Court Information

Date: April 29, 2020

Information No.: 19-17310, 19-2585, and 20-180

Ontario Court of Justice

Her Majesty the Queen v. Kyle Falk

(telephonically)

Before: The Honourable Justice L. Dean (telephonically)

Location: Windsor, Ontario

Appearances

• A. D'Alessandro – Counsel for the Federal Crown (telephonically)
• E. Brown – Counsel for the Provincial Crown (telephonically)
• R. Russon – Counsel for K. Falk (telephonically)

Submissions and Reasons for Sentence

Procedural Background

The matter proceeded by way of submissions and reasons for sentence on April 29, 2020. The accused, Kyle Falk, appeared telephonically and confirmed his date of birth as November 6, 1990.

The Court noted that guilty pleas were entered and findings of fact were made on March 6, 2020, at which time the Court heard facts and took the plea. A judicial pretrial had been conducted in the first week of March, at which time the Court indicated an appropriate sentencing range of 16 to 18 months should the accused enter a guilty plea.

Defence Submissions

Presentence Custody Credit

Defence counsel calculated Mr. Falk's presentence custody as 141 days, requesting a one-and-a-half-to-one credit totalling 212 days (approximately seven months). Counsel noted that due to COVID-19 circumstances, he had not been able to verify these calculations across the information but invited correction from the Court or Crown.

Presentence Report and Mitigating Factors

Counsel submitted that the presentence report provided positive information explaining how the accused, despite having a criminal record unrelated to the current offences, had developed a connection between his substance abuse and his behaviour of selling substances to support that habit.

Letters of support from South West Detention Centre and from Shawna McFadden, the expectant mother of his child, shed light on his history, struggles, and will to change.

Counsel noted that Mr. Mir, the owner of an auto shop where Mr. Falk had worked off and on, was the only positive adult role model the accused had ever known. Mr. Mir had been incredibly forgiving and understanding while maintaining firm discipline. Counsel indicated that since completion of the presentence report, Mr. Falk had re-taken up the Muslim faith and was currently fasting for Ramadan, taking it very seriously as support for his efforts to establish and maintain sobriety.

Counsel submitted that Mr. Falk had worked in the jail and managed to participate in programming and work despite unusual circumstances.

COVID-19 Pandemic Considerations

Defence counsel submitted that COVID-19 should be considered in addition to everything discussed at the judicial pretrial. Counsel relied heavily on the affidavit of Dr. Orkin, particularly:

• Paragraph 24: addressing the seriousness and likely cause of outbreak in tight spaces, noting that when outbreaks occur in such spaces, they spread like wildfire.
• Paragraph 33: stating that every person discharged from a correctional facility to a private residence is an opportunity to flatten the curve and improve health.
• Paragraph 35: asserting that it is in the best interest of the community at large that an aggressive approach be taken to depopulate custodial facilities.

Counsel asked the Court to take judicial notice of this affidavit, noting that Justice Pomerance in R. v. Hearns and many other courts had done so.

Statistical Analysis

Counsel cautioned the Court against extrapolating conclusions from raw data provided by the Ministry of the Solicitor General. He submitted that 374 test results out of 5,685 inmates (6.5 percent) was statistically insignificant without proper psychometric sampling to ensure true randomness. Counsel argued that without expert analysis, confidence intervals, or variance calculations, the raw data revealed nothing and should not be relied upon.

Case Law on Sentencing Range

Counsel addressed the Crown's case law submissions:

• R. v. Brown: Counsel submitted this Ontario Court of Justice case had limited value and did not refer to Woolcock, which would be binding.
• R. v. Graham: Counsel noted this Court of Appeal case did not refer to Woolcock and the context of the defence arguments was unknown.
• R. v. Flood: Counsel submitted this Ontario Court of Justice case had limited persuasive value and did not consider Woolcock.

COVID-19 Cases

Counsel reviewed the Crown's COVID-19 cases:

• R. v. Kandhai: Counsel submitted that the accused being in the "general neighbourhood of the Crown's position" was irrelevant; what mattered was whether the sentence fell within the established range of reasonable sentences.
• R. v. Wilson: Counsel distinguished this case, noting that it involved violence (forced entry and unprovoked assault causing unconsciousness), whereas drug offences, while potentially victimless or victim crimes, posed theoretical rather than real risks to the community.
• R. v. McConnell: Counsel cited the principle that those not posing such a risk should be released upon disposition if possible and appropriate.
• R. v. McGrath: Counsel cited the principle that sentencing principles such as restraint and the holistic nature of sentencing should not be laid in abeyance.

