Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20210427 DOCKET: C67790

Watt, Hoy and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Maxwell Johnson Appellant

Counsel: Jill R. Presser and David Levy, for the appellant Tracy Kozlowski, for the respondent

Heard: March 25, 2021 by video conference

On appeal from the sentence imposed on December 6, 2019 by Justice Kelly P. Byrne of the Superior Court of Justice.

Hoy J.A.:

[1] Mr. Johnson was convicted of trafficking cocaine, possession of marijuana for the purpose of trafficking, and possession of proceeds of crime exceeding $5000. He was sentenced to six months’ imprisonment on each count, to be served concurrently, less credit for pre-trial custody, followed by one year of probation.

[2] He seeks leave to appeal the sentence imposed. For the reasons that follow, I would grant leave to appeal the sentence, allow the appeal, and substitute a six-month conditional sentence on each count, to be served concurrently, followed by one year of probation.

Background

[3] In January 2014, two young women ended a night of partying and using drugs at an impromptu gathering at Mr. Johnson’s apartment. Mr. Johnson was 27 years of age at the time. At the women’s request, he shared a small amount of cocaine with them. They did not pay for the cocaine.

[4] The women slept at his apartment, as did his friends Rene Jean Moneus and Nicolas Adeyemi. In the early hours of the morning, the women were unconscious and non-responsive. Mr. Johnson frantically sought help and they were rushed to the hospital. Mr. Adeyemi fled.

[5] Tragically, one of the women died as a result of combined heroin and ethanol toxicity. The other, whose adverse reaction was also caused by ingesting heroin, recovered.

[6] Mr. Johnson was panicked and scared. He did not tell the EMS responders about any drug use and, when first questioned by police, did not mention that the women had ingested cocaine. However, a short time later Mr. Johnson provided a video statement to police and admitted giving the women marijuana and a small amount of cocaine. He also told them he had marijuana at his apartment and directed them to where they would find it. The police searched Mr. Johnson’s apartment. They found 800 grams of marijuana, two and one-half grams of heroin, the remnants of a small quantity of cocaine, and $2,000 in cash.

[7] The police also found approximately $54,830 which Mr. Johnson had hidden in the trunk of Mr. Moneus’ car before giving his video statement to the police, in the hope that the police would not find it and take it. Mr. Johnson admitted at trial that this was money he had saved over the three years he had been selling marijuana.

[8] Mr. Johnson consented to the forfeiture of the $56,830 found by the police.

[9] Mr. Johnson was charged with several offences, including possession of heroin for the purpose of trafficking, and manslaughter. He pled not guilty to all counts but, at the conclusion of the Crown’s case, he conceded that the Crown had met its onus on the offences of trafficking cocaine, possession of marijuana for the purpose of trafficking, and possession of proceeds. He candidly admitted that he started selling marijuana in 2011 to supplement his income. However, he testified that he neither dealt nor used heroin and had no knowledge of heroin in his apartment.

[10] The trial judge was left in a state of reasonable doubt by Mr. Johnson’s evidence that he had no knowledge of the heroin in his apartment and she acquitted him of the charge of possession of heroin for the purpose of trafficking. The trial judge considered that, possibly, the heroin belonged to Mr. Adeyemi. She was also left in a state of reasonable doubt on the manslaughter charge. She was not convinced that the heroin found in Mr. Johnson’s apartment, which was not in a form readily consumable by snorting, had any nexus to the heroin ingested by the two women.

Sentencing submissions

[11] The Crown sought a global sentence of 12 months’ imprisonment (6 months for trafficking cocaine, plus 6 months for possession of marijuana for the purpose of trafficking and 6 months for possession of proceeds, to be served concurrently, but consecutive to the sentence for trafficking in cocaine), followed by probation.

[12] The Crown noted that a conditional sentence was not available for trafficking in cocaine, and, typically, a custodial sentence was imposed.

