Court File and Parties

Court File No.: CR-18-3000536-000, CR-17-30000238-0000 Date: 2018-11-14 Ontario Superior Court of Justice

Between: Her Majesty the Queen – and – Jahmal Graham

Counsel: Peter Fraser, counsel for the Crown Stefan Dimitrijevic, counsel for the defence

Heard: November 9, 2018

M.A. Code J.

Reasons for Sentence

A. Overview

[1] The accused Jahmal Graham (hereinafter Graham) was convicted after a jury trial on a three count Indictment alleging possession of a prohibited firearm with readily accessible ammunition (contrary to s.95 of the Criminal Code), possession 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 (contrary to s.354(1) of the Criminal Code). I then convicted him at a short judge alone trial on three severed counts alleging breach of probation and breach of two firearms prohibition orders (contrary to ss.733.1(1) and 117.01 of the Criminal Code). All six convictions were entered on October 5, 2018.

[2] Graham is now before me for sentencing on these six convictions.

B. Facts Relating to the Offences

[3] The facts relating to the six offences are relatively straightforward. Graham was one of three occupants in a car being driven by a friend on a Saturday night in Scarborough. The police stopped the car for what was initially a Highway Traffic Act investigation. As the investigation proceeded, the police developed grounds to search the car. In the trunk of the car, they found a shoulder bag or satchel. They searched the satchel and found a handgun, a box of ammunition, about three ounces of cocaine, two digital scales, and $14,880 in Canadian cash.

[4] The police went on to seize surveillance video from a nearby bar where Graham and the driver of the car had spent approximately an hour, between about 9:00 pm and 10:00 pm, just prior to the motor vehicle stop which occurred at about 10:00 pm. The surveillance video clearly shows Graham walking around the bar and socializing with various patrons while wearing the satchel on his shoulder. He testified and admitted that he was in possession of the satchel but denied knowledge of its unlawful contents. He explained that the satchel belonged to his brother Julian and he was simply holding the satchel temporarily for his brother, who was also in the bar that evening. Julian testified and supported his brother’s account. He had a lengthy criminal record and was awaiting sentencing on another serious matter at the time of his testimony. The jury obviously rejected the evidence of the two Graham brothers and found that the accused Graham had knowledge of the unlawful contents of the satchel.

[5] Graham was on probation at the time of the present offences. He was required not to possess any weapons as a term of probation. He was also subject to two separate s.109(3) firearms prohibition orders. All six of the offences occurred on January 23, 2016, that is, almost two years ago.

[6] The facts relating to the police investigation of the stopped motor vehicle, leading to the seizure of the gun, drugs, and cash in the satchel, are set out in more detail in my Reasons for Judgement dismissing the pre-trial Charter Motion. See: R. v. Graham, 2018 ONSC 6718.

C. Facts Relating to the Offender

[7] Graham was born September 26, 1984 so he is 34 years old. When the six offences were committed in January 2016, he was 31 years old. The evidence at the sentencing hearing concerning his antecedents came largely from his mother, Ms. Novelette Graham. Certain disputed areas of her evidence were based substantially, if not entirely, on hearsay accounts from Graham himself, who did not testify on the sentencing hearing. He testified at trial and, as noted above, he was clearly disbelieved by the jury. I would also have disbelieved him if I was the trier of fact. Hearsay is admissible at a sentencing hearing. However, its weight, credibility and reliability must be assessed in determining whether disputed mitigating facts have been proved on a balance of probabilities. See: ss.723 and 724 of the Criminal Code; R. v. Albright, [1987] 1 S.C.R. 383, 37 C.C.C. (3d) 105 at 111 (S.C.C.); R. v. Pahl, 2016 BCCA 234, 336 C.C.C. (3d) 221 (B.C.C.A.); R. v. Kunicki, 2014 MBCA 22, 307 C.C.C. (3d) 233 at 240-243 (Man. C.A.); R. v. Nguyen, 2012 ONCA 534; R. v. V.W., 2008 ONCA 55, 229 C.C.C. (3d) 344 (Ont. C.A.).

[8] The evidence of Ms. Graham, in summary, was that she gave birth to her first son Julian in Toronto when she was age 14. Julian was always raised by his grandmother, as she became his guardian from the time of his birth, due to Ms. Graham’s young age. Three years later, at age 17, Ms. Graham gave birth to her second son Jahmal (Graham). She tried to raise him during the first two years of his life. She felt that they had bonded but there were difficulties, as she was living on her own and she was poor. Accordingly, she took Graham to live with her own mother, who also lived in Toronto and who was already raising Julian. From age two to seven, Graham was raised by his maternal grandmother. At age 7, Graham returned to live with his mother. She was now older, she had become a Christian, and she had returned to school. She wanted to resume her role as Graham’s mother. They lived in East York and his early childhood was uneventful. She described Graham as quiet, intelligent, and likeable. He got good grades in public school up until grade 6. His biological father had no role whatsoever in his upbringing.

