Court Information
Ontario Court of Justice
Date: November 13, 2018
Court File No.: 17-9788
Parties
Between:
Her Majesty the Queen
— And —
Dearan Doski and Christopher Barkley
Before: Justice G.L. Orsini
Heard on: September 5 and October 23, 2018
Reasons for Judgment released on: November 13, 2018
Counsel
Laura Tripp — counsel for the Federal Crown
M. Gries — counsel for the accused Dearan Doski
R. Braiden — counsel for the accused Christopher Barkley
Judgment
ORSINI J.:
Introduction
[1] Dearan Doski and Christopher Barkley (hereinafter "the defendants") are before the court for sentencing in respect of one count of possession of cocaine for the purpose of trafficking. Both argue that there are exceptional circumstances which should cause this court to depart from the accepted range of sentences for street-level traffickers of cocaine. These reasons explain why I am accepting that argument on behalf of Mr. Barkley and not on behalf of Mr. Doski.
Circumstances of the Offence
[2] In the summer of 2017, the London Police began an investigation of the defendants who were said to be trafficking drugs out of a 2006 Honda Civic registered to Mr. Barkley. Warrants were obtained to search the above-noted motor vehicle as well as the individual residences of both defendants.
[3] On July 19, 2017 at 12:05pm, Mr. Doski and Mr. Barkley were arrested for possession of cocaine for the purpose of trafficking following a traffic stop of the 2006 Honda Civic. Mr. Doski was driving the vehicle while Mr. Barkley was the front seat passenger.
[4] Police searched the vehicle and located 31 grams of cocaine and a digital scale, both at the feet of Mr. Doski. A subsequent search of the individual residences of the defendants revealed nothing of significance.
Circumstances of the Offenders
(A) Dearan Doski
[5] Mr. Doski is 23 years old. His personal circumstances are outlined in a Pre-Sentence Report dated October 23, 2018.
[6] By all accounts, Mr. Doski was raised in a positive and loving home environment without exposure to alcohol abuse, substance abuse or domestic violence. His three siblings are described as pro-social individuals who are employed and who have had no prior involvement in the criminal justice system.
[7] Mr. Doski began using alcohol and marijuana in Grade 10 before moving on to cocaine in Grade 11. Ultimately, he dropped out of high school, preferring partying with friends over studying. He subsequently returned to school through an adult education program and is presently 10 credits short of his high school diploma.
[8] At the time of the offence, Mr. Doski was employed with his brother's company. Since February 2018, he has been employed on a full-time basis with a local carpet cleaning company. His employer describes him as a dependable and hard-working employee.
[9] In terms of a Criminal Record, Mr. Doski has one adult conviction in April of 2016 for possessing a Schedule I drug. He received a suspended sentence and 12 months of probation. While on probation, he completed the "Change is a Choice Substance Use Program". He now acknowledges that he did not "fully embrace" the program. He told the author of the Pre-Sentence Report that he was abusing cocaine on a daily basis for the six months leading up to his arrest. At another point, he advised the author that he resorted to selling drugs for approximately one year as a means of supporting his cocaine addiction. In either case, he was clearly abusing and trafficking in illicit substances while on probation for a related offence. He now says he is willing to attend any programming or counselling recommended by this court.
(B) Christopher Barkley
[10] Mr. Barkley is 39 years of age. He has no prior criminal record.
[11] His personal circumstances are also outlined in a Pre-Sentence Report dated October 23, 2018. In addition, his counsel filed documents relating to Mr. Barkley's Disability Support Program Application, which was approved in November 1999.
[12] Like Mr. Doski, Mr. Barkley was also raised in a positive and loving home environment without any apparent exposure to alcohol abuse, substance abuse or domestic violence.
[13] However, unlike Mr. Doski, Mr. Barkley suffers from a learning disability. He and his twin sister were born 10 weeks premature. His mother believes he suffered brain damage when his incubator was accidentally turned off. She noted that the effects could be seen as his development slowed in comparison to his twin sister.
[14] In 1999, Mr. Barkley was found to be a person with a "substantial disability" as defined in the Ontario Disability Support Program Act. A Psychological Assessment Report highlighted significant deficits in terms of working memory and processing of information. Given these deficits, the report concluded that Mr. Barkley was unlikely to maintain competitive employment.
[15] In addition to his intellectual disability, Mr. Barkley has suffered from anxiety and depression from an early age. Together with his intellectual challenges, they have significantly reduced his ability to make connections with pro-social peers. His mother reports that he spent some time in a psychiatric hospital several years ago and believes her son was diagnosed with a schizoaffective and bipolar disorder.
[16] According to the Pre-Sentence Report, Mr. Barkley is now being medicated for anxiety and depression. He is also taking antipsychotic medication typically used to treat schizophrenia and bipolar disorder.
[17] Not surprisingly, Mr. Barkley's disability and mental health issues had a significant impact on his schooling. He was often bullied and referred to in derogatory terms. He had significant difficulties in forming friendships. He attended a specialized high school, but ultimately dropped out in grade 11 due to mounting frustrations that resulted from his disability.
