Court File and Parties

Court File No.: Region of Durham: 998 14 13794 & 998 14 25097 & 998 14 25112

Date: 2015-05-12

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Christopher Bell

Before: Justice J. De Filippis

Heard on: February 23, 25 and March 26, 2015

Reasons for Sentence released on: May 12, 2015

Counsel:

• Mr. D Wilson for the Crown
• Ms. K. Duncan for the Defendant

Reasons for Sentence

De Filippis, J.:

[1] Over a period of seven months, from October 2013 to April 2014, the Durham Regional Police Service conducted an investigation known as "Project Wheeler". That investigation relied on several judicial warrants, including two wiretap authorizations. As a result, 21 individuals, including the defendant, were arrested on an Information containing 63 drug and firearm charges.

[2] The defendant pled guilty to trafficking in cocaine, possession of cocaine for the purpose of trafficking, possession of the proceeds of crime, and failure to comply with a recognizance. The agreed facts show that the defendant was an active street dealer in cocaine for a period of several months. He and another man obtained their product from a person in Toronto and supplied others in Durham Region. The wiretap evidence proved sales amounting to 4 ounces (112 grams). In addition, slightly more than 4.5 ounces (132 grams) was seized from him on arrest. The total cocaine in question is 244 grams.

[3] The intercepted communications are typical of this business; there is much profanity and other offensive language and coded discussions about the crimes. A few examples will suffice to illustrate the defendant's misconduct. The editorial comments in square brackets are not contentious and form part of the guilty plea.

January 16, 2014: A woman contacted Mr. Bell and ordered "a half" [one half ounce of cocaine] for "7" [$700.00]

January 17, 2014: A man asked Mr. Bell if he had "a bit of food" [cocaine] and the latter replied "a little, like a half" [one half ounce].

January 18, 2014: Mr. Bell told a co-defendant that he had "a couple" on him and "a couple tomorrow" and had "twenty five two" if the man wanted to come get it. He added that he will "be picking up change". The co-defendant replied that he would have to see his "dude" and did not want to cover "15 racks" [$15,000.00] for people.

January 24, 2014: Mr. Bell informed his Toronto supplier that "work [cocaine] is no good" and that he has "paper [money]" tied up and cannot make any money.

February 8, 2014: Mr. Bell and two co-defendants agree to meet. Mr. Bell says he has "12 5" [$12,500.00] and he would put more money there later that day.

March 12 - 13, 2014: Mr. Bell engages in several conversations with his Toronto supplier. They discuss a "half pack' [4.5 ounces of cocaine].

[4] As a result of the intercepted communications during March 12-13, a surveillance team followed Mr. Bell and his girlfriend as they drove to the supplier's condominium building. They were observed to enter and exit that place and then followed en route to Durham Region. Their car was stopped along the way and they were arrested. Police seized 132 grams of cocaine, 13 grams of marihuana, 5 grams of hash, and $1030.00. At the time, Mr. Bell was bound by a recognizance that prohibited him from associating with his girlfriend, possession of illicit drugs, and having a cellular telephone. He was in breach of all these terms.

Sentencing Submissions

[5] The Crown suggested that a four to five year prison term is warranted in this case. Defence counsel argued in favour of a reformatory sentence. Having regard to the presentence custody, the Crown argument requires an additional period of custody whereas the Defence submission effectively means a sentence of time served.

Sentencing Principles and Case Law

[6] I was provided with helpful decisions from the Court of Appeal for Ontario as well as trial courts. These cases acknowledge the harm caused by the traffic in cocaine and call for deterrent sentences. I am witness to this harm. On any given day, at least one of the 12 judges in Durham Regions will deal with a case that highlights the damage caused by the abuse of cocaine. This addiction can become so severe that it robs the addict of his/her ability to fulfill personal and social obligations. It leads to low self-esteem, family dysfunction, and secondary crime. People suffer and society pays the cost.

