Court Information

Court: Ontario Court of Justice

Date: November 14, 2018

Court File No.: Ottawa 17-F5236

Parties

Between:

Her Majesty the Queen

— And —

Alhamoudou Nimaga

Before: Justice Julie I. Bourgeois

Heard on: September 17 and October 9, 2018

Reasons for Judgment released on: November 14, 2018

Counsel

Ms. Jessica Corbeil — counsel for the Crown

Ms. Myriam Martin — for the Accused, Mr. Nimaga

Introduction

[1] Mr. Nimaga was found guilty after trial of having unlawfully possessed on February 2, 2017, a schedule 1 substance to wit: crack cocaine, for the purpose of trafficking pursuant to s. 5(2) of Controlled Drugs and Substances Act (CDSA) and consequently he was found guilty of breaching his condition to keep the peace and be of good behaviour pursuant to Probation Order made August 3, 2016, contrary to s. 733.1 of Criminal Code. The trial started December 14 and 15, 2017 and it continued on January 18, 2018 after the ruling was delivered in relation to a Charter Application. After the reasons on the trial proper were delivered a Pre-Sentence Report was ordered on March 6, 2018. On May 9, 2018, the Ottawa Centre Probation and Parole Services requested an extension of time to complete the preparation of the Pre-Sentence Report (PSR) and the matter returned on July 3, 2018. A Sentencing hearing was ultimately scheduled to be heard on September 17, 2018 and it was completed with submissions by the parties on October 9, 2018.

[2] Mr. Nimaga was found guilty of possessing a total amount of 21.3 grams of crack cocaine for the purpose of trafficking in such substance by means of sharing with or distributing to his friends but not necessarily made for consideration and not for a commercial purpose. He was arrested following a short foot chase by police after a complaint concerning a possible impaired driving in progress and a dispute. Mr. Nimaga was with a male and female by a car; the drugs were found in his socks and he testified that he had consumed crack cocaine at the car that evening; he was going to a party later that night and was going to consume again with his friends there. Mr. Nimaga is now 24 years old; he is the third of eight children (two older sisters; four younger sisters and one younger brother); he has not obtained his high school diploma yet nor held stable employment; he was diagnosed with ADHD and learning disabilities at a young age and started consuming cigarettes at the age of 12, marijuana at 15 and crack cocaine by the age of 16 or 17; he has a criminal record including two convictions on September 23, 2016, one for possess of schedule 1 substance contrary to s. 4(1) CDSA where he received 20 days jail and one for trafficking in schedule 1 pursuant to s. 5(1) CDSA and was sentenced to 100 days of PTC and a firearm prohibition.

Position of the Parties

[3] The Crown is suggesting 18 months to 2 years less 1 day is the range for this type of offences and is seeking 2 years less 1 day in light of the aggravating factors: the quantity and the nature of the substance. The Crown also made the submission that the Court ought to consider aggravating that the accused was on probation for trafficking and was doing the same thing in this case. The evidence before the Court however does not support that submission. Mr. Nimaga was found guilty of breaching a probation order made on August 3, 2016 and as demonstrated by Exhibit No. 1 at the trial and also by Exhibit No. 3 at the sentencing hearing, it was not for a related offence or for the offence of drug trafficking. The Crown is also asking the Court to revisit its finding that the trafficking in this case was not for a commercial purpose based on the information heard during the sentencing hearing. The Crown reargued its position at trial and added that he must have lied at trial since he lied to the probation officer about completing the Anchorage program.

[4] The Crown argues that its position is still in the range to consider the rehabilitation prospects of the accused and despite the opinion to the contrary of the author of the PSR, the Crown suggests that perhaps probation could be imposed to ensure Mr. Nimaga is on the right track once out of jail.

[5] Counsel for Mr. Nimaga suggests the range is one of 6 months to 2 years less a day as per R. v. Lacasse 2015 SCC 64 and the Crown does not get to shift the range higher given the mitigating factor established at trial that the possession was not for a commercial purpose. It is the position of Defence counsel that there is no evidence of dishonesty or even deception on this record to allow this Court to rehash the evidence heard at trial.

