
Schedule 1
Conditions of the Conditional Sentence
The conditions of the conditional sentence imposed are as follows:
(1) Abide by the mandatory conditions of the conditional sentence order;
(2) House arrest; be in your place of residence at all times except while travelling to and from and attending at your place of employment, medical appointments, religious services, community service hours and reporting pursuant to this order and any other reasons for which permission may be obtained from your supervisor; you may also be permitted to leave your residence for a total period of four (4) hours weekly to obtain the necessities of life;
(3) Community Service: you will perform 240 hours of community service while serving this conditional sentence at a rate not less than ten (10) hours per month, preferably by undertaking volunteer work in your community;
(4) You will not own, possess or carry any weapons or firearms;
(5) You will not have in your possession any non-medically prescribed drugs within the meaning of the C.D.S.A.;
(6) Carry this order at all times when outside your residence and produce it on demand to a police officer.
Released: February 1, 2013
Justice Peter Harris
