ONTARIO COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
ADAM LINSEMAN
Before Justice A.T. McKay
Sentencing Submissions Heard on March 18 and 19, 2019
Reasons for Sentence released on May 10, 2019
Ms. K. Nolan......................................................................................... counsel for the Crown
Mr. M. McRae................................................ counsel for the defendant Adam Linseman
McKAY J.:
INTRODUCTION:
1Mr. Linseman pled guilty to four charges arising out of an incident which occurred on April 27, 2018. Those charges include possession of fentanyl for the purpose of trafficking, possession of methamphetamine for the purpose of trafficking, identity theft contrary to section 402.2(1) of the Criminal Code, and possession of counterfeit money contrary to section 450(b) of the Criminal Code. Mr. Linseman filed an Application alleging that the circumstances of his arrest violated his rights under sections 7 and 8 of the Charter of Rights. He submits that an appropriate remedy is a reduction of the sentence to be imposed. In addition, he submits that the conditions of his pre-trial detention at the Maplehurst Correctional Centre (“MHCC”) were such that he should receive enhanced credit for the time that he has spent in custody awaiting disposition of these charges.
2There were certain facts admitted when the guilty pleas were entered. In addition, viva voce evidence was called with respect to the circumstances surrounding the arrest.
AGREED FACTS
3Waterloo Regional Police Service (“WRPS”) began an investigation targeting Mr. Linseman after receiving multiple reports from confidential informants that Mr. Linseman was trafficking in controlled substances. At the time of the investigation, Mr. Linseman was prohibited from possessing weapons by two court orders. During the course of the investigation, police obtained a tracking warrant for Mr. Linseman’s cell phone, a data transmission warrant, and conducted physical surveillance on Mr. Linseman on multiple dates. At 10:09 PM on September 27, 2018, Mr. Linseman was arrested inside the convenience store outlet at a gas station on King Street in Waterloo by members of the Emergency Response Unit (“ERU”). He had been followed to that location by both a surveillance team and ERU team.
4When police entered the convenience store, Mr. Linseman was in the washroom. They knocked on the locked washroom door, announced their presence and demanded that he exit the washroom. Police heard the sound of the toilet flushing. Mr. Linseman subsequently exited the washroom. Police located a large empty plastic bag containing methamphetamine residue, an expandable baton and a key in the garbage container in the washroom. After searching Mr. Linseman, officers seized the following items: 60.28 grams of methamphetamine; identity documents belonging to at least 12 different victims including driver’s licences, a social insurance card, health cards, credit cards and a citizenship card; $1375 in cash; a digital scale; and the cell phone which was subject to the tracking warrant.
5As a result of a search warrant executed at his residence, police seized 7.49 grams of fentanyl in a birdcage on a basement workbench; packaging materials; a prohibited butterfly knife; a notebook with identity profiles; and one counterfeit $50 Canadian bill. Mr. Linseman was residing at that address with his common-law spouse and her 3 year old daughter. A search of a storage locker belonging to Mr. Linseman was also completed. Located in the storage locker were five counterfeit Canadian $50 bills; a card reader, a card maker, a laptop and a stolen E-bike.
6Mr. Linseman has a criminal record. It includes 42 prior convictions, including various convictions for firearms offenses, five convictions for possession of controlled substances, dangerous driving and flight while being pursued by a peace officer.
EVIDENCE
Sergeant David Leskowski
7Sergeant Leskowski has been with WRPS for approximately 18 years. He was the “road boss” of the surveillance team following Mr. Linseman on September 27. The team had been conducting surveillance of Mr. Linseman for approximately 4 to 5 days. The plan was to arrest him that day. Police had information that if he travelled to Listowel that day, he would be in possession of controlled substances. Part of Sergeant Leskowski’s responsibilities was to prepare an Operational Plan and Risk Assessment, known as a “SMEAC”, with respect to the planned arrest of Mr. Linseman.
8The draft SMEAC was prepared by Sergeant Leskowski after discussions with the officer in charge of the investigation. The procedural process involves a review of the draft SMEAC by the Inspector in charge, who is required to approve the plan. The SMEAC noted that Mr. Linseman’s criminal record included convictions related to firearms and weapons in 2005, 2007, 2015 (in Kitchener), and 2015 (in Pembroke). The information of the confidential informant was that Mr. Linseman was in the possession of a conducted energy weapon, commonly known as a Taser. The conclusion was that the arrest operation should be considered high risk. Inspector Morris approved the SMEAC.
