Court Information

Information No.: 2811 998 14 13201-03
File No.: 25264-03

Ontario Court of Justice

Her Majesty the Queen
v.
Isan Murley

Reasons for Ruling

Before the Honourable Justice M. Felix
On March 27, 2015
At Oshawa, Ontario

Appearances

• C. Otter – Counsel for the Federal Crown
• P. Pennypacker – Counsel for Isan Murley

Sentencing Decision

FELIX, J. (Orally):

Because of scheduling I am addressing Mr. Jupiter and Mr. Murley separately.

I will not repeat findings of fact made in my trial judgement reported as R. v. Murley, 2015 ONCJ 50, except in a summary manner. I will make an effort to speak plainly and simply as it is important that Mr. Murley understands the Court's sentence.

I will address the following considerations:

1. Sentencing Positions
2. Background of Isan Murley
3. Mitigating Factors
4. Factors Neither Mitigating nor Aggravating
5. Aggravating Factors
6. Relevant Provisions of the Criminal Code of Canada and CDSA
7. Sentences for Trafficking in Crack Cocaine
8. Credit for Pre-Sentence Custody
9. The Sentence to be Imposed on Isan Murley

Sentencing Position - Mr. Murley

Mr. Murley submits that a two year less a day sentence minus pre-sentence custody is appropriate. Mr. Murley submits that I should allow 1.5 to 1 for pretrial custody.

Sentencing Position – Federal Crown

The Federal Crown submits that with respect to count one, involving trafficking of nine ounces of crack cocaine, a sentence of three years in jail is appropriate. With respect to count two, trafficking three ounces crack cocaine – two years jail, concurrent to count one. Although they were distinct offences on different days, the commission of these offences was pursuant to the joint enterprise with Tyler Cairns that I have found.

With respect to count three, trafficking approximately 2.1 ounces of crack cocaine with Mr. Jupiter and Mr. Gwidz, the Federal Crown submits that this conviction merits a consecutive sentence, because it is on a different day, involves different parties, and was not part of the Tyler Cairns joint enterprise. The Federal Crown submits that a consecutive two years is appropriate. The total sentence sought by the Federal Crown is five years minus credit for pre-trial custody.

In addition, the Federal Crown seeks a 109 order for ten years and an order with respect to non-communication, pursuant to s. 743.21 of the Criminal Code, with respect to Mr. Gwidz, a co-accused.

Sentencing Parity and Case Law

I have heard brief submissions with respect to sentences in relation to other charged persons in this project. I have not heard extensive background details concerning these other charged individuals. I am satisfied in any event that they are of limited or no assistance with respect to parity considerations. Other individuals in this project have resolved by guilty plea to different fact scenarios and I understand that one person is still outstanding.

I have reviewed many sentencing cases in this area. The case law, frankly, is less helpful concerning the specific sentence to impose on this particular offender. As I will outline below, it is more helpful with respect to relevant sentencing principles concerning drug related crime, and specifically, trafficking in cocaine and crack cocaine.

Background of the Defendant

Mr. Murley is a youthful adult. He has a prior record both as a youth and as an adult. The record is not extensive. He has not previously received a lengthy jail sentence. He was brought up here in Canada and has strong support from his grandparents and a pastor in the community.

A delicate issue is the involvement of his father Isan Jupiter. There is no question in my mind that his father has been a significant influence on him, as it pertains to his involvement in criminal matters. Without calculating every sentence served by Mr. Jupiter, it is clear that for a significant portion of Mr. Murley's life, Mr. Jupiter has been serving time for criminal activity. Mr. Murley does not seek to rely on this record. He does not seek to suggest a causal relationship, he does not blame his father. He acknowledges that he is old enough to make his own decisions and does not seek to place blame. It is a perverse irony to sentence him along with his father arising out of the same trial.