Fitness vs. Proportionality

Counsel relied on Justice Pomerance's decision in R. v. Hearns, arguing that:

• Fitness is similar to proportionality but not co-extensive with it.
• Proportionality dictates a sentence should be no more than necessary to reflect the gravity of the crime and moral blameworthiness of the offender.
• Fitness looks at a broader host of factors, including the conditions under which a sentence is served.
• Due to the COVID-19 health crisis, jails have become harsher environments due to infection risk or restrictive lockdown conditions.
• Punishment is increased not only by physical risk of contracting the virus but by psychological effects of being in a high-risk environment with little ability to control exposure.

Counsel submitted that the established range was six months to two years less a day, and that the Court's indication at the pretrial of 16 to 18 months was fit and proportionate at that time. However, given COVID-19 circumstances, a time-served disposition plus a suspended sentence (seven months plus suspended sentence) would be appropriate.

Conditional Sentence Alternative

Counsel submitted that if the Court disagreed with a time-served plus suspended sentence disposition, it should consider whether a conditional sentence was available. Counsel cited R. v. Sawh, 2016 ONSC 7797, arguing that the court had held the law constitutional because in any reasonable hypothetical where it would be unduly harsh punishment, the judge could suspend the passing of sentence. Counsel submitted that COVID-19 created such a hypothetical reality where further jail would be unduly harsh.

Counsel also cited R. v. McGill regarding the deterrent value of a suspended sentence, noting that it allowed the Crown to bring an application to re-sentence if the accused was charged with a new offence or failed to report to probation.

Crown Submissions

Presentence Custody Calculation

The Crown provided different calculations of presentence custody:

• August 31 to September 3: 4 days
• October 17 to November 19: 33 days
• January 20 to March 6: 47 days
• March 6 to April 29 (post-guilty plea): 54 days

The Crown calculated 84 real days enhanced at one-and-a-half-to-one for 138 enhanced days, plus 54 post-plea days, totalling 207 days enhanced. This differed from the defence calculation by approximately five days.

Guilty Pleas and Charges

The Crown outlined the guilty pleas:

Information 19-17310:

• Count 1: CDSA s. 52 – Possession for the purpose of trafficking 47.9 grams of methamphetamine
• Count 2: Possessing a firearm while prohibited (air rifle pursuant to Criminal Code s. 117.01)

Information 19-2585:

• Count 3: Breach of recognizance
• Count 4: Possess ammunition while prohibited

Information 20-180:

• Count 1: Second trafficking charge – methamphetamine 6.5 grams
• Count 2: Breaching a release order (committed while on surety release)

Crown's Sentencing Position

The Crown's initial global resolution position was 2.5 years (30 months) with sentences concurrent. However, given the COVID-19 pandemic and after reviewing defence materials, the Crown reconsidered and sought a range of 18 months to two years less a day.

Aggravating Factors

The Crown identified the following aggravating factors:

• Presence of guns and ammunition along with drugs
• Methamphetamine is a very serious Schedule I substance and a blight on the community
• Mr. Falk was bound by a release order at the time of arrest on two of three informations
• Prior criminal record, including one prior CDSA conviction for simple possession of a Schedule II substance
• Temporal relationship of the three serious informations within months of each other, indicating a pattern of criminal behaviour

Mitigating Factors

The Crown recognized the following mitigating factors:

• Guilty pleas
• Mr. Falk's efforts at rehabilitation and positive behaviour while in custody

Sentencing Range for Methamphetamine

The Crown submitted that the sentencing range for methamphetamine trafficking should be two to three years. The Crown distinguished R. v. Woolcock (2002), noting that it predated methamphetamine becoming a Schedule I substance and involved only 7.5 grams of crack cocaine, significantly less than the amounts before the Court.

The Crown cited R. v. Brown, in which His Honour Hornblower indicated:

• The range for low-level offences in trafficking methamphetamine is two to three years
• A prior record is an aggravating factor
• Reformatory sentences are appropriate depending on circumstances
• As a general rule, penitentiary sentences are appropriate for Schedule I substances

The Crown quoted His Honour Hornblower's description of methamphetamine:

"The harshest penalties available under the Act are reserved for Schedule I substances. While we cannot ignore the steps of rehabilitation, the principles of denunciation and deterrence remain paramount. Methamphetamine is a highly addictive drug in the same category as cocaine and heroin. An addiction can arise easily and once in place is extremely difficult to overcome. Prolonged use of the drug leads to significant physical and mental health problems, and the use of methamphetamine in this community has grown over the years and its abuse continues to be prevalent as anyone sitting in this courtroom on a regular basis can attest. It's a drug that ruins lives, often young lives, and can, and has resulted in the death of users. The addictive habit is often funded by those who resort to crime with the result of the effect of the addiction reached deeply into the homes of countless people throughout the community."

