Court File and Parties

Ontario Court of Justice

Date: 2014-05-30

Court File No.: Regional Municipality of Durham 998 11 11504

Between:

Her Majesty the Queen

— and —

M.H.

Before: Justice J. De Filippis

Heard on: 27 May 2014

Reasons for Sentence released on: 30 May 2014

Counsel:

• Mr. G. Raven, counsel for the Crown
• Mr. W. McNair, counsel for the Defendant

Reasons for Sentence

De Filippis J.:

[1] These reasons explain why I have decided to impose a conditional sentence on an accused who became a party to trafficking in cocaine by means of a failure to comply with her duty to the court to act as a surety. The defendant was a surety for a man charged with robbery. The bail order required him to be under house arrest unless he was in the company of his mother or the surety. While awaiting trial on the robbery charge, the man sold cocaine to an undercover police officer several times. Three of the transactions happened in a motor vehicle in which the defendant was also present.

[2] The following is an excerpt from my reasons for judgement in finding the defendant guilty (see: R v M.H. [2014] O.J. No. 617):

On 22 March 2011, Cst. Carter, acting in an undercover capacity, made arrangements to purchase 3.5 grams of crack cocaine at the home of "Pete". The cocaine was delivered there by Niga Brown and the transaction was completed. Subsequently, the officer dealt directly with Mr. Brown and they communicated by text messaging. They met two days later at a plaza in Ajax for another cocaine deal. At 8 PM, a Cadillac driven by the defendant arrived at the plaza and stopped. Mr. Brown occupied the front passenger seat. The undercover officer entered and sat in the rear seat. He received a "cube" (7 grams) of crack cocaine from Mr. Brown and paid him $430.00 in cash. The two men then shook hands and the officer left the vehicle. Cst. Carter testified that there was no discussion in the vehicle and the defendant stared out the driver door window during the transaction. In the days that followed, the undercover officer and Mr. Brown agreed to another drug deal to be completed on March 29.

At 7:22 PM the parties met at a parking lot in Whitby. Mr. Brown arrived as a front seat passenger in the same vehicle and it was again driven by the defendant. The officer entered and sat in the rear seat. As previously arranged, the officer purchased one ounce of crack cocaine for $1,500.00. According to Cst. Carter, the defendant looked on as the product and money were exchanged. Before leaving the vehicle, the officer asked to purchase an additional two ounces of cocaine that evening for a customer in Peterborough. Mr. Brown replied that he would look into the matter. The parties continued this discussion by text messaging in the next several hours and eventually agreed to meet for the purchase and sale of three ounces of crack cocaine for $4,500.00.

At 10:41 PM the parties met in the parking lot of a convenience store in Ajax. The defendant arrived in the same vehicle but this time he was the driver and the defendant sat in the front passenger seat. The officer entered and sat in the rear seat. Cst. Carter testified that the defendant watched the transaction and smiled after he handed over the money to Mr. Brown. He left the vehicle and other officers waiting nearby arrested the defendant and Mr. Brown.

Cst. Carter conceded that he never inspected the product while in the motor vehicle; he simply took the bag proffered by Mr. Brown and handed over the money to him. He testified that the first transaction in the car lasted "less than one minute" and the others were "brief".

After the arrests in this case, a search warrant was executed at the defendant's home. The police seized the following items in plain view in the living room; four bags containing crack cocaine in the amount of 28.7 grams, 28.6 grams, 12.1 grams, and 12.8 grams respectively as well as a set of weigh scales. It is not in dispute that this cocaine was possessed "for the purpose of trafficking".

It is not disputed that Mr. Brown sold cocaine to the undercover officer on three occasions in the defendant's car and that she drove the vehicle on two occasions and was a passenger at the final transaction. Moreover, if she knew the meetings were about cocaine, there can be no question she aided Mr. Brown in trafficking because her car was used for this purpose and he could not be in the community unless accompanied by the defendant (or his mother). However, the defendant insists that she did not have such knowledge and believed the meetings were about Mr. Brown's party promotion business.

[3] I rejected the defendant's evidence and found her guilty of being a party to three counts of trafficking in cocaine by Mr. Brown in the motor vehicle. I dismissed the charge of possession for the purpose of trafficking with respect to the cocaine seized from her home. There can be little doubt that this was Mr. Brown's stash and left there by him after the final deal had been confirmed with the undercover officer. There is no basis to conclude the defendant knew Mr. Brown would leave cocaine at her home rather than keep it in his personal possession.

[4] It is not clear what motivated the defendant to become involved in these offences. However, it is clear she did not benefit financially by the crimes. Her participation was necessary to permit Mr. Brown to move freely in the community and, it appears, she simply did as he instructed. In this regard, there is no suggestion of coercion. At the time, the defendant and Mr. Brown were in an intimate relationship. She has not had contact with him since these charges were laid.

[5] The Crown submits that a sentence of two years in the penitentiary, less pre-sentence custody, is fit and proper. Counsel emphasizes the need for denunciation and deterrence because of the nature and quantity of the drug and the defendant's breach of her duty to the court as surety. Defence counsel submits that a conditional sentence is appropriate because the defendant has already suffered much and has a positive pre-sentence report.

[6] This case involves 4 ¼ ounces of crack cocaine. That is a matter of great concern. I am one of 12 provincial judges in Durham Region. On most days, at least one of us will deal with a sentence involving a person who offended because of an addiction to crack cocaine. I have seen how those who traffic in this substance cause misery to addicts and their families and endanger the broader community through secondary crime. These considerations undoubtedly contributed to the sentence imposed on Mr. Brown; I am advised that he was sentenced to three years in jail for these trafficking offences consecutive to a penitentiary term for the robbery.

