Court File and Parties

Court File No.: St. Catharines Date: 2018-03-23 Ontario Court of Justice

Between: Her Majesty the Queen — and — Dwight Clunis

Before: Justice Fergus O'Donnell

Reasons for Sentence Delivered: 23 March, 2018

Counsel:

• Mr. D. Anger for the Crown
• Mr. V. Singh & Mr. J. Nadeau for the defendant, Dwight Clunis

Reasons for Sentence

Fergus O'Donnell, J.:

Overview

[1] Mr. Clunis: sentencing is the most complicated thing a judge has to do.

[2] In deciding the appropriate sentence for you I have to look at a list of factors set out in the Criminal Code. The sentence I impose has to deter you from committing offences in the future. It also has to deter other people in society who think selling drugs is a good way to make money, to persuade them that it's not worth the risk. It has to send a very clear message that selling hard drugs is completely unacceptable. At the same time, a sentence has to give real consideration to rehabilitation, the idea that just about every offender, whatever sentence he or she receives, is going to come back into society. And the sentence imposed should try to ensure that the person re-integrates into society well. The sentence has to consider the need for you to pay society back for your crime, because, as I'll discuss later, that crime causes very real damage to society. The community you chose to come to in order to sell cocaine has a massive problem with addiction. Unfortunately, this community is not alone in that.

[3] Those are just some of the main factors I have to consider according to the Criminal Code. The Code also sets out some tools that I can use to accomplish those goals. In general terms, starting at the high end, those tools include jail sentences. The maximum jail sentence for trafficking in cocaine is life imprisonment, so that gives you an idea how seriously it is viewed. A life sentence for drug trafficking is basically unheard of in this country recently, but sentences of many, many years in the penitentiary are pretty common for serious drug offences. Depending on the length of the jail sentence, if it's 90 days or less, it might be served on weekends. Further down from jail is the idea of a conditional sentence, which is jail served in the community through house arrest. The law says that a conditional sentence is not an option for your possession for the purpose offence. Other sentencing options include probation, community service and the like. Ultimately, to accomplish the various goals of sentencing, a combination of sentencing tools may be appropriate.

[4] I have to consider the sentencing decisions from other cases, especially the guidance from the Court of Appeal. I have a lot of discretion about what sentence to impose in any particular case, but I have to pay close attention to the general guidance of the Court of Appeal. The Court of Appeal in this province has made it clear that a significant jail sentence should be imposed for trafficking in significant amounts of cocaine. The amount of cocaine you and Mr. King had in your possession for trafficking was significant.

[5] Five and a half ounces is a lot of crack.

[6] I also have to consider a concept called parity. Parity means that the sentence I impose on you has to be rationally connected to the sentence I imposed on Mr. King. It doesn't have to be the same, but it has to be calculated by taking into account what similarities there are in each of your situations and what differences there are. In this case there are obviously some significant similarities and some differences. Obviously, you were both involved in the operation, but I'm not satisfied that the evidence shows that you were involved in the same way. Your involvement, for example, only came to light the day you were arrested. Mr. King was on the police's radar much earlier on. Mr. King was charged with, and ultimately pleaded guilty to another serious cocaine offence, although for a smaller amount. Mr. King had a criminal record, but not particularly serious.

[7] He was on bail at the time of this offence; you were not. He was a user of cocaine at the time; the pre-sentence report says your substance use is limited to occasional use of alcohol and marijuana. Mr. King received an effective sentence of 24½ months on the two drug charges plus 2½ years on probation and 160 hours of community service. His breach of bail charges were not included in that sentence; he got an extra thirty days in jail for those.

[8] There are similarities between you in terms of your age and in your backgrounds and in having suffered some sort of significant set-back, he was the victim of a shooting and you were the victim of a stabbing.

[9] In deciding the appropriate sentence I have to consider the offence and the offender, you.

[10] The offence here is serious. Trafficking in cocaine is very harmful to society. I want you to think about this example.