9The SMEAC outlined a plan to arrest Mr. Linseman as he was being driven to Listowel. The plan involved a high risk traffic stop within the Region of Waterloo, but in a rural area to minimize potential interaction with other traffic. Under the heading “Alternate Action Plan”, the SMEAC contained an indication that if Mr. Linseman did not travel to Listowel that evening, investigators would reassess the investigation and consult with the duty officer. Sergeant Leskowski indicated that inclusion of an alternative action plan is standard planning. An alternate plan is always recorded in the SMEAC because investigations, in particular drug cases, tend to be dynamic, and matters tend not to proceed as planned.
10Because the arrest was deemed to be high risk, in accordance with WRPS policy, Sergeant Leskowski was required to liaise with the ERU, which would take over both the arrest and subsequent execution of search warrants.
11After completion and approval of the SMEAC, Sergeant Leskowski joined the surveillance team at 5:37 PM on September 27. The team observed what they suspected to be drug transactions conducted by Mr. Linseman. As a result, the team had reasonable grounds to believe that Mr. Linseman was in possession of controlled substances for the purpose of trafficking. That led to a change in the operational plan. At 9:57 PM, he telephoned the officer in charge of the investigation to discuss the grounds for the possible arrest of Mr. Linseman. They agreed that they had grounds to arrest. Sergeant Leskowski then relayed the grounds to Sergeant Allen, who was the officer in charge of the ERU team following the surveillance team. At that point, it was Sergeant Allen’s role to decide how and when to make the arrest.
12Minutes after that conversation, the vehicle in which Mr. Linseman was a passenger (“the Linseman vehicle”) pulled into a gas station on King Street in Waterloo. The ERU team decided to effect the arrest at the gas station. Members of the ERU team entered the gas station convenience store. Sergeant Leskowski also entered the store. Mr. Linseman was not visible so it was assumed that he was in the washroom. Sergeant Leskowski asked a store employee for the key to the washroom. Initially, it seemed that the employees were not paying any attention to him. Shortly after police had entered the store, Mr. Linseman exited the washroom and was arrested. Sergeant Leskowski could not recall guns being drawn. He was also unable to recall anyone raising their voice. He testified that people simply went about their business, and that there was an unnatural calm in the store, given the situation.
13Sergeant Leskowski did recall an officer from the ERU team banging on the washroom door, announcing his presence as a police officer, and demanding that Mr. Linseman exit. He heard the sound of the toilet flushing and then Mr. Linseman exited. He did not recall it being a “hard arrest”. No one was injured during the arrest. After the arrest took place, the Linseman vehicle was searched. Both of the females in the Linseman vehicle were arrested. His understanding was that during the arrest of the two females at the Linseman vehicle, there were mainly police officers present. Other people were present but simply went about their business. When Mr. Linseman was taken outside, he yelled to one of the females that she should call Mr. Linseman’s common-law spouse. Officers discussed that issue because of their intention to release the two females. That made circumstances related to executing the search warrants on Mr. Linseman’s residence and storage unit more exigent.
14In cross-examination, he confirmed that he was the senior officer in charge of the drug unit that evening. However, Detective Clark was the officer in charge of that particular investigation and was making the operational decisions. He would review and determine whether to approve Detective Clark’s decisions. However, the ultimate decision about how, where and when the arrest would be carried out was in the hands of the ERU. Sergeant Leskowski also confirmed that the primary purpose of the SMEAC is risk management. The primary consideration behind the plan for the arrest contained in the SMEAC was the fact that they believed that they would have grounds to arrest Mr. Linseman if he went to Listowel. In that scenario, he could be arrested on a rural road in order to minimize other traffic in the area at the time of arrest.
15Sergeant Leskowski agreed that the location of the gas station on King Street in Waterloo was a high traffic area near uptown Waterloo. He also agreed that it was busy inside the gas station convenience store. At the time of the arrest, he had no specific concerns about the two women in the Linseman vehicle. He had no knowledge of who they were, but was of the view that anyone can present a danger to the police. He confirmed that the two women were released at the scene without charges being laid. He also confirmed his understanding that in order to draw his firearm, he would need reasonable grounds to believe that there was a risk of imminent bodily harm or death. He did not draw his firearm.
