Court Information

Ontario Court of Justice

Date: 8 June, 2017

Court File No.: 16-5643

Parties

Between:

Her Majesty the Queen

— and —

Cody J. Gerrard

Before the Court

Justice: Robert Wadden

Heard: January 25 & June 6, 2017

Reasons for Sentence: June 8, 2017

Counsel

For the Crown: Colleen Liggett, PPSC

For the Defendant: Deanna Paolucci

Decision

WADDEN J.:

Facts and Charges

[1] Cody Gerrard pleaded guilty to three counts of Possession for the Purpose of Trafficking of Schedule I substances, contrary to s. 5(2) of the Controlled Drugs and Substances Act (CDSA). The charges arose from an investigation that began in September 2016 when the Ottawa Police, acting on confidential information, placed Mr. Gerrard's residence under surveillance and on numerous occasions observed visits that gave them grounds to obtain a CDSA search warrant. When the police executed the warrant on October 27, 2016 they found Mr. Gerrard, his common law wife and four of their children in the home. Mr. Gerrard was located in the basement attempting to dispose of illegal drugs. During the search the police seized 26.6 grams of cocaine, 384.9 grams of cannabis marijuana, 274 pills of methamphetamine, 10.8 grams of MDMA, five pills of oxycodone and four pills of oxycontin. They also found digital scales, drug packaging materials, five cell phones and a functional 12-gauge shotgun with two boxes of ammunition in a safe.

Sentencing Submissions

[2] Counsel for Mr. Gerrard seeks a sentence of 90 days jail, to be served intermittently, to allow him to keep his employment and continue to support his family. The Crown takes the position that this is below the appropriate range for these offences and seeks a sentence in the range of 15-18 months, with ancillary orders for DNA, a firearms prohibition and a forfeiture of seized property.

Background and Personal Circumstances

[3] Mr. Gerrard is a 26 year-old with no criminal record. He is employed full time and is the sole provider for his common law wife and their seven children. A Pre-Sentence Report (PSR) was prepared and it details his upbringing and his current family situation. Mr. Gerrard is a high-school graduate from a stable family background. He currently lives with his parents, who remain supportive of him. Since graduating high school he has worked steadily in various jobs – butcher, apprentice mechanic, insulation installation and on oil rigs in Western Canada. Since March of this year he has been employed full time in the roofing trade. His employer speaks highly of him and intends to keep him employed, or re-hire him if necessary. Mr. Gerrard has filed numerous letters indicating support in the community and attesting to his work history and contributions through volunteering.

[4] According to the PSR, and Mr. Gerrard's statements in court, the offences were committed for the purpose of financial gain. The author of the PSR was of the view that Mr. Gerrard did not have insight into the seriousness of the offences, not realizing the danger to which he exposed his family or the impact of drug use on potential victims. In a statement he made in court, Mr. Gerrard said he now realized the impact of his crimes.

Range and Principles of Sentence

[5] The maximum penalty for these offences is imprisonment for life. There is no minimum penalty. A conditional sentence is not available, according to s. 742.1(c) of the Criminal Code. The leading authority from the Ontario Court of Appeal, R. v. Woolcock, [2002] O.J. 4927, suggests that the appropriate sentence for possession for the amount of cocaine involved in this case is jail in the range of six months to two years less a day.

[6] The principles of sentencing set out in ss. 718 and 718.2 of the Code include denunciation of unlawful conduct, deterrence of the offender and others from committing offences, assisting in rehabilitating offenders and promoting a sense of responsibility in offenders. The Court should impose sentences similar to those imposed on similar offenders for similar offences committed in similar circumstances. Sentences for multiple offences, if consecutive, should not be unduly long or harsh.

[7] In R. v. Woolcock the Court noted that possession of cocaine for the purpose of trafficking is a serious offence which, in the context of all the sentencing factors, warrants an emphasis on denunciation and deterrence. Although the Court was writing about possession of crack cocaine, it is clear from decisions such as R. v. Speziale, 2011 ONCA 580 and R. v. Ahmed, 2016 ONCA 831, that the principles, and the recommended sentencing range, apply equally to powder cocaine.

Comparative Case Law

[8] The facts in R. v. Speziale bear some similarity to those in Mr. Gerrard's case, although the amount of drugs seized was much less. Mr. Speziale's premises were searched and he was found in possession of 14.87 grams of cocaine and six and a half tablets of MDMA (ecstasy). A gun and ammunition were found in a safe in Mr. Speziale's apartment. Mr. Speziale was 29 years old and had a criminal record, including CDSA convictions. The Court held the appropriate sentence was 14 months.

[9] In R. v. Ahmed, 2016 ONCA 831, the Court upheld a sentence of two years for conspiracy to traffic in 28 grams of cocaine (an amount similar to that seized from Mr. Gerrard). The aggravating factors in that case included Mr. Ahmed's criminal record, including prior CDSA convictions for possession of cocaine for the purpose of trafficking and simple possession, and his links to a biker gang.

[10] Sentences imposed on offenders with no criminal record cover a wide range. In R. v. Giroux, 2010 OAC 50 the Court upheld a sentence of 12 months for trafficking in two ounces of cocaine (about twice the amount seized from Mr. Gerrard). Mr. Giroux had no criminal record, although the Court found it aggravating that he was immersed in the drug and smuggling culture and was motivated by greed.