[9] According to Ms. Graham’s evidence, the first sign of any difficulties was when Graham was in grades 7 and 8, at ages 9 to 11. She had been dating a man named Richard who she met at her church. He was a single father with custody of his daughters. They would sometimes stay at eachother’s homes and would jointly look after eachother’s children. Richard began to take on a fatherly role with Graham. It was at this time that Graham began to develop problems at school, in particular, his grades deteriorated and he was not attending school. Ms. Graham subsequently learned that Richard had been signing Graham out of school and taking him along on work related trips during the school day. At age 15 or 16, Graham left home in order to live with Richard but he then returned to his mother after a short absence. Graham told his mother about a suspicious incident where he fell asleep one night. When he awoke he found himself naked. He had no memory of what had happened. Ms. Graham cut off all contact between herself and Richard at this point. She did not report the suspicious incident as there was no proof anything had happened. She made sure Richard could no longer sign Graham out of school.

[10] Ms. Graham testified that her brother, Steve Graham, became a male role model for Graham, in the absence of any father. A letter from Steve Graham filed on sentencing confirmed that he “helped to raise [Graham] from a young age… as his only male figure and role model to guide and direct him”. However, Ms. Graham testified that Graham seemed to long for a father, unlike her first son Julian who always had a father.

[11] Graham did not complete high school and he acquired a significant criminal record, as follows: (i) in August 2002, at age 17, he was convicted in Youth Court of assault with intent to steal. He received an effective sentence of one year in custody (seven months pre-trial custody and five months open custody) and one year probation; (ii) in April 2006, at age 21, he was convicted of attempt murder, possession of a weapon dangerous, and possession of a prohibited or restricted weapon (which was a sawed-off shotgun that was discharged in the course of the attempt murder). He was sentenced to nine years for the attempt murder and to shorter concurrent sentences for the weapons offences. He was given credit for four years pre-trial custody so that the remanent to be served was five years. He also received his first s.109 firearms prohibition order which was breached in the present case; (iii) after his statutory release from the penitentiary in August 2009, at age 24, he completed his parole and he committed no further offences for about five years. In March 2015, at age 30, he was convicted of possession of cocaine for the purpose of trafficking. The quantity of cocaine was 61 grams or just over two ounces. He received an effective sentence of two years and two months (including credit for 405 days of pre-trial custody followed by a one year sentence). He also received his second s.109 firearms prohibition order which was breached in the present case; (iv) in October 2015, at age 31, he was convicted of dangerous driving and failing to stop at the scene of an accident. He was sentenced to six months concurrent to the sentence already being served and two years probation. This is the probation order that he breached when he committed the present offences in January 2016; (v) in July 2016, at age 31, he was convicted of failing to comply with bail. He was sentenced to seven days in jail in addition to 15 days pre-sentence custody. This conviction, and all the subsequent convictions on Graham’s record, post-date the present January 2016 offences; (vi) in August 2017, at age 32, he was convicted of three counts of failing to comply with bail and mischief under. He received an effective sentence of 45 days and one year probation; (vii) in November 2017, at age 33, he was convicted of possession of cocaine for the purpose of trafficking. The offence date was August 19, 2017, that is, some time after he had been released on bail for the present offences. The quantity of cocaine was 21 grams or just under one ounce. He was sentenced to six months after credit for 96 days of pre-trial custody; (viii) in November 2017, at age 34, he was convicted of obstruct police and fail to comply with bail. He was sentenced to one day after credit for 19 days of pre-sentence custody.

[12] It can be seen that the last six entries summarized above, all post-dated Graham’s release from the penitentiary in 2009. The last four entries post-dated his arrest for the present six offences on the night of January 23, 2016. His mother testified that in 2012, about three years after his release from the penitentiary, he told her during a “heart to heart” conversation, that Richard had introduced him to alcohol and marijuana at age 11 and that Richard would “go down on him” on various occasions between ages 11 and 15. This sexual abuse had made him angry and had confused Graham as to his sexuality. He told his mother that he liked girls but questioned whether he should be gay due to the abuse that he had endured. To his mother’s knowledge, Graham had never disclosed the sexual abuse before or since and had never received any counseling or treatment.

[13] Graham also disclosed to his mother that there had been certain anti-black racist incidents involving prison guards, while he was serving his penitentiary sentence in Kingston between 2006 and 2009. This was the only time that Graham had encountered anti-black racism, to the knowledge of his mother.

[14] At some point in 2012, when Graham was about 28 years old, he resumed living with his mother. By this point, she had married Ian Henry, who is her present husband. Mr. Henry already had children of his own and they had a daughter together, who is now 8 years old. In addition, Ms. Graham had by now completed a B.A. degree at York University, had obtained a para-legal diploma from Seneca College, and had worked as a para-legal. Her husband, Mr. Henry, had his own business installing office furniture. They lived in Brampton. Graham had a girlfriend named Rachel at this point and they had a daughter named Olivia, who is now eight. Graham, Rachel and Olivia all moved in with Mr. Henry and Ms. Graham at the Brampton home. Graham bonded quickly with Mr. Henry, according to Ms. Graham’s testimony, and he began working with Mr. Henry in the office furniture installation business. In a letter from Mr. Henry, he described himself as Graham’s “step father”. He perceived that Graham “needed a father figure”. He confirmed that he “took Jahmal under my wings”, they worked together installing office furniture, and Graham “easily integrated himself into the family”. Graham has a medical condition that caused poor eyesight at night and this had some impact on his ability to work with Mr. Henry.

