Court File and Parties
ONTARIO COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
— AND —
MICHAEL TREVOR SAMUELS
Before: Justice Peter C. West
Oral Submissions as to Sentence: November 1, 2023
Oral Reasons for Sentence given on: December 5, 2023
Counsel: Ms. R. Egberts............................................................... counsel for the Crown Mr. L. Thompson...................... counsel for the defendant, Michael Samuels
Endorsement
1Mr. Samuels, after a trial, was convicted of possession for the purpose of trafficking in cocaine, contrary to s. 5(2) of the Controlled Drugs and Substances Act (CDSA); possession for the purpose of trafficking in crystal methamphetamines, contrary to s. 5(2) of the CDSA; and fail to comply with a release order, contrary to s. 145(5)(a) of the Criminal Code of Canada. The Crown requested that I dismiss the trafficking charge, as she had not led evidence as to the analysis of the three individually wrapped small plastic baggies with a white substance during the trial. Sentencing was adjourned to November 1, 2023, after I ordered a Pre-Sentence Report (PSR).
2Mr. Samuels criminal record was marked as Exhibit 1 on sentence. His PSR was marked as Exhibit 2 and a Lockdown Report from Central East Correctional Centre was marked as Exhibit 3. I was also provided a factum as to sentence by Mr. Thompson and two casebooks, with appendices summarizing the cases. The Crown provided two sentencing cases.
3I set out in detail the facts presented during the trial and my findings and I do not intend to repeat them here, other than to briefly describe the observations of the two community police officers respecting Mr. Samuels interactions with Shane Eyre in the driveway beside the Michael Starr Building, south of King Street in Oshawa. Further, I will describe the quantity of drugs, how they were packaged and drug paraphernalia found on Mr. Samuels during the search incident to his arrest, as well as other items found on Mr. Samuels’ person during the search.
4P.C. Tillsley and P.C. Marriott were on foot patrol and both observed an individual known to them as Coolio dropping 3 small plastic baggies into another man’s hand from a larger bag, filled with a large number of similar small plastic baggies. P.C. Tillsley saw the other man give something to Mr. Samuels. Both officers believed they witnessed a drug transaction between the two men. Coolio had Canadian currency in his left hand when P.C. Tillsley grabbed him, which he believed was the object he observed Mr. Eyre give Mr. Samuels. The larger bag with small plastic baggies was in Mr. Samuels’ right hand, which was dropping the small plastic baggies onto the pavement in front of a white car parked in the laneway where the transaction had occurred. P.C. Tillsley had grabbed Mr. Samuels as he tried to leave the area on his bicycle when the two men saw the uniformed police officers. P.C. Tillsley removed another plastic bag with a white substance from Mr. Samuels’ waistband, after Mr. Samuels advised P.C. Tillsley he had drugs in that location, in response to P.C. Tillsley asking if Mr. Samuels had anything sharp, pointy or could prick him.
5P.C. Marriott located the 3 small plastic baggies he observed Mr. Samuels give to Mr. Eyre when he searched Mr. Eyre incident to arrest. They contained a white substance he believed was cocaine. The defence conceded if the Charter application was unsuccessful and Mr. Samuels was found to be in possession of the two substances, cocaine and crystal methamphetamine, it was for the purpose of trafficking and there was no need for the Crown to prove this beyond a reasonable doubt. The Certificates of Analysis and the Affidavit of Continuity in respect of items found on Mr. Samuels were admitted and marked as Exhibit 1 on the trial. The Release Order was marked as Exhibit 2 and the evidence of the possession proved the breach.
6The quantity of schedule 1 substances found were identified as follows:
a. ON218746 Cocaine 22.9 grams b. ON218745 Cocaine 17.6 grams (65 small baggies) c. ON218743 Cocaine 7.4 grams d. ON218742 Cocaine 1.6 grams e. ON219036 Methamphetamine 4 grams
Others items were found during the search incident to the arrest of Michael Samuels by P.C. Wilson and P.C. Tillsley:
a. 8 cell phones; b. Infyniti scales; c. 8 GB scales; d. Canadian currency found in wallet $2405.00; e. Canadian currency found loose on person $400.00; f. Canadian currency in cash bundles wrapped and rolled $4055.00; g. 10 watches and assorted gold chains and dark bag with many gold rings; h. Cannabis: 26.90 grams and 82.20 grams (found in back pack).
7It was agreed by counsel at the outset of the sentencing hearing that the value of the cocaine found in Mr. Samuels’ possession would be valued between $3965 and $4956 if sold by the gram and if sold by the ounce $2124 and $2823.
8Given the total quantity of cocaine (49.5 grams or 1.75 ounces) and 4 grams of methamphetamines found on Mr. Samuels, as well as the large quantity of Canadian currency ($6860.00), 2 digital scales, the manner in which the cocaine was packaged, and the numerous cell phones, it is my view, although Mr. Samuels was selling street-level quantities of cocaine, he had a fairly large total quantity of cocaine and was someone who was engaged in trafficking illicit substances for commercial gain and greed. In my view, he was not a trafficker who was only engaged in the trafficking of illicit substances to support his own drug habit from his personal use quantity of drugs.
Position of the Parties
9The defence is seeking a time served sentence. Mr. Samuels has spent 308 days in pre-sentence custody, on a 1.5 to 1 basis (per s. 719(3.1) of Criminal Code and R. v. Summers, which is 462 days. The defence argued Mr. Samuels should receive a time served disposition because of this pre-sentence credit of 15 months. Mr. Thompson submitted that a sentence in the mid-range of the Ontario Court of Appeal case R. v. Woolcock [1], where the Court held for low level cocaine trafficking or possession for the purpose of trafficking the appropriate range was 6 months to 2 years less a day in the reformatory.