[13] Citing R. v. Woolcock, [2002] O.J. No. 4927 (C.A.), and R. v. Butters, 2017 ONCA 973, the Crown submitted that the range for this offence was six months to two years, less a day, with one-off transactions involving small amounts of cocaine, other mitigating factors and rehabilitation prospects at the low end, and transactions involving larger quantities of narcotics, where the offender has a criminal record, at the higher end.

[14] The defence submitted that: faced with the unavailability of conditional sentences, in “exceptional circumstances” courts had ordered non-custodial dispositions, by way of a suspended sentence, for trafficking in cocaine; that these were exceptional circumstances; and that Mr. Johnson should receive a 12 month suspended sentence and one year’s probation for the cocaine trafficking charge. The defence further argued that the trial judge should order conditional discharges for proceeds of crime and possession of marijuana for the purpose of trafficking. The defence also submitted that Mr. Johnson should receive Downes credit for his time on bail, if sentenced to a jail term.

[15] No pre-sentence report was prepared. Mr. Johnson’s background was conveyed through defence counsel at the sentencing hearing.

Reasons for sentence

[16] In her reasons for sentence, the trial judge reviewed Mr. Johnson’s personal circumstances.

[17] She noted that he was a first offender who was 27 years of age at the time of the offences. He was born in Liberia and was an only child who was orphaned at the age of 14 because both of his parents had been killed in the Liberian civil war. At 16 years of age, he came to Canada as a refugee. He did well, completed high school, and trained and worked as a welder. In 2010, he started his own business. He started selling marijuana in 2011 to supplement his income as his business developed. He was still selling marijuana at the time of the incident giving rise to the charges against him but stopped doing so in 2014. By the time of sentencing, his business had developed to the point it had over 40 contracts and employed 36 people. He provided multiple positive character references.

[18] The trial judge accepted that Mr. Johnson had changed his life as result of this tragedy. He had extracted himself from the club lifestyle and no longer sold marijuana or engaged in the consumption of drugs. He had become involved with his church community.

[19] The trial judge held that, as a first offender, Mr. Johnson was entitled to the most lenient sentence available based on the circumstances. But those circumstances included that he had been selling marijuana for three years prior to the incident that brought him before the court. In addition to subsidizing his business, he had managed to save over $50,000. She reasoned that, “[t]he mitigation flowing from Mr. Johnson’s lack of criminal record must be tempered against this backdrop.”

[20] Citing R. v. Strong, 2019 ONCA 15, an appeal book endorsement in a case involving “large scale, prolonged trafficking for profit in marijuana”, she held that societal and legislative changes since 2014 regarding marijuana are directed at personal use only and do not warrant a reduction in sentence for possession for the purpose of trafficking marijuana, which, she indicated, is still considered a serious offence.

[21] She noted that this was a case of social sharing of cocaine but rejected defence counsel’s argument that the circumstances were exceptional and warranted a suspended sentence. His sharing of cocaine was not an anomaly in an otherwise crime-free life. Mr. Johnson was fully immersed in the illegal selling of marijuana. Moreover, while the quantity of cocaine involved was small, cocaine is a highly dangerous and insidious drug.

[22] While Mr. Johnson had not pled guilty, he had conceded that he had committed these crimes at the close of the Crown’s case and this was deserving of “significant mitigation”. It was very much “a demonstration of his remorse and willingness to accept responsibility for his actions.”

[23] She found that Mr. Johnson’s compliance with his strict bail conditions for four years demonstrated his commitment to a crime-free life but that the conditions of his bail at no point caused him undue hardship that would entitle him to a “Downes credit”.

[24] She found the extreme hardship that Mr. Johnson had to overcome deeply compelling and was confident that Mr. Johnson could, and would, rehabilitate himself. However, it does not “override the criminal choices that Mr. Johnson made. It is for those choices and those crimes that Mr. Johnson is being sentenced.”