16Sergeant Leskowski agreed that there was no urgency to arrest Mr. Linseman at the gas station. However, he did not disagree with the decision made by the ERU team because in his experience, arrests at gas stations work well to minimize the risk of injury and to preserve evidence. He confirmed that, prior to ERU team members pulling into the gas station parking lot, Mr. Linseman was entering the convenience store. There was potential for a dangerous scenario inside the convenience store because of Mr. Linseman’s potential for violence and the potential for guns to be drawn. However, he never considered trying to call off the arrest. Things transpired very quickly and he did not have a portable radio. The timing of the arrest was based upon observations of the surveillance team which was relayed to the ERU team. An arrest at a gas station is considered controlled. The car the suspect is in is stopped and everyone is normally inside the vehicle or right outside of it. The scenario in this case was different because Mr. Linseman entered the store.
17Sergeant Leskowski testified that the arrest did not unfold the way he envisioned as a drug unit officer, because of the risk to the preservation of evidence. However, he testified that he is not trained as an ERU member in high risk arrests. The fact that the arrest was carried out at a gas station as opposed to the plan envisioned in the SMEAC is irrelevant in a drug investigation, given the dynamic situation regarding such arrests. Ultimately, he simply trusted the ERU team to do the job for which they are trained and complete the arrest. He was unable to comment on training or tactics of the ERU. It is difficult to interfere with the actions of a trained specialty unit which makes decisions in the area of its expertise. While the SMEAC contained an arrest plan, they deviated from the plan because of the dynamic situation which unfolded. Every arrest contains elements of risk and uncertainty.
Sergeant Matthew Allen
18Sergeant Allen has been with WRPS for approximately 25 years. In September 2015 he became a supervisor with the ERU. On September 27, 2018 at approximately 3:35 PM, he had a conversation with Sergeant Leskowski regarding ERU assistance with the arrest of Mr. Linseman. If an arrest is a planned event and is assessed as high risk, the ERU team carries out the arrest. There is no scripted way to carry out a high risk arrest. Situations and individuals are unique. An operational plan is made, but often is deviated from as dictated by circumstances.
19He received a copy of the SMEAC in order to assess appropriate tactics, and then spoke with Inspector Morris regarding options for carrying out the arrest. They discussed either arresting Mr. Linseman while he was on foot in Listowel, or making a high risk traffic stop. Inspector Morris was in agreement with either scenario, depending upon what presented itself during the surveillance. At 4:43 PM he spoke with Sergeant Leskowski and indicated that a high risk traffic stop on a rural road was the best option if Mr. Linseman left the Waterloo region. The plan involved the ERU team following the surveillance team prior to making the arrest. The assessment of the risk involved in an arrest is determined by investigators, but the ERU team usually has input into that assessment. He agreed with the classification of this arrest as being high risk because of Mr. Linseman’s criminal record. It included weapons offences, flight from police, and dangerous driving. In addition, there was information that Mr. Linseman was in possession of a Taser.
20At 7:08 PM, the ERU team began following the surveillance team. At 10:01 PM, Sergeant Leskowski telephoned him and advised him that he had grounds to arrest Mr. Linseman for possession for the purpose of trafficking. He was advised that the Linseman vehicle stopped at a gas station at the intersection of King Street and Weber Street. He instructed his team to move into the parking lot. At that point, he was aware that Mr. Linseman had gone into the convenience store. Sergeant Allen did not have any concerns about making the arrest at the gas station. He viewed it as a favourable opportunity because Mr. Linseman was separated from his vehicle, thereby minimizing flight risk. In addition, the arrest could be completed in the well-lit area visible to officers inside the convenience store.
21Sergeant Allen was not concerned over Mr. Linseman being inside the convenience store. He noted one person from the Linseman vehicle was outside the vehicle pumping gas. Officers were dealing with both of the females from the Linseman vehicle. Two members of his team were inside the store. He entered the store and saw two of his team members knocking on the bathroom door announcing themselves as police officers, ordering Mr. Linseman to exit. They also announced that Mr. Linseman was under arrest. Sergeant Allen advised the other people in the store to exit. Store patrons left, but his recollection is that one employee may have remained in the store. He was not concerned about the situation because Mr. Linseman was contained in the bathroom. In his view, that lowered the risk level.
