Court File and Parties

COURT FILE No.: 0611-998-21-825 DATE: October 21, 2022

ONTARIO COURT OF JUSTICE Central West Region

BETWEEN:

HIS MAJESTY THE KING

— AND —

winston walters

Heard Before: Mr. Justice Richard H.K. Schwarzl at Orangeville on May 30 and August 17, 2022 Reasons released on: October 21, 2022

Counsel: Mr. Adam Stubbs................................................................................................... for the Crown Mr. Jason Bogle................................................................................................. for the Offender

SCHWARZL, J.:

REASONS FOR SENTENCE

1.0: INTRODUCTION

[1] The offender, Winston Walters, entered pleas of guilty on May 17, 2022 to the five following offences from Information 21-825:

• Two counts of possession of cocaine for the purpose of trafficking: s. 5(2) Controlled Drugs and Substances Act (counts #3 and #8)
• Possession of proceeds of crime exceeding $5000: s. 355(a) Criminal Code (count #4)
• Possession of a restricted firearm with readily accessible ammunition: s. 95(b) Criminal Code (count #9)
• Breach of a release order: s. 145(4) Criminal Code (count #15)

[2] On August 17, 2022, a sentencing hearing took place. The prosecution sought a global sentence of eight years whereas the offender recommended a sentence of time served after assigning credit of three years for pre-trial custody with possible additional probation or conditional sentence order. Both parties agree on the ancillary orders for DNA, a firearms prohibition, and forfeiture of offence related property.

2.0: CIRCUMSTANCES OF THE OFFENCES

[3] Walters was part of a criminal enterprise, including Ryan Suitor and Leonizo Carbone, that was selling drugs in the Caledon area for over a year and a half. Beginning in the summer of 2019, first Suitor, and then eventually Carbone and Walters (as well as others), were subject to a lengthy and clandestine police investigation.

[4] Between the fall of 2020 and January 2021 police were watching two street-level dealers, David Bedard and Andrew Brockett, selling drugs in Bolton. Police learned that Walters was frequently supplying Bedard with cocaine. When police tracked Walters and his communications, they discovered that he was being supplied with cocaine by Leonizo Carbone. Walters was twice seen picking up cocaine from Carbone’s residence, first on December 29, 2020 and then on January 13, 2021.

[5] On January 8 and January 13, 2021, Walters and Suitor were seen by surveillance officers to be associating with one another. At the time of these observations, Walters had been on bail since February 2020 for a charge of possessing four grams of cocaine (Count #1 of the Information). His terms of bail included a condition to abstain from associating with Suitor. He had no legal excuse to be associating with Suitor in January 2021.

[6] Further investigation of Walters established that he was supplying drugs out of two dwellings in Brampton throughout December 2020 until mid-January 2021. One place, Apartment 310 of 55 Via Rosedale, Brampton (the “apartment”), was his primary residence where he lived with his spouse, Kadecea Hibbert-Walters. The other dwelling, a townhouse at 60 Fairwood Circle, Brampton (the “townhouse”) was his “stash house” wherein his former intimate partner, Saneek Moody, and their seven-year-old daughter lived.

[7] Walters was not a street level dealer, but what is known as a “second level” supplier of cocaine. Suitor and Carbone were the primary level dealers.

[8] The entire investigation culminated on January 20, 2021, when a sweeping series searches were conducted simultaneously by police at the homes and vehicles of many persons of interest including Suitor, Carbone, and Walters.

[9] The following items were located and seized from Walters’ apartment where he and his wife were both present during the search:

a) An unsecured 9 mm revolver in a bag, b) Loose 9 mm, .22 calibre, and .45 calibre ammunition, c) Brass knuckles, d) A handheld taser, e) Over $8,200 in cash, f) Two money counting machines, g) Two digital weigh scales, h) Several cell phones, i) A cocaine press, and j) 167 grams of cocaine

[10] The following items were found and seized at the townhouse where Ms. Moody was present during the search:

a) An unsecured .45 calibre handgun, b) An unsecured loaded .45 calibre magazine beside the handgun, c) Three taser cartridges, d) Three weigh scales, e) A large bag containing many smaller “dime bags”, f) 327 grams of cocaine, and g) 528 grams of cutting agent (used to extend the amount of saleable narcotics).