[25] She concluded that each of the three offences warranted a minimum of six months incarceration. However, considering the principle of totality, Mr. Johnson’s personal circumstances, and his sincere and demonstrated desire to lead a pro-social life, she was persuaded that the sentences should be served concurrently to one another. She appreciated that the sentences would normally be served consecutively, but this was not a typical case. Mr. Johnson persuaded her that he was fully committed to rehabilitating himself and she had every confidence he would succeed. As such, he was entitled to the least restrictive sentence available.

[26] She gave Mr. Johnson nine days’ credit for time served and imposed a one-year term of probation.

The issues raised on appeal

[27] Counsel for Mr. Johnson argues that the trial judge erred in principle by: (1) applying the sentencing range for street level cocaine traffickers when he had just shared a small amount of the cocaine he had acquired for personal use with two persons on a social occasion; (2) failing to adequately consider that he was a relatively youthful first offender; (3) distinguishing his admissions at trial from a guilty plea; (4) applying a range appropriate to a large-scale marijuana organization or grow-op for the marijuana offences, resulting in a sentence that was excessive and demonstrably unfit; and (5) declining to apply Downes credit for his time under restrictive bail conditions.

Analysis

[28] I conclude that the sentencing judge made two errors in principle which affected the sentence imposed.

(1) The trial judge erred in applying the range in Woolcock

[29] I agree that the trial judge erred in principle in applying the sentencing range in Woolcock, urged by the Crown, to this case of share trafficking, and that that error had an impact on the sentence imposed.

[30] Mr. Woolcock was found in possession of 5.3 grams of crack cocaine. Police had received information that Mr. Woolcock was dealing crack cocaine from a residence and observed several instances of individuals visiting the residence for a short time. One of the individuals observed leaving the residence was arrested and found to be in possession of 0.5 grams of cocaine. During a search of Mr. Woolcock’s residence, the police found 5.3 grams of crack cocaine.

[31] In the context of that case - a case involving selling crack cocaine for profit at street level - this court, at para. 15, said that:

The range for this type of offence appears to be 6 months to 2 years less a day…However, many of the cases that fall at the higher end of this range involved either larger quantities of narcotics or offences committed while the accused was still on probation for a similar offence. Those circumstances to not exist here.

[32] This court reduced the sentence imposed by the sentencing judge from two years less a day to 15 months.

[33] In Butters, the sentencing judge had imposed a sentence of 12 months for a one-off transaction for a very small amount of crack cocaine - 0.2 grams - for $20, apparently as a favour for a friend and for no profit. This court considered that a sentence of six months, which was at the low end of the Woolcock range, would have been appropriate, but for the immigration consequences of a sentence of six months or more. The court reduced the sentence to 160 days.

[34] As counsel for Mr. Johnson submits, this offence was not the type of offence at issue in Woolcock where crack cocaine was sold at street level for a profit. Or even that at issue in Butters, where, although the transaction was not at a profit, the cocaine was nonetheless sold. This was an instance of “share trafficking”, where a host shared cocaine, acquired for his personal use, with guests to his home, who were not minors or first-time users, at their request, at no charge, and not as part of a business transaction. While the trial judge found the women were regular users of cocaine, she did not find they were addicts. It is less morally blameworthy than the type of trafficking in Woolcock: R. v. Lloyd, 2016 SCC 13, [2016] 1 S.C.R. 130, at paras. 28, 32. As this court has recently held, the absence of commercial motive is a relevant mitigating factor in sentencing for trafficking: R. v. Spagnola, 2020 ONCA 638, at para. 2.

[35] Ranges of sentence are only guidelines, and there may well be circumstances where a sentence for share trafficking within the range identified in Woolcock is appropriate. However, the trial judge did not engage in that analysis. As this court has said, it is an error to treat guidelines as constituting a de facto minimum sentence: R. v. Jacko, 2010 ONCA 452, 101 O.R. (3d) 1, at para. 82. The trial judge’s error in principle was to accept the range in Woolcock as generally applicable to share trafficking.

