Court File and Parties

Court File No.: 14-11940 and 15-13360 County of Middlesex Date: 2016-06-23 Ontario Court of Justice

Between: Her Majesty the Queen — and — Darren Falconer

Before: Justice Wayne G. Rabley Heard: June 23rd, 2016

Counsel:

• B. Eberhard and P. Rollings, for the Crown
• R. Sheppard, for the accused

RABLEY J.:

BACKGROUND

His nickname is "Dag" and he has now been before the Criminal Justice system for 26 years. During that time, he has amassed a significant record for a number of offences including Break and Enter, Sexual Assault With a Weapon, Uttering Threats, Possession of Stolen Property, Breaches of Court Orders and Trafficking in Controlled Substances.

Darren Falconer is now before me to be sentenced on two charges of Possession for the Purpose of Trafficking and Fraud. His story is a sad tale to tell.

Mr. Falconer is now 44 years of age. He has been involved in a common law relationship for 26 years and is the father of 3 children aged 24, 14 and 13.

A Pre-sentence Report was prepared by Probation for the purposes of this sentencing and the author of the report fairly summarized Mr. Falconer's personal circumstances as follows:

"The subject was raised in a dysfunctional environment where he frequently witnessed domestic violence and alcohol abuse. He claims to have shared a turbulent relationship with his parents who struggled with mental health concerns, alcohol abuse and demonstrated violent behaviours within the familial home. He reported to have experienced a lack of familial support and parental supervision which negatively impacted his choice in peers and participation in school. His parents have since passed and he maintains minimal contact with his sister. The subject has maintained a turbulent relationship for approximately twenty six years with his common-law partner. File information suggests the relationship has been riddled with violence, instability and substance abuse. It appears as though the subject maintains very few positive familial supports.

It appears as though the subject has maintained a poor choice in regards to his peer group. He acknowledges that he began to associate with a negative peer group as a youth who exposed him to the drug subculture. He acknowledges a history of trafficking for financial gain and to support his substance abuse. File information suggests that the subject has been known to affiliate with those who profit through the proceeds of crime. The subject declined to comment as he did not wish to provide any information regarding his affiliation with organized crime. The subject reported he does not feel he has any positive pre-social and emotionally supportive peer groups at this time."

DRUG TREATMENT COURT

Mr. Falconer applied for and was accepted into the London Drug Treatment Court on February 10th, 2015. In that program, he made remarkable progress. His substance abuse counsellor was of the view that Mr. Falconer "demonstrated a strong effort to engage within the program". His bail supervisor agreed with this assessment and described Mr. Falconer as "punctual and a peer leader as he was engaged within the programs offered through the agency and Addiction Services of Thames Valley."

Throughout his 10 month participation in the program, Mr. Falconer attended 50 sessions with his substance abuse counsellor, 10 weeks of relapse prevention, 6 weeks of the Supportive Information Sessions offered by Addiction Services of Thames Valley, weekly criminogenic groups, weekly bail appointments and had almost completed a men's abstinence based group.

Mr. Falconer appeared before me on a weekly basis throughout his time in the Drug Treatment Court and appeared to be nearing the point in time where he would graduate. Everyone was very proud of him.

As part of the Drug Treatment Court an individual appears before a Judge on a weekly basis. Each week the Judge in that Court will ask the individual whether or not he has used drugs during the preceding week. Individuals like Mr. Falconer were also asked questions regarding "high risk" situations and about the significant changes in his life. He played the role well in convincing the DTC team and many including myself that he was a changed man. Tragically, as it turned out, he was living a lie.

The basis of every Drug Treatment Court in North America is honesty. Without honesty, no offender can succeed in a rehabilitative program where it is essential to look one's devil in the eye and confront them. The London Drug Treatment Court is no different. Honesty is the key component to the program and a lack of honesty is sanctioned more significantly than any other misbehavior other than the commission of further criminal offences.

In this case, Mr. Falconer lied on more than one occasion. Urine Drug Screens or UDSs are an essential part of a DTC. Early in the program, Mr. Falconer claimed to be drug free only to be caught with THC in his system by a UDS. At that point, he confessed to his misadventure with the truth and was sanctioned to jail. I would have liked to have thought that the period of incarceration was a meaningful reminder or 'wake up call' to Mr. Falconer as to how quickly the system of justice can react to those who try to fool it. Sadly, that message was missed in this case.