[6] Counsel argues no further jail is required in this case given the pre-trial custody (PTC) of 115 days, at 1.5 day credit being the equivalent of 172 days in addition to 4.5 months, less the 3 weeks he was dismissed from the programming, as being the equivalent of 8 to 9 months of PTC. Defence counsel suggests, should the Court feel a custodial sentence is required that it be done by the imposition of a conditional sentence order on the breach of probation count, since it is not available on the possession for the purpose of trafficking count. It is Defence counsel's position that in this particular case, given the aggravating factors of the quantity and the nature of the substance, including the fact that he was on probation at the time of the offence but also the mitigating factors: Mr. Nimaga was addicted to the crack cocaine; was found to be in possession of drugs for the purpose of trafficking but not for a commercial purpose and his personal and systemic background that no further jail but rather probation would be an appropriate sentence in this case.

Evidence at the Sentencing Hearing

[7] Counsel for Mr. Nimaga presented witnesses during the sentencing hearing. The Court heard from Mr. Nimaga's mother, Paul Brown, the author of the PSR and Stewart Clayten, an employee of The Salvation Army.

[8] The personal and family history reported in the PSR was presented as accurate but incomplete. Indeed, Mr. Nimaga was born and raised in Montreal but in 2015 the family moved to Ottawa – that is the children, except the two older sisters married and out of the house, and their mother. His mother testified that she raised her children as a single parent and all but the accused lived a pro-social life and do well in school. She moved to Ottawa with the assistance of the shelter services and government financial assistance. They resided in a hotel in the Kanata area of the city for one year and a few months before finding an apartment for the family. Her source of income is through government assistance and through her hair braiding work.

[9] She explained that her son was very sociable as a child but because of his learning disability, school was not easy for him. He could not do like the other children and the children were mean, teasing him because of his skin color. They lived in an area predominantly white. He was not accepted by the other children but he always wanted to be friends with them. They made fun of him, calling him names and not wanting to play with him. He did not understand and felt rejected. She recalled a specific incident of violence against him by an adult at daycare when he was 6 years old. An educator had stuffed a piece of pizza in his mouth in front of the others because he was not eating fast enough. She testified that this particular incident led him to become more violent.

[10] She explained that at a young age her son was diagnosis with ADHD and learning disabilities. Even though the school knew about his diagnosis, he did not receive any support or specialized assistance through the school system. However, she attended various programs and services through the medical and social system to assist her in supporting her son. He always had to attend summer school to be permitted to attend the next grade up. He was prescribed medication but as he got older he did not take the medication as it made him sleepy. This is when he started using marijuana.

[11] She explained in cross-examination that the rest of her children did not have issues related to drug consumption in Montreal but Mr. Nimaga is the only one of her children with an ADHD diagnosis. All of her children have experienced racism, including here in Ottawa and including her youngest son, now 10 years old in grade 5. She also recounted a more recent situation her son shared with her. He was walking with his girlfriend when an officer recognized him and asked her why she was associating with him as he was a crack smoker. He expressed to his mother that he felt if he would have been white, the officer would not have spoken to his girlfriend this way.

[12] Given the difficulties in school and with the peers he was associating with, she made the decision to send him to school in Moncton, New Brunswick, in September 2012. This proved unsuccessful as he was not attending school regularly. In December 2012, she made the decision to send him to Mali, to live with his father and maternal grand-father. He returned approximately two years later.

[13] The author of the PSR pointed out that Mr. Nimaga did not disclose to him that he spent time in Moncton. From his evidence however, it appears he did not prompt any information about it, nor was it ever uncovered that Mr. Nimaga spent almost two years in Mali as a teenager.

[14] Mr. Nimaga testified at trial that he started using hard drugs following the death of his grand-father. In the PSR, he does disclose to the author that his drug consumption quickly escalated to crack cocaine by the age of 16 or 17. This is also a time when his mother explained finding different drugs than marijuana in his back pack in his room and expulsing him out of the house to protect the rest of the siblings from this exposure to drug and violence from their older brother.