The Crown also cited R. v. Bram (Ontario Court of Appeal), confirming that three years is at the high end for methamphetamine trafficking of two ounces (56 grams).

COVID-19 as a Sentencing Factor

The Crown submitted multiple cases addressing COVID-19 in sentencing:

R. v. Kandhai (Ontario Superior Court):

• Paragraph 5: The judge noted being in the "general neighbourhood of the Crown's position" and imposed time served.
• Paragraph 7: Justice Harris stated that hardship in serving a jail sentence has always been a proper consideration, and that a jail is a state-mandated congregation of people. The pandemic increases day-to-day hardship and general risk to inmate welfare.
• Paragraph 6: The pandemic is a significant factor but should not be overemphasized.

R. v. Wilson:

• The judge concluded that COVID-19 is a factor that can be accounted for in sentencing.
• Paragraph 38: Despite COVID-19 concerns, a further period of incarceration was appropriate given the accused's history of violent offences. The court imposed eight months' custody less five months presentence custody, with 18 months probation to follow.

R. v. McConnell (paragraphs 33-36):

• The offender was being sentenced in the middle of a pandemic for property crimes.
• Courts have taken the view that inmates who truly pose a risk to society should remain incarcerated, but others who do not pose such a risk should be released if such a disposition is possible and appropriate.
• Courts must recognize and consider COVID-19 implications and sentencing provisions of the Criminal Code, including s. 718.2.

R. v. McGrath (paragraph 28):

• His Honour Berg indicated that while Kandhai was predicated on the pandemic, it does not stand for the proposition that all sentencing principles must be held in abeyance. Rather, where there are urgent exigent circumstances, an offender who has served most of an anticipated appropriate sentence can receive a lesser sentence to mitigate those circumstances.

The Crown also cited a British Columbia Provincial Court decision discussing COVID-19 as a sentencing factor, noting that while courts must react appropriately to important changing conditions, there must still be adherence to established sentencing laws. The rule of law must not be eroded.

Correctional Facilities Response

The Crown submitted an informational note regarding Ontario correctional facilities' response to COVID-19, indicating that facilities are working hard to deter the virus and have plans in place for outbreaks.

Crown's Final Position

The Crown submitted that a suspended sentence or conditional sentence was not appropriate for these crimes. The Crown emphasized the seriousness of methamphetamine trafficking in the community and the aggravating factors. While applauding Mr. Falk's rehabilitation efforts, the Crown submitted that time served was not appropriate given the three serious informations and serious crimes committed in a short span of time.

The Crown sought a sentence in the range of 18 months to two years less a day in custody, followed by 18 months probation, with applicable DNA secondary orders, forfeiture order, and a s. 109 order due to the trafficking convictions.

Accused's Statement

When asked if he wished to say anything before sentencing, Mr. Falk stated:

"I'd like to say that I know that my addiction has been a problem and on this I'm going to the John Button House, and also looking forward to my newborn, and I'm sorry for all the – the addiction and all the weapons, and stuff, that I've done. And so, that's about it."

Reasons for Sentence

Judicial Analysis

Consideration of Factors

The Court noted that it had conducted a judicial pretrial in the first week of March and indicated an appropriate disposition of 16 to 18 months should the accused enter a guilty plea. The accused had done so.

The Court acknowledged that at the time of the pretrial, society was not dealing with the COVID-19 pandemic. However, at the time of sentencing, the Court had information regarding the pandemic's impact on society, including its impact on Provincial correctional institutions and remand facilities.

Presentence Custody Credit

The Court accepted that Mr. Falk had served the equivalent of between 207 and 212 days after giving him the one-and-a-half-to-one credit.

COVID-19 as a Sentencing Factor

The Court stated that the challenging part of the sentence was determining how much the COVID-19 pandemic should alter the appropriate sentence indicated at the pretrial.

The Court held that the pandemic should be a factor considered in the sentencing regime but should not be given consideration more than the purposes and principles of sentencing found in the Criminal Code (ss. 718-718.2). The pandemic should not be overemphasized but should factor into the Court's decision.

Expert Evidence and Statistics

The Court took no issue with Dr. Orkin's report but noted that statistics are what they are and that not everything is revealed by statistics. The Court stated:

"There are a lot of things behind the scenes when it comes to the collection of statistics and the analysis of statistics that needs to be looked at with a careful and scrutinizing eye. So statistics are what they are. They help to make decisions, but they are not the be all and end all."