FACTS

Mr. Falconer was originally before the Court on charges of Possession for the Purpose of Trafficking in Methamphetamine and Fraud.

The first CDSA charge arose on August 21st, 2014 after police observed Mr. Falconer involved in what they believed to be a series of hand to hand drug transactions. They arrested Mr. Falconer. Police investigation revealed that Mr. Falconer was in possession of 14 grams of methamphetamine, 17 grams of marijuana, 100 dime bags, scales and $3,465 in cash.

The second CDSA charge arose on December 9th, 2015 after the police obtained information that Mr. Falconer was again trafficking in drugs. They set up surveillance on him. Once again the police made observations that were consistent with hand to hand drug transactions. They obtained a warrant and arrested Mr. Falconer. On his person was 2 grams of crystal meth and at his residence was found a further 28 grams in addition to unused drug packaging, a digital scale and $1,405 in Canadian currency.

The Fraud matter occurred on November 9th, 2014 when Mr. Falconer attended at a Cash Money store and secured $1,500 after processing a loan with fraudulent documentation.

Mr. Falconer has been in custody since his arrest on December 9th, 2015.

THE RECORD FOR DRUG TRAFFICKING

According to the Pre-Sentence Report, Mr. Falconer became involved with marijuana by the age of 9 and was introduced to the concept of trafficking by the ages of 11 or 12. Mr. Falconer was then introduced to more serious drugs such as cocaine, heroin, speed, methamphetamines and acid by his mid to late teens.

By the age of 17 Mr. Falconer was abusing substances intravenously and was doing so on a daily basis. Detox and residential treatment centres did little to slow down the devastation that was occurring not only to Mr. Falconer and his family, but also to the community that was hosting his criminal behavior as his thirst to obtain money to pay for the drugs continued to grow.

Jail sentences also did little to deter Mr. Falconer who also became a dealer in drugs in order to get money for his continuing addiction.

• In 1992 Mr. Falconer received 45 days consecutive on 2 counts of Trafficking in a Narcotic;
• In 1993 he received a fine for a Simple Possession of a Narcotic;
• In 2007 Mr. Falconer received 20 months incarceration for 2 counts of Possession for the Purpose of Trafficking;
• In 2012 he received 30 days for Possession of a Controlled Substance and another 6 months for Possession for the Purpose of Trafficking;
• In 2014 Mr. Falconer received 30 days for another charge of Possession of a Controlled Substance.

Finally, on February 10th, 2015 when Mr. Falconer entered into the Drug Treatment Court he was placed on probation for 2 years pursuant to a Suspended Sentence for a Possession charge to give him access to the services that Probation has to offer and to provide further supervision for him while he was in the program.

CRYSTAL METH

The charges before the Court are serious. Crystal Meth is destroying the fabric of our communities. Unfortunately, the television series "Breaking Bad" gave some the sense that the use of crystal meth was not really 'all that bad.' Nothing could be farther from the truth. This dangerous drug is creating havoc in communities throughout North America.

In the Community Impact Statement that was presented to Parliament in 2006, are found the following comments, which in my view, are really understatements of the present situation:

• Significant adverse effects also come with methamphetamine use. These can include minor physical effects, or more severe effects including seizures, convulsions, extreme anxiety, repetitive compulsive behaviours, hallucinations, paranoia, violence, psychosis, cognitive impairment, and changes to brain chemistry and structure. In extreme cases methamphetamine can cause death.

• Withdrawal from methamphetamine results in mood disturbances and violence is easily provoked.

• There are no medications available to assist with methamphetamine withdrawal. Treatment for addiction is challenging.

Parliament has responded to the crisis by moving methamphetamine to Schedule I from Schedule III "to increase the penalties associated with methamphetamine offences and bring them in line with the harms caused by methamphetamine production, trafficking and use."

Parliament went on to outline its further concerns as follows:

"The health risk of methamphetamine use is substantial in itself; however, methamphetamine affects more than just the health and safety of the user. Methamphetamine production presents a high level of risk to communities and creates a toxic environment where people live."

The Community of London has done its best to combat this latest evil. Recently, a special clinic has been opened to deal with Crystal Meth addicts. The need to allocate significant resources to deal with this problem is obvious.

As part of its sentencing materials, the Crown filed two articles written in the London Free Press dealing directly with crystal meth. The first is entitled "Emergencies soar as crystal meth's use in London becomes rampant". The article underlines the huge cost in resources that crystal meth is having on the emergency care service providers in the city. It reported in May of 2015 as follows:

"Drug overdose calls to 911 in London are skyrocketing, with paramedics responding to more than three times the calls they fielded only two years ago.