Ms. Pennypacker has done an admirable job giving me the background of this gentleman. Suffice it to say, he has suffered some delay in his education and work record due to familial responsibilities. He has not completed his education. He has not really been gainfully employed. Notwithstanding the issues involving his family – and I think about a time period of roughly 2009 to 2013, he has not accomplished a lot, frankly, in his life. And certainly, for the past several months he has been in a remand centre, with little opportunity to improve himself.

Mitigating Factors

As I said at the outset, this defendant is a youthful adult of 22 years of age.

Factors Neither Mitigating nor Aggravating

Although the trial in this matter took several days, it is evident that Mr. Murley instructed his counsel to present a focused defence. He has strong support from pro-social family members – his grandparents and his mother, Kim Murley.

He has strong support from members of the community – I am thinking of Pastor Lennan Diaz. There is hope on the part of that community supporting him that he will get into a mentorship program, complete his education and become gainfully employed.

As I said, the triable issues were focused and litigated before me in a professional manner. Looking at his background, again, these are factors that are neither mitigating nor aggravating.

I sincerely doubt, having regard to the character of his grandparents, his mother and his pastor, that I am the first to recognize this fact - he has not made good use of his time out of custody for whatever the reason. While he has had familial issues, such as the birth of a child, I cannot accept that this was a predominant feature that meant there was no opportunity to better himself. I can imagine that all sort of family support was available, for example his grandparents.

Another factor that is neither aggravating nor mitigating, but may also be considered as an aggravating factor, depending on the circumstances is, it is clear that the evidence before me that this gentleman is not an addict. He did not conduct the activity in this case to fuel an addiction. This is one of the factors considered in many of the cases. It is not present here.

Aggravating Factors

While I find there are highly sympathetic aspects of the background of Mr. Murley, I have a duty to set out the aggravating factors. To be frank, there are many:

1. I have already outlined Mr. Murley's involvement in the organized distribution of illegal drugs. In the brief snapshot of time presented at trial he was involved in supplying a major distributor of crack cocaine and worked with others to possess for the purpose of trafficking.

2. I am satisfied that Mr. Murley had control of 95 Baldwin – a drug production facility. He was also implicated in the actual production of crack cocaine using a mechanical press and other instruments.

3. There was some geographical breadth to his criminal activity. For example, he directed Mr. Cairns to Peterborough to re-supply the three ounces. He, his father and Mr. Gwidz were en-route to the area of Bracebridge it appears, to traffick in cocaine.

4. He used intermediaries – Philip Bardowell, for example.

5. The activity that I have found him guilty of is not impulsive, on the sudden, criminal activity. It is planned, organized criminal activity. The motivation for this activity was money – greed. This fact places him high on the moral blameworthiness scale (R. v. Malanca, [2007] O.J. No. 2782, Ontario Court of Appeal).

6. The volume of drugs and the type of drugs in this case, crack cocaine, are highly aggravating factors on their own.

7. I find that Mr. Murley was operating as a mid-level to street-level dealer. He was not dealing small amounts on a street corner. He was higher up the food chain.

8. Notwithstanding his youth, he was intimately involved with large scale cocaine trafficking.

9. No Court can calculate the cost of this activity to the community, society, and the addicts, who are the customers.

10. Deterrence and denunciation are the primary sentencing considerations in this case.

Relevant Case Law

A number of cases inform the sentencing principles that I should apply in this case.

R. v. Radassao, [1994] O.J. No. 1990, Ontario Court of Appeal. That is a case where the defendant was found guilty of one count of trafficking, the sale of one half ounce of cocaine for the sum of $750. He received twelve months imprisonment.

That case is helpful, because the accused in that case, the defendant, was a first offender with a history of involvement in community affairs and a supportive family and the sentence fell within the range that was appropriate, according to the Court of Appeal, namely, six months to two years less 1 day.