The Court acknowledged that COVID-19 is a serious virus that has taken thousands of lives and will continue to do so, and that it is still not completely understood. The Court noted that even experts have learned things along the way that they initially believed to be incorrect.

Seriousness of COVID-19 in Correctional Facilities

The Court stated that it is clear that COVID-19 is a very serious deadly virus and extremely dangerous for individuals congregating in a jail facility. The incident at the Ontario Correctional Institute made this very clear.

The Court held that although correctional institutions are doing their best, the congregation of people inside a jail presents a very serious situation should the virus enter that institution. The Court stated:

"One cannot say that the correctional institutions would be able to handle it as much as they are trying to handle it by their own practices that they have implemented, which they are to be commended for. It would be the wrong conclusion to suggest that once it enters an institution it wouldn't spread more quickly than, say, in the general public."

The Court noted that while Mr. Russon felt it was a certainty that COVID-19 would enter the South West Detention Centre again, no one can say for certainty what will happen in the future. However, the probabilities are high that it would eventually enter the facility before a vaccine is available.

Drug Offences and Sentencing Principles

The Court disagreed with defence counsel's characterization of drug offences as victimless crimes. The Court stated:

"It is not a victimless crime, as he suggests. In my opinion, all crime – and I know Mr. Russon knows this, all crime that is committed is a crime against society. So society is the victim and there is an approach that needs to be taken when tackling the issue of drugs in a community."

The Court acknowledged that different people have different opinions about the best approach to the war on drugs but submitted that the best approach is a variety of approaches, including rehabilitation, preventative measures, and the justice system's role in general and specific deterrence.

The Court noted that while Mr. Falk does not enjoy spending time in custody, his addiction may be so overwhelming that when deciding whether to pursue selling or using drugs, he may not be thinking about the jail sentence. However, for others, the prospect of a jail sentence may prevent them from pursuing drug offences. The Court stated:

"It's complex. It's a complex issue that no one type of assistance is going to win the war."

The Court held that one cannot simply ignore that in certain circumstances a jail sentence is appropriate, depending on the amount of drugs and the type of drug. The Court also considered the personal circumstances of the individual before it, noting that sentencing is a very difficult and complex situation.

Aggravating Factors

The Court identified the following aggravating factors:

• Mr. Falk was involved with a Schedule I substance (methamphetamine), which was made a Schedule I drug because of its seriousness and prevalence
• He was arrested on the first possession for the purpose of trafficking, released, and then subsequently arrested after a relatively short period of time with the same drug, suggesting that the arrest and bail process did not have much effect on him
• The quantity of the drugs was an aggravating factor
• His past criminal record was an aggravating factor

Mitigating Factors

The Court identified the following mitigating factors:

• The guilty plea, which spares the court system a substantial amount of money
• His efforts at rehabilitation while in custody, which impressed the Court
• His desire to continue rehabilitation through programs such as Launch Pad Recovery
• His presentence report and background, including his lack of a father figure
• The death of his mother
• The support of the expectant mother of his other children, who had indicated she would not allow him to be in her home if he continued to use drugs but now supports him, realizing he is making real efforts for change

Conditional Sentence Issue

The Court noted that defence counsel's final submission regarding a conditional sentence and reference to R. v. Sawh was not before the Court, as there was no application with respect to s. 742.1. The Court stated it was not in a position to address that issue without further materials before it.

The Court noted that defence counsel had provided R. v. Ramos, a Superior Court decision wherein the judge equated crystal methamphetamine sentencing with cocaine sentencing without appellant authority. The Court acknowledged that while Ramos was not binding, it had taken it into account.

Sentencing Decision

The Court concluded that Mr. Falk was not in a time-served position as of the date of sentencing. The Court stated:

"The pandemic, although I've certainly considered that in my decision, does not, when I consider the principles and purposes of sentencing and the case law that's been provided. The pandemic, in my view, does not cause this Court to reduce its sentence that it felt was appropriate by some 9 to 11 months."

The Court noted that the cases discussing the pandemic involved offenders who were close to the time being asked by counsel, whether Crown or defence. The Court stated it did not think the pandemic should cause a reduction of 9 or 11 months.

The Court noted that the institutions, through the memo provided by the Ministry of the Solicitor General (dated April 28), indicated that the institution would consider releasing individuals prior to the end of their sentences through the Temporary Absence Program if appropriate. The Court stated it was somewhat encouraged by this and believed Mr. Falk had a very good chance of such release given his efforts and cooperation at the South West Detention Centre, including being assigned kitchen duty.