Since January this year, paramedics have dealt with 251 drug overdoses – that's an average of more than two a day, and more than triple the number of calls during the same period in 2013.

"Saddened" by the dramatic spike, the region's medical officer of health says that numbers prove London agencies need to start working differently and together to support addicts.

"Drug use is a symptom. It's not the cause here," Dr. Chris Mackie said. "The cause is we have people who have no hope, no jobs and no opportunities."

Police say crystal meth – the drug that runs through the TV series Breaking Bad – is becoming rampant in London and wreaking havoc with addicts"

This article was followed a short time later by another where the Free Press interviewed the executive director of the Centre of Hope which provides short term housing for homeless individuals. The article speaks for itself and effectively makes the point as follows:

"Explosive growth in the use of the street drug crystal methamphetamine is causing havoc in London, with those who work with addicts saying the city isn't equipped to deal with the fallout.

Easily produced, cheap to buy and easy to find, the drug has become such a problem that street outreach workers, police and public-health providers all say a higher-level community response is needed.

Just three years ago, only 3% of the people seeking help from the only drug-withdrawal management centre in the city were fighting the demons of the crystalline drug that sells for about $10 a hit on the street.

Now, nearly 40% turning up for that help, at the Salvation Army's Centre of Hope, are on crystal meth.

The impact is straining the ability of London shelters and treatment centres to help, said Nancy Powers, executive director of the Centre of Hope. What's needed, she says, is a more co-ordinated approach."

It is clear that Criminal Courts need to take a strong position when sentencing those who are involved in the sale of this drug and that a community strategy needs to be adopted to deal with unfortunate souls in the throes of their addiction to this drug.

Drug Treatment Courts are now being considered in many jurisdictions as a way of dealing with the problems that significant addiction poses. It is clear to those who deal with these addicts on a regular basis that intensive therapy and counselling is needed and that the 'traditional justice model' simply will not work when dealing with these individuals.

Unfortunately, for the City of London, notwithstanding significant success over the course of 6 years, the Drug Treatment Program in this jurisdiction is being shut down. Sadly, we live in a time where Crown resources are scarce and the need to focus on enforcement is understandably a priority. I am told that it is the hope of our Crowns that 'short term' programs for those promising to change can somehow impact on the serious challenges that Meth addicts, among others, present. I am not sure I will ever understand this thinking, which some may say is perhaps 'short term' given the havoc that this drug is causing in our community, but that debate is for another day.

RANGE OF SENTENCE

I have had the benefit of reviewing a number of cases that were provided to me by the Crown.

Of particular interest to me was the thorough analysis done by my colleague Justice Hornblower in R. v. Dylan Brown, 2014 ONCJ 179. For ease of reference, I am going to simply rely upon His Honour's summary of those cases before him as they are now before me also. I do not see the value of simply repeating his words in the context of this decision. If anyone wishes to reference them, they are found on page 3 of his Judgment.

After his excellent review of the law, Justice Hornblower reviewed the aggravating and mitigating factors in the Brown case. His Honour then sentenced the accused to 2 1/2 years in the federal penitentiary.

THE APPROPRIATE SENTENCE IN THIS CASE

Sentencing is always a challenging exercise for any Justice when trying to balance the needs of the individual and the concerns of the community.

It is always helpful in such cases to go back to first principles and section 718 of the Criminal Code provides guidance as follows:

718. The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.

In this case, there are a number of mitigating factors. I would list them as follows:

1. There was a plea of guilty to the charges and a genuine show of remorse by Mr. Falconer;

2. This man came from an abusive and difficult family background where he was introduced to drugs by family members at a very early age;

3. He has a family including a spouse of many years and 3 children;

4. He participated in the Drug Treatment Program and made significant progress;

5. He was placed on significant bail conditions including a 7 p.m. curfew while in the Drug Treatment Court.

There are also a number of very aggravating factors. I would list them as follows:

1. Mr. Falconer has a lengthy and serious criminal record which includes a number of Trafficking entries including a 20 month sentence;

2. He was on bail when he committed the most serious of these offences;

3. Mr. Falconer was involved with a very serious drug which has had a serious impact on our society;

4. According to the Pre-Sentence Report, Mr. Falconer "acknowledges a history of trafficking for financial gain and to support substance abuse".