10Mr. Thompson further argued Mr. Samuels should receive additional Duncan [2] credit, given the fact he had spent more than 25% of his pre-sentence custody in lockdown and was triple bunked on four nights. This is certainly a collateral mitigating circumstance as referred to in R. v. Suter [3] and R. v. Duncan [4]. Harsh conditions during pre-sentence custody is an appropriate consideration in determining a proportionate sentence. It is important to note that the defence did not provide an affidavit from Michael Samuels detailing the impact caused to him by these lockdowns while he was in pre-trial custody. I will address this issue during my discussion of the aggravating and mitigating circumstances present in this case, which are integral in my determination of what a proportionate sentence is for Mr. Samuels, keeping in mind the direction of the Ontario Court of Appeal in R. v. Marshall [5].
11Mr. Thompson also submitted that the PSR reflected issues discussed by Justice Nakatsuru’s 2018 decision in Morris [6], respecting systemic anti-Black racism and it was his submission this should reduce Mr. Samuels’ moral blameworthiness. Finally, Mr. Thompson submitted I should take into consideration the fact that Mr. Samuels is a cocaine addict and has struggled with addiction over the years, which has led to his involvement in criminal activities, when I am reaching my determination of what is a proportionate sentence.
12The Crown is seeking a 3 to 3.5 year penitentiary sentence, less pre-trial custody credit, having regard to Mr. Samuels’ lengthy cognate criminal record, the quantity of cocaine found on his person, together with the money ($6860.00) found and the drug paraphernalia (numerous cell phones, digital scales and the 65 small plastic baggies containing cocaine, together with three other quantities that totalled just over an ounce of cocaine). She argued there should be a consecutive sentence imposed of 90 to 120 days for the fail to comply with his release order where Mr. Samuels was prohibited from possessing any illicit substances.
Michael Samuels’ Background and Character
13Michael Samuels is 49 years of age, single, with no children. He was born in Toronto and lived in Canada until age 7 when his mother was deported to Jamaica and he returned there with her until coming back to Canada in 1993, when he was 19. He described growing up in a “broken home,” in poverty and less than ideal circumstances. His father was never involved in his life and he met him only once when he was four. His father was born in Italy before moving to Canada. He described his mother as being a businesswoman in Jamaica. He believed she consumed alcohol and drugs, cocaine and cannabis but denied her consumption impacted him negatively. He had a lot of freedom growing up and barely attended school, which has led him to be impacted by literacy issues. He denied experiencing any abuse as a child.
14He has been on the Ontario Disability Support Program (ODSP) for over 20 years, which he believes he “qualifies” for because of his poor literacy skills and possibly other factors, including suspected mental health issues. Prior to collecting ODSP he collected Ontario Works for approximately four to five years. He advised the PSR author he has never had any legitimate work experience, other than temporary landscaping and roofing. No time period or length of time was provided by Mr. Samuels for when he engaged in this employment. He admitted supporting himself through criminal activity including selling drugs since 1993 when he returned to Canada at the age of 19.
15Mr. Samuels has a lengthy, unenviable criminal record and has spent, at the very least, the past 27 to 30 years engaged in criminal conduct, which as I will discuss later is a serious aggravating circumstance. In particular, he has numerous prior convictions for possession of Schedule 1 substances for the purpose of trafficking, which is statutorily aggravating: s. 10(2)(b), Controlled Drugs and Substances Act. His criminal record is lengthy and contains the following sentences for cognate and related offences.
- In January 1998, he received the equivalent of a 125 day sentence for possession for the purpose of trafficking in a Schedule 1 substance;
- In September 1998, he received the equivalent of a 15 month sentence for trafficking in a Schedule 1 substance;
- From November 1998 to October 2003, he received numerous short custodial sentences for property offences, breach of court orders (bail and probation), assaults, threatening (a total of 13 entries). He was subject to probation orders throughout this period as part of his sentences;
- In December 2004, he received a time served disposition for possession for trafficking (18 days PSC) with probation;
- From April 2005 to June 2006, he received a number of short custodial sentences for breach of court orders (bail and probation), threatening (a total of 6 entries);
- In March 2007, he received the equivalent of a 5 month sentence with probation for trafficking in a Schedule 1 substance;
- In September 2007, he received the equivalent of a 12.5 month sentence for trafficking in a Schedule 1 substance and a number of breach of court orders (release and probation);
- In 2008 there were two entries for other offences involving short custodial sentences;
- In December 2009, he received the equivalent of a 9 month sentence for trafficking in a Schedule 1 substance;
- In April 2011, he received the equivalent of a 120 day sentence for simple possession of a Schedule 1 substance (there are two other entries for offences in 2011);
- In January 2014, he received the equivalent of a 32 month penitentiary sentence for possession of a Schedule 1 substance for the purpose of trafficking and two separate 30 day consecutive sentences for possession of property obtained by crime and breach of undertaking, for total sentence of 34 months;
- In June 2017, he received the equivalent of a 21 month sentence for possession of a Schedule 1 substance for the purpose of trafficking with 3 years of probation;
- In March 2018, he received the equivalent of a 109 day sentence for threatening and breach of probation;
- In August 2018, he received the equivalent of 110 day sentence for simple possession of a Schedule 1 substance and breach of probation, as well as a 30 day consecutive sentence for an additional breach of probation;
- In January 2019, he received a 90 day sentence for breach of probation.