At paragraph 11, the Court of Appeal said:

I turn now to the appeal against sentence of twelve months. It is conceded that the trial judge correctly considered all of the relevant factors which were applicable to the sentencing of the appellant, including the fact that he was a thirty-three year old first offender and at the time of the trial was employed at St. Joseph's Hospital in Hamilton as a security guard and that, as a result of his conviction, he lost his job. The trial judge was aware as well that he had a history of involvement in community activities, as described in a number of letters filed on sentence and that the appellant had a supportive family with whom he lived.

At paragraph 12:

The court has, on a number of occasions, stated that persons involved in the trafficking of drugs, particularly cocaine, must be dealt with severely. Crown counsel submits that for this type of offence the range of sentence is from six months to two years less a day. In that particular case the Court of Appeal did not interfere with the twelve months sentence.

R. v. Woolcock, [2002] O.J. No. 4927 - another Court of Appeal decision. At paragraph 8 the Court of Appeal said:

There is no disputing that crack cocaine is an extremely dangerous and insidious drug with potential to cause a great deal of harm to individuals and to society. Likewise, possession of crack cocaine for the purpose of trafficking is a serious offence warranting emphasis on the principles of deterrence and denunciation. However, when sentencing an offender convicted of such an offence, it is incumbent on the trial judge to consider all of the principles of sentencing - including the accused's prospects for rehabilitation. Section 718 of the Criminal Code directs a sentencing judge to consider the full panoply of sentencing objectives, including, but not limited to, assisting in the rehabilitation of offenders.

R. v. Bajada, [2003] O.J. No. 721. The Ontario Court of Appeal quoted from the 5th edition of Mr. Clayton Ruby's book, "Sentencing" at paragraph 12 (Sentencing, 5th edition (Toronto: Butterworths, 1999), (I note parenthetically, that nothing has changed in the 8th edition of that same book) where Clayton C. Ruby states under the heading "Cocaine" at pages 865 to 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.

At paragraph 13 in Bajada, the Court of Appeal observed:

It would appear that sentences of five to five and one-half years are not uncommon for a 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.

R. v. Hamilton, [2004] O.J. No. 3252, again Ontario Court of Appeal, at paragraph 100:

In any event, proportionality remains the fundamental principle of sentencing. Section 718.2(e) cannot justify a sentence which depreciates the seriousness of the offence. Where the offence is sufficiently serious, imprisonment will be the only reasonable response regardless of the ethnic or cultural background of the offender.

The Ontario Court of Appeal observed in paragraph 102 that the relevance and relative importance of each of the objectives identified in s. 718 will vary according to the nature of the crime and the circumstances of the offender.

The Court of Appeal continued in paragraphs 103 and 104:

If the offence is particularly serious in that it causes or threatens significant harm to an individual or segment of the community, the objectives of denunciation and general deterrence will usually dominate the other objectives identified in s. 718.

The importation of dangerous drugs like cocaine and others found in Schedule I of the Controlled Drugs and Substances Act, has always been considered among the most serious crimes known to Canadian law. 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.

I recognize that Hamilton addressed importation and the seriousness of importation offences, but the Court of Appeal's observations with respect to the drugs cocaine and crack cocaine, is also helpful.

R. v. Peltier, [2013] O.J. No. 1004, paragraph 15:

[T]he appellant produced crack cocaine, a very dangerous substance. He had a substantial amount for sale to the public. In R. v. Bajada (2003), 169 O.A.C. 226 (Ontario Court of Appeal), at paragraph 13, this Court noted that sentences of five to five and one-half years imprisonment are not uncommon for possession of a substantial amount of cocaine for the purpose of trafficking, following an accused's plea of guilty or where the accused has no criminal record.

In the Peltier case the Court of Appeal in a recent case, upheld a six year sentence.

These cases inform this sentencing proceeding. For approximately the last 15 years the Court of Appeal has consistently provided a strong message with respect to sentences involving cocaine, crack cocaine and the relevant sentencing principles that should be applied.