[15] Graham lived with his mother and Mr. Henry in Brampton for about two and a half years. He worked with Mr. Henry for about eight to nine months. At some point, Graham broke up with his girlfriend Rachel. However, he remained close to his daughter Olivia and would see her every second weekend at the home in Brampton. Ms. Graham and Mr. Henry both spoke highly of Graham as a father to Olivia. Graham had resumed his high school education while serving his penitentiary sentence in Kingston and he continued taking high school courses after his release through an adult education program. Ms. Graham thought that he was one credit short of completing his high school equivalency.

[16] When Graham was arrested for the present offences in late January 2016, Ms. Graham was very angry with him for re-offending. She refused to help him with bail and he remained in custody until April 12, 2016. At this point, Ms. Graham relented. Mr. Henry persuaded her that they should both agree to be his sureties and Graham was released on a “house arrest” bail. The bail terms allowed him to be away from their Brampton home, provided he was accompanied by one of the two sureties. They had a moving business at this point and Graham would come and work with them, until he was eventually taken back into custody on June 29, 2018. Ms. Graham testified that Graham attended her church in Brampton and a letter from the Senior Pastor at the church confirmed that Graham was baptized in the church on January 8, 2017, about nine months after his release on bail. Graham has a good voice and he would sing in the church choir, as he often did when he was young. Ms. Graham described her son’s baptism as a “conscious decision to change his life and live with God”. Graham began working with a volunteer pastor at the church and they formed a strong relationship, according to his mother’s testimony. He also worked on writing and producing music. He has written 33 songs, has recorded 12 of them, and is working on an album.

[17] Ms. Graham conceded in her testimony that Graham breached his terms of “house arrest” bail while she and Mr. Henry were his sureties, as reflected in the above summary of Graham’s criminal record. This was after he was baptized. According to Ms. Graham’s evidence, Graham was charged and convicted on three occasions in 2017 for violating the “house arrest” term. She minimized two of these breaches as they merely involved taking the children to a playground, according to what she understood. But she agreed that on another occasion he was just hanging around away from the home with some guys. On one occasion she called the police herself when she came home and found that Graham was not there. She also did not try to minimize the August 2017 cocaine trafficking offence, except to suggest that Graham has had relapses. When Graham was arrested on this charge he was away from the home. Once he was back in custody, Ms. Graham would visit him in jail. She believed that he was becoming more reflective and spiritual, more like his “true self” or his “good self” as she put it. Both Ms. Graham, and other family members who wrote supportive letters about Graham, described a caring and compassionate personality who loves his family, his church, and his music. It is apparent that Graham’s family is still loving and supportive towards him. According to his mother, he wants to continue his education, take accounting courses, and finish his music projects. He can come and live with her and Mr. Henry when he is eventually released.

[18] The defence filed a “lockdown” report from the South Detention Centre. Graham spent 214 days (or seven months) in pre-trial custody, during two separate periods (just under three months in early 2018, after his arrest, and just over four months since his re-arrest in the middle of 2018). During this seven month period, there have been 61 days of “lockdown”. Most of the lockdowns have been due to “staff shortage”. A few have been due to searches, power outage, and the jail’s sprinkler system. During these “lockdowns”, the prisoners are confined to their cells and there is no access to showers, phones, fresh air, or visits (except for meetings with counsel or attending court). Some effort is made to allow prisoners out of their cells for up to an hour but this is not always feasible. Ms. Graham testified that some of her scheduled visits to the jail were cancelled due to these “lockdowns”.

D. The Positions of the Parties

[19] The Crown submits that eight years is the appropriate sentence for the s.95 firearms conviction, given that Graham is a recidivist for this offence and he also has a prior conviction for attempt murder. A further consecutive sentence of two years should be imposed for the two breaches of s.109 firearms prohibition orders and for breach of probation. A further four year consecutive sentence should be imposed for possession of cocaine for the purpose of trafficking, given that Graham is also a recidivist for this offence and given the approximately three ounce quantity, inferring that he is a “mid-level” trafficker. The Crown concedes that a shorter concurrent sentence should be imposed for the proceeds of crime conviction, which is related to the drug trafficking offence.

[20] The above consecutive sentences would total 14 years. The Crown concedes this sentence would violate the “totality” principle in s.718.2(c). As a result, the Crown submits that a reduction to 10 to 12 years would result in an appropriate total sentence. The Crown agrees with the defence that Graham is entitled to ten and a half months credit for his seven months of pre-trial custody (on a Summers ratio of 1.5 to 1). The Crown opposes any further credits or reductions for the time that Graham spent on “house arrest” bail or for the “lockdowns” at the South Detention Centre.