However, the Court concluded:

"But Mr. Falk, at the end of the day, I just can't see – and I'm perfectly aware of the situation as it faces you with regards to the pandemic, but there's more than the pandemic that his Court has to consider when imposing the sentence here today."

Sentence Imposed

The Court imposed the following sentence:

Custody and Presentence Credit

• Presentence custody credit: 7 months (207 days enhanced)
• Additional custody: 5 months
• Total custody: 12 months (7 months presentence + 5 months additional)

Information 19-17310

Count 1 (CDSA s. 52 – Possession for purpose of trafficking methamphetamine):

• 5 months jail
• Presentence custody noted
• Section 109 order for 10 years (prohibiting possession of any firearm as listed in that section)

Count 2 (Possessing firearm while prohibited):

• 5 months jail (concurrent to Count 1)
• No presentence custody noted
• Section 109 order for 10 years

Information 19-2585

Count 3 (Breach of recognizance):

• 30 days concurrent to Information 19-17310
• No presentence custody noted

Count 4 (Possess ammunition while prohibited):

• 5 months concurrent to Information 19-17310
• No presentence custody noted
• Section 109 order for 10 years

Information 20-180

Count 1 (Possession for purpose of trafficking methamphetamine):

• 5 months concurrent to Information 19-17310
• Presentence custody noted
• Section 109 order for 10 years

Count 2 (Breach of release order):

• 30 days concurrent
• No presentence custody noted

Probation

18 months probation on Information 20-180 (both counts)

Conditions of Probation

1. Reporting: Report by telephone to a probation officer within two working days of release from custody and thereafter at all times and places as directed by the probation officer or any person authorized by a probation officer to assist in supervision.

2. Cooperation: Cooperate with the probation officer by signing any releases necessary to permit the probation officer to monitor compliance and provide proof of compliance with any condition of the order to the probation officer on request.

3. No Contact: Not to contact or communicate in any way directly or indirectly by any physical, electronic, or other means with Ryan Rayner or Gary Wessel.

4. Residence Restriction: Not to attend within the 1800-block of Goyeau Avenue in the City of Windsor.

5. Counselling and Rehabilitation: Attend and actively participate in all assessments, counselling, or rehabilitative programs as directed by the probation officer and complete them to the satisfaction of the probation officer, including substance abuse, bereavement or grief issues, and any other counselling as directed. Sign any release of information forms enabling the probation officer to monitor attendance and completion, and provide proof of attendance and completion.

6. Drug Prohibition: Not to possess or consume any unlawful drugs or substances.

7. Weapon Prohibition: Not to possess any weapon as defined by the Criminal Code.

Other Orders

• DNA: Not ordered (DNA already on file)
• Victim Surcharge: Not applied
• Forfeiture Order: Issued on Information 19-17310 for $260 in Canadian currency and packaging. On Information 20-180, forfeiture order issued for specified items, with the Samsung cell phone (Item 4) returned to Mr. Falk as his personal cell phone, and items relating to Mr. Wessel eliminated from the order.

Withdrawn Counts

All counts as they relate to Mr. Falk only were withdrawn on all Informations (withdrawn on March 6, 2020).

Conclusion

The Court imposed a sentence balancing the serious nature of the drug trafficking and weapons offences, the aggravating factors including the Schedule I substance and pattern of criminal behaviour, against the mitigating factors including the guilty plea, rehabilitation efforts, and personal circumstances. While the Court considered the COVID-19 pandemic as a sentencing factor, it concluded that the pandemic did not warrant a substantial departure from the sentencing range discussed at the judicial pretrial. The Court expressed encouragement regarding the possibility of Mr. Falk's release through the Temporary Absence Program given his positive conduct in custody.

Certificate of Transcript

I, Brenda Wakelin, certify that this document is a true and accurate transcript of the record R. v. Kyle Falk in the Ontario Court of Justice, held at 200 Chatham Street East, Windsor, Ontario, taken from Recording No. 0811 200 20200429 085022, which has been certified in Form 1 by Mary Brown.

Brenda Wakelin, B.Sc., B.Ed., OCT, CCR, ICDR, ACT, CDLT Hill Transcription Inc. Internationally Certified Digital Reporter, IAPRT Authorized Court Transcriptionist Certified Digital Legal Transcriber, TTA

Note: This certification does not apply to the Reasons for Sentence, which were judicially reviewed and edited. Any copies of this transcript that are not signed in blue ink could contain errors and/or omissions.