[11] All three of Walters, his wife, and Ms. Moody were arrested and charged with various drug and gun offences. The women were released on bail. Walters has remained in jail since his arrest.

[12] Mr. Walters testified at the sentencing hearing. On the topic of the circumstances of the offence, he explained why he had a gun at his apartment. Walters said that in 2016 he was the victim of a home invasion wherein he was stabbed and shot at by intruders after having been set up by a woman. Drugs were not involved. He was traumatized by the experience and obtained a gun for the protection of himself and his family. He said the gun found during the search of the apartment was there for protection. He also testified that the .45 calibre handgun found in his stash house was not his, but he knew it was there. Walters did not explain why he had a taser and ammunition for other firearms nor did he explain why he allowed the .45 calibre gun to be at the townhouse. By allowing the gun to be kept at the townhouse, Walters was in unlawful possession of the weapon and ammunition, just like at his apartment. He offered no reason why he should be in possession of brass knuckles or a taser.

[13] He also testified that Ryan Suitor had recruited him to sell drugs to “make extra money on the side.” Walters said he was told that he could make a lot of money by holding drugs for Suitor. He agreed and began to hold and transport drugs for Suitor. He said his role in the scheme was “handling and storage.” He was aware that Suitor and Carbone were “the big guys” in the scheme but only ever dealt directly with Suitor. This is contrary to the admitted facts that the police observed Walters picking up drugs from Carbone’s house on two occasions.

[14] In cross-examination, Walters stated he was an active drug dealer for twenty months and that over that time he made a lot of money, typically making $500 to $750 per transaction. He said the drug money supplemented his meagre earnings as a disc jockey. He denied having any weapons to protect his drugs but agreed that it is incredibly dangerous to have unsecured guns, ammunition, and illegal drugs around other people including intimate partners and children.

3.0: CIRCUMSTANCES OF THE OFFENDER

3.1: General

[15] In his evidence at the sentencing hearing, Mr. Walters, who is black, stated that he is a Canadian citizen born in Jamaica from where he emigrated in 1989 while he was a teenager. He completed both high school and college. He has held full-time lawful employment his whole adult life, having worked as a welder, a shipper/receiver, and a construction worker. He has also been a disc jockey for many years and was focussing on that career at the time of his arrest. In cross-examination, he agreed that he had a good, prosocial upbringing.

[16] Walters testified about his plans on release from jail. He said his mother has cancer and his wife needs surgery, so he wants to dedicate himself to their care. He also said he plans to stay away from criminals whilst getting full time work and continuing part time employment as a DJ.

[17] Walters has a short but related criminal record. In 2003 he was given a fine of $500 for possession of a controlled substance. He is effectively a first offender.

[18] The offender is presently 49 years of age.

3.2: The Presentence Report

[19] The following are relevant portions of Mr. Walter’s pre-sentence report (PSR), beyond his general personal circumstances that I have already referred to, above.

[20] Since July of 2020, Walters has been married to Kadecea Hibbert-Walters. He has five children – four daughters and a son – with three former partners.

[21] The offender came to Canada from Jamaica with his family at the age of 13, settling in north Toronto. He describes his childhood and adolescent years as “decent.” His mother reported that her son had a positive upbringing and was raised in a loving family. The PSR states that he is the product of a supportive family unit where traditional family values were taught, and he maintained favourable relationships with his parents, siblings, and extended family members.

[22] Mr. Walters describes his mother as his “best friend.” Unfortunately, she has been recently diagnosed with a serious physical health issue and has been struggling with her health.

[23] Since 2008, the offender has lived in Peel Region.

[24] Walters completed high school and he has a college education in computer technology. He worked for many companies following his post-secondary education, including as a general labourer for a glass company and various electronic companies. He found it difficult to maintain stable and full-time employment due to layoffs and corporate bankruptcies, but the PSR states that he always managed to find work immediately. He has also consistently maintained part-time self employment as a disc jockey since the late 1990’s.

[25] Mr. Walters describes himself as a “kind” and “easy-going” person who is trying to “move forward with his life.”