[11] In R. v. Williams, 2010 ONSC 3904, Hill J. conducted a thorough review of the sentencing authorities for cocaine trafficking and imposed a sentence of 9 months jail, on an offender with no criminal record, for trafficking in 5.5 grams of crack cocaine.

[12] In R. v. Carelse-Brown, 2013 ONSC 7042, Goldstein J. imposed a sentence of 21 months jail on a 24 year-old with no criminal record who was in possession of 25.3 grams of crack cocaine. (The conviction in that case was upheld by the Ontario Court of Appeal, reported at 2016 ONCA 943. The sentence was apparently not appealed.)

[13] A sentence in the range suggested by Mr. Gerrard's counsel was imposed in R. v. Manoharan, 2017 ONSC 480, in which Garton J. sentenced the offender to 90 days intermittent for trafficking in 2.8 grams of crack cocaine, concurrent to 18 months conditional jail for simple possession of 3.12 grams of crack. The sentence took into account the finding of the trial judge that Ms. Manoharan's Charter rights had been breached, and although the evidence had not been excluded a reduction in sentence was an appropriate remedy. The decision is distinguishable from Mr. Gerrard's case in that in his case there is no basis for mitigation for Charter reasons, the amount of cocaine and other drugs is much greater and none of the offences for which he has been convicted are eligible for a conditional sentence.

Aggravating and Mitigating Factors

[14] In order to determine the appropriate sentence for Mr. Gerrard it is necessary to identify the aggravating and mitigating factors that apply in his case.

Aggravating Factors

[15] The most aggravating factor is the amount and variety of drugs. The Crown has characterized his home at the time of seizure as a virtual pharmacy of street drugs. It is more accurate to simply say this was a commercial drug enterprise being conducted by Mr. Gerrard. Numerous visits to his home were observed while it was under surveillance. Twenty-six grams is a substantial amount of cocaine. In the circumstances in which it was seized, in conjunction with hundreds of pills and a quantity of cannabis, scales, packing material and five cell phones, it is clear that Mr. Gerrard was in possession of the drugs as part of planned and ongoing drug trafficking activity. As he acknowledged in the PSR, he was not an addict, or even a user of the drugs seized. He was trafficking in hard drugs, on his own admission, to make money.

[16] It is aggravating that a shotgun and ammunition were found in the home. The gun was registered and properly secured, and Mr. Gerrard was licenced to possess it. However, there is no indication that Mr. Gerrard is a hunter or sport shooter, or has any recreational use for the gun. On the other hand, it is well known that drugs and violence are closely related, and a gun is a tool of the trade for a drug dealer. Its mere presence in this environment is alarming.

[17] Another aggravating factor is the presence of young children in the home. Mr. Gerrard and his partner have seven children under the age of seven. Four of the children were at home when the police arrived, and two others arrived during the search. Mr. Gerrard conducted his drug business from the family home. That he chose to traffic drugs where his children lived is very concerning. He exposed his children to an environment where illegal, and potentially deadly, drugs were present, where drug users were regularly coming and going and where the ever-present potential of violence associated with the trade existed. This thoughtless endangerment of his young family takes some of the sheen off Mr. Gerrard's outward appearance as a loving and caring father.

Mitigating Factors

[18] There are mitigating factors in Mr. Gerrard's favour. Mr. Gerrard has no criminal record. He deserves credit for his plea of guilty at an early opportunity. His admission of guilt is an acknowledgement of wrongdoing and a sign of remorse. Given the comments in the PSR, only time will tell how deep his insight and level of remorse are.

[19] Mr. Gerrard is a young man with good prospects for rehabilitation. He is employed full-time and is a highly-regarded and valuable employee. He appears before the Court as a changed man – he has renounced his criminal lifestyle, moved away from his negative influences and dedicated himself to his family and his community. In addition to his work he is actively involved as a volunteer. He has supportive parents and a stable relationship with his partner. He is described as a loving and involved father. He is the sole provider for the family and his partner depends on his income and on his assistance to raise the children.

Sentencing Decision

[20] If it were not for the mitigating factors, Mr. Gerrard could well be facing a sentence in the maximum reformatory range. The quantity of cocaine seized from Mr. Gerrard is similar to that found in R. v. Carelse-Brown, in which 21 months jail was imposed on a young first offender. The presence of the other drugs, the firearms and the children in the home are aggravating factors that make Mr. Gerrard's case more serious and would warrant an even higher sentence. However, Mr. Gerrard presents with more stable personal circumstances than Mr. Carelse-Brown, with a better employment history and prospects for the future. His potential for rehabilitation is high and his sentence should be mitigated so as not to stifle his prospects for resuming a productive life as a contributing member of society. At the same time, the seriousness of his crimes and the surrounding circumstances demand a significant jail sentence that properly addresses the principles of denunciation and deterrence. The sentence must be significant enough to bring home to Mr. Gerrard, and to the community, the seriousness of this crime.

[21] Mr. Gerrard will be sentenced to 18 months jail on the offence of Possession of Cocaine for the Purpose of Trafficking. The sentence will be 18 months concurrent on the remaining two counts of Possession for the Purpose of Trafficking of methamphetamine and oxycodone.

[22] There will be an order that a sample of DNA be taken for the DNA Databank. Mr. Gerrard will be prohibited from the possession of firearms, ammunition or weapons set out in s. 109 of the Code, for ten years. There will be a forfeiture order for the shotgun, ammunition, cell phones, scales, packing material and other seized items.

Released: June 8, 2017

Original Signed by Justice Robert Wadden