[11] What if you were walking along the street and you came upon an elderly person who had fallen and hurt herself. Would you hit her? Would you steal her purse? I don't think you would. I don't think you would because you know it's wrong to take advantage of people who are weak, people who are vulnerable. But that is exactly what you do when you sell addictive drugs. Addiction is a sickness. Drug addicts are weakened by their addiction, they are vulnerable, they are not able to protect themselves because the addiction makes them crave what you have to sell. When you sell them drugs, you prey on that weakness the same way you would if you stole the purse of the old lady who couldn't protect herself.

[12] Selling drugs also causes indirect harm to society.

[13] Although it may seem illogical at first glance, the Court of Appeal has made it clear that drug distribution offences are violent offences, but the Court of Appeal is right: while the act of trafficking may not be violent itself, its consequences often are.

[14] Drug addicts typically can't afford to pay for their drugs from legitimate sources so they commit crimes to get the money to buy drugs. They break into people's houses and cars. They rob people on the street or in shops or pharmacies. They may sell their bodies and engage in high-risk behaviour just to get money to feed their habit. People get hurt.

[15] Drug dealers may be the target of violence themselves given the value of their product and the cash they deal in. As a result they may feel the need to arm themselves. All of this creates a society that is less safe and one that creates danger not just for addicts, users and dealers but also for people who have nothing to do with the use of drugs. One day those innocent victims could easily be your mum or your sisters. People get hurt.

[16] And everyone who sells drugs bears part of the responsibility for all of that. Ultimately, you have to decide if you want to be that kind of person. You have to decide if that is the kind of person your mother raised you to be. I know it is not.

[17] I have to consider the person who committed the offence. Every sentence is determined with a very large focus on the particular offender. In this case you are young. You are a first offender. The Criminal Code says that imprisonment should only be used when necessary and only to the extent necessary, which is particularly true for young, first offenders. This, however, is only one factor in the sentencing analysis because the Court of Appeal has also made it clear that significant jail sentences are called for in relation to certain types of offences, including trafficking in hard drugs like crack cocaine.

[18] I have to consider your pre-sentence report, as well as the letters that were filed on sentence. I would call it a mostly favourable report. It shows that you had a good and supportive upbringing, unlike many offenders, and despite the absence of a father figure until recently. It is unfortunate that you felt you had to leave school, but you may have had a good reason for that. You have kept yourself involved with employment. As I said earlier, you share with Mr. King the unfortunate reality of having been the victim of a violent offence. Your reaction to the present offence ranges from frustration with being unable to move on with your life to what appears to be a decision to live a more grounded life, one that is less focused on material gain.

[19] Like Mr. King you had a trial. You don't get punished for that in the sense of having your sentence increased, but you don't get the discount on sentence that people who have pleaded guilty get.

[20] The Crown and defence are very far apart on the appropriate sentence for you. Mr. Anger, for the federal Crown, says the sentence should be a sentence of two-and-a-half years. Imposing a sentence of that length for this amount of crack cocaine would not be outrageous. There are cases from the Court of Appeal that support his position.

[21] Mr. Singh asks me to think outside the box and be creative. He points to the fact that there are two offences here, one of which is the possession of crack for the purpose of trafficking and the other of which is possession of proceeds of crime. He recognizes that I cannot give you a conditional sentence, a sentence of imprisonment to be served at home, on the crack offence because that is not allowed under the Criminal Code, but he suggests that I give you an intermittent sentence of ninety days on the drugs, a sentence served on weekends, plus a conditional sentence of house arrest on the proceeds of crime charge. He says that the distinctions between you and Mr. King are so great that you not only deserve a sentence half as long as Mr. King but that you should not serve any of that sentence in real jail other than about a dozen weekends.