[26] The offender has expressed remorse and disappointment in himself for his criminal actions. He says that he has recognized the negative impact of his actions upon his family, and he maintains that his current involvement in the criminal justice system has been a significant personal deterrent.

[27] Walters has considerable support from his family and friends as evidenced by the statements they made on his behalf. These individuals confirmed that Mr. Walter’s is “kind” with an “easy going” personality. They also describe him as a loving, caring, and family oriented individual, who is a helper of the family. His friends also find the current offences shocking and out of character.

[28] The offender denies any substance use or addiction concerns.

3.3: Pre-trial Detention

3.3.1: Walters’ Evidence

[29] During his evidence at the sentencing hearing, Walters testified about his experience while in pre-trial detention. He testified that the experience has generally been degrading and humiliating. For example, he has been subject to weekly searches. There was no evidence that the searches about which he complained were isolated to him or part of a jail-wide practice.

[30] He said that he has serious health problems including a bad back, migraine headaches, hair loss, and intestinal ailments. He said the bedding in prison is atrocious, causing his back to hurt all the time. He was given a colonoscopy while in detention and was diagnosed with hemorrhoids, for which he receives ongoing treatment. He testified that he has asked many times for medical attention but the authorities “just don’t care.” As an example, he said he asked to see a doctor on August 10 but was only seen on August 16. He did not say whether his request to see a doctor was for an urgent issue or for a more routine concern.

[31] The offender testified that due to the COVID pandemic he was subject to full lockdowns almost entirely from November 2021 to March 2022. He says he has been in lockdown for more than half the time he has been in detention.

[32] He said that no inmate programming was ever offered to him.

[33] Mr. Walters testified that he was given an inmate misconduct. He said it was not his fault, having been hit by another inmate when Walters stopped giving the other inmate a portion of his food ration.

3.3.2: Detention Centre Records

[34] Numerous records from the Maplehurst Correctional Complex (MCC) regarding the offender were filed in the book of materials provided by the defence. The records are divided into four categories: health records (Tab 18), COVID statistics (Tab 19), details of full and partial lockdowns (Tab 20), and a Lockdown/Detention Summary for Winston Walters (Tab 21).

[35] The health records contain numerous “Daily Health Status Assessments” and COVID test results for the offender in which nothing extraordinary can be seen. They also include a medical examination report of the offender following his fight with another inmate in April 2021. Lastly, there are numerous records between August to October 2021 relating to his colonoscopy and diagnosis and treatment for hemorrhoids. The records show that Walters received suitable medical attention in a timely manner.

[36] The Ministry of Solicitor General COVID statistics as of June 27, 2022 show that as of that date for MCC, there were no positive cases for any inmate, but five positive cases for staff.

[37] The details of the full and partial lockdowns reveal that between January 17, 2021, and August 12, 2022, MCC experienced hundreds of lockdowns which affected all inmates, including this offender. The overwhelming reasons cited for lockdowns were inadequate staffing levels, COVID, or both.

[38] Finally, the Lockdown/Detention Summary for Winston Walters provides the following relevant information. He entered MCC on January 20, 2021. Between that date and August 19, 2022 Walters was involved in 314 days of full lockdown and a further 20 days of partial lockdown. He was never placed in an overcrowded cell. He was given one misconduct. Finally, a list of fourteen programs were identified that were available to all “remand inmates” which would include the offender, thus contradicting his evidence that programming was not available to him.

[39] Mr. Walters entered MCC on January 20, 2021 and was sentenced by me on October 21, 2022. He has therefore been subject to pre-trial detention for 640 days or 1¾ years.

4.0: PROCEEDINGS AGAINST SUITOR AND CARBONE

4.1: Ryan Suitor

[40] In October of 2021, Ryan Suitor pled guilty before me to the following four offences: two counts of trafficking drugs (122 grams of cocaine and 135 grams of methamphetamine) in February 2020, one count of breaching his bail by unlawfully associating with Winston Walters, and one count of possession of 26 grams of cocaine and 19 grams of heroin for the purposes of trafficking from January 2021. Over 300 grams of various narcotics are involved in Suitor’s case. However, firearms, ammunition, nor other weapons are factors in his case. Suitor’s sentencing hearing is scheduled for November 8, 2022.