16The defence argued Mr. Samuels has a 4 year and 6 month gap in his criminal record; however, this ignores the fact his last conviction was on January 4, 2019, when he received a 90 day sentence and the offence date of the possession for the purpose of trafficking was May 31, 2022, which reflects a gap of just over 3 years. Further, it should be noted that during this three years our country experienced a world-wide pandemic for over 2 years of that time, commencing in March 2020. As I expressed to counsel, it is difficult to view this period of time as a significant gap, particularly having regard to the fact that Mr. Samuels in the PSR admits that he supported himself through “stealing and selling items,” as well as being actively “involved in the drug trade including cocaine, crack cocaine, crystal methamphetamine and cannabis” during this time period.
17He did not provide any indication he had been employed in a single law-abiding job during this period, rather, he admitted not having “found something positive to do with his time in order to change his life.” His mother passed away in 2020 at the age of 74. The only two family members who he has contact with currently are a sister in Jamaica, who he has telephone calls with once a month, and his niece, who was present in court during the sentencing hearing and both indicated to the PSR author they are supportive of him. However, they both indicated they were unaware and could not comment on his involvement in the drug subculture, which in my view is concerning. His niece did tell the PSR author that she had met some of her uncle’s negative associates and she believed if he changed his peer group, this would likely help him change his pro-criminal lifestyle. However, Mr. Samuels made it clear in the PSR that while he acknowledges that his drug use is an area of concern, he has not done anything to address it, as he, according to the PSR author, “remains primarily in the pre-contemplative stage of change and does not appear to be motivated.” Any involvement by him in counselling or treatment is described as “superficial,” and “no real change has been facilitated, as he continues to be involved in the drug subculture.” It was identified by previous probation officers that Mr. Samuels had “no desire to address his issues and refused to follow through.” He has repeatedly failed to comply with supervisory court orders and demonstrates ongoing criminal activity, “usually involving drug use and trafficking.”
18Mr. Samuels believes he struggles with mental health issues but was unable to be specific in identifying what those issues are. He admitted he lacks follow through and is currently untreated or diagnosed, based on the material put before the court.
Aggravating and Mitigating Circumstances
19Cocaine is a Schedule 1 drug under the CDSA, a “hard” drug, a very dangerous substance that causes serious harm and consequences for those who become addicted to it. It also causes harm indirectly to their families, as well as to the community at large, which is exposed to harmful and often criminal activity by addicts and by the very dangerous activity of trafficking in the drug itself.
20Mr. Samuels had possession of a substantial quantity of cocaine, in total, an ounce and a three-quarters (1.75 ounces), for the purpose of trafficking, which distinguishes him from those addict traffickers selling small quantities of cocaine to support their own addiction out of their personal supply.
21On the evidence before me during this trial I have no doubt that Mr. Samuels was actively involved in the selling of cocaine for commercial profit. This is the only reasonable inference having regard to the 65 tiny plastic baggies containing a total of 17.6 grams of powdered cocaine, which reflected a quantity of .2 to .3 grams per package, the 2 digital scales and the significant amount of cash currency: $6860.00 in small and large bills found on Mr. Samuels’ person. This is also confirmed by Mr. Samuels in the PSR, where he admitted he supported himself by selling illicit substances, including cocaine, crystal methamphetamines, crack cocaine and cannabis. Further, Mr. Samuels was observed in what both P.C. Tillsley and P.C. Marriot believed to be Michael Samuels trafficking drugs to Mr. Eyre.
22A further serious aggravating circumstance is Mr. Samuels’ extensive criminal record, which reflects eight (8) separate occasions that he has previously been convicted of trafficking or possession for the purpose of trafficking in a Schedule 1 substance and four (4) occasions he has been convicted of simple possession of illicit substances, occurring between 1996 and 2018. These cognate prior convictions, involving sentences ranging from 125 days to 34 months, is a statutorily aggravating circumstance under s. 10(2)(b), Controlled Drugs and Substances Act. Further, his other convictions, which are numerous, reflect someone who has been involved in the drug subculture for almost three decades. Mr. Samuels admitted in the PSR that this conclusion is in fact correct.
23The PSR reflected that Mr. Samuels advised that at the present time he did not believe he had a drug problem but he acknowledged his previous addiction and reported ongoing usage. During his submissions Mr. Thompson advised that although he had not taken any issue with the information contained in the PSR prior to it being marked as an exhibit, his client had just advised him that the PSR was inaccurate when it stated he did not believe he had a current drug problem, as he is still an addict. It was Mr. Thompson’s submission Mr. Samuels was an addict trafficker, and that sentencing cases involving addicted users selling illicit substances to support their own habits should be considered in my determination of a proportionate and fit sentence in the circumstances of Mr. Samuels’ case. I do not agree with this submission given my findings referred to above. It is my view Mr. Samuels is a commercial trafficker of illicit substances and has been engaged in that business for decades.
24Mr. Samuels was entitled to have a trial respecting the charges he faced and he is not required to accept my findings respecting the evidence, however, he as a result of his exercising his right to a trial, he is not entitled to claim the mitigating benefit of a guilty plea and acceptance of responsibility. Further, it is not aggravating that he demonstrated no remorse to the probation officer and advised her of his intent to appeal his case, as this is his right. It is clear from the caselaw; lack of remorse is not an aggravating circumstance to consider on sentencing and I do not consider it as such, (see R. v. Giroux (2006), 207 C.C.C. (3d) 512 (Ont. C.A.), at para. 68; R. v. Valentini (1999), 132 C.C.C. (3d) 262 (Ont. C.A.), at paras. 80-85).