[7] It will suffice to note two of the cases referred to me by counsel. R v Bajada, [2003] O.J. NO. 721 (O.C.A.) involved a 51 year old man with a criminal record that included prior related offences who was convicted of possession for the purpose of trafficking in 500 grams of cocaine. His eight year sentence was reduced on appeal to six years. The court noted as follows, at paragraphs 12 and 13:

In his book, Sentencing, 5th ed. (Toronto: Butterworths, 1999), Clayton C. Ruby states under the heading Cocaine at p. 865-866:

Cocaine used to be regarded by the courts as a drug which is somewhat more serious than marijuana but less serious than heroin. However, due to the existence of crack cocaine and intravenous cocaine users, this attitude seems to be changing. More recent sentences for cocaine seem on par with those imposed for heroin possession or trafficking.

It would appear that sentences of five to five and one half years are not uncommon for possession of a substantial amount of cocaine for the purposes of trafficking following an accused's plea of guilty or where the accused has no prior record.

[8] In R v Marino [2014] O.J. No. 5832 (O.C.J.), the offender sold cocaine out of his home and, after the execution of a search warrant was found in possession of 216 grams of this drug – slightly less than the amount involved in the present case. Mr. Marino struggled with alcohol and drug addiction and was serving a conditional sentence at the time. The court held as follows (at paragraphs 24-25):

In my opinion, I am guided by the principals as set out in R. v. Bajada. In that case the defendant was arrested at gunpoint with over 500 grams of cocaine. He received a sentence of 6 years. The defendant did not plead guilty and had an extensive and related criminal record. I look upon that sentence as the upper range for this defendant. I do not feel that I can consider a sentence in the reformatory range, due to the large amount of cocaine and the fact that this is a second offence within a short time.

I will sentence the defendant to 3-1/2 years' imprisonment for this offence. With regard to the strict bail conditions, I will give a credit of 6 months' custody. He will therefore be imprisoned for 3 years from this day forward.

Offender Background

[9] Mr. Bell is 23 years old. He was raised by his mother in Toronto for much of his life but lived with his father in Nova Scotia for a period of time. He has a youth and adult criminal record, including two convictions for robbery. On the second occasion, he was also convicted for use of an imitation firearm. His incarceration as a youth interrupted his education. During the sentence proceedings, the defendant told me that he has had much time to reflect while in custody and added, "I don't want to live this life anymore…I owned up by pleading guilty and want to go on the right path".

Sentencing Decision

[10] There are several aggravating factors to consider: The nature and quantity of the drug, the ongoing enterprise, over a period of months, and the criminal record. On the other hand, I also take into his guilty plea. Although, it came at the start of what was to be a lengthy preliminary hearing, given the amount of disclosure to be reviewed, I consider that guilty plea to be significantly mitigating. Moreover, he is relatively young and expressed a desire to reform. Having regard to these factors as well as the guidance provided by the case law, I am of the opinion that a four year sentence is appropriate.

[11] The defendant has been in custody since his arrest. As of the date of sentencing, this amounts to 427 days. The Crown and Defence could not agree on how to treat a period of time for which the defendant was sentenced for another offence. I accept the Defence position that I should add an additional seven days to the present calculation. Accordingly, the defendant has served 434 days. At 1.5 to 1, the effective period of pre-sentence custody is 651 (or 21.5 months).

[12] To give effect to a four year sentence, I should impose an additional 26.5 months in jail. A sentence of 24 months or more must be served in a federal penitentiary. Having regard to how close the proposed sentence is to that marker, I am prepared to reduce it to acknowledge Defence counsel's plea that her client serve any additional time in a provincial reformatory. I do so because of his young age.

[13] Mr. Bell is sentenced to two years less one day, in addition to the presentence custody. I also issue the following ancillary orders: He will provide a sample of his DNA, be bound by a weapons prohibition for 10 years (section 109), and forfeit the illicit drugs and money seized from him.

Released: May 12, 2015

Signed: Justice J. De Filippis

[1] The defendant entered a guilty plea on February 23 at the start of what was to be a multi-day preliminary inquiry involving several others. The facts were read in on February 25. A sentence hearing was held on March 26.