[22] In making that submission, Mr. Singh places great emphasis on a decision by one of my colleagues in Toronto, in a case called McGill. He also points to a case called Voong in British Columbia. Those are both cases in which sentences other than real jail were imposed for trafficking in hard drugs, based on the existence of "exceptional circumstances". I have taken those cases into consideration and note, first, that the circumstances in McGill have virtually nothing in common with the present case. I also note that, when it comes to sentencing for drug offences, the sentencing approach in British Columbia has for a very long time been very different from the sentencing approach in Ontario. The guidance I get on sentencing in this province comes from the Court of Appeal for Ontario. Mr. Anger has referred to those cases in his materials.

[23] I do not disagree with Mr. Singh's submission that it is often young black men from challenging circumstances who stand where you stand today. Indeed, a remarkable number of the drug trafficking cases tried in this courthouse involve young black men from the GTA commuting to Niagara Region to sell hard drugs. I do not disagree with Mr. Singh that time in prison can itself do harm. What Mr. Singh does not focus on, however, is the tremendous harm done to society as a result of that cavalcade of commuter cocaine dealers coming to St. Catharines, the harm I have referred to earlier. I have to take into account the need for a sentence that both in its form and in its substance discourages that commuter cavalcade from continuing.

[24] I also have to take into account the fact that as a judge I have an important role, but I am not an all-powerful creature. I do not stand outside the laws of this country; I am here to administer them unless those laws violate the Charter of Rights. Whether I agree with Parliament's choices or not, I must enforce the law as Parliament has enacted it and as the guidance of the Court of Appeal and Supreme Court leads me. Parliament makes choices as the representative of the people. One parliament created the concept of conditional sentences or house arrest as a punishment. A later parliament limited the types of cases in which those sentences are available. As a result the conditional sentence is not available for possession of cocaine for the purpose of trafficking. There is nothing inherently wrong with judges thinking creatively in order to do justice, but there is great danger if that creative process results in judges doing an end-run around Parliament's choices. I dare say that many judges think the restrictions on the availability of conditional sentences are unwise. I cannot say those judges are wrong. I dare say that many judges wonder why it has taken so long for a government that said it would undo many of the sentencing restrictions that were enacted by the previous government. I cannot say that those judges are wrong. However, the legitimacy of our democratic structure depends on legislators legislating and on judges judging. Judges doing end runs around Parliament is toxic to democracy. It undermines democratic institutions and it undermines the legitimacy of the judiciary. That is effectively what Mr. Singh asks me to do here, because on the facts of this case he asks me to overstep my role. He asks me to impose a sentence on the crack cocaine offence that is entirely outside the range of sentence established by the cases and then to sort of "make up" for it by imposing a house-arrest sentence on the proceeds of crime. That, however, involves putting the cart before the horse. Possessing proceeds of crime is not a trivial offence, but it is far less serious than possessing five-and-a-half ounces of crack for the purpose of trafficking.

[25] I note that in Voong, supra, the British Columbia Court of Appeal specifically stated, at paragraph 45: "The exceptional circumstances must engage principles of sentencing to a degree sufficient to overcome the application of the main principles of deterrence and denunciation by way of a prison sentence."

[26] There will, of course be occasions when sentencing judges might justifiably see their way to thinking outside the box as Mr. Singh asks, to impose sentences that are much lower than would be typical. Those cases, however, have to be exceptional. I would say that the list of factors contributing to exceptionality set out by the British Columbia Court of Appeal at paragraph 59 of Voong, supra, strikes me as rather slim; it is a list that runs the risk of translating "exceptional" into "commonplace". With the greatest of respect to some of the cases, the word "exceptional" has to be applied in its normal meaning, but the reality is that in some cases, the meaning of the word appears to have been debased. When it comes to the present case, there is, sadly, nothing exceptional about it. A couple of young men from the GTA came to St. Catharines to peddle cocaine. In this courthouse that is routine, not exceptional. The fact that a defendant has no previous record or a minor criminal record is, again, not exceptional. The absence of a criminal record or the fact that a particular defendant's demonstrated role may appear to have been peripheral are factors to consider with respect to the length of sentence, but I could not in good conscience call them exceptional. Of particular note here, there is no suggestion that you were motivated by addiction in your offence. There was a suggestion that Mr. King was a user, although as I noted in my reasons for sentence on Mr. King the record on that point was not very robust.