[21] The defence submits that five to six years is the appropriate total sentence for all six convictions. The defence position is that this is the appropriate sentence for the s.95 firearms offence, stressing various mitigating circumstances that would move Graham into the lower end of the appropriate range for a s.95 recidivist. In addition, the defence submits that the three breaches of court orders, the cocaine trafficking offence, and the proceeds of crime offence should all be treated as aggravating features of the s.95 firearms offence and should result in concurrent sentences. Finally, the defence agrees with the Crown that ten and a half months is the appropriate credit for Graham’s pre-trial custody. However, the defence submits that there should be an additional five months credit for Graham’s 16 months on “house arrest” bail, pursuant to R. v. Downes, 2006 ONCA 170 and there should be an additional two months credit for the 61 “lockdown” days, pursuant to R. v. Duncan, 2016 ONCA 754.

[22] It can been seen that the parties are far apart in their respective positions.

E. Analysis

[23] The principles of sentencing are set out in ss.718, 718.1, and 718.2 of the Criminal Code and I am bound by those principles. The most fundamental principle of sentencing is “proportionality”, that is, a sentence “must be proportionate to the gravity of the offence and the degree of responsibility of the offender”, as set out in s.718.1.

[24] The maximum sentence for the s.95 firearms and ammunition possession offence is ten years. Similarly, the maximum sentence for the two s.117.01 breaches of firearms prohibition orders is also ten years. The maximum sentence for possession of cocaine for the purpose of trafficking is life imprisonment, pursuant to s.5(3) of the Controlled Drugs and Substances Act. Finally, the maximum sentence for breach of probation is two years, pursuant to s.733.1. There are no relevant minimum sentences to be considered.

[25] In my view, the aggravating circumstances relating to the s.95 offence include the following:

• first, Graham is a mature adult recidivist in relation to this specific offence. He was previously convicted in 2006 of possession of a prohibited or restricted firearm, namely, a loaded sawed-off shotgun. He was 21 years old at the time of the prior offence. He was 31 years old at the time of the present offence. The prior conviction clearly did not deter him from this conduct;
• second, Graham was carrying the revolver and a large amount of ammunition for a period of time in a crowded public place (the Markham Bar and Grill). This makes the present case more serious than many s.95 cases where handguns are possessed or hidden in a residence;
• third, Graham has a prior criminal record for serious crimes of violence, including an attempt murder that was committed by discharging a prohibited or restricted firearm. This makes his possession of the revolver and ammunition on the present occasion even more dangerous, as he has proved himself in the past to be capable of using firearms;
• fourth, at the time of the offence, he was on a recent probation order dated November 21, 2015, which prohibited him from possessing a weapon. The present offence occurred just three months after that term of probation had been imposed. To go out to a bar on a Saturday night, armed with a revolver and ammunition, just three months after a term of probation had prohibited this very conduct, is obviously aggravating. Having treated the breach of probation as an aggravating factor, I will not impose a consecutive sentence for that offence;
• fifth, Graham possessed the revolver and ammunition for an unlawful purpose. This distinguishes the case from the least serious forms of the s.95 offence that are in the nature of regulatory or licensing infractions.

[26] I have not considered two important features of this case as aggravating, in relation to the s.95 offence, namely, its association with drug trafficking and its commission in breach of two prior s.109 firearms prohibition orders. That is because I am of the view that these further offences require consecutive sentences, as will be explained below.

[27] The aggravating circumstances relating to the s.5(2) conviction for possession of cocaine for the purpose of trafficking include the following:

• first, Graham is also a mature adult recidivist in relation to this specific offence. He was previously convicted in March 2015 for the very same offence, at age 30. He then re-offended in less than a year in the present case, in January 2016 at age 31. The prior conviction clearly did not deter him from this conduct;
• second, the amount of cocaine involved in the prior 2015 offence was 61 grams, or just over two ounces. The amount this time was somewhat greater, namely, 73.97 grams or almost three ounces. The amount, and the fact that it was packaged in three separate and roughly similar quantities, infers that Graham was a “mid-level” trafficker, capable of supplying one ounce amounts to “street-level” traffickers who generally deal in gram amounts. Det. Hutchings gave expert evidence at trial to this effect, summarized at pp. 79-81 of the written Charge to the Jury. See: R. v. Haye [2013] O.J. No. 6493 at paras 10-12 (S.C.J.), aff’d [2014] O.J. No. 6575 (C.A.). In other words, Graham was not a low level “street” trafficker;
• third, a significant amount of cash, namely, $14,880, was seized in close proximity to the drugs. The jury was instructed that trafficking in cocaine was the only indictable offence alleged to be the source of the “proceeds”, at pp. 67-8 of the written Charge to the Jury. Det. Hutchings testified that the cash seized is “an indicator of the daily activity of the particular trafficker”, as this evidence was summarized at p. 80 of the written Charge to the Jury. In other words, substantial money was being generated by the offence. There is no suggestion that Graham was an addict. This was simply a money-making business. Having treated the substantial “proceeds” as an aggravating circumstance, I will not impose a consecutive sentence for that offence;
• fourth, cocaine is a hard addictive drug that causes significant harm, unlike the less serious prohibited substances. I will elaborate on this circumstance below. Making money by causing harm to others is obviously aggravating.