22Sergeant Allen confirmed that all members of his team are armed. The rifles which they use are semi-automatic and full automatic. The rifles have a safety, which is on while officers point their firearms during a gunpoint arrest. The pistols are holstered and do not have safeties. They did not intend to make a gun point arrest inside the convenience store. The assessment was high risk, but officers still profile the individual involved and react to that individual’s actions. The ERU team uses unmarked vans, large numbers, and speed in making arrests. Mr. Linseman unlocked the door to the washroom and exited. The arrest was not made at gunpoint, nor was it a difficult arrest. He was aware that the arrest of the two females in the Linseman vehicle was carried out at gunpoint. There were not any weapons pointed at anyone else, nor was anyone injured during the arrests.
23In cross-examination, Sergeant Allen agreed that the purpose of the SMEAC is to arrive at a safe plan for an arrest. A high risk traffic stop means that emergency equipment on police vehicles - lights and sirens- are activated. Ideally a high risk traffic stop appears to simply be a motor vehicle stop. Police vehicles are behind the vehicle which is stopped, and after it is stopped, officers exit, and at gunpoint direct the occupants of the vehicle. The advantage of making an arrest in a rural area is that no other members of the public would be present.
24Sergeant Allen confirmed that he was aware that there were other vehicles at the gas pumps when his team arrived. He agreed that there was no urgency in arresting Mr. Linseman at that exact moment. He did not have a discussion with Sergeant Leskowski about the possibility of other customers being in the store. When they carried out the arrest, he did not have any specific information on the two females who were in the Linseman vehicle. He was aware that members of his team effected the arrest of the two women at gunpoint. He testified that his officers would make that decision after considering the situation that they were presented with during the arrest.
25Sergeant Allen testified that he did not have any concern about how Mr. Linseman’s arrest was executed. The surveillance video from the interior of the store and the gas pumps was played. Sergeant Allen confirmed that the video from the store showed Constable Hall in front of the washroom door with what appeared to be a Taser in his hand. In Sergeant Allen’s view, once Mr. Linseman was contained in the washroom, the arrest was not necessarily a high risk scenario. He agreed that there was a possibility that people might be exposed to risk during the arrest, and that potentially risk could be lower at a different location. He agreed that he chose to have his team arrest Mr. Linseman with a number of members of the public present in the store. He agreed that it was possible that Mr. Linseman could have been under the influence of controlled substances at the time of the arrest. He agreed that potentially there could be concerns about Mr. Linseman’s state of mind and reaction to the arrest.
26Sergeant Allen testified that while one can engage in what he referred to as “what ifs”, his team completed the arrest effectively and properly with no use of force. No one was injured during the arrest. He testified that he was unaware at the time the decision to arrest was made that there were five teenagers inside the store. However, had he been aware of that, it would not have changed his decision. Having Mr. Linseman in the washroom of the store was an ideal arrest scenario because Mr. Linseman could be controlled, and required to exit on their terms. Sergeant Allen did not see any signs of trauma to any of the customers inside the store. In reviewing the video surveillance, he pointed out that one of the teenagers appeared to be “fooling around” during the arrest.
Constable Chad Hall
27Constable Hall is a member of the ERU team. He confirmed that upon entry to the store, he believed that Mr. Linseman was in the bathroom. He confirmed that the object in his hand while he was standing outside of the bathroom door was his Taser. He did not draw his firearm during the arrest.
Adam Linseman
28Mr. Linseman filed an affidavit detailing the issues he faced while in presentence custody. While testifying, he adopted the contents of that affidavit. The affidavit indicated that he went into custody on September 27, 2018. While in custody, he was in his cell 18 hours per day. During the six hours per day that he spent outside of his cell, he felt unsafe due to mental health issues including anxiety. Mr. Linseman indicated that he has been diagnosed with ADHD, social anxiety and clinical depression. He voiced concern that he was unable to receive the prescription medication that he believes works best, Concerta, while in custody. He indicated that he last refilled the Concerta prescription on July 28, 2018, with a 30 day supply. During the month prior to his arrest, he was self-medicating with street drugs. The medical professionals at MHCC have prescribed him medications other than Concerta. Mr. Linseman attributes that to his increasing anxiety and depression while in custody.