25There are very few mitigating circumstances present in the circumstances surrounding Mr. Samuels’ involvement in the offences I found him guilty of and in his personal circumstances. At the beginning of his trial February 8, 2023, Mr. Samuels was in custody. He was released on bail on February 23, 2023, in respect of these charges; however, based on the information from the PSR and the absence of any contrary information from Mr. Samuels, he did not attend for any addiction counselling or rehabilitative programs between his release from custody and his sentencing hearing on November 1, 2023. In many of the sentencing cases provided by the defence, the accused had begun to address their addiction issues, which was one of the mitigating circumstances considered in sentencing an offender in the lower end of the Woolcock range, together with other mitigating circumstances such as youth, no criminal record, small quantities of illicit substances, which are not present in Mr. Samuels’ circumstances.
26Mr. Thompson also made reference to Justice Nakatsuru’s judgment in Morris, and the impact of systemic anti-Black racism on Mr. Samuels. He submitted that Mr. Samuels background in terms of his experience in Jamaica respecting his not advancing beyond Grade 7, which resulted in his being illiterate, which in turn has severely impacted his ability to be able to secure meaningful employment, should be taken into account in determining an appropriate sentence.
27There can be no doubt that systemic anti-Black racism exists in the community and as the Court of Appeal held in Morris, as a sentencing judge I must be alert to the possibility that the sentencing process itself can foster this and carefully consider evidence addressing whether this issue is present in the case before me. The Court of Appeal made it clear that evidence of the impact of anti-Black racism on an offender cannot diminish the seriousness of the offence or the court’s need to denounce serious criminal conduct; however, evidence of the impact of anti-Black racism on a specific offender can be an important consideration when determining the appropriate sentence as it relates to an offender’s moral blameworthiness. The Court went on to refer to R. v. Borde [7] and R. v. Hamilton [8], as recognizing the connection between anti-Black racism and factors relevant to the determination of a fit sentence in broad terms. While the Court held that causation, as used in the substantive criminal law, plays no role when considering the impact of an offender’s background or circumstances on sentencing, it further held:
There must, however, be some connection between the overt and systemic racism identified in the community and the circumstances or events that are said to explain or mitigate the criminal conduct in issue. Racism may have impacted on the offender in a way that bears on the offender's moral culpability for the crime, or it may be relevant in some other way to a determination of the appropriate sentence. Absent some connection, mitigation of sentence based simply on the existence of overt or institutional racism in the community becomes a discount based on the offender's colour. Everyone agrees there can be no such discount [cites omitted]. [9]
28Other than the PSR, the defence did not provide any additional evidence to support that Mr. Samuels’ background and circumstances were impacted by systemic anti-Black racism in his life. There can be no doubt that his early childhood was difficult and that he experienced challenges; however, I was not provided with any supportive evidence of Mr. Samuels early life in Jamaica (from age 7 to 19) or his experiences upon returning to Canada respecting anti-Black racism that might explain or mitigate his criminal conduct. He conceded in the PSR he had very little memory and was unable to provide many details of growing up in Jamaica. His sister, who he communicates with monthly and still lives in Jamaica, did not provide any information concerning her brother’s life in Jamaica. Mr. Samuels admitted in the PSR that shortly after he returned to Canada in 1993, he became involved in selling drugs and other criminal activity; however, he did not provide any information to the probation officer as to why or under what circumstances he became involved in the drug subculture.
29It is my view, there is very little evidence of anti-Black racism being connected to or playing any role in Mr. Samuels’ involvement in the drug subculture or his involvement in other criminal activities. By his own admission he has continually been involved in the drug subculture by choice for close to three decades after returning to Canada from Jamaica. It was Mr. Thompson’s alternative submission that if there was no connection as required in Morris by the Supreme Court then it was clear Mr. Samuels had a difficult life, someone who struggled over the years with drug addiction and poverty, someone who faced limited opportunities because of his lack of education. He submitted his limited opportunities reduced his moral blameworthiness. I will address these issues during my analysis of what is a fit and proportionate sentence for Mr. Samuels in the circumstances of his case.
30A final consideration as a mitigating circumstance in this case is the collateral consequence of the harsh conditions of repeated lockdowns experienced by Mr. Samuels during his period of pre-sentence custody, as reflected in the lockdown report from Central East Correctional Centre, dated October 26, 2023, by Florentino Sanya, Manager, Security & Investigations SOLGEN, CECC.