Suitor has a significant criminal record including eight prior convictions for drug offences. He received two years for one of the prior drug crimes. In Suitor’s case, the Crown is seeking a global sentence of five years; the defence is seeking a global sentence of four and one-half years.

4.2: Leoniza Carbone

[41] On June 15, 2022 Leoniza Carbone pled guilty before me to one count of possessing 43 grams of cocaine and 63 grams of cutting agent for the purpose of trafficking arising from the search conducted at his home on January 20, 2021.

[42] Carbone has a long criminal record for violence. But for a minor offence in 2020, there was a ten-year gap in his record. Carbone had no prior drug convictions.

[43] The parties agreed that Carbone was on top of the drug scheme pyramid of which both Suitor and Walters are a part, but the amount of drugs found his possession was small and the lack of evidence of direct trafficking were important considerations. The prosecution sought a jail sentence of two years less a day while the defence sought a conditional sentence. Based on the totality of the circumstances of the offence and the offender, Carbone was sentenced to a conditional sentence of twenty-two months.

5.0: POSITIONS OF THE PARTIES

5.1: The Defence

[44] The core submission of the defence is that a global sentence of three years made up of time served is a fit sentence. In the alternative, they submit that a global sentence of time served plus a conditional sentence or probation of up to two years less a day may also be reasonable.

[45] The offender submits that parity with Suitor and Carbone is necessary. He submits that he was not a principal participant like Suitor or Carbone but was instead a minor figure in the scheme. He submits that the other two were “upper management” while he was in effect acting merely as their employee in the capacity of shipper/receiver. In effect, he says that his blameworthiness is lower than that of the other two offenders because he was not a directing mind in the admittedly criminal organization.

[46] The defence concedes that he was in possession of a large amount of cocaine and cutting agent and he further admits that his motive was strictly economic as he is not a “user-dealer.”

[47] The defence submits that the offender has an old and very minor, yet related, criminal record, has present and future family responsibilities, has future prosocial plans, has good prospects of rehabilitation, and is a person of otherwise good character.

[48] Counsel for the offender placed heavy reliance on the Ontario Court of Appeal decision of R. v. Morris, 2021 ONCA 680, [2021] O.J. No. 5108 for two main reasons. First, they submit that the impact of anti-Black racism on a specific offender may mitigate that offender's responsibility for the crime. The offender submits that his social context as a black man mitigates his blameworthiness by explaining why he succumbed to the temptation of dealing hard drugs for easy money. Second, they that Morris reiterates that just because gun offences are very serious, where the sentencing judge finds the appropriate sentence is under two years, a conditional sentence must be considered.

[49] The offender submits that when considering the principles set out in Morris as well as the other mitigating factors present, that a global sentence for both the gun and drug charges ought to be three years with possible probation and/or a conditional sentence order.

[50] The offender further submits that he should be given credit for his time in pre-trial custody, including harsh conditions and COVID as well as their effects on the offender: R. v Summers, 2013 ONCA 147, 114 O.R. (3d) 641 (C.A.), aff’d 2014 SCC 26, [2014] 1 S.C.R. 575; R. v. Duncan, 2016 ONCA 754, [2016] O.J. No. 5255 (C.A); R. v. Hearns, 2020 ONSC 2365, [2020] O.J. No. 1648 (S.C.J.); R. v. McNichols, [2022] O.J. No. 3656 at para. 15. Walters submits the appropriate Summers credit of 1.5:1 would mean that his 640 days of actual pre-sentence custody ought to credited as 960 days.

[51] The offender has submitted that a global sentence of three years is appropriate. Three years is 1095 days. Subtracting the proposed Summers credit of 960 days leaves 135 days. The offender submits that those 135 days should be used to further reduce his sentence in accordance with the principles set out in Duncan to reflect what he describes as unduly harsh conditions of detention.

5.2: The Prosecution

[52] The prosecution submits that when balancing all relevant considerations, the appropriate global sentence in this case for the two drug offences and for having a gun and other weapons and ammunition is eight years. They agree with the offender that there ought to be reductions equalling 1095 days, or three years, as credit for his pre-trial detention.