[28] On the other hand, the mitigating circumstances in this case (which apply to all six offences) include the following:

• first, Graham has the good fortune to have strong family support. In particular, his mother is willing to have him come and live with her and Mr. Henry, once Graham completes his sentence. She is a strong pro-social individual and her ongoing love and support for her son will be of great benefit to Graham;
• second, Graham has some education, some history of employment, some spiritual interests, and some aptitude in music. These are all attributes that can contribute to his rehabilitative potential. I am far from convinced that he has rehabilitative potential at this stage, as will be explained below, but he has some attributes that will help him, if he decides to change his life;
• third, Graham has encountered certain challenges in life. In particular, his mother described some of the difficulties that the family encountered when she was young and poor and was raising Graham on her own. His mother had the fortitude and resilience to overcome these difficulties, and she has gone on to lead a successful pro-social life. Graham has not succeeded. The fact that he did not have a lot of advantages when he was growing up reduces his moral culpability to some degree.

[29] There were a number of additional mitigating circumstances, relied on by the defence and disputed by the Crown, that were not established on a balance of probabilities. In particular, the defence relied on Ms. Graham’s testimony to try to prove that historical sexual abuse and anti-black racism were contributing factors that may have played some role in Graham’s eventual criminal lifestyle. Ms. Graham’s account relating to these two issues was based entirely on isolated hearsay reports from Graham himself. Graham was present in court and chose not to testify about these matters, even after the Crown disputed and objected to the hearsay versions of these events. There were no contemporaneous reports, no independent investigations, and no expert analysis or treatment or counseling relating to these matters. Graham was not a truthful or reliable witness at trial and he has a substantial criminal record. Furthermore, the only instance of racism known to Ms. Graham occurred when Graham was in his 20s, well after he had committed the most serious offence on his criminal record. In all these circumstances, the fact of any historical sexual abuse or anti-black racism, and any role it may have played in his criminal lifestyle, has simply not been proved on a balance of probabilities. The fact that Graham is black, in and of itself, is not a mitigating circumstance. See: R. v. Nguyen, 2012 ONCA 534, supra; R. v. Hamilton, 2004 ONCA 374, 186 C.C.C. (3d) 129 at paras 133-140 (Ont. C.A.).

[30] The defence also relied heavily on the assertion that Graham has real rehabilitative potential, as a mitigating circumstance that would move his case to the bottom end of the appropriate range. In this regard, counsel relied on the approximately five year gap after Graham’s 2009 statutory release date. Counsel also relied on Ms. Graham’s testimony suggesting a “spiritual awakening” in January 2017, after his baptism, and thereafter. Finally, counsel relied on the letters of support from Graham’s pastor and from family members. All of these sources of evidence suggest that there is a better side to Graham and that he is capable at times of being a good member of his family and his church and he is capable at times of leading a law-abiding life. His mother hopes that this side of his character will eventually prevail. The flaw in defence counsel’s argument is his submission that the Court cannot consider the eight offences that were committed by Graham after the present offences were committed in January 2016. The Crown submits that the evidence of Graham’s most recent offences casts doubt on his rehabilitative potential but the defence submits that this is an impermissible use of the subsequent offences. Mr. Dimitrijevic’s position is that these most recent offences are subsequent to the six offences presently before the Court for sentencing and so they cannot be used as a prior criminal record, that is, they cannot be used as an aggravating factor. I agree with this proposition. However, Mr. Dimitrijevic also submits that these subsequent offences cannot be used to weaken or to challenge his argument about rehabilitative potential. He submits that this would, in substance or effect, amount to using subsequent offences as an aggravating circumstance. I disagree.

[31] In my view, it is a common sense proposition that Graham’s most recent criminal conduct, including while on bail for the present offences, is probative of his actual rehabilitative potential at the present time, that is, at the time when he is being sentenced. It is Graham’s burden to prove on a balance of probabilities that he has present rehabilitative potential. The Crown seeks to rebut the above summarized evidence, relied on by Graham to prove rehabilitative potential, by pointing to his post January 2016 criminal convictions. This evidence simply negates or weakens defence efforts to prove a mitigating circumstance. It does not advance or prove an aggravating circumstance. See: R. v. Angelillo, 2006 SCC 55, 214 C.C.C. (3d) 309 at paras 27-32 and 37 (S.C.C.); R. v. Lees, [1979] 2 S.C.R. 749, 46 C.C.C. (2d) 385 at 389 (S.C.C.); R. v. Kunicki, 2014 MBCA 22, supra at paras 46-49 and 54.

[32] For all these reasons, I am not satisfied that Graham’s present rehabilitative potential has been proved on a balance of probabilities. His mother was angry with him and left him in jail for about three months in early 2016, after he committed the six present offences. She relented in April 2016 and supported his release on “house arrest” bail. He proceeded to leave the house and commit a number of further offences, while his mother acted as his surety and after his commitment to change his life at the time of his January 2017 baptism. These offences included possession of cocaine for the purpose of trafficking, that is, one of the same offences on which he was awaiting trial. In these circumstances, I am not persuaded that he presently has real rehabilitative potential. Like his mother, I hope that he will change in the future but he has not yet demonstrated a willingness to change.