31In R. v. Duncan, the Ontario Court of Appeal held that in appropriate circumstances particularly harsh pre-sentence conditions can provide mitigation apart and beyond the 1.5 to 1 credit provided for in s. 719(3.1) of the Criminal Code and R. v. Summers. The decision to award additional credit for harsh conditions is discretionary and such credit serves to ensure that the sentence imposed is proportionate and individualized. The cases from the Court of Appeal since Duncan have been clear that there is no mathematical formula that must apply to determine what the amount of credit should be, R. v. Brown [10], R. v. Raimoolie [11], and R. v. Morgan [12]. Recently, the Court of Appeal further clarified how what has been termed “Duncan” credit should be determined in R. v. Marshall:
52 The "Duncan" credit is not a deduction from the otherwise appropriate sentence, but is one of the factors to be taken into account in determining the appropriate sentence. Particularly punitive pretrial incarceration conditions can be a mitigating factor to be taken into account with the other mitigating and aggravating factors in arriving at the appropriate sentence from which the "Summers" credit will be deducted. Because the "Duncan" credit is one of the mitigating factors to be taken into account, it cannot justify the imposition of a sentence which is inappropriate, having regard to all of the relevant mitigating or aggravating factors. [Emphasis added]
53 Often times, a specific number of days or months are given as "Duncan" credit. While this quantification is not necessarily inappropriate, it may skew the calculation of the ultimate sentence. By quantifying the "Duncan" credit, only one of presumably several relevant factors, there is a risk the "Duncan" credit will be improperly treated as a deduction from the appropriate sentence in the same way as the "Summers" credit. If treated in that way, the "Duncan" credit can take on an unwarranted significance in fixing the ultimate sentence imposed: R. v. J.B. (2004), 187 O.A.C. 307 (C.A.). Arguably, that is what happened in this case, where on the trial judge's calculations, the "Duncan" credit devoured three-quarters of what the trial judge had deemed to be the appropriate sentence but for pretrial custody. [Emphasis added] [13]
32Some cases have held that where there is no evidence of what the harsh conditions experienced by the individual in pre-trial custody were, either by viva voce evidence or affidavit, then no enhanced credit should be given. It is worth noting that Mr. Samuels was subject to lockdowns because of staff shortages and droplet precautions 25% of his time in pre-sentence custody up to the date of the letter. I am sure there were additional lockdown days in the 35 days of additional pre-sentence custody he served from November 1, 2023, until today. Suffice it to say, in determining what I believe the appropriate, proportionate sentence for Mr. Samuels’ criminal conduct that properly addresses the gravity of the offence and his degree of moral blameworthiness, I have considered and taken into account the fact that he spent 25% of his pre-sentence custody in lockdowns. Even without an affidavit setting out the actual hardships and impacts this caused him, I am of the view this circumstance is unacceptable and should not have occurred. Mr. Thompson did not refer to a specific number of days as a further reduction of sentence pursuant to Duncan but submitted I should consider the lockdown report from CECC, as well as the knowledge that CECC has experienced an increase in lockdowns, as reflected in the letter as a result of staff shortages. I have indicated this is an unacceptable circumstance, particularly in a custodial facility where persons awaiting trial or sentencing or serving a sentence are being detained and held. It is my intention to take this mitigating circumstance into account in determining a proportionate sentence for Mr. Samuels.
Determining the Appropriate Sentence
(a) The Applicable Principles of Sentencing
33The purpose of sentencing is set out in 718 to 718.2 of the Criminal Code. Under s. 718 of the Criminal Code, the fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society by imposing a just sanction. Any sanction imposed must be the result of a fair and balanced consideration of the need to:
(a) denounce the unlawful conduct; (b) deter the offender and others from committing such an offence; (c) separate the offender from society where necessary; (d) assist in the rehabilitation of the offender; (e) provide reparation for the harm done to victims or the community; and (f) provide a sense of responsibility in the offender while acknowledging the harm done to the victims and the community.
34The fundamental principle of sentencing, which I have referred to during submissions pursuant to s. 718.1 of the Code, is that a sentence must, “be proportionate to the gravity of the offence and the degree of responsibility of the offender or the moral blameworthiness of the offender.” In R. v. Nasogaluak [14], the Supreme Court explained the dual role of restraint and censure that proportionality plays in sentencing offenders:
42For one, it requires that a sentence not exceed what is just and appropriate, given the moral blameworthiness of the offender and the gravity of the offence. In this sense, the principle serves a limiting or restraining function. However, the rights-based, protective angle of proportionality is counter-balanced by its alignment with the "just deserts" philosophy of sentencing, which seeks to ensure that offenders are held responsible for their actions and that the sentence properly reflects and condemns their role in the offence and the harm they caused...Whatever the rationale for proportionality, however, the degree of censure required to express society's condemnation of the offence is always limited by the principle that an offender's sentence must be equivalent to his or her moral culpability, and not greater than it. The two perspectives on proportionality thus converge in a sentence that both speaks out against the offence and punishes the offender no more than is necessary.
35Section 718.2 provides that a sentence should be increased or decreased to account for any aggravating and mitigating circumstances. This section also requires that a sentence be similar to other sentences imposed on similar offenders in similar circumstances, that the combined duration of consecutive sentences not be unduly long and that an offender not be deprived of liberty, if less restrictive sanctions may be appropriate and that all available sanctions other than imprisonment that are reasonable in the circumstances be considered.
36The purpose of sentencing under the Controlled Drugs and Substances Act is set out in s. 10 of that legislation, and s. 10 reads as follows:
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.
37Both the Crown and defence agree the sentencing principles of denunciation and deterrence are the primary sentencing principles to be considered in determining an appropriate sentence in this case. The two offences of possession of a Schedule 1 drug, cocaine and methamphetamine, for the purpose of trafficking are serious offences. [15] Mr. Samuels has an extensive criminal record for similar offences stretching over more than 20 years. He was sentenced to a penitentiary sentence in January 2014, 32 months and received the equivalent of an upper reformatory sentence in June 2017, 21 months. Specific deterrence continues to be a significant concern in determining a proportionate sentence for Mr. Samuels. He is not considered suitable for additional community supervision and his future success in terms of his rehabilitation, having regard to his criminal record and attitude as reflected in the PSR, is doubtful. He has numerous breach of probation convictions; he has been referred to community services and agencies but his follow through is superficial and his desire to change is non-existent. He admits to continuing to be involved in pro-criminal activities and from his own comments to the PSR author, he is not motivated to change his criminal behaviour or drug use. Although Mr. Samuels has limited prospects for rehabilitation, it would, in my view, be an error to completely dismiss the possibility of Mr. Samuels making a decision, perhaps in the not too distant future, to change the path of his life and to reach out and then accept the assistance of others in the community, such as his niece, drug counsellors and mental health workers. Of course, the first step in this process of rehabilitation is for Mr. Samuels to make that decision, then follow through and continue to make that decision each day. Unfortunately, up to this point in time, he has decided this process is not something he has been interested in pursuing.