[7] It is especially aggravating that the defendant allowed her role as surety to be used by the principal offender to commit the crimes. This is a scandalous breach of her duty to the court. The defendant transported Mr. Brown in her car so he could meet the purchaser of the cocaine. In so doing, she provided him with the opportunity to be lawfully in the community to complete the illegal transaction.

[8] The established principles of sentencing dictate that these offences must be dealt with sternly. For example, in R v Colquhoun [2003] O.J. No. 2722, the Ontario Court of Appeal dismissed an appeal from a sentence of 2.5 years for a person, with a minor record, who sold four ounces of cocaine. Parliament has also addressed this issue; on 6 November 2012 the Criminal Code was amended to preclude the imposition of a conditional sentence in a case such as this. That amendment is not retroactive and I have the jurisdiction to consider such a sentence for this defendant.

[9] Section 742.1 of the Code lists four criteria that a court must consider before deciding to impose a conditional sentence: (1) the offender must be convicted of an offence that is not punishable by a minimum term of imprisonment; (2) the court must impose a term of imprisonment of less than two years; (3) the safety of the community would not be endangered by the offender serving the sentence in the community; and (4) a conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2. The first two criteria are not obstacles in this case; the only issue is the third and fourth pre-requisite.

[10] It has not been seriously suggested by the Crown that the defendant would endanger the safety of the community if her sentence were served under house arrest. In any event, there is little evidence of this. Moreover, it is my practice not to impose conditional sentences without the electronic supervision program. Thus, I have greater confidence that the provisions of house arrest will be observed and this mitigates the risk of harm to the community. The real issue is whether a conditional sentence is in accord with the principles of sentencing; as noted, the most important ones in this case are denunciation and deterrence.

[11] The Supreme Court of Canada has observed that a conditional sentence can meet the demands of denunciation and deterrence in the right circumstances (see R v Proulx 2000 SCC 5, [2000] 1 S.C.R. 61). Moreover, in R v Hayes [2001] O.J. No. 684 the Court of Appeal for Ontario stated that 'general deterrence and denunciation can be met by a conditional sentence even in cases of cocaine trafficking". The court's immediate reference to the "unusual aspects" of the case also makes it clear that a conditional sentence is exceptional. I am of the opinion that this is one of those exceptional cases in which a conditional sentence is appropriate. In coming to this conclusion, I rely on the personal circumstances of the defendant and the price she has already paid for her misconduct.

[12] I have the benefit of a pre-sentence report. The defendant is now 31 years old. She does not have a prior criminal record. She was born in St. Kitts and Nevis to unmarried parents who soon went their separate ways and did not raise her. That duty was performed by her grandparents until she immigrated to Canada at the age of 15. She joined her father, who had immigrated previously, and his wife. The defendant did not feel welcomed by her step-mother. Until recently, the defendant had little contact with her biological mother.

[13] While still a teenager, the defendant had a daughter with a man who is no longer in her life. She also has a son with another man with whom she resided for eight years. They have since separated. The defendant is a single mother of a 13 year old girl and 9 year old boy. Both are reported to be doing well in school. Following her arrest for these offences, the children were apprehended by the Children's Aid Society. Since that time, the defendant has taken counselling as directed by the Society and has regained custody of her daughter and son, without further supervision by the Society.

[14] The defendant and her children now reside with her father. The latter has separated from his wife. The defendant works and studies and spends her limited leisure time with her children. Work and study have been a constant part of the defendant's life since arriving in Canada. She has done so notwithstanding a difficult period of adjustment to her new country, in a home with a father and step-mother she did not know.

[15] While working part-time the defendant obtained a Correctional Worker Diploma from Centennial College and will soon complete the Nursing Program at the University Of Ontario Institute Of Technology. These observations make the defendant's participation in these crimes all the more baffling.

[16] The defendant was found guilty after a trial. At the sentence hearing she apologized for her conduct. Although not as mitigating as an earlier expression of remorse, I accept the sincerity of her comments. She also acknowledged the impact these charges have had on her children and is worried about how the convictions will affect her employment prospects. The defendant concluded by stating that she intends "to move forward in a positive way".

[17] The offences occurred three years ago. The defendant was detained for just over five months before being released on bail, under terms of house arrest. Six months later, the bail order was varied again to replace the house arrest with a 10 PM to 6 AM curfew. The defendant complied with all terms of bail. House arrest is not jail but it is a significant restriction on liberty. The defendant been confined to jail and home for eleven months, followed by a curfew for one year. Moreover, she does not oppose the Crown's request to forfeit her motor vehicle as offence related property.

[18] The defendant has paid another price because of her crimes – one that I have not encountered before. Defence counsel advised (and I have confirmed) that a google search of the defendant's name yields several results, the first of which is a transcript of her bail review in this matter. The transcript contains information about her role as a party to trafficking as well as other personal matters. This information is available to the public, including potential employers. The transcript is posted on a website based in Romania. The unknown owner(s) of the website offer to remove the transcript for a fee. This has the foul odour of blackmail about it.

[19] In all the circumstances, I find that the following sentence, and ancillary orders, is in accord with the fundamental principles of sentencing applicable to this case, especially denunciation and deterrence: In addition to the pre-sentence custody of 7.75 months (i.e. 155 days at 1.5 to 1 = 232 days), I impose an 18 month conditional sentence. The defendant will serve the first six months under house arrest, the second six months under a curfew, and the final six months on the statutory terms. The details of the house arrest and curfew will be set out in the formal conditional sentence order.

[20] The defendant will also provide a sample of her DNA and be bound by a firearms prohibition, pursuant to section 109 of the Code for 10 years. The motor vehicle used by her to transport Mr. Brown for the purpose of dealing in cocaine will be forfeited to the Crown, pursuant to section 16.1 of the Controlled Drugs and Substances Act.

Released: May 30, 2014

Signed: Justice De Filippis