[15] Ultimately, Mr. Nimaga did not complete his high school education, was couch surfing for a while and used the shelter system and programs offered at The Salvation Army in Ottawa.

[16] His mother testified that he came to visit the family home while he was at The Salvation Army. He was since welcomed back into the family home and is sharing the household responsibilities and is enjoying a good relationship with his siblings.

[17] He advised the author of the PSR that he would like to further his education and had enrolled in April 2018, at Algonquin College in an education upgrade program in preparation for the admission requirements. The first week of September 2018, he attended the St-Nicholas Adult High School to register to their E-Learning program.

[18] The main source of controversy at this sentencing hearing is the issue of the treatment program.

[19] The author of the PSR characterized Mr. Nimaga at p. 5 of the report, as:

Not forthcoming throughout the preparation of this report and did not provide information accurately. He was not honest about his recent involvement with the Salvation Army Anchorage program and provided no collateral contacts other than his mother, however, both numbers that he provided for her were not accurate.

[20] This conclusion was based on the interview he conducted with Mr. Nimaga and the voice messages exchanged with Mr. Clayten from The Salvation Army services.

[21] Mr. Nimaga reported being currently sober and credited The Salvation Army Anchorage Addiction Recovery Program for his success (p. 4). He reported being released on bail on October 31, 2017 to attend the program.

[22] Indeed, it appears Mr. Nimaga did not complete the Anchorage Program but rather the Stabilization Program. However, through the evidence of Mr. Stewart Clayten, the package to apply to The Salvation Army services consists of a long questionnaire of sixteen pages and is called the "Anchorage" Program Application. The Stabilization Program is a pre-treatment for the Anchorage Program. As described during his evidence and in his letter, filed as Exhibit No. 5, it is "a 30 to 90 day pre-treatment program designed to help support clients who are stabilizing their addictions and mental health prior to entering longer-term treatment or other programs or safe housing in the community."

[23] Indeed, through Exhibit No. 4, it appears Mr. Nimaga was a resident of the general shelter from October 31 to November 8 2017, when a bed became available in the Stabilization Program. On February 12, 2018 he was then accepted into the Life Skills Program. The Residential Life Skills Program is typically a 4 month community reintegration support program described by Mr. Drew Corley in his letter dated February 22, 2018 as involving "character-building classes, one-on-one life-coaching, housing-search, self-actualization, employment/education acquisition, focus on routine, self-esteem, and adding structure to one's life." Both these letters are signed by employees that are no longer employed by The Salvation Army. Both are residential programs. His Addictions Counsellor at the Stabilization Program was Mr. Paul Stewart, while Mr. Crew Corley was his Facilitator at the Residential Life Skills Program.

[24] Unfortunately, Mr. Clayten did not have access to those letters or counselling reports for Mr. Nimaga. Mr. Clayten did not have any direct knowledge of Mr. Nimaga's counselling progress other than to recall seeing him in the hallways at the facility. He was not Mr. Nimaga's counsellor and did not work with him. Mr. Clayten's information was limited to the front line staff entries into the HIFIS (Homeless Individual and Family Information System). Despite Mr. Clayten's best efforts, all he can provide is dates when Mr. Nimaga was in and out of the various program but not clear reasons for his discharges in each case. He was able to tell that Mr. Nimaga had missed bed check times or curfew on a few occasions in March and April 2018 and that his last discharge date from the Residential Life Skills Program was April 24, 2018 after missing a bed check. Through Exhibits No 4 and No. 5 and the testimony of Mr. Clayten, it also appears Mr. Nimaga tested positive for THC on December 7, 2017 but never for hard drugs.

[25] The author of the PSR also concludes at p. 5:

The subject did not express any sentiments of remorse for the charges before the Court. He claimed that the drugs found on his person at the time of his arrest were for personal use only. The subject does not appear to be willing to accept responsibility for his actions and seemed insincere in his commitment to leading a crime-free life in the future.