38Before addressing what I believe to be the fit and appropriate sentence for Michael Samuels, I want to address the matter of sentencing ranges. This was addressed by the Ontario Court of Appeal in one of its earlier decisions of R. v. Jacko [16], where at paragraph 90, the court held: sentencing "ranges" are not immovable or immutable. They are and represent guidelines, of greater or lesser utility depending upon the breadth of the range. Individual cases may fall within or outside the range and to consider a range of sentence as creating a de facto minimum sentence misses the point, it ignores the fundamental principle of proportionality; individual circumstances matter.
39Also, in R. v. D.D. [17], a decision of the Ontario Court of Appeal, where Justice Moldaver, (as he then was), said the following at paragraph 33:
...sentencing is not an exact science and trial judges must retain the flexibility needed to do justice in individual cases. The suggested ranges are merely guidelines designed to assist trial judges in their difficult task of fashioning fit and just sentences in similar cases.
40This issue has been revisited by the Supreme Court of Canada in R. v. Lacasse [18]:
...Sentencing ranges are nothing more than summaries of the minimum and maximum sentences imposed in the past, which serve in any given case as guides for the application of all the relevant principles and objectives. However, they should not be considered “averages”, let alone straitjackets, but should instead be seen as historical portraits for the use of sentencing judges, who must still exercise their discretion in each case.
There will always be situations that call for a sentence outside a particular range: although ensuring parity in sentencing is in itself a desirable objective, the fact that each crime is committed in unique circumstances by an offender with a unique profile cannot be disregarded. The determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purely mathematical calculation... [Emphasis added]
41The 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. Sentencing is a highly individualized exercise and determining a proportionate sentence is a delicate task (see para. 13 of Lacasse).
42I was provided cases by the defence, [19] and the Crown [20] addressing the range of sentences imposed for possession for the purpose of trafficking in cocaine. Depending on the quantity, that range of sentence can run from as low as a suspended sentence with probation, to custodial sentences ranging in the reformatory to the penitentiary. [21] Many of the cases provided by the defence can be distinguished by the fact there was a guilty plea or the accused was a youthful first offender or had no prior convictions for trafficking or possession for the purpose of trafficking in illicit Schedule 1 substances. The caselaw provided by both counsel demonstrates that sentencing is a very individualized process and there is not one size fits all or a uniform sentence for all offenders who commit a particular crime.
43It is important to note, however, that no two cases are exactly alike and as emphasized by Chief Justice Lamer in R. v. M.(C.A.) [22], at para. 92,
Sentencing is an individualized process, and the search for a single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise or academic abstraction. As well, sentences for a particular offence should be expected to vary to some degree across various communities and regions in this country, as the "just and appropriate" mix of accepted sentencing goals will depend on the needs and current conditions of and in the particular community where the crime occurred. [Emphasis added]
44Too often, I have counsel, and I’m not saying it happened in this case, but too often counsel tell a sentencing judge, “this particular sentencing case is exactly the same as the case before you,” and they quote a sentence that was imposed in that case, and basically indicate I should be bound by that number. I do not treat sentencing in that fashion, while other sentencing cases may be helpful in determining a proportionate sentence, I must look at the individual I am sentencing and examine the entire circumstances involved surrounding the commission of the offences and the offender’s background and moral blameworthiness.
(b) Determining the Proportionate Sentence for Michael Samuels
45Mr. Samuels is not a first offender; he is not youthful and this is not his first conviction for possession for the purpose of trafficking a Schedule 1 substance. As I indicated above, it is my view that although Mr. Samuels was selling street-level quantities of cocaine, he had in his possession a sizable quantity of cocaine (1.75 ounces in total), divided into 65 individually wrapped small baggies (17.6 grams), as well as several other larger quantities (22.9 grams, 7.4 grams, 1.6 grams: totalling more than 1 ounce) and 4 grams of methamphetamines. I find he is someone who is regularly engaged in trafficking illicit substances for commercial gain and greed, having regard to the quantity and the packaging of cocaine he possessed, the nature and quantity of the cash ($6860.00) found on his person, as well as the drug paraphernalia located of 2 digital scales and numerous cell phones. In fact, Mr. Samuels admitted his continuous involvement in drug trafficking since 1993, when he returned to Canada from Jamaica, in his interview with the probation officer. Taking this into account with his extensive criminal record for similar offences, the length of a number of those sentences for possession for the purpose of trafficking or trafficking in Schedule 1 substance (For example: September 1998: 15 months; March 2007: 5 months; September 2007: 12.5 months; December 2009: 9 months; January 2014: 32 months + 2 months consecutive related offences; and June 2017: 21 months), and his criminal record for 34 separate convictions for breach of various court orders between 1996 to 2019, it is my view even the upper end of the sentencing range set out in Woolcock is not an appropriate or proportionate sentence for Mr. Samuels. He has been sentenced to mid and upper reformatory sentences and in 2014 was sentenced to the penitentiary (an additional sentence of 27 months, together with 205 days of pre-sentence custody, for a total sentence of 34 months). In my view he can be described as a incorrigible, recalcitrant, recidivist offender, who has shown no interest in addressing his anti-social behaviour or his own use of illicit substances.