29Mr. Linseman also pointed out that he was not allowed to contact his fiancée between his arrest date and the date he entered a guilty plea. In addition, his affidavit indicated that approximately six weeks earlier, he had been the victim of a violent assault at MHCC. The affidavit indicated that he suffered permanent damage to his eye and will never recover full vision in that eye.
30In cross-examination, Mr. Linseman agreed that the contents of the presentence report before the court were accurate. The presentence report indicates that Mr. Linseman has suffered from substance abuse issues since the age of 14 years. He has attended a number of rehabilitation programs over the years, including treatment programs on two occasions while he was incarcerated at the Ontario Correctional Institute. Psychological testing in 2008 indicated a number of difficulties including bitterness, suspicion and anger in social interactions with others, a tendency to withdraw from relationships that appear to be threatening, a tendency to hold grudges and harbour strong feelings of resentment, a lack of direction in life, a history of intense and volatile relationships, a fear of rejection and abandonment, anxiety, post-traumatic stress, difficulty managing thoughts, feelings of awkwardness in social settings, anger management issues, a tendency to avoid problems and a lack of self-confidence.
31The presentence report also made reference to a psychological assessment conducted in 2007 with respect to Linseman’s fitness to stand trial. That assessment indicated that Mr. Linseman “was overmedicated while committing his crimes and therefore his prescribed medication was contributing to the emotional health issues he was experiencing at the time. Testing revealed a valid profile that was consistent with both colossal symptomatic over-reporting and a tendency to depreciate or devalue oneself by reporting emotional and personal difficulties in stronger terms than they are likely to be uncovered upon objective review.”
32He confirmed that his scenario at MHCC, 6.5 hours per day out of his cell, was the standard for all inmates in general population. He maintained that he felt unsafe and was not performing at peak efficiency without the medication Concerta. He agreed that medication was used to treat ADHD. He had also been prescribed Seroquel for anxiety, but stopped taking it because he did not think that it was optimal. He agreed that Concerta is a narcotic, and that was one of the reasons that the psychiatrist at MHCC refused to prescribe it. He agreed that alternative medications were prescribed. He stopped taking them because, in his view, they did not work. He agreed that he was adamant that he was not receptive to any medication as an alternative to Concerta.
33With respect to his inability to communicate with his fiancée, he agreed that she was co-accused with him on these matters, and an order under section 516 of the Criminal Code prohibited communication with her prior to his guilty plea being entered. He agreed that whether he was in custody or released on bail, he would still be prohibited from communicating with her. With respect to his eye injury, he agreed that nothing in the medical records from MHCC indicates that he suffered permanent vision loss. The records from appointments with an ophthalmologist on February 20, 2019 and February 27, 2019, indicate the following with respect to the injury: “healed left corneal abrasion”. The record from an appointment with an ophthalmologist on March 5, 2019 indicates that there is no need for treatment at that point. Mr. Linseman agreed that the ophthalmologist indicated to him that he probably would not have 20/20 vision.
34Mr. Linseman also agreed that from the date of his admission to MHCC, September 27, 2018, to March 18, 2019, a period of five months and eighteen days, there were three full lockdowns at MHCC, and 11 partial lockdowns. He had access to all privileges during that time frame unless on full lockdown. He was never triple bunked and did not acquire any institutional misconducts during that time frame.
35Mr. Linseman maintained that during the periods of his life in which he has had success, he has been taking Concerta. When he takes methamphetamine, initially for the first few days, it has a similar effect as Concerta, relaxing him and “leveling him out”. Using methamphetamine for longer than 2 to 3 days has a more negative impact.
POSITIONS OF THE PARTIES
The Crown
36The Crown position is that Mr. Linseman should receive a sentence of four years in custody, less credit for pretrial custody at a rate of 1.5 to 1. The Crown submits that position already reflects the mitigating factor of the guilty plea in the face of some triable issues, and Mr. Linseman’s personal circumstances. The Crown points to the dangerous nature of the substances in Mr. Linseman’s possession for the purpose of trafficking, fentanyl and methamphetamine. In addition, Mr. Linseman was in possession of identity documents for a criminal purpose, counterfeit currency and a prohibited weapon.
37The Crown submits that Mr. Linseman’s criminal record is aggravating, noting that he has received a penitentiary sentence, the equivalent of three years in 2015. The Crown also points to the fact that the fentanyl discovered on the workbench in the basement would have been accessible to the three-year-old child who lived in the residence.