[53] The prosecution submits that Morris does not apply to the offender in this case. They acknowledge that Morris held that social context evidence relating to the offender's life experiences may be used where relevant to mitigate the offender's degree of responsibility for the offence and/or to assist in the blending of the principles and objectives of sentencing to achieve a sentence which best serves the purposes of sentencing, and that courts may acquire relevant social context evidence through the proper application of judicial notice or as social context evidence describing the existence, causes and impact of anti-Black racism in Canadian society, and the specific effect of anti-Black racism on the offender. However, the Crown submits that there is no reason in this case to find that anti-black racism was a factor that impacted the offender so as to be a mitigating factor on sentencing. They rely on paragraph 97 of Morris wherein the court stated:

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.

[54] The offender testified that he had a gun for personal protection due to his prior victimization in a home invasion and was not related to the drug trade. The prosecution submits even if I accepted this assertion, there is no foundation upon which to connect the offender’s claim of self protection to systemic racism that may have played a role in shaping his perception of his community, his relationship with others in the community, and his relationship with the police. They submit the PSR and the testimony of the offender at the sentencing hearing disclose no information regarding racism against the offender nor any basis to find he was exploited by his co-accused because of his race.

[55] The prosecution submits that the range of sentencing for cases involving large amounts of cocaine (i.e., 500+ grams) is five to eight years. Here, Walters possessed 496 grams of cocaine and over 500 grams of cutting agent. The prosecution further submits that in similar situations that also involve firearms, that a consecutive sentence of the weapons offence is common.

6.0: ANALYSIS

6.1: General

[56] For reasons that I will explain, I find that the fit and just global sentence in this case is eight years, as follows: 3 years for the gun offence consisting of time served, 5 years consecutive for the two drug offences (but concurrent to each other), 18 months for the possession of proceeds of crime and 6 months for the breach of his bail conditions, concurrent to each other and concurrent to the drug offences.

6.2: Credit for Pre-Trial Custody

[57] I agree with both parties’ assessment of pre-trial custody Summers and Duncan credit. The offender is given a total of 1095 days, or three years, of pre-trial custody credit applied to his sentence.

6.3: Applicability of Morris

[58] I find that the principles in Morris do not assist the offender this case.

[59] There has been no evidence or other reliable information provided to me to demonstrate how anti-Black systemic racism has had an impact on Mr. Walters’ criminality. I say this without denying the existence of anti-Black systemic racism or its impact on Black Canadians. Courts have taken judicial notice of the general connection between these two factors. In R. v. Jackson, 2018 ONSC 2527 at paragraph 82, Justice Nakatsuru stated:

I find that for African Canadians, the time has come where I as a sentencing judge must take judicial notice of such matters as the history of colonialism (in Canada and elsewhere), slavery, policies and practices of segregation, intergenerational trauma, and racism both overt and systemic as they relate to African Canadians and how that has translated into socio-economic ills and higher levels of incarceration.

[60] However, Morris makes it clear that there must be some evidence or reliable information to establish a 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: Morris, at para. 97. In other words, evidence must be tendered to establish a link between anti-Black racism and how it impacted this offender’s criminality in the present situation.

[61] Courts have considered Morris and evaluated the connection between anti-Black systemic racism with the criminality of the offender. The following are some examples of evidence that was provided to evaluate such a connection:

a) Research reports by an offender’s clinical social worker analyzing how the negative consequences of anti-Black racism were a reality specifically for the offender, and how it contributed to their criminality: Morris, at para. 97; b) Generic reports outlining the offender’s life as a racialized individual: R. v. Nethersole, 2021 ONSC 7218; c) Enhanced Pre-Sentence Reports (ESPR), which are also known as Morris reports: R. v. Kelly, 2022 ONSC 5500. These reports often contain a narrative of the racism that the offender experienced, and how it contributed to the accused’s criminality: R. v. Dubois, 2022 ONCJ 88. Some explanations within ESPRs include: i. The offender’s perception of fear, crime, and racism in the community they grew up in; ii. The offender’s difficult up bringing and family structure; iii. The offender’s frequent interaction with police officers; iv. The offender’s experiences growing up in poverty: R. v. Beharry, 2022 ONSC 4370 d) Letters from family and friends that allow a judge to infer the personal circumstances of the offender: R. v. Tabnor, 2021 ONSC 8548 at para. 6.