46The defence position of “time served” is completely inadequate and in my view the cases do not support a sentence in the mid-range of Woolcock for Mr. Samuels, having regard to his personal circumstances and background. A time served sentence as a result of 15 months credit for pre-sentence custody is entirely disproportionate to the gravity of the offence and Mr. Samuels’ moral blameworthiness. Mr. Samuels has had innumerable opportunities over the years to change his criminal behaviour; however, he admits he is not interested in pursing this. He has made a conscious decision to support himself by selling drugs and committing other criminal offences, despite being fully aware it would be beneficial to him if he found a job and did something positive with his time.
47The defence did not provide an affidavit from Mr. Samuels setting out how his experiences with anti-Black racism or his early childhood experiences and circumstances played any sort of role in his becoming involved in the criminal conduct he engaged in. No evidence, either viva voce or by affidavit, was presented by the defence in this case, as it was in R. v. Graham [23], where Justice Code found the defence submission that anti-Black racism and historical sexual abuse played a role in Mr. Graham’s criminal lifestyle had not been established on a balance of probabilities. I agree with Justice Code’s conclusion, the fact an offender is black, in and of itself, is not a mitigating circumstance. This was also the conclusion of the Court of Appeal in Morris, at para. 97, “… Absent some connection, mitigation of sentence based simply on the existence of overt or institutional racism in the community becomes a discount based on the offender's colour. Everyone agrees there can be no such discount.” Perhaps if Mr. Samuels had a similar criminal record and the same potential for rehabilitation as Mr. Woolcock did, the defence position of a mid-range reformatory sentence of 15 months would be a proportionate and fit sentence. As I indicated earlier, many of the cases provided in the defence casebooks involved youthful first offenders who had excellent prospects for rehabilitation and where many had commenced rehabilitative programs or sought employment prior to being sentenced. The circumstances present in Mr. Samuels’ case in no way approximate Mr. Woolcock’s circumstances or the circumstances present in the other sentencing cases provided. It is also my view that acceding to the defence submission of time served as an appropriate sentence would send the wrong message to Mr. Samuels that he, in effect, had a license to sell illicit substances in the community. Such a sentence would also send that same message to like-minded individuals engaged in the commercial trafficking of illicit substances.
48The Crown’s sentencing position of 3 to 3 ½ years for the two charges of possession of a Schedule 1 substance for the purpose of trafficking, in my view, is extremely fair and balanced, given that Mr. Samuels’ criminal record could have supported a longer sentence in the penitentiary, particularly having regard to concerns for protection of the public from his criminal activities, as well as the need to specifically deter him, which has been completely unsuccessful for decades and from deterring others engaged in similar criminal pursuits.
49The case of R. v. Berry [24], provided by the Crown, is somewhat similar to Mr. Samuels’ case. In this case the police had been conducting surveillance on Mr. Berry’s apartment and observed what they believed were drug transactions. Upon executing a search warrant police found 21.2 grams of cocaine and 6 ounces of marihuana, together with digital scales, debt lists and packaging materials. Mr. Berry was not a user and his involvement was for commercial reasons. Mr. Berry, age 61, had a lengthy criminal record, which included similar offences for which he had received an 18 month sentence for possession of a narcotic for the purpose of trafficking (1978) and 42 month sentence for 3 counts of trafficking in a narcotic (1990). He suffered from heart disease and had a heart attack in 2009. There were a number of 7 year gaps in his extensive record and his most recent conviction in August 2010, was for possession of Schedule 1 substance for purpose of trafficking and he received a 90 day conditional sentence. After a trial Mr. Berry received a three year penitentiary sentence for possession of cocaine for the purpose of trafficking. The defence sought a 6 to 12 month conditional sentence in light of Woolcock and the Crown submitted 36 months was appropriate given Mr. Berry’s criminal record and the commercial aspect of his trafficking, even though the amount of cocaine was just under an ounce. The sentencing judge pointed out that Woolcock must be looked at in light of that accused’s circumstances, where the Court of Appeal believed Mr. Woolcock had the potential to be rehabilitated and he had lived his life for many years without blemish until he experienced a number of personal tragedies. He had only one prior drug-related conviction. All of this was ignored by the sentencing judge in Woolcock. Mr. Berry had begun his criminal activities at the age of 16, displayed no willingness to divorce himself from the drug subculture, his prospects of rehabilitation were slim. In all of the circumstances, Justice Koke held the paramount sentencing principles were denunciation and deterrence, as well as protecting the community by separating and removing Mr. Berry for a period of time. I agree with the Crown’s submission that there are a number of similarities in this case with Mr. Samuels.
50It is my view a penitentiary sentence is necessary to properly address what are the paramount sentencing principles in this case, namely, deterrence, specific and general, and denunciation. In my view the jump principle has no application in the circumstances of Mr. Samuels’ case in determining what is a proportionate sentence. I am required to take into account Mr. Samuels’ criminal record and his previous sentences, as well as the circumstances of the offences I am sentencing him on. It is my view a penitentiary sentence is not a “dramatically more severe sentence than the sentences imposed upon the offender [Mr. Samuels] for similar offences in the recent past” (R. v. Borde [25]), and the Court of Appeal has been clear in a number of decisions that the jump principle has no application “when dealing with multiple convictions for an offender with a lengthy criminal record, or where previous sanctions have been ineffective in deterring the offender” (R. v. Green [26]). As Justice D.M. Brown held for the Court of Appeal in R. v. Simeunovich [27]:
…I see no merit in the appellant's submission that the jump principle narrowly confined the sentencing judge to measuring any permissible increase in sentence against only the last, highest conviction for the offence of driving while disqualified. A sentencing judge is entitled to take a more holistic view of the past and present conduct of the offender.