The Defence
38The defence submits that a sentence in the range of 3-½ years in custody is appropriate. On the date that this matter was argued, Mr. Linseman had 174 days of pretrial custody. Enhanced at a rate of 1.5 to 1, that would be the equivalent of 261 days in custody. The defence submits that it was appropriate at that point to impose a sentence of time served plus two years in the penitentiary, followed by three years of probation in order to maximize rehabilitation potential for Mr. Linseman. The defence submits that sentence is appropriate for two reasons:
the way in which the arrest was carried out constituted a violation of sections 7 and 8 of the Charter, or at the very least, state misconduct; and
the conditions of pretrial detention merit credit beyond 1.5 to 1.
39The defence acknowledges that the two types of controlled substances which were seized, fentanyl and methamphetamine, are serious drugs. However, the quantities involved are relatively low. The defence characterizes Mr. Linseman as an addict who sells drugs in order to support his own habit, as opposed to a commercial scale trafficker. The defence stresses the mitigating value of the guilty plea, and the pro-social support network available to Mr. Linseman.
40With respect to the conditions of pretrial detention, the defence submits that the appropriate focus for the court is the harshness of the pre-trial detention. That harshness does not have to be the fault of MHCC. The defence submits that it is subjective, in the mind of the detainee. The defence position is that the time in pretrial detention was the most difficult portion of Mr. Linseman’s life because he was not getting the medication which was effective for him. That led to substantial psychological discomfort. The pre-trial detention was made more difficult by the prohibition on communicating with his fiancée. The defence submits that regardless of the fact that the court order prohibiting contact would have been in place whether in custody or on bail, it was still a factor to be considered in evaluating the harshness of Mr. Linseman’s pretrial detention. In addition, the defence points to the assault on Mr. Linseman and subsequent eye injury.
41With respect to the circumstances of Mr. Linseman’s arrest, the defence submits that the court should be concerned related to the manner of arrest and the deviation from the plan contained in SMEAC. The defence position is that there was no need to arrest Mr. Linseman eight minutes after police believed that they had grounds to make the arrest. There were many options in terms of how the arrest could have been executed. The defence characterizes the actions of the police in making the arrest at the gas station as impatience. The defence submits that the fundamental plan was to minimize risk by minimizing the number of people present. The defence submits that it was sheer luck that the arrest was completed without significant issues, given the number of members of the public present and the risks involved. The suggestion is that Mr. Linseman’s arrest inside the store cannot be separated from the actions of the police in making a gunpoint arrest of the two women at the Linseman vehicle. The defence submits that this court is the only forum in which to address those actions by the police. The defence further submits that the appropriate standard for evaluating police conduct cannot be whether or not someone was injured as a result of that conduct.
APPLICABLE LEGAL PRINCIPLES
42The purpose and principles of sentencing and the rules governing sentence calculation are set out in sections 718 through 719 of the Criminal Code. Those principles govern the process of determining an appropriate sentence. The application of those principles is a case-sensitive exercise of judicial discretion. The task of a court in arriving at an appropriate sentence is described in R. v. Casselman, [2014] O.J. No. 1995 at paragraph 3:
“The fundamental principle of sentencing requires that to be fit any sentence imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender (s. 718.1). This is achieved by examining the aggravating and mitigating circumstances that pertain both to the offence and the offender, bearing in mind established principles of sentencing, including those enumerated in the Criminal Code of Canada (s. 718.2). The sentencing objectives adjusted by this inquiry, selected from the sentencing goals listed in section 718, are then identified. Based on the selected objectives and always mindful of the principles of restraint contained in sections 718.2(c)-(e) of the Criminal Code of Canada the trial judge then selects a fit sentence that will best achieve those objectives and is similar to sentences imposed in similar cases.”
43Section 718 of the Criminal Code of Canada provides as follows:
“The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:
(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by an unlawful conduct:
(b) to deter the offender and other persons from committing offences;
(c) to separate offenders from society, where necessary;
(d) to assist in rehabilitating offenders;
(e) to provide reparations for harm done to victims or to the community; and
(f) to promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims or to the community.”
