Court File and Parties

Date: January 20, 2017

Court File No.: Brampton 14-0111347

Ontario Court of Justice

Between:

Her Majesty the Queen

- and –

Toyan Gabbidon

Before: Justice P.A. Schreck

Heard on: January 20, November 4, December 20, 2016

Reasons for Sentence

Counsel:

• M. Hourigan and R. Johnston, counsel for the Crown
• A. Edgar, counsel for Toyan Gabbidon

SCHRECK J.:

[1] Toyan Gabbidon pleaded guilty to possession of 81 grams of cocaine for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act and possession of proceeds of crime under $5000, contrary to s. 355(b)(i) of the Criminal Code. For the reasons that follow, he is sentenced to imprisonment for nine months for possession of cocaine for the purpose of trafficking and a concurrent 18-month conditional sentence for possession of the proceeds of crime, followed by 12 months of probation.

I. FACTS

A. The Offence

[2] In 2014, the police placed Mr. Gabbidon under surveillance, having received information that he was involved in cocaine trafficking. On September 11, 2014, he was seen entering a car driven by another individual and exiting shortly thereafter. The car was stopped shortly thereafter and the driver was found to be in possession of cocaine. The following day, the police executed a search warrant at Mr. Gabbidon's residence, where they found 81 grams of cocaine, scales, baggies and other trafficking paraphernalia and $8820 in cash. Mr. Gabbidon admits that some but not all of the cash is the proceeds of crime. The Crown accepts that the portion of the cash that constituted the proceeds of crime did not exceed $5000.

B. The Offender

[3] Mr. Gabbidon is 34 years old. He has no prior criminal record and has been on bail without incident since his arrest. He currently lives with his spouse and her nine-year-old daughter. He has 12-year-old twins from a prior relationship who live with their mother but to whom he provides financial support. A letter from the mother of Mr. Gabbidon's twins was filed. In it, she indicates that while the support he provided to his children used to be sporadic, it has dramatically improved and he now provides both financial and other types of support in a reliable fashion.

[4] Mr. Gabbidon has a high school education and has been employed since leaving school. In 2012, he learned that due to some sort of error, he owed the government $13,000 in back taxes, resulting in a 20% garnishment of his wages. The stress of this caused him to begin to drink excessively. Later, his cousin introduced him to cocaine and by 2014, Mr. Gabbidon was a "full blown addict". Unsurprisingly, his addiction resulted in further financial problems for him. His cousin suggested that he sell cocaine and he agreed.

[5] Mr. Gabbidon suggests that his arrest had positive effects. He became involved in his church and with the help of members of his congregation, stopped using cocaine. A letter from a clergyman at his church was provided to the court and indicates that he does significant amounts of volunteer work there. He has now paid off his tax debt. He is employed full time as a freight handler.

[6] The Crown initially did not accept that Mr. Gabbidon was an addict and took the position that a 30-month penitentiary sentence was appropriate. As a result of the Crown's position, the matter was adjourned so that Mr. Gabbidon could call evidence on the point. However, by the return date the Crown had changed its position and no longer disputes that Mr. Gabbidon was an addict at the time he committed the offences. Initially, this fact did not change the Crown's position of 30 months. Later, however, the Crown lowered its position and now seeks a sentence in the upper reformatory range.

II. POSITIONS OF THE PARTIES

[7] Mr. Gabbidon's counsel submits that the appropriate disposition is to impose a conditional sentence of two years less a day on the proceeds of crime count and a concurrent suspended sentence for possession of cocaine for the purpose of trafficking. Alternatively, he suggests a 90-day intermittent sentence on the possession for the purpose count and a consecutive conditional sentence for the proceeds count of 21 months less a day.

[8] The Crown submits that the appropriate sentence for possession for the purpose of trafficking is one of imprisonment for between 18 months and two years less a day and a term of probation for the proceeds of crime count. He also seeks various ancillary orders.

III. ANALYSIS

A. General Principles

[9] Cocaine is a dangerous drug which causes significant harm to not only those who use it, but to the communities in which they live as well. For this reason, it is well established that the principles of deterrence and denunciation should be given significance in sentencing individuals convicted of trafficking in cocaine or possessing it for that purpose. That said, the rehabilitation of the offender remains an important sentencing objective: R. v. Woolcock, [2002] O.J. No. 4927 (C.A.) at para. 8.

[10] The Court of Appeal has established sentencing ranges for cocaine trafficking and related offences which are broadly based on the weight of the cocaine involved. As a general rule, the larger the amount, the longer the sentence. The Crown submits that this case falls into the "one ounce or more" range and, as such, is subject to a higher range than the "under one ounce" cases.

[11] While I accept that sentences in drug trafficking cases can be generally related to the amount of the drug involved, in my view courts must be cautious not to become fixated on the weight of the drugs that are seized as this risks creating arbitrary categories. Mr. Gabbidon was found in possession of 81 grams of cocaine which he intended to traffic but had not yet done so. Had the police executed the warrant earlier, he may have been in possession of a larger amount that had not yet been sold. Had they executed it later, more may have been sold already and the amount may have been smaller. In my view, the focus should be on the conduct the offender engaged in rather than the amount involved.