[27] Accordingly, I reject Mr. Singh's invitation to use a combination of an intermittent sentence for the crack cocaine and a conditional sentence for the proceeds offence as a fitting way to deal with your offences. I think it would be wrong. On the facts of this case the approach suggested by Mr. Singh would result in an unfit sentence, not only in the sense that it would be drastically outside the range as established by the Court of Appeal, but in the sense that it would dilute the seriousness of the offences to a point where any hope for either specific or general deterrence, for denunciation or for protection of society would be cast to the kerb.

[28] That leaves the question of what is the appropriate sentence for you. Mr. Anger for the Crown said that two-and-a-half years would be at the lower end of the appropriate range. At the same time, he fairly recognizes that the principle of parity has to come into play in light of the sentence I imposed on Mr. King, which was for two separate possession for the purpose of trafficking cocaine offences. He also pointed out that the evidence would seem to suggest that you were less involved than Mr. King. Mr. Singh said something similar, calling you a secondary player. That is a significant distinction.

[29] Other than the existence of Mr. King's other cocaine charge (a much smaller amount, thirty-five grams, to which he pleaded guilty) and Mr. King's more prominent role in the present offence, I would say that on average you and Mr. King are generally comparable for sentencing purposes. Mr. King did have a record, but its nature was such that it plays a minor role. I sentenced Mr. King to the equivalent of twenty-four-and-a-half months on his two cocaine charges, in addition to a long probation and substantial community service. I did that rather than imposing a longer pure jail sentence because I accept that much of what Mr. Singh says is true, although I do not accept that his reasoning leads to the vastly diminished sentence he proposes. I do not see the Court of Appeal sentencing precedents as written in stone. I see that, for the appropriate offender, particularly someone who is young and who has no prior record or a minor prior record, the interests of rehabilitation and reparations can favour a somewhat shorter jail sentence if that is combined with substantial community supervision and substantial repayment to the community through community service work. I do not think that does violence to the range of sentence established by the Court of Appeal. That is also consistent with the idea that sentencing is an individualized process. For both you and Mr. King, if the sentence I impose did not have a substantial community service element, the sentence would have to be substantially longer.

Sentence

[30] The sentence I impose on you, Mr. Clunis, is as follows:

(a) On the charge of possession of cocaine for the purpose of trafficking, imprisonment for fifteen months.

(b) On the charge of possession of proceeds of crime, imprisonment for six months, to be served concurrently, resulting in a total jail sentence of fifteen months.

(c) After you are released from prison, you will be on probation for a period of thirty months:

i. You shall report to probation within seven days of your release and thereafter as required by probation.

ii. You shall not have any contact directly or indirectly with Marlon King.

iii. You shall attend for counselling as directed by your probation officer for life skills and any other area directed by probation.

iv. You shall sign release of information forms and provide proof of compliance to allow probation to monitor your compliance.

v. You shall perform 160 hours of community service at a placement and on a schedule approved of by probation. All of the community service hours must be done with the first eighteen months of the probation order.

vi. You shall make reasonable efforts to obtain and maintain suitable employment and/or attend a school or other educational programme approved of by your probation officer.

(d) There will be an order under s. 109 of the Criminal Code prohibiting you from possessing the types of weapons listed in s. 109(2)(a) for ten years and the weapons in s. 109(2)(b) for life.

(e) There is a mandatory victim surcharge of $200 on each of these offences, for a total of $400. In light of the fact that you will be in custody for some time, you will have three years to pay that surcharge.

(f) The forfeiture order made on Mr. King's sentencing will apply to you also.

Released: 23 March, 2018