[26] Paul Brown, the author of the PSR testified that he had not studied the case prior to meeting Mr. Nimaga but that there were no notes in relation to his progress in file from his previous probation officer.

[27] The author opined that Mr. Nimaga had shown a level of dishonesty that he had not come across very often in his five years as a probation officer. It was his view that Mr. Nimaga chose not to tell him the truth and that when he asked him if he had completed the Anchorage program, he would have looked at him and said "yes". In his perspective, this was pretty significant in his characterization of Mr. Nimaga's level of honesty.

[28] The author of the PSR also took issue that Mr. Nimaga never called him back with his mother's correct phone number as he had been unsuccessful the one day in June that he tried contacting her. As it turned out, the phone number was the correct one but Mr. Nimaga's mother was out of town and could not receive calls outside of the region. It is difficult to understand why the author did not follow up with Mr. Nimaga instead of drawing an adverse conclusion against him. Indeed, his mother could have shed much light on her son's history at least.

[29] In conclusion, Mr. Nimaga attended the Stabilization Program on October 31, 2017 however no bed was available for him at that time. From his addiction counsellor at the time, Mr. Paul Stewart, he remained in contact with addictions services staff until a bed became available on November 8, 2017. He was discharged from December 7 to 11, 2017 for testing positive to THC. And then from January 11 to 22, 2018, he was discharged perhaps for fighting or for another reason related to not following rules, but it is unclear.

[30] He then entered the Residential Life Skills Program on February 12 until April 23, 2018. He was away from the program on a few occasions also. The reason each time is unknown but on March 16, April 16 and 24, 2018, he was booked out for missing his 11pm curfew. In the end, he would have missed approximately three weeks of residential programing.

[31] The Court certainly does not share the probation officer's view that Mr. Nimaga has shown a level of dishonesty not very often met when considering the totality of the information available. Ultimately, his main fault was to refer to the Stabilization Program, as the Anchorage Program. Mr. Clayten explained that the application for the Stabilization Program is called the Anchorage Program Application. The experts in the field, the probation officers, did not even ask him if he had done any other program offered by The Salvation Army or any other agency. Even though Mr. Nimaga advised his probation officer his lawyer had the documentation in this regard, it appears no steps were taken by the probation officer to verify or clarify the information with the lawyer.

[32] Mr. Nimaga was not even advised that he was expected to supplement any other information since his first meeting with a different probation officer and that any discrepancy would be used against him.

[33] In fact, his explanation about the actual factual basis for his conviction was used against him in a conclusion that he did not show remorse.

[34] The author of the PSR came into the meeting with a pre-made idea that Mr. Nimaga was lying about completing the Anchorage Program. However, the author of the PSR never confronted Mr. Nimaga with the information he thought he had on this point; he never asked him to explain it and he did not pursue further information. Of course, Mr. Brown was not the probation officer originally assigned to Mr. Nimaga's case and both Mr. Nimaga's addiction counsellor and facilitator from The Salvation Army Services had both left their employment and therefore were unavailable to shed more light on his case at the time of the preparation of the PSR.

[35] But ultimately, it is one thing to lack information in the preparation of a PSR but it certainly seems to be something else to use that lack of information to draw an unfavourable conclusion against the client.

Analysis

[36] Defence counsel provided R. v. Barkhouse, 2017 ONCA 29, to support her argument that, as stated by the Court of Appeal at para. 3:

[w]hile his successful completion of the program, or […] his efforts to comply with the program, might have worked in mitigation of his sentence, he ought not to have been sentenced more severely because he did not fully engage in and in fact lied in the course of the program.

[37] Of course. Otherwise a person addicted to any type of substance would not be tempted or encouraged to attend any program if a relapse or an unsuccessful completion meant the court would view it as an aggravating factor when determining the sentence.

[38] The sentence in Barkhouse was reduced from 15 to 9 months jail for an addict-trafficker in possession of 28 grams of cocaine rather than crack cocaine for the purpose of trafficking but without a commercial motive. Like Mr. Nimaga, Mr. Barkhouse was young with a strong family support but he was a first time offender who plead guilty.