[12] As with any offence, sentences in trafficking cases must reflect the seriousness of the offence and the moral culpability of the offender. In this case, the offence involves profiting from the misfortune of others by selling dangerous drugs to individuals who are addicted to them. It is well known that drug trafficking usually involves a distribution hierarchy. Those at the top of the hierarchy arrange for the importation of large amounts of cocaine which is then distributed through others until it reaches the "street level dealer", who sells small amounts to individual users. Individuals at the top of the hierarchy are responsible for the distribution of large amounts of cocaine to a large number of people. They cause great harm to many people and their moral culpability is significant. Those at the bottom also cause harm, but to a more limited extent. The sentences imposed should reflect this difference. The weight of the drugs is relevant insofar as it is evidence of an offender's place in the distribution hierarchy, which in turn is directly related to the seriousness of the offence and the moral culpability of the offender.

[13] Mr. Gabbidon was found in possession of 81 grams of cocaine, as well as scales, baggies and cash. He was seen meeting with an individual in a car who was later found in possession of cocaine. It is clear that Mr. Gabbidon is a "street level dealer" and it is this fact that is relevant to his moral culpability more than the weight of the cocaine he happened to have when the police executed the search warrant.

B. The Range

[14] The sentencing range for street-level cocaine trafficking by addicts was considered by my colleague, Green J., in R. v. Acorn, [2010] O.J. No. 1626 (C.J.), a case involving a similar amount of cocaine (at paras. 12-13):

User-dealers such as the offender - as opposed to those motivated by greed - are treated with some compassion by the law, particularly where, as here, they demonstrate insight into their condition and a genuine desire to reform. As said very recently by the Manitoba Court of Appeal in R. v. Draper, 2010 MBCA 35, at para. 24, "A drug addiction is not an excuse, but is a factor to be taken into account and weighed along with other factors on sentencing".

The near-infinite variety of human predicaments renders it extremely difficult to locate sentencing precedents that are exactly on all-fours with the offender's circumstances. Some persons who have trafficked in like quantities of cocaine have attracted low-end penitentiary-length sentences, as is urged by Crown counsel. R. v. Dodd, [2006] O.J. No. 282, R. v. Goulet (1995), 97 C.C.C. (3d) 61 and R. v. McIntosh, [1996] O.J. No. 2173 afford but three of many Ontario Court of Appeal illustrations of such sanctions. Other cases, including some from the same court, endorse less draconian sanctions for similar conduct. In R. v. Radassao (1994), 74 O.A.C. 78, for example, the Court, at para. 12, immediately after affirming the general principle that "persons involved in the trafficking of drugs, particularly cocaine, must be dealt with severely", affirmed a sentence of twelve months imprisonment for a 31 year old first offender who had been convicted by a jury of selling a half-ounce of cocaine.

[15] A sentencing range is a summary of sentences imposed in the past and, as such, serves as a guide for the application of the relevant principles and objectives. A range is not a "straitjacket" and determining an appropriate sentence is a highly individualized exercise: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089 at paras. 57-58.

C. Availability of a Conditional Sentence

[16] In this case, the two offences that Mr. Gabbidon was convicted of are closely related. He possessed the cocaine for the purpose of trafficking with the intention of thereby generating financial proceeds, and the proceeds he possessed were the result of trafficking cocaine he had possessed earlier. I do not view one as more or less serious than the other. If anything, the proceeds count is more serious because it relates to cocaine that has already been sold and presumably consumed, resulting in harm that has not yet been realized with respect to the cocaine that was possessed for the purpose of trafficking but not yet trafficked. This is clearly a situation where concurrent sentences ought to be imposed.

[17] Counsel for Mr. Gabbidon accepts that a conditional sentence is unavailable for the offence of possession of cocaine for the purpose of trafficking by virtue of s. 732.1(e)(ii) of the Criminal Code, which makes conditional sentences unavailable for offences that "involved the import, export, trafficking or production of drugs" and for which the maximum sentence is 10 years. A conditional sentence is available on the proceeds of crime count. Because the amount involved was under $5000, s. 455(b)(i) provides that the maximum sentence is imprisonment for two years where the Crown elects to proceed by indictment. Of course, a conditional sentence on the proceeds count will only benefit Mr. Gabbidon if it is longer than the sentence imposed for possession for the purpose of trafficking, an issue I will consider later in these reasons.

[18] The availability of a conditional sentence is dictated by s. 742.1 of the Criminal Code. The overall sentence imposed must be less than two years in duration and the Crown does not seek a sentence longer than that in this case. As mentioned, the offence of possession of proceeds of crime under $5000 does not fall within the enumerated circumstances in which a conditional sentence is unavailable. The remaining issue is whether the requirements of subsection (a) are met, that is, that a conditional sentence would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2 of the Code.