[18] The Pre-Sentence Report notes that he began using alcohol and marijuana at the age of 14 as a means of escaping the anxiety and depression he was experiencing. He says he started using cocaine approximately five years ago and that his use was particularly acute in the few months preceding his arrest. According to Mr. Barkley, cocaine made him feel "happy" and "makes me more social". At the time of the offence, he said that he was selling cocaine in order to support his own addiction.
[19] Mr. Barkley admitted to the author of the Pre-Sentence Report that he has been using cocaine sporadically since his arrest and as recently as three weeks prior to being interviewed for the report. In April of this year, he began seeing a counsellor at the Addiction Services of Thames Valley. He completed four of the six scheduled sessions. He stopped attending when he was told that he was being transferred to a new counsellor as a result of changes within the program. It appears that he became frustrated with the prospect of having to explain his story again to a new counsellor. I am told that he has now reconnected with his new counsellor and is prepared to follow through with residential treatment as recommended by that counsellor.
[20] The Pre-Sentence Report notes that Mr. Barkley was able to recognize the negative effects his actions had on the people that purchased drugs from him – that he did not in any way rationalize or minimize this behaviour. He explained that he has now disassociated himself from other drug users and is motivated to remain drug-free.
Position of the Parties
[21] Counsel for Mr. Doski submits that there are exceptional circumstances that warrant a custodial sentence below the 6 month starting point for offences of this nature. Counsel points out that Mr. Doski is employed, has completed some community service work and has reconnected with his family since being charged. Counsel argues that the principles of denunciation and deterrence should not overwhelm the sentencing process given Mr. Doski's prospects for rehabilitation. In light of these factors, counsel submits that an appropriate sentence would be one of 90 days jail, to be served on an intermittent basis, followed by three years of probation with terms to address addictions counselling.
[22] Counsel on behalf of Mr. Barkley urges me to impose a suspended sentence and probation or, in the alternative, an intermittent sentence that would allow Mr. Barkley to continue with his counselling. Counsel argues that Mr. Barkley's intellectual disability impacts upon his moral blameworthiness and that together with his demonstrated commitment to his own rehabilitation, these factors amount to exceptional circumstances warranting a sentence below the traditional range.
[23] The Crown argues that a fit sentence for each defendant, taking into account the relevant aggravating and mitigating circumstances, is one of 6 months jail followed by probation. The Crown points to the nature of the substance involved (cocaine) and its quantity (31 grams). The Crown argues that this is not one of those rare or exceptional cases warranting a sentence below the traditional starting point of 6 months.
Objectives and Principles of Sentencing
[24] Section 718 of the Criminal Code provides as follows:
The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and 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 the victims or to the community that is caused by an 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 acknowledgement of the harm done to victims or to the community.
Similar wording can be found in section 10 of the Controlled Drugs and Substances Act.
[25] I am also mindful of the following principles of sentencing as outlined in the Criminal Code:
(a) that any sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender having regard to the relevant aggravating and mitigating circumstances related to both the offence and the offender;
(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;
(c) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and
(d) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders. (see 718.1 and 718.2)
[26] The Ontario Court of Appeal set the appropriate range of sentencing for street-level trafficking in cocaine to be between six months and two years less a day. R. v. Woolcock, [2002] O.J. No. 4927 (Ont. C.A.) at paras. 8 and 15.
[27] In rare cases involving "exceptional circumstances", courts have seen fit to depart from this range. Counsel for both defendants have provided me with a number of such cases. Suffice it to say that sentencing is an individualized process and each of those cases are dependent upon their own facts. I do note, however, that all of the "exceptional circumstance" cases arise after 2012 when Parliament foreclosed the possibility of a conditional sentence for trafficking in Schedule I drugs.
[28] It has been said that sentencing is not an exact science and that the principles of sentencing should not be interpreted so as to restrict the discretion judges have in arriving at fit and just sentences. R. v. Ramage, 2010 ONCA 488
[29] As indicated by Supreme Court Justice LeBel in R. v. Nasogaluak, 2010 SCC 6 at para. 44:
The wide discretion granted to sentencing judges has limits. It is fettered in part by the case law that has set down, in some circumstances, general ranges of sentences for particular offences, to encourage greater consistency between sentencing decisions in accordance with the principle of parity enshrined in the Code. But it must be remembered that, while courts should pay heed to these ranges, they are guidelines rather than hard and fast rules. A judge can order a sentence outside that range as long as it is in accordance with the principles and objectives of sentencing. Thus, a sentence falling outside the regular range of appropriate sentences is not necessarily unfit. Regard must be had to all the circumstances of the offence and the offender, and to the needs of the community in which the offence occurred.
Analysis
[30] By way of mitigation, I take into account that both defendants entered pleas of guilty. This is a traditional sign of remorse.
[31] I also accept that both defendants were involved in street-level trafficking in order to support their own addiction. Trafficking for purely commercial gain has been viewed as an aggravating factor. It is not present in this case. R. v. Banovac, [2016] O.J. No. 3937 at para. 15 (S.C.O); R. v. Bui, at para. 2 (ONCA); and R. v. Woolcock, supra, at para. 5 (Ont. C.A.).