[39] There is no doubt Mr. Nimaga was addicted to drugs and specifically to crack cocaine. The time he spent at The Salvation Army programming – the stabilization program and the Residential Life Skills program allowed him to return live at his mother's home with his younger siblings and take part in the family life. His mother had expulsed him from the family home when he was a teenager because of his use of drugs and his resulting violent attitude. As a result of his participation in The Salvation Army's programing, she has now accepted him back home, as a young adult. It also allowed him to attempt a return at school to at least complete his high school education despite his learning disabilities. This is a goal he has been voicing to his counsellors at The Salvation Army, back in February 2018, to the author of the PSR in June 2018 and now to the Court through his registration at St-Nicholas Adult High School, in Exhibit No. 6.

[40] Not only do I conclude Mr. Nimaga did not lie to anyone in relation to his participation at The Salvation Army programing per se but it is certainly not going to be held against him that he did not take part in the Anchorage Program but rather in the Residential Life Skills Program following his stay at the Stabilization Program. That he relapsed during a period of time or that he did not complete the entirety of any program for that matter cannot and will not be considered an aggravating factor. All it means in this case is that it will not be as mitigating as it could perhaps have been or as convincing an argument it could have been in considering a conditional sentence.

[41] Defence counsel also relied on R. v. Brown, 2015 ONSC 2976, in arguing a similar sentence for Mr. Nimaga. As in our case, Mr. Brown was not a first time offender; had other outstanding matters before the court at the time; was unemployed and was trafficking in crack cocaine partly for profit and partly for personal use; he acknowledged relapsing but attended Narcotics Anonymous regularly. He was older however, at 49 years old; father to a 16 year old son residing with him; he was a permanent resident facing deportation proceedings as a result. The quantity of crack cocaine in that case was almost 8 grams - .33 grams sold to an undercover officer and 7.9 grams of 35 pea sized foil wrapped pieces of crack cocaine found on him. He was sentenced to 6 months jail, less PTC and 18 months' probation along with a s. 109 weapons prohibition for 10 years.

[42] Counsel for Mr. Nimaga also relied on R. v. Toyan Gabbidon, 2017 ONCJ 55, where 9 months jail was imposed on a count of possession of cocaine for the purpose of trafficking and a concurrent 18 months conditional sentence was imposed on a count of possess of proceeds of crime, followed by 12 months' probation. Counsel refers to this case in support of her position that should the court be of the view that further jail is required, a conditional sentence could be imposed on the breach of probation count to give effect to the sentencing principles, as stated at para. 25: "The custodial portion in combination with the concurrent conditional sentence gives effect to the principles of deterrence and denunciation but at the same time promotes [the accused] rehabilitation."

[43] In that case, police executed a search warrant at Mr. Gabbidon's residence, where 81 grams of cocaine, drug paraphernalia and 8,820$ in cash was found. Mr. Gabbidon was a 34 years old, who became addicted to cocaine following financial difficulties; he had no prior criminal record; is a father of three children and employed full-time. Shreck, J. stated at para. 11:

While I accept that sentences in drug trafficking cases can be generally related to the amount of the drug involved, in my view courts must be cautious not to become fixated on the weight of the drugs that are seized as this risks creating arbitrary categories. Mr. Gabbidon was found in possession of 81 grams of cocaine which he intended to traffic but had not yet done so. Had the police executed the warrant earlier, he may have been in possession of a larger amount that had not yet been sold. Had they executed it later, more may have been sold already and the amount may have been smaller. In my view, the focus should be on the conduct the offender engaged in rather than the amount involved.