(2) The trial judge did not give proper effect to Mr. Johnson’s status as a first offender

[36] I agree with counsel for Mr. Johnson that the trial judge also erred in principle in reducing the weight she accorded to the fact that Mr. Johnson was a first-time offender because he admitted he had been trafficking in marijuana for several years before the incident that brought him before the court. This was the first time that Mr. Johnson had been before the court. Aside from the charges below, Mr. Johnson had never been charged, let alone convicted, of any offences in relation to trafficking marijuana. He was a first offender and was entitled to be treated as such for sentencing: R. v. Barclay, 2018 ONCA 114, at para. 44. Other than his admissions at trial, there is no evidence of his involvement in the “drug world,” as the trial judge put it.

[37] Moreover, the evidence before the trial judge did not suggest Mr. Johnson’s history selling marijuana was relevant to specific deterrence. The trial judge stated that she was “confident that Mr. Johnson can and will fully rehabilitate himself.” A criminal record is relevant in sentencing to the extent that it “rebuts good character and because of what it tells the trial judge and society about the need for specific deterrence, the chances of successful rehabilitation, and the likelihood of recidivism”: R. v. Taylor (2004), 189 O.A.C. 388 (C.A.), at para. 39.

[38] In my view, this error led the trial judge to give undue weight to general deterrence and to impose a harsher sentence for all the offences than she otherwise would have. Individual deterrence and rehabilitation are the primary objectives in sentencing a first offender: R. v. Priest (1996), 30 O.R. (3d) 538 (C.A.), at p. 9.

[39] Given this conclusion, it is unnecessary to address Mr. Johnson’s further arguments that the sentences imposed for the marijuana charges were excessive and that his admissions at trial should have been treated as a plea.

(3) The Downes credit

[40] Finally, I see no error in the trial judge’s conclusion that a Downes credit was not appropriate in the circumstances. The decision as to whether to give Downes credit is a discretionary one: R. v. Downes (2006), 79 O.R. (3d) 321 (C.A.), at para. 37. And, contrary to counsel for Mr. Johnson’s assertion, the trial judge explained her reason for declining to give credit: the conditions of his bail at no point caused Mr. Johnson undue hardship. He was able to continue to work while on bail and after a short period during which a relatively strict curfew applied, his curfew was loosened to 11:00 p.m. to 6:00 a.m. The trial judge’s decision is entitled to deference.

(4) A fit and appropriate sentence

[41] In R. v. Sharma, 2020 ONCA 478, 152 O.R. (3d) 209, leave to appeal granted, [2020] S.C.C.A. No. 311, this court struck down ss. 742 (c) and 742(e)(ii) of the Criminal Code, R.S.C. 1985, c. C-46, which eliminated the availability of conditional sentences for drug trafficking.

[42] In my view, a six-month conditional sentence of imprisonment for each of the charges, to be served in the community, concurrently, and followed by one year of probation, is a fit sentence, having regard to all the circumstances of the offence and the offender. Indeed, had this option been available to the trial judge, I suspect she would have availed herself of it. This will permit Mr. Johnson to continue the productive and pro-social life that he has built over the last five years and best ensure the future of the employees of his business in this time of wide-scale economic disruption caused by the COVID-19 pandemic.

Disposition

[43] I would grant leave to appeal sentence, allow the appeal, quash Mr. Johnson’s sentence of six months’ incarceration (concurrent) and impose a six-month conditional sentence on each count, to be served concurrently, followed by one year of probation. I would order that in addition to the conditions which are compulsory pursuant to s. 742.3(1) of the Criminal Code, during the term of his conditional sentence the conditions in paragraphs 6, 9, 11, 12 and 13-19 of the Release Order of van Rensburg J.A. dated March 10, 2021 shall apply and the appellant shall not change his address without the prior approval of his supervisor.

Released: April 27, 2021 “D.W.” “Alexandra Hoy J.A.” “I agree. David Watt J.A.” “I agree. I.V.B. Nordheimer J.A.”