In this case, I am of the view that denunciation and deterrence are the paramount factors when sentencing Mr. Falconer. It is never lost upon me that I am dealing with the life of another human being. In this case, a likeable man, a man who has a number of positive qualities and a man who could contribute to the community in a meaningful way should he decide to do so.

Unfortunately, I must also address society's need to send a clear message to Mr. Falconer and those who might follow his path, that those who would deal in this drug will receive little leniency when it is time for their sentencing.

In this particular case, both counsel have alluded to a very aggravating feature. Unlike others who would deal in drugs to satisfy their own addiction, Mr. Falconer was not as it is called a "user/dealer" at the time of his second drug offence. The sale of drugs on that occasion could only be for one purpose and that was personal gain.

We know this because up until the time of his arrest Mr. Falconer was being tested for drugs on a weekly basis in the Drug Treatment Court and his UDSs showed that he was clean for a number of months.

Therefore, having had the benefit of all of the resources that were made available to him regarding drug addiction, having little or no drugs in his system so that he was thinking clearly, knowing from his own personal circumstances the serious harm that would be done by the sale of methamphetamine, Mr. Falconer chose to be involved in the distribution of a substantial quantity of this insidious drug.

Economic gain was clearly the motivating factor. Those who would profit from the misery of others in cases like this must pay a price. In this case, the price will be a steep one.

CONCLUSION

Counsel for Mr. Falconer has fairly set out the various factors for me to consider. He submits that a sentence of 2 years less a day in addition to time served would meet the ends of justice.

The Crown submits that the appropriate range of sentence for each of the Possession for the Purpose of Trafficking charges is 2 to 3 years and that the sentences should be consecutive one to the other. I agree.

In my view, having regard to the principles set out in section 718 of the Criminal Code and having weighed the mitigating and aggravating factors, that I ought to sentence Mr. Falconer to 2 years on the first charge of P for the P to reflect a step up from his previous 20 month sentence and that he should receive a sentence of 3 years consecutive on the second P for the P to reflect the significant aggravating factors in that case.

Even if I take into account the principle of totality, I believe that a 5 year sentence is necessary to adequately reflect the circumstances of this case and the need to address denunciation and deterrence.

However, I am mindful of the fact that the Federal Crown has capped its submission at 4 years and that Mr. Falconer would have been privy to that information before he entered his plea of guilty today. Our Court of Appeal has instructed us at the OCJ level that such caps should be given significant weight unless they are manifestly unfit. The sentence proposed by the Crown is certainly within the appropriate range and I can understand the logic in formulating the position that is advocated before me.

Therefore, the sentence on the CDSA matters will be one of 4 years in the federal penitentiary. With respect to the fraud charge, the sentence will be one of 2 months consecutive.

I am told that Mr. Falconer has served 197 days of pre-trial custody leading up to today's date. I am prepared to allow him credit on a one and a half to one basis which equates to 296 days or the equivalent of 10 months. In addition, I am prepared to give Mr. Falconer credit in the amount of 2 months for the onerous bail conditions that he followed while in the Drug Treatment Court. During that period of time he had a 7 p.m. curfew and was incarcerated during segments of the program as part of a sanction program that was followed by the Court. In fairness, he should be given credit for these circumstances and I will credit him with the equivalent of 2 months towards his sentence.

Therefore, the sentence will be as follows:

1. On the August 21st, 2014 P for the P – 18 months minus 10 months of enhanced credit on the basis of 197 days equating 296 or 10 months leaving a remaining sentence of 8 months;

2. On the December 9th, 2015 P for the P – 30 months consecutive;

3. On the Fraud charge 1 day concurrent taking into account a 2 month sentence reduced by 2 months of credit for bail conditions in accordance with R. v. Downes (2006), 205 C.C.C. (3d) 488.

For clarity, the remaining sentence will be one of 38 months in jail in addition to time served.

I will make an order pursuant to s. 109 for life.

Mr. Falconer will provide a sample of his DNA relative to the CDSA matters. It is my opinion that the community interests outweigh his privacy interests in this situation.

Mr. Falconer will also pay victim surcharges of $200 per count on the CDSA matters and $100 on the Fraud charge and I will grant him an extension to pay those surcharges for a period of 4 years.

Thank you counsel for your hard work and for your thoughtful submissions. I very much appreciated your assistance in this matter.

Released: June 23rd, 2016

Justice Wayne Rabley