[33] One final mitigating factor (or absence of an aggravating factor) that was relied on by the defence, concerns Graham’s role in the present offences. Mr. Dimitrijevic relies on the fact that joint possession was left to the jury as one possible theory of liability, that is, if Graham was holding the satchel for his brother Julian, but with knowledge of its unlawful contents, that would amount to joint possession (see pp. 51-2 of the written Charge to the Jury). Mr. Dimitrijevic submits that the jury may have convicted on this basis, in which case Graham would not be the principal who actually owned the unlawful contents of the satchel. He would only have played a minor role in temporarily assisting his brother Julian’s unlawful activities.

[34] The legal and factual basis on which the 12 jurors found proof of possession cannot be determined from their verdict because there were different factual and legal routes to that verdict, all of which required proof of knowledge and control of the unlawful objects in the satchel. Accordingly, the parties agree that s. 724(2)(b) of the Criminal Code requires the trial judge to decide this issue concerning Graham’s role in the offence. See: R. v. Ferguson, 2008 SCC 6, 228 C.C.C. (3d) 385 at paras 15-22 (S.C.C.). As the trier of fact in relation to this issue, I completely reject the account advanced at trial by Graham and his brother Julian, to the effect that the satchel and its unlawful contents belonged to Julian and that Graham was just temporarily holding the satchel for his brother. There was a strong circumstantial case inferring that the satchel belonged to Graham, because he kept it with him throughout the evening in a variety of different circumstances and he eventually hid it in the trunk of the car after the police began to investigate (as summarized at pp. 24-30 of the written Charge to the Jury). In addition, the account advanced by the defence at trial was inherently improbable and was characterized by serious conflicts and inconsistencies. In particular, Graham’s account and Julian’s account were internally inconsistent, or were in conflict, as to the critically important events that occurred shortly before 10:00 pm, when they left the bar and got into separate cars with Graham still in possession of the satchel (as summarized at pp. 94-5 and 104-5 of the written Charge to the Jury). The jury was particularly focused on these inconsistencies and conflicts, shortly before reaching their verdict, as they asked to have this body of evidence replayed. I am satisfied beyond reasonable doubt that the satchel and its unlawful contents belonged to Graham and that he was the principal who was in personal possession of the revolver, the ammunition, the cocaine, the digital scales, and the cash.

[35] That concludes my analysis of the aggravating and mitigating circumstances in the present case. Given that the defence has failed to prove a number of the mitigating circumstances relied on during submissions, the defence submission that the case should be situated at the bottom end of the range cannot be accepted. The particular mix of aggravating and mitigating circumstances that were proved to the requisite degree (as set out above) is heavily weighted towards the nine serious aggravating circumstances. Some of the three mitigating circumstances are not particularly strong and, in any event, they are substantially outweighed by the nine aggravating circumstances. As a result, the case is situated much closer to the upper end of the appropriate ranges than it is to the lower end of the ranges. I will now turn to that issue, namely, determining the appropriate ranges for the present offences.

[36] In relation to the s.95 firearms offence, it is settled law that denunciation, deterrence and protection of the public are the predominant sentencing objectives because of the prevalence and the great danger posed by loaded handguns in this city (or handguns with readily accessible ammunition). See R. v. Danvers, 2005 ONCA 674, 199 C.C.C. (3d) 490 (Ont. C.A.); R. v. Nur, 2013 ONCA 677, 303 C.C.C. (3d) 474 at para 206 (Ont. C.A.), aff’d (2015), R. v. Nur, 2015 SCC 15, 322 C.C.C. (3d) 149 at para 120 (S.C.C.); R. v. Smickle, 2013 ONCA 678, 304 C.C.C. (3d) 371 at paras 26-32 (Ont. C.A.). In addition, there is a strong need for specific deterrence in this case, given Graham’s persistent recidivism.

[37] There is now considerable guidance in the case law, since the mandatory minimum sentences were struck down in 2013, as to the appropriate range of sentence in these s.95 cases. In R. v. Carrol, 2014 ONSC 2063, Molloy J. analyzed the effect of Nur and Smickle on the appropriate range of sentence for well-situated first offenders like the two accused in those cases. It will be recalled that Nur was 19 years old, he had pleaded guilty, he had strong support from his pro-social family, and he had excellent rehabilitative prospects. Smickle was found posing with a gun while alone in the privacy of an apartment. Both were first offenders. Molloy J. held in R. v. Carrol, 2014 ONSC 2063, supra that two years less a day to three years was now the appropriate range of sentence in this kind of first offence s.95 case involving well situated first offenders.

[38] More recently, the Court of Appeal has held that three years to five years is the appropriate range for a first s.95 offence where the use and possession of the gun is associated with criminal activity, such as drug trafficking. In R. v. Marshall, 2015 ONCA 692, 340 O.A.C. 201 (C.A.) and R. v. Gobire, March 7, 2016, Ontario Court of Appeal, the court upheld a three and a half-year sentence for Marshall and imposed a three year sentence for Gobire, both of whom committed first s. 95 offences and both of whom where young first offenders. Marshall was 23 and Gobire was 21 and Gobire was held to have excellent rehabilitative prospects. Both accused were involved in the drug trade and were carrying the guns in association with drug crime. Also see: R. v. Mansingh, 2017 ONCA 68; R. v. Crevier, 2013 ONSC 2630, [2013] O.J. No. 2257 (S.C.J.), aff’d (2015), R. v. Crevier, 2015 ONCA 619, 330 C.C.C. (3d) 305 (Ont. C.A.).