[32] With respect to Mr. Doski, he has performed some 26 hours of volunteer work through a local non-profit organization dedicated to assisting the homelessness and marginalized members of the London community. This also speaks to his credit.
[33] However, the offence before the court is aggravated by the quantity of the substance and its nature.
[34] Cocaine is a highly addictive substance. It ruins lives and families within our community. One need look no further than the impact it has had on the defendants and their respective families. That they were prepared to traffic this substance to other members of the community speaks to the need for denunciation and deterrence. It explains why, absent some truly exceptional or rare circumstances, the starting point for offences of this nature is 6 months in custody.
[35] The amount of cocaine involved in this case (32 grams) is also significant. I note that many of the cases provided by defence counsel involved trafficking in relatively small quantities of Schedule I drugs. That is not the case here.
[36] I note that Mr. Doski does not appear to have engaged in any form of addictions counselling or treatment since the date of his arrest. As indicated in the Pre-Sentence Report, he was abusing illicit substances while on probation for possessing a Schedule I drug and after having received counselling. Although he now indicates a willingness to engage in counselling, this is not one of those rare cases where a defendant has made exceptional efforts towards his own rehabilitation. Although he is now employed, this was also the case at the time of his arrest. Simply put, apart from doing some community service work and expressing a desire to change, there is very little he can point to in the way of exceptional circumstances. While he has not re-offended while on bail, I find that the prospects for his rehabilitation are guarded at best.
[37] In light of the above, I find that a sentence of 6 months incarceration suggested by the Crown is on the low end of an acceptable range. I therefore sentence Mr. Doski to 6 months in jail followed by probation for three years. In addition to the statutory terms, Mr. Doski will be bound by the following probation terms:
(i) You will report to a probation officer within two working days of your release from custody and thereafter at all times and places as directed by the probation officer or anyone authorized by them to assist in your supervision;
(ii) You will not have any contact or communication directly or indirectly by any physical, electronic or other means with Christopher Barkley;
(iii) You will not possess or consume any unlawful drugs or substances referred to in the Controlled Drugs and Substances Act except with a valid prescription in your name or those available over the counter;
(iv) You will attend and actively participate in all assessment, counselling and rehabilitative programs as directed by your probation officer and complete them to the satisfaction of the probation officer for substance abuse;
(v) You will sign any releases of information forms as will enable your probation officer to monitor your attendance and completion of any assessment, counselling or rehabilitative programs as directed.
[38] There will also be a weapons prohibition pursuant to section 109 of the Criminal Code prohibiting you from possessing any firearm, other than a prohibited or restricted firearm, and any cross-bow, restricted weapon, ammunition, and explosive substance for a period of ten years and any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life.
[39] Possession for the purpose of trafficking is also a secondary designated offence. Pursuant to the provisions of the Criminal Code, I make an order requiring that samples of bodily substances be taken from you for purposes of forensic DNA analysis.
[40] With respect to Mr. Barkley, I find that there are circumstances which can be appropriately described as "exceptional" or "rare".
[41] Unlike Mr. Doski, Mr. Barkley comes before the court with no prior criminal record. He is a first offender. In addition, he has made some efforts towards his own rehabilitation. He has attended counselling through Addiction Services of Thames Valley and indicated a desire to engage in a residential treatment program. Although he candidly admits to struggling with his addiction, this must be viewed in light of his disabilities.
[42] In my view, for someone in his position, a sentence in the intermittent range that would permit him to continue with his treatment during the week is more reflective of his moral culpability for the offense before the court.
[43] Accordingly, I sentence Mr. Barkley to 90 days jail to be served on an intermittent basis from Friday evening at 6 PM until Sunday evening at 6 PM and every consecutive Friday through Sunday thereafter until your sentence is served in full. While serving your intermittent sentence, and for the next three years, you will be bound by the following terms of probation, in addition to the statutory terms:
(i) you must appear at the jail on time, in a sober condition, with a blood-alcohol concentration of zero, and not of the influence of or in possession of any controlled substance unless you are taking that controlled substance pursuant to a lawfully obtained prescription;
(ii) you will not have any contact or communication, directly or indirectly, by any physical, electronic or other means with Dearan Doski;
(iii) you will not possess or consume any unlawful drugs or substances referred to in the Controlled Drugs and Substances Act except with a valid prescription in your name or those available over the counter;
(iv) you will attend and actively participate in all assessment, counselling and rehabilitative programs as directed by your probation officer and complete them to the satisfaction of the probation officer for substance abuse and psychiatric or psychological issues;
(v) you will sign any releases of information forms as will enable your probation officer to monitor your attendance and completion of any assessment, counselling or rehabilitative programs as directed.
[44] There will also be a weapons prohibition pursuant to section 109 of the Criminal Code prohibiting you from possessing any firearm, other than a prohibited or restricted firearm, and any cross-bow, restricted weapon, ammunition, and explosive substance for a period of ten years and any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life.
[45] Finally, I am making an order requiring that samples of bodily substances be taken from you for purposes of forensic DNA analysis.
Released: November 13, 2018
Signed: Justice G.L. Orsini