With respect to the safety of the community, Mr. Gabbidon has been on bail for a significant period of time and there has been no suggestion that he has not abided by his bail conditions or has committed any further offences. I am satisfied that a conditional sentence would not endanger the safety of the community.

[19] More difficult is the question of whether a conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 and 718.2. In considering this issue, I must consider not only the sentence imposed for the proceeds of crime count, but the total sentence that is imposed for both offences.

D. Totality and Sentences for Individual Counts

[20] Counsel for Mr. Gabbidon suggests a non-custodial or a short custodial sentence for the possession for the purposes of trafficking count and a longer concurrent conditional sentence for the proceeds counts. Support for this approach can be found in the decision of Code J. in R. v. Lo, [2012] O.J. No. 6001 (S.C.J.), aff'd [2014] O.J. No. 277 (C.A.). In that case, the accused were convicted of trafficking crack cocaine and possession of the proceeds of crime. They were sentenced to 90-day intermittent prison sentences on the trafficking count and 12-month concurrent conditional sentences on the proceeds count.

[21] While it is open to me to adopt the approach taken in Lo, the sentence imposed on each count cannot be "inadequate or artificial": R. v. R.B. (2013), 2013 ONCA 36, 114 O.R. (3d) 465 (C.A.) at para. 31. The facts in Lo were markedly different than in the case at bar and involved several mitigating factors that are absent in this case. In my view, the suspended sentence or 90-day intermittent sentence suggested by counsel for Mr. Gabbidon is so far outside the applicable range that it would be "inadequate or artificial".

[22] This does not mean, however, that the sentence imposed for the possession for the purpose of trafficking count should be considered completely independently from the sentence imposed on the other count, as was explained in Lo at para. 31:

In light of the above four circumstances, I am satisfied that the six-month sentence in Mr. Lo's case can appropriately be reduced in half, and that the three-month sentence should be served intermittently, on weekends, as a 90-day sentence. This will allow Mr. Lo to maintain his employment and maintain his support for his two children. Because this is a very lenient sentence for trafficking in crack cocaine, given the numerous aggravating features in this case already outlined above, the 90-day custodial sentence will be followed by a 12-month conditional sentence. The 90-day jail sentence will be imposed concurrently on the two trafficking counts, where a conditional sentence is not appropriate, and the 12-month conditional sentence will be imposed on the possession of proceeds count, where a conditional sentence is appropriate. See: R. v. Ploumis (2000), 150 C.C.C. (3d) 424 (Ont. C.A.). [Emphasis added].

[23] I agree with Code J. that a lenient sentence on one count can be balanced by a concurrent sentence imposed on another count, provided both are within the range and provided that the overall sentence properly reflects the gravamen of the conduct giving rise to all of the charges: R. v. Jewell; R. v. Gramlick (1995), 100 C.C.C. (3d) 270 (Ont. C.A.) at para. 270.

E. The Appropriate Sentences

[24] As noted earlier, the sentence imposed in this case must give significance to the principles of deterrence and denunciation. However, the rehabilitation of the offender remains an important sentencing objective, particularly in a case involving a first offender addict trafficker. Having carefully considered the various aggravating and mitigating factors, I have concluded that the appropriate sentence to be imposed on the possession for the purpose of trafficking count is imprisonment for nine months. I recognize that this is a lenient sentence, but not outside the range for an addict trafficker: R. v. Barkhouse, 2017 ONCA 29. As well, as in Lo, it is in my view justified given the sentence which I intend to impose on the proceeds of crime count, which is one of 18 months imprisonment to be served in the community.

[25] The overall sentence is therefore 18 months imprisonment, which in my view appropriately reflects the gravamen of the criminal conduct giving rise to the charges. The custodial portion in combination with the concurrent conditional sentence gives effect to the principles of deterrence and denunciation but at the same time promotes Mr. Gabbidon's rehabilitation.

[26] In addition to the statutory conditions, the conditional sentence will have the following conditions:

1. Report to a supervisor within 48 hours of release from custody and after that, at all times and places as directed by the supervisor or any person authorized by a supervisor to assist in your supervision.

2. Remain in your place of residence each day between 9:00 p.m. and 6:00 a.m., subject to the following exceptions:

   • While at or travelling to or from your place of employment.
   • For any medical emergency involving you or members of your immediate family.

3. Attend and actively participate in all assessment, counselling or rehabilitative programs as directed by the supervisor for substance abuse and complete them to the satisfaction of your supervisor.

4. Perform 50 hours of community service.

[27] Following the completion of the conditional sentence, Mr. Gabbidon will be placed on probation for a period of 12 months on the same terms and conditions, with the exception of the terms relating to the curfew and the performance of community service. This is intended to provide Mr. Gabbidon with long-term support in continuing to deal with his addiction issues.

F. Ancillary Orders

[28] There will be a mandatory order made pursuant to s. 109 of the Criminal Code. Mr. Gabbidon is also ordered to provide a sample of his DNA pursuant to s. 487.051(3)(b) of the Criminal Code. On consent, there will be an order of forfeiture in relation to the items that were seized from his residence.

Justice P.A. Schreck

Released: January 20, 2017