Relevant Sentencing Principles

I have already briefly addressed section 718 of the Criminal Code of Canada. I have also considered that s. 10(1) of the Controlled Drugs and Substances Act mandates sentencing courts to pursue the fundamental purposes set forth in s. 718 of the Criminal Code of Canada, while keeping in mind the important goal of rehabilitation. I know that I must also acknowledge the harm done to the community as a natural result of the conduct in this case.

The challenge I have is to balance the objectives and aims set out in s. 718 of the Criminal Code and the CDSA with a just sentence that is particularized to this offender. While there can be no quarrel with the proposition that denunciation and deterrence are primary sentencing factors in this case, I must give careful consideration to a fundamental principle known as proportionality.

Proportionality

This defendant has never served a lengthy reformatory or penitentiary sentence before.

I am keeping in mind that he is a youthful adult. Restraint is important and I must ensure that a crushing sentence is not imposed and that there is due regard for the rehabilitation of Mr. Murley. I must consider his prospects for rehabilitation, even though general deterrence is a primary sentencing principle in this case, I must tailor the sentence to address this particular gentleman. I must remember that this is be his first lengthy jail sentence. Finally, I must also balance the seriousness of the offences he has committed, so that a proportionate sentence is the result (see generally R. v. Borde, [2003] O.J. No. 354 (Ontario Court of Appeal); R. v. Priest, [1996] O.J. No. 3369 (Ontario Court of Appeal); R. v. Morrisey, 2000 SCC 39, [2000] S.C.J. No. 39; R. v. M(CA), [1996] S.C.J. No. 28).

Section 718.1 says:

A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

In R. v. Ipeelee, 2012 SCC 13, 2012 S.C.C. 13, at paragraphs 37, 38 and 39 - but I am only going to refer to part of paragraph 37, the Supreme Court of Canada said:

The fundamental principle of sentencing (i.e., proportionality) is intimately tied to the fundamental purpose of sentencing — the maintenance of a just, peaceful and safe society through the imposition of just sanctions. Whatever weight a judge may wish to accord to the various objectives and other principles listed in the Code, the resulting sentence must respect the fundamental principle of proportionality. Proportionality is the sine qua non of a just sanction. First, the principle ensures that a sentence reflects the gravity of the offence. This is closely tied to the objective of denunciation. It promotes justice for victims and ensures public confidence in the justice system.

I found the case of R. v. Borde, 2003 OJ No. 354 Ontario Court of Appeal, cited earlier, but I found that case helpful at paragraph 36 - addressing the fitness of the sentence. The Court of Appeal said:

Aside from the gravity of the appellant's crimes, the overwhelming factor is his youth. In my view, the trial judge erred in principle in focusing almost exclusively on the objectives of denunciation and general deterrence, given the appellant's age and that this was his first adult prison sentence and his first penitentiary sentence. The length of a first penitentiary sentence for a youthful offender should rarely be determined solely by the objectives of denunciation and general deterrence. Where, as here, the offender has not previously been to a penitentiary or served a long adult sentence, the courts ought to proceed on the basis that the shortest possible sentence will achieve the relevant objectives.

The Court went on in that case to observe that it was obvious that a penitentiary sentence was appropriate in that case and the challenges balancing the seriousness of what Mr. Murley has done versus all of the sentencing principles that I have outlined in this proceeding.

Credit for Pre-Trial Custody

There is a binder of Informations in this case, pertaining to the many prosecutions arising out of Project Winapetee. While there is some confusion, frankly, in my mind having regard to the number of Informations and the procedural history, it is clear that, there was no judicial interim release hearing in this case and there was no endorsement pursuant to s. 515(9.1), 524(4) or 524(8) of the Criminal Code of Canada.

I have considered the arguments both for and against granting 1:5 to 1 credit. I have also received considerable assistance from the following cases: R. v. Safarzadeh-Markhali, 2014 ONCA 627, 2014 O.J. No. 4194, Ontario Court of Appeal, R. v. Duhamel, [2013] O.J. No. 93, Superior Court decision, and R. v. Dinardo, 2015 ONSC 1804, a recent decision of Madam Justice Wein.