[62] In this case, there is no evidence or other reliable information before me that anti-Black racism informed Winston Walters’ life circumstances and connected that to his engaging in these crimes. Nothing has been provided to me to establish this link.

[63] The PSR contains no information about this offender’s experience of anti-Black systemic racism. Consequently, it is not helpful in establishing the connection between anti-Black systemic racism and the offences that Walters committed. To the contrary, the PSR reveals that he had a good upbringing which he acknowledged in his evidence and submissions. His mother goes beyond this and suggests that Mr. Walters grew up in a loving home with a positive upbringing. He grew up with strong, pro-social networks and maintained strong family ties with his parents, siblings, and extended family members even in Jamaica. Those bonds continue today.

[64] The offender is also relatively well educated, having completed high school and a college program. While he has had a diverse employment history, Mr. Walters’ admits that he has never had much difficulty finding work. He has a demonstrated capacity to be employable, having been a welder for two years, a shipper and receiver for more than 5 years, a construction worker for 1.5 years, as well as a self-employed DJ. His employment history was not shown to be impacted by anti-Black racism.

[65] This offender has not provided any explanation of how anti-Black systemic racism influenced him to make bad decisions. Without more to establish some connection between Mr. Walters’ crimes and anti-Black racism, mitigation of his sentence would amount to a discount based strictly on his colour, and this would not be right: Morris, at para. 97.

6.4: Sentencing Ranges

6.4.1: Possession of a Prohibited or Restricted Firearm with Ammunition

[66] In R. v. Nur, 2015 SCC 15 the Supreme Court of Canada conceptualized a sentencing range for those found guilty of committing an offence out of Section 95(1) of the Criminal Code. At one end of this range is the “true crime” category, while the other includes conduct that resembles a “licensing infraction.”: Nur, at para 122.

[67] The “true crime” end of the range captures “the outlaw who carries a loaded prohibited or restricted firearm in public places as a tool of his or her criminal trade.” The Supreme Court stated that offences falling into this category would most often attract a sentence of at least 3 years of incarceration: Nur, at para 82.

[68] The “licensing infraction” end of the range includes crimes more in the nature of regulatory offences and, as such, would attract sentences well below those of “true crime” gun offences. This situation before me represents a “true crime” possession of a firearm, ammunition, and other weapons. Therefore, the appropriate starting point for sentencing for the gun offence in this case is 3 years.

6.4.2: Possession for the Purpose of Trafficking for mid-level amounts of cocaine

[69] In R. v. McGill, 2016 ONCJ 138 at paragraph 54, Green, J summarized the law on the appropriate sentencing range for those found guilty of cocaine possession for the purposes of trafficking as follows:

The Court of Appeal has, in effect, created graduated weight- or amount-based categories of cocaine trafficking and sentencing ranges for each of these categories. It is undoubtedly true, as recently said by K.L. Campbell J. in R. v. Barraeiras, 2015 ONSC 7196, at para. 39, that, "[l]engthy penitentiary terms of imprisonment are regularly imposed upon offenders that [sic] possess substantial amount of cocaine for the purposes of trafficking". Indeed, the Court of Appeal has several times expressed the view that five to eight years is the "proper range" for adult offenders found in possession of approximately a half-kilogram (slightly more than a pound) of cocaine for the purpose of trafficking: R. v. Bajada; R. v. Bryan, 2011 ONCA 273; and R. v. Haye, supra; affd. [2014] O.J. No. 6575 (C.A.)](https://www.canlii.org/en/on/onca/doc/2014/2014onca6575/2014onca6575.html). Higher amounts are not infrequently dealt with by way of penitentiary sentences of greater than ten years: see, for example, the detailed survey of the approach taken by the [sic] Court of Appeal to multi-kilo cases, especially where aggravated by the element of importation, in R. v. Duncan et al, 2016 ONSC 1319, at paras. 25-37. As regards cases involving much more moderate amounts of the drug, R. v. Woolcock, [2002] O.J. No. 4927 (C.A.) is generally recognized as fixing the sentencing envelope for constructive possession of an ounce or less of cocaine at "6 months to 2 years less a day". Intermediate amounts (as is the immediate case) tend to attract sentences in an intermediate range of two to four- or five-years.