51Further, it is my view a consecutive sentence for the fail to comply with his release order; namely, not to possess illicit substances, is entirely appropriate and necessary to bring home to Mr. Samuels the importance and seriousness of complying with court orders he is bound by, particularly in light of his extensive criminal record for breaching court orders, where on his application for release a detention order could have been made. The Crown’s position of a 90-120 day consecutive sentence is an appropriate disposition respecting this charge, having regard to the number of previous convictions for breaching court orders and the fact in 2019 he received a 90 day sentence for failure to comply with his probation order. I do not believe Mr. Thompson argued to the contrary.
52While Mr. Samuels does not currently display much interest or realistic potential for rehabilitation in changing the path of his life, it is my belief that at this point in his life, at the age of 49, he may take advantage of the assistance available to him in the community through a probation order, such as counselling, treatment and rehabilitative programs upon his release from custody. He will certainly have the opportunity to begin to take advantage of the many programs available to him while he is serving the sentence I intend to impose. A probation order would only be available if the remnant of his penitentiary sentence is 2 years or less. [28] It is my intention to impose a three year probation order with terms, following the completion of Mr. Samuels’ custodial sentence to provide him with the opportunity to obtain assistance in the community if he decides he wants to change the path of his life. In my view this will also provide further protection to the community in the event Mr. Samuels continues to engage in anti-social criminal behaviour.
53As a result I will be imposing a three year (1095 days) sentence less credit for pre-sentence custody (462 days), which leaves a sentence of 633 days, for each of the possession of a Schedule 1 substance for the purpose of trafficking charges (to be served concurrently to each other). In addition, I am imposing a 97 day sentence for the fail to comply with release order charge, which is consecutive to the 633 day sentence, for a total sentence of 730 days or 2 years. The total sentences therefore add up to 2 years in the penitentiary. I am aware 2024 is a leap year and there are 366 days in that year. I want to be very clear, the sentence I am imposing is a combined sentence of 2 years, such that Mr. Samuels will serve this sentence in the penitentiary and not the reformatory.
54In deciding not to impose the upper end of the Crown’s submission of 3 ½ years, I have also taken into account the harsh conditions present at CECC reflected in the lockdown letter, where an increased number of lockdown days are regularly occurring because of staff shortages. As I indicated, this is a collateral consequence that should be considered in my determination of an appropriate, proportionate sentence but not something that can or should reduce a sentence such that it is disproportionate to the gravity of the offence and the moral blameworthiness of Mr. Samuels. It is my view that the upper penitentiary range suggested by the Crown was within the appropriate, proportionate range of sentence for Mr. Samuels; however, it would have prevented a probation order to follow the custodial sentence. As a result, I have exercised my discretion to impose the bottom portion submitted by Crown. The combined sentences remaining after taking into account the credit available to Mr. Samuels pursuant to Summers – a two (2) year sentence in the penitentiary is my sentence followed by 3 years of probation.
55The one positive person in Mr. Samuels’ life would appear to be his niece, who is his only family member living in Canada. Mr. Samuels described them as being close, which was confirmed by his niece who told the probation officer that she and her uncle talk by phone approximately every other day and see each other once a week. His niece advised the probation officer she was trying to be a positive support and influence for her uncle, to expose him to a more pro-social way of life. The fact that Mr. Samuels now has this relationship with his niece may be the impetus for Mr. Samuels to make important decisions about his future and to accept and seek out assistance from the various individuals and agencies that will provide it to him. As a result of this I am imposing a three year probation order with the following terms:
- The statutory terms, which includes a term to “keep the peace and be of good behaviour;”
- Report to a probation officer within 2 working days of his release from custody and thereafter as required by his probation officer;
- His reporting condition will end once he has completed all of the counselling recommended by his probation officer;
- Attend for such counselling, treatment or rehabilitation programs as recommended by his probation officer, including, but not limited to, a. Substance abuse; b. Psychiatric/psychological issues; c. Life skills: employment, housing assistance; and d. Any other reason deemed appropriate by his probation officer.
- He will sign release of information forms necessary for his probation officer to be aware of his completion of the counselling, treatment or rehabilitation programs he is involved in; and
- He will provide proof of his completion of any counselling, treatment or rehabilitation programs he is taking.
56It is my hope for Mr. Samuels that he does in fact make the decision to change his way of life and to take advantage of the rehabilitative programs available in the penitentiary and then continue his decision after his release from custody to continue to work with and accept assistance from his probation officer and the community agencies he is referred to.
57There will also be a section 109 order for life. There will be a forfeiture order respecting the items seized by the police upon Mr. Samuels arrest. Offences under the Controlled Drugs and Substances Act are secondary designated offences for the taking of samples of DNA and given Mr. Samuels is on the Known DNA Data Bank I exercise my discretion not to make such an order. Further, I waive the victim fine surcharge given Mr. Samuels is receiving a custodial sentence.
Released: December 5, 2023 Signed: Justice Peter C. West