[39] In the case of s.95 recidivists, like Graham, MacDonnell, J. analysed the effect of the 2013 post-mandatory minimum sentence cases in R. v. Hector, 2014 ONSC 1970. He noted that in R. v. Charles, 2013 ONCA 681, 303 C.C.C. (3d) 352 (Ont. C.A.) and in R. v. Chambers, 2013 ONCA 680, the Court of Appeal upheld sentences of seven years and eight years for s.95 recidivists who had each breached two prior s.109 prohibition orders. MacDonnell, J. implicitly held that the cases indicate an appropriate total range of six years to nine years for s.95 recidivists who breach s.109 orders, after the 2013 striking-down of the mandatory five-year minimum sentence. More recently, in R. v. Slack, 2015 ONCA 94, 321 C.C.C. (3d) 474 (Ont. C.A.), the Court upheld a total sentence of ten years, made up of eight years for a s.95 recidivist who also received a two year consecutive sentence for breach of prohibition orders. A number of recent cases in this Court have imposed total sentences of eight and nine years for recidivist s.95 offences and breaches of s.109 prohibition orders. See: R. v. J.G. [2005] O.J. No. 4599 (S.C.J.); R. v. Alexander, 2012 ONSC 6117, [2012] O.J. No. 5087 (S.C.J.); R. v. Dunkley [2014] O.J. No. 3062 (S.C.J.).

[40] The defence relies heavily on Hector, 2014 ONSC 1970, the case at the bottom end of the above range, where MacDonnell J. imposed a total sentence of six years (five years for the s.95 offence and one year consecutive for the s.117.01 breaches). However, the one significant circumstance in Hector, that moved the case towards the bottom end of the range, was that the loaded handgun was found hidden in an air conditioning unit inside an apartment. It was not being carried about in public in association with unlawful activity, as in the present case. As noted previously, the mix of aggravating and mitigating factors in the present case situate it much closer to the upper end of the appropriate range. That upper end of the range supports an eight to ten year total sentence for s.95 recidivists who breach s.109 orders.

[41] As explained above, I am of the view that the sentences for breach of the two s.109 orders should be consecutive to the sentence for the s.95 offence. I adopt the reasoning of the leading authorities in this Court, to the effect that separate punishment is required if court orders are to have real meaning. See: R. v. Manning [2007] O.J. No. 1205 (S.C.J.); R. v. Ellis, 2013 ONSC 3092, [2013] O.J. No. 2409 (S.C.J.) aff’d, 2016 ONCA 598; R. v. Carrol, 2014 ONSC 2063, supra.

[42] The five to six year total range of sentence submitted by the defence for all six offences in this case, including the s.95 offence and the breaches of s.109, is at the top end of the range for first s.95 offences and at the bottom end of the range for second s.95 offences. It depends on mitigating circumstances that have not been proved. It also fails to reflect the significant aggravating circumstances in this case and the number of distinct offences committed in this case. It would not be an appropriate sentence. In my view, eight years for the s.95 offence and one year consecutive for the s.109 breaches is the appropriate sentence for these offences in this particular case.

[43] The conviction for possession of cocaine for the purpose of trafficking requires a separate consecutive sentence. It is an entirely separate offence, based on separate public policy interests, and it requires separate punishment. I agree with the reasons of Campbell J. in R. v. Mark [2018] O.J. No. 270 at para 27 (S.C.J.) in this regard. Also see R. v. Crevier, 2015 ONCA 619, supra at paras 128-9 where Rouleau J.A. agreed with the trial judge in imposing “a consecutive sentence for the cocaine conviction because it constituted a different legally-protected interest from the gun offences”.

[44] In terms of the range of sentence for this separate offence, cocaine is a hard drug because it is addictive and because it causes significant direct and indirect damage to users, to their families, and to the safety and security of society. As a very experienced trial judge, Bassel J., put it in R. v. Amour [2004] O.J. No. 1537 (O.C.J.),

This was a lifestyle or life conduct choice or course of action, for profit. I agree with the submission of Mr. Devlin that the cocaine offence is not a victimless crime. One only has to walk through the Old City Hall here to see three courts dedicated to drug offences in the main, involving the possession and sale of cocaine. The devastating health effects on cocaine drug users, the terribly addictive aspect of this drug, the disastrous effects on their families, and the ruination of their lives, all reflect very real victims, which is an aggravating factor. In addition, the terrible addiction and need for money to feed the addiction is a significant underlying cause of many crimes that are prosecuted in the courts, including thefts, robberies, break-and-enters, soliciting for the purpose of prostitution, assaults, with a whole other category of victims. A very tragic but graphic illustration of the misery flowing from this drug is seen daily with numerous addicts pleading guilty and receiving sentences of incarceration for street-level transactions of small amounts of cocaine.