44Section 7 of the Charter guarantees everyone right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. The meaning of the principles of fundamental justice is to be determined having regard the purpose of section 7 and its context within the Charter. The principles of fundamental justice are to be found in the basic tenets and principles of our legal system.
45Section 8 of the Charter provides a guarantee that everyone has the right to be secure against unreasonable search or seizure. A search or seizure must be authorized in law, the authorizing law itself must be reasonable, and the search or seizure must be conducted in a reasonable manner.
46A line of authorities, including R. v. Nasogaluak, 2010 SCC 6, [2010] S.C.J. No. 6, establish that a sentencing court may consider not only the actions of the offender, but also those of the state actors involved in the process. Where state misconduct relates to the circumstances of the offense or the offender, a sentencing judge can properly take relevant facts into account in crafting a fit sentence, without having resort to Charter relief.
47In R. Summers, 2014 SCC 26, [2014] 1S.C.R. 575, the Supreme Court of Canada confirmed that individuals who have suffered particularly harsh treatment while in detention, can often look to other remedies, including remedies under section 24 of the Charter. In R. v. Duncan, 2016 ONCA 754, the Ontario Court of Appeal confirmed that in the appropriate circumstances, particularly harsh presentence incarceration conditions can provide mitigation apart from beyond the 1.5 credit referred to in s. 719(3.1) of the Criminal Code. In considering whether any enhanced credit should be given, the court must consider both the conditions of presentence incarceration and the impact of those conditions on the accused. Mitigation of sentence for those who have suffered particularly harsh presentence incarceration is not dependent upon a finding of a constitutional violation. There is no automatic entitlement to pretrial detention hardship relief. Each application is a qualitative, fact-dependent exercise of discretion. Exceptionality is not a precondition to meeting the test for mitigation.
ANALYSIS
Alleged charter breaches
48I begin with the analysis of the alleged Charter breaches. WRPS had carried out a significant investigation involving Mr. Linseman. That included surveillance over a period of 4 to 5 days. Based upon information gathered, they believed that if Mr. Linseman travelled to Listowel on September 27, they would have grounds to arrest him for possession of a controlled substance for the purpose of trafficking. Because it was to be a planned arrest, policy dictated that a SMEAC be prepared. The arrest was justifiably classified as high risk, given Mr. Linseman’s extensive criminal history including weapons offences and flight from police. In addition, there was information that Mr. Linseman was in possession of a weapon, despite being prohibited from doing so.
49However, the continued surveillance of Mr. Linseman changed the plan. The observations made by the surveillance team provided grounds for the arrest of Linseman for possession of a controlled substance for the purpose of trafficking. In other words, a trip to Listowel by Mr. Linseman was no longer required to provide the grounds. It is logical to infer that there was now a possibility that Mr. Linseman would not travel to Listowel. The police were not obligated to continue to watch him enter into suspected drug transactions in order to determine whether he might travel to Listowel so that the original arrest plan in the SMEAC could be carried out. They were entitled to arrest when they had grounds to make an arrest, as long as they were in a situation where it was reasonable to do so.
50One of the authorities counsel referred this court to is R. v. Cornell, [2010] S.C.C. No. 31. That case dealt with the way in which the police tactical team executed a search warrant of the residence which had been lawfully authorized. The issue was whether the lawfully authorized search was conducted reasonably. I will not comment extensively on the decision of the court. However, in paragraph 24, the court indicated the following:
“Second, the police must be allowed a certain amount of latitude in the manner in which they decide to enter premises. They cannot be expected to measure in advance with nuanced precision the amount of force the situation will require… It is often said of security measures that, if something happens, the measures were inadequate but that if nothing happens, they were excessive. These sorts of after-the-fact assessments are unfair and inappropriate when applied to situations like this where the officers must exercise discretion and judgment in difficult and fluid circumstances. The role of the reviewing court in assessing the manner in which a search has been conducted is to appropriately balance the rights of suspects with the requirements of safe and effective law enforcement, not to become a Monday morning quarterback.”