My overarching objective must be a proportionate sentence. I am prepared to recognize that Mr. Murley has lost eligibility for early release and parole during the time that he has been in pretrial detention. I am prepared to grant him credit of 1.5 days for every day in pre-trial custody (R. v. Summers, [2014] S.C.C. 26).

Sentencing Determination

Mr. Murley, would you please stand for a moment.

The sentencing position advanced by Mr. Murley is, frankly, too low to address the relevant sentencing principles and aggravating factors in this case.

The Federal Crown position in this case is rational, based on a sound foundation, but I find that it does not properly account for the fundamental principle of proportionality as it pertains to this particular case, these facts and this offender.

A transcript of these reasons will be prepared.

There will be a 109 order for 10 years. There will be an order pursuant to s. 743.21. This gentleman will not communicate with the co-accused, Mr. Gwidz.

With respect to count one, having regard to all of the factors that I have considered, the appropriate sentence is one of 36 months or three years. With respect to count one, Mr. Murley will receive pre-trial credit for 622 actual days. At 1.5 to 1, 622 days is 933 days, leaving a sentence remaining on count one of 162 further days in custody. This sentence will be concurrent with respect to count two for the reasons that I have already outlined.

With respect to count three, I will sentence him to one year consecutive to the sentence accorded to count one and count two, having regard to the totality of the sentence and proportionality.

That is the sentence of this Court.

Post-Sentencing Clarifications

MS. OTTER: Two questions, Your Honour. The 109 order, presumably ordered for....

THE COURT: Ten years.

MS. OTTER: Ten years, yes, thank you. And then Your Honour didn't say expressly...

THE COURT: You may be seated.

MS. OTTER: ...sorry, and Your Honour didn't say expressly, but I didn't do that math on Your Honour's calculations, but I assume that that pre-trial custody, subtracted from it the 30 days of credit and one day sentence he received for the fail to comply conviction....

THE COURT: It did.

MS. OTTER: Very good. Thank you, Your Honour.

THE COURT: It did, I followed your chart. I added additional...

MS. OTTER: Perfect.

THE COURT: ...days given our last attendance in court.

MS. OTTER: Absolutely, thank you.

THE COURT: Thank you very much. Good luck to you, Mr. Murley. Oh, Ms. Pennypacker....

MS. PENNYPACKER: I actually have a question myself.

THE COURT: Yes.

MS. PENNYPACKER: And this probably is as much for the benefit of Mr. Murley as it is for me. The sentence on count three is to be one year consecutive...

THE COURT: Yes.

MS. PENNYPACKER: ...to the sentence of count one and two.

THE COURT: Yes.

MS. PENNYPACKER: So there is a remaining 162 days and on top of that 162, a further year.

THE COURT: Yes.

MS. PENNYPACKER: Okay, just so that I understand, thank you.

THE COURT: Thank you very much.

Certificate of Transcript

FORM 2

CERTIFICATE OF TRANSCRIPT (SUBSECTION 5(2))

Evidence Act

I, Yvette Fiala, certify that this document is a true and accurate transcript of the recording of R. v. Murley, in the Ontario Court of Justice held at 150 Bond Street East, Oshawa, Ontario L1G 0A2, taken from Recording No. 2811-101-20150327-091519_10_FELIXMA.dcr, which has been certified in Form 1.

PLEASE NOTE:

Photocopies of this transcript are not certified and have not been paid for unless they bear the original signature in BLUE INK and, accordingly, are in direct violation of Ontario Regulation 587/91, Court of Justice Act, January 1, 1990.

Please contact the Courts Administration Office to obtain further copies from the reporter listed above. Thank you.

May 18, 2015

(Signature of Authorized Person)

Transcript Ordered: March 27, 2014
Transcript Completed: May 18, 2014
Ordering Party Notified: May 18, 2015