Also see: Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, [1998] 160 DLR (4th) 193 at 235-7 (S.C.C.).

[45] An additional feature of cocaine trafficking that is well-known in the courts, and that increases the gravity of the offence, is that it is associated with violence. That is because it is an unlawful but lucrative business and so it spawns collateral violent crime, either to protect territory, to protect and enforce unlawful transactions, or simply to steal an unlawful product or its unlawful proceeds. As Doherty J.A. put it in R. v. Hamilton, 2004 ONCA 374, supra at 161:

The use and sale of cocaine kills and harms both directly and indirectly. The direct adverse health effects on those who use the drug are enormous and disastrous. Cocaine sale and use is closely and strongly associated with violent crime. Cocaine importation begets a multiplicity of violent acts. Viewed in isolation from the conduct which inevitably follows the importation of cocaine, the act itself is not a violent one in the strict sense. It cannot, however, be dissociated from its inevitable consequences. Unlike the trial judge, I characterize cocaine importation [and possession for the purpose of trafficking, in this case] as both a violent and serious offence: see R. v. Pearson, [1992] 3 S.C.R. 665, 77 CCC (3d) 124 at pp. 143 to 144 (S.C.C.).

[46] Another important feature of drug trafficking offences is that they are rationally premeditated commercial crimes driven by the profit motive. Because of the significant harms and violence associated with cocaine trafficking, and because it is a planned and premeditated commercial crime, the courts have repeatedly stressed that denunciation and deterrence are the most important sentencing principles in these cases: see R. v. C.N.H., 2002 ONCA 494, 170 CCC (3d) 253 at paras 35-6 (Ont. C.A.); R. v. Hamilton, 2004 ONCA 374, supra at paras 103-106; and R. v. Finlay and Grelette, [1985] O.J. No. 236 (C.A.).

[47] The well-established ranges of sentence for cocaine trafficking offences depend to some significant degree on the level in the drug trade hierarchy at which the case is situated. As explained above, the present case is situated at the “mid-level” as it involves trafficking in ounce amounts. Graham was a supplier to lower “street level’ traffickers who generally deal in gram amounts. Green J. recently summarized the leading authorities on this point in R. v. McGill, 2016 ONCJ 138, [2016] O.J. No. 1346 at para 54 (O.C.J.):

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, 2003 ONCA 665, 173 C.C.C. (3d) 255; R. v. Bryan, 2011 ONCA 273, [2011] O.J. No. 1581 (C.A.); and R. v. Haye, supra; affd. [2014] O.J. No. 6575 (C.A.). 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 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.

[48] In my view, the present case involves a “mid-level” trafficker and it should be situated above the Woolcock range but below the Bajada and Bryan range. In other words, two to five years is the appropriate range. Given Graham’s prior sentence of two years and two months for a similar offence, a three year consecutive sentence would be appropriate in the present case for the constructive cocaine trafficking conviction.

[49] In the result, the above consecutive sentences of eight years, one year, and three years would lead to a total sentence of 12 years. I would reduce that sentence by one year, to reflect the “totality” principle. I would also reduce the sentence by another year to reflect credit for ten and a half months of pre-trial custody and one and a half months for the period of “lockdown” conditions at the South Detention Centre. I would not grant any credit for the “house arrest” bail terms. Graham was able to go to work, he was able to go to church, he was able to visit with his daughter, and he repeatedly breached the “house arrest” term. Indeed, he left the home in order to carry on his business in the drug trade. In these circumstances, there is little or no evidence that his “house arrest” term of bail had any “serious impact” on him, as explained in R. v. Downes, 2006 ONCA 170, supra at para 34.

[50] After the above deductions, the remanent to be served from today’s date is ten years. The Crown requests three ancillary Orders: another s.109 firearms prohibition for life; a DNA order; and an order forfeiting the seized property. These three orders are not opposed and they are all granted.

F. Conclusion

[51] In conclusion, the sentences imposed are as follows: (i) on Count One on the new Indictment (Count Four on the old Indictment), alleging the s.95 Criminal Code firearms offence, eight years imprisonment; (ii) on Count Two on the new Indictment (Count Ten on the old Indictment), alleging the s.5(2) CDSA cocaine trafficking offence, two years imprisonment consecutive (I have reduced the three year sentence to two years for reasons of “totality”); (iii) on Count Three on the new Indictment (Count Eleven on the old Indictment), alleging the s.354 Criminal Code “proceeds” offence, one year concurrent; (iv) on Counts Six and Seven on the old Indictment, alleging two separate s.117.01 Criminal Code offences, one year on each count concurrent to eachother but consecutive to the other sentences, and reduced by one year due to credit for ten and a half months pre-trial custody and one and a half months credit for “lockdowns”. In other words, there is no sentence left to be served for these offences; (v) on Count Eight on the old Indictment, alleging s.733.1 breach of probation, one year concurrent; (vi) the three ancillary orders are granted: s.109 for life; DNA; and forfeiture of seized property; (vii) the total remanent to be served from today’s date is ten years.

M.A. Code J.

Released: November 14, 2018