(emphasis added)

[70] The Ontario Court of Appeal has described cocaine as an extremely dangerous and insidious drug with potential to cause a great deal of harm to individuals and to society: R. v. Woolcock, [2002] O.J. No. 4927 (C.A.). By trafficking cocaine, Walters was a central figure within a criminal organization that delivered this hazardous and sinister drug to its end users. Many of those users are addicts. Vulnerable people whose lives have been blighted, and in some cases all but destroyed by, cocaine were supplied by people like this offender: R. v. Rage, [2016] O.J. No. 7342 (S.C.J.), aff’d [2018] O.J. No. 1100 (C.A.)](https://www.canlii.org/en/on/onca/doc/2018/2018onca1100/2018onca1100.html); R. v. Graham, 2018 ONSC 6817, [2018] O.J. No. 5993 (aff’d 2020 ONCA 692) at para. 44; R. v. Lynch, [2022] O.J. No. 570 at para. 17.

[71] Given that Mr. Walters, who is essentially a first offender, was found with approximately 496 grams of cocaine (as well as 528 grams of cutting agent), the appropriate global sentencing range for these two drug offences is between 5 to 8 years: R. v. Wawrykiewicz, [2019] O.J. No. 182 (C.A.); R. v. Maone, 2020 ONCA 461, [2020] O.J. No. 3064 (C.A.); R. v. Brown, [2021] O.J. No. 265 (C.A.); R. v. Lynch, [2022] O.J. No. 570 at para. 14; and R. v. Lu, [2022] O.J. No. 1490 (S.C.J.) at para. 33.

6.5: Mitigating and Aggravating Factors

6.5.1: Mitigating Factors

[72] I have identified the following important mitigating factors in this matter:

a) Mr. Walters pled guilty and gave up his right to a trial, thereby helping preserve significant court resources; b) Mr. Walters has an old and short, albeit related, criminal record and is, in effect, a first offender; c) Mr. Walters enjoys strong family ties both here and in Jamaica; d) He is remorseful and accepts responsibility for his actions; e) He is able to find and keep meaningful lawful employment; f) He has a desire to resume a pro-social life; g) The offender’s prospects of rehabilitation are good; and h) While not strictly mitigating, the COVID pandemic is a reality that is factored into determining the fit sentence.

6.5.2: Aggravating Factors

[73] There are significant aggravating factors present in this case including:

a) The peddling of cocaine is a scourge on society that exacts a tragic toll from those addicted to it. Preying on addicts is abhorrent and repulsive; b) The offender’s sole motivation for trafficking cocaine was profit and the lure of what he called easy money. He made a free and ongoing choice to be involved in the drug trafficking business for over 18 months; c) He was in possession of 496 grams of cocaine and over 500 grams of cutting agent; d) The offender only stopped committing these ongoing offences when he was caught; e) He was a mid-level member of a sophisticated criminal organization with Carbone and Suitor. He was not a mere “handler” or “employee” but, a full partner in the criminal enterprise, being the one with the largest amount of drugs who possessed the means to package, sort, deliver, and protect those drugs; f) Walters used not one, but two residences to store cocaine. One place housed his former partner and 7-year-old daughter while the other housed his wife. He did this to his family despite his admission that drugs attract danger; g) Walters had possession of a firearm with readily accessible ammunition in the facilitation of the trafficking offences; h) He was in possession of two prohibited firearms and other illegal weapons and ammunition in both residences. Consequently, in the relatively close quarters of these high- and medium-density dwellings, there was a substantial risk that potential gun or other violence would harm other residents as opposed to being confined to a single dwelling; and i) the toxic combination of drugs and guns poses a pernicious and persisting threat to public safety and the welfare of the community: R. v. Wong, 2012 ONCA 767, [2012] O.J. No. 5250 (C.A.) at para 11; and R. v. Hamilton, [2004] O.J. No. 3252 at para 161.