51In my view, those comments are also applicable to this situation. The ERU is a specially trained unit of WRPS entrusted with carrying out planned high risk arrests. Sergeant Allen explained his rationale for making the arrest at a gas station while Mr. Linseman was inside the convenience store. The rationale had a logical basis, and, based on the evidence, this court is not in a position to second guess the decision as to when, where and how the arrest was carried out. The officers involved directly in Mr. Linseman’s arrest did not draw firearms. One officer had a Taser in his hand, which was reasonable given the information that Mr. Linseman was also in possession of a Taser. This is not a situation similar to R. v. Pino, 2016 ONCA 389, where police were found to used weapons and questionable circumstances and then found to misled the Court about the use of those weapons. Nor is it a situation in which police used weapons without consideration of the risk level associated with the arrest. The evidentiary record does not establish a violation of Mr. Linseman’s Charter rights based upon the circumstances surrounding his arrest
Alleged police misconduct
52With respect to the arrest of the two individuals in the Linseman vehicle at gunpoint, I make the following comments. The officers who approach the vehicle did not have any information about the two occupants. They were aware that Mr. Linseman was a suspected drug trafficker with an extensive criminal record including multiple weapons offences. Again, those officers needed to exercise discretion and judgment in difficult and fluid circumstances. They approached quickly in numbers with rifles pointed at the suspects. The evidence indicates that the rifle’s safeties would have been on during this approach. Based on the evidence, I am not prepared to find that this action constituted misconduct on the part of the police. It is not conduct which should mitigate the sentence imposed on Mr. Linseman.
Calculation of pre-sentence custody
53The defence raised a number of aspects of Mr. Linseman’s pretrial detention, and its impact upon him.
54Generally speaking, the view of the court is that, at times, Mr. Linseman overstated the harshness of the circumstances of his incarceration and its impact upon him. For instance, the evidentiary record does not support his contention that he suffered permanent vision loss after being assaulted. It does support the fact that he suffered a scratched cornea which was treated by doctors until no further treatment was required. With respect to the issue of prescription medication, Mr. Linseman demanded a specific narcotic medication and was adamant that he was not receptive to alternative medications. That is notwithstanding the fact that Mr. Linseman was not taking that medication for approximately one month prior to his incarceration. Arriving at the optimal medication type and dosage is a complex part of the relationship between doctor and patient. The doctor uses his or her professional judgment and then works with the patient in order to ensure an optimal medication regime. Mr. Linseman was simply unwilling to do that, and was adamant that he should make the choice as to what medication was to be prescribed. He was unwilling to consider alternative medications prescribed by the doctors. The fact that medical professionals did not accede to his specific desires regarding medication does not support a claim for hardship relief.
55I am also of the view that the evidence does not support mitigation of the sentence as a result of the prohibition on Mr. Linseman communicating with his fiancée. They were co-accused in relation to these offences. The inability to communicate with his co-accused in these circumstances does not fall within the parameters of particularly harsh presentence incarceration conditions.
56As of the date of sentencing, Mr. Linseman has 226 days of pretrial detention. Enhanced at a rate of 1.5 to 1, that is the equivalent of 339 days. I am satisfied that Mr. Linseman was the victim of an assault while in detention and that he suffered a scratched cornea as a result. That assault falls within the circumstances outlined in both the Summers and the Duncan decisions. He is entitled to mitigation because of the impact of that assault. I will treat that as additional presentence detention credit, the equivalent of 60 days. Given that, I calculate the total pretrial detention credit at the equivalent of 399 days.
CONCLUSIONS
57Mr. Linseman was in possession of fentanyl and methamphetamine for the purpose of trafficking. Both of those dangerous drugs are a scourge on our communities. The quantities and other items located by police suggest that while Mr. Linseman is not a large-scale commercial trafficker, his criminal activity goes beyond simply trying to feed his own addiction on a day-to-day basis. Mr. Linseman was also convicted of identity theft and possession of counterfeit currency. He has an extensive criminal record. All of those factors suggest an emphasis on denunciation and deterrence is required.
58I must also consider any mitigating circumstances. Mr. Linseman entered guilty pleas to these charges. Counsel indicate that there were some triable issues. He does appear to have access to a pro-social support network. He has made attempts in the past to deal with his addictions issue. However, the evidence does not suggest that he has successfully dealt with that issue. Although sporadic, he does have a history of employment throughout the years. He faces challenges with respect to ADHD and indications of depression.
59I am of the view that a proportionate sentence in this matter requires incarceration for the equivalent of 45 months. Given the credit for pretrial detention of the equivalent of 399 days, the sentence will be time served plus an additional 32 months in custody.
Released: May 10, 2019
Signed: “Justice A.T. McKay”