[74] While it is necessary to consider parity of sentence compared to Carbone and Suitor (the other two principals in the criminal organization), this only goes so far. Neither of the other two had guns or ammunition. Walters possessed a far greater amount of drugs than the others. Furthermore, the position of the defence and prosecution in the drug offences regarding Suitor is similar to the prosecution position of the drug charges in this case. Here, five years concurrent on the two drug offences adequately addresses the concerns regarding parity of sentences.

7.0: CONCLUSIONS AND SENTENCES

7.1: Sentence for the Gun Offence: Count #9

[75] The prohibited firearms that were in his possession were tools of the drug trafficking enterprise that Walters was freely engaged in. I find that his guns, tasers, etc. were intended to protect his product, deter other criminals, and to intimidate others. The weapons that he possessed were there to defend the organization of which he was an important part and to aid and advance its interests and fortunes.

[76] Additionally, Mr. Walters had possession of a .45 calibre handgun the townhouse, with ammunition for this weapon at the apartment residence. Similarly, the taser was in the apartment but cartridges were found in the townhouse. These facts lead me to believe that at a minimum, Walters was transporting, or caused these weapons or ammunition to be transported, between the two houses, thereby substantially increasing the risk of harm to the public.

[77] For these reasons, I do not find it credible when the offender claimed that he possessed prohibited weapons merely to protect him and his family.

[78] I find that the offence under section 95 of the Criminal Code is on the “true crime” end of spectrum for such offences, which has a starting point of 3 years. Although on the low end of the range, a sentence of 3 years is appropriate in this case. The sentence will be time served of 640 days, but credited as 3 years, plus 1 day.

[79] There will also be the following additional orders for this offence: a Victim Surcharge of $200, an in-custody DNA order, a s. 109 firearms prohibition, and a forfeiture order of the firearms, ammunition, and other weapons.

7.2: Sentence for Drug Offences: Counts #3 and #8.

[80] With respect to the two counts of possession for the purpose of trafficking, I find that 5 years on each count, concurrent to each other but consecutive to the gun offence, is appropriate in this case. Consecutive sentences are appropriate where drug dealing and guns are involved: R. v. Mark, [2018] O.J. No. 270 (S.C.J.); R. v. St. Clair, [2018] O.J. No. 6188 (S.C.J.) at para 53; R. v. Graham, [2018] O.J. No. No 5993 (S.C.J.), aff’d 2020 ONCA 692.

[81] Walters denied being one of the “controlling minds” of the drug ring. Both counsel agreed with this declaration. I have taken his subordinate position in the organization into account in my decision not to sentence him at a higher end of the range. I nevertheless disagree with the offender’s attempt to portray himself as a minor player. He was found with weigh scales, a cocaine press, lots of packaging material, nearly half a kilogram of cocaine, over half a kilogram of cutting agent, guns, ammunition, and other weapons spread over two dwellings. He was actively procuring and distributing cocaine for 20 months. All of this demonstrates that Mr. Walter’s participation in this criminal organization was beyond that of a lowly “shipper/receiver” or mere warehouser. I find he was intimately involved with almost every stage of the drug trafficking business for a considerable period of time. While not a controlling mind, Walters was nevertheless a full partner in the criminal organization.

[82] When taking into consideration the circumstances of the offences and those of the offender together with all the mitigating and aggravating circumstances, I find that with respect to the two drug offences, a sentence of 5 years on each count, concurrent to each other but consecutive to the firearms offence, is fair and fit in this case.

[83] There will also be the following additional orders for each drug offence: Victim Surcharges of $200, in-custody DNA orders, firearms prohibition orders, and a forfeiture order of the drug paraphernalia, phones, cash, and other offence related property seized during the searches.

7.3: Sentence for the remaining offences: Counts #4 and #15

[84] With respect to the offence of possession of proceeds of crime (count #4), the sentence is 18 months concurrent to the drug offences. There will be a Victim Surcharge of $200 and a DNA order.

[85] As for the breach of his bail, the sentence is 6 months concurrent to the drug offences and concurrent to the possession of proceeds of crime offence. There will be a Victim Surcharge of $200.

Richard H.K. Schwarzl, Justice of the Ontario Court of Justice