[44] Shreck, J. was guided by Code, J. in R. v. Lo, [2012] O.J. No. 6001 (SCJ), aff'd [2014] O.J. No. 277 (C.A.), and explained at para. 21 and 22 that "a sentence imposed on each count cannot be "inadequate or artificial" using the expression in R. v. R.B. 2013 ONCA 36 but at the same time, the sentence imposed for each count should not be considered completely independently from the sentence imposed on the other count. At para. 23, Shreck, J concludes:

I agree with Code J. that a lenient sentence on one count can be balanced by a concurrent sentence imposed on another count, provided both are within the range and provided that the overall sentence properly reflects the gravamen of the conduct giving rise to all of the charges: R. v. Jewell; R. v. Gramlick (1995), 100 C.C.C. (3d) 270 (Ont. C.A.) at para. 270.

[45] Finally, counsel on behalf of Mr. Nimaga relied on R. v. Jackson, 2018 ONSC 2527, in support of her argument that this court ought to take judicial notice of the systemic factors affecting African Canadians in our Canadian society. More specifically, she argues that the principle of restraint ought to be paid particular attention when sentencing Mr. Nimaga as a result of the racism and poverty him and his family experienced.

[46] There can be no doubt, Mr. Nimaga, born here in Canada, at now 24 years old, was exposed to racism, whether as a child in Montreal or as a teenager and young adult here in Ottawa. His mother testified about this specifically. I totally and completely accept the concept described in great details by Nakatsuru, J. in Jackson about taking judicial notice of the existence of racism in our Canadian communities (section 2 of his decision, from para. 81 to 92). He quoted the reports prepared specifically on this issue, in June 1992 by Mr. Stephen Lewis, Adviser on Race Relations to the Premier of Ontario and a more recent one in June 2015 "Civil and Political Wrongs: The Growing Gap Between International Civil" and "Political Rights and African Canadian Life, prepared by the African Canadian Legal Clinic". These reports detail the historic factors which led to criminality in Black communities and the over-representation of members of Black communities in jails. The following two passages are particularly related to Mr. Nimaga's history here, referencing the June 2015 report at para. 27 Nakatsuru, J. enumerates the historic factors such as "exclusion and segregation in housing, schooling, employment, and public places, and systemic and overt racism in education, policing, and the justice system." Similar findings were made in the June 1992 report and described at p. 2 of the letter to the Premier:

It is Black youth that is unemployed in excessive numbers, it is Black students who are being inappropriately streamed in schools, it is Black kids who are disproportionately dropping-out, it is housing communities with large concentrations of Black residents where the sense of vulnerability and disadvantage is most acute, it is Black employees, professional and non-professional, on whom the doors of upward equity slam shut.

[47] The concept of recognizing racism in our communities and its link to our justice system is not new. As enumerated by Nakatsuru, J. at para. 87, R. v. Parks (1993), 84 C.C.C. (3d) 353 (Ont. C.A.), in relation to the jury selection process is particularly still relevant nowadays.

[48] Our Supreme Court of Canada in R. v. R.D.S., [1997] S.C.R. 484 at para. 47, quoted from a judge sitting in family Court in Nova Scotia and said, speaking about the pernicious reality of racism: "A person would have to be stupid, complacent or ignorant not to acknowledge its presence, not only individually, but also systemically and institutionally."

[49] Taking judicial notice of racism does not end the analysis of a just and fair sentence for Mr. Nimaga. We all agree that this is not a situation where we are to consider this issue as we would in relation to the Aboriginal people when applying the Gladue principle. Nakatsuru, J. reviewed at length this question and the decisions from our Court of Appeal in R. v. Borde (2003), 63 O.R. (3d) 417 (C.A.), and R. v. Hamilton and Mason (2004), 72 O.R. (3d) 1 (C.A.) (see para 55 to 74). In the end, we must understand that sentencing is and individualized exercise, with a focus on the sentencing principles, including the seriousness of the offence and but also the background of the offender and as such, ought to include the systemic and personal factors.

[50] The sentencing principles are enumerated at s. 718 to 718.2. The following are to be kept at the forefront of our mind in this process:

Section 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;

(d) To assist in rehabilitating offenders.

Section 718.1 – A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

Section 718.2 – A court that imposes a sentence shall also take into consideration the following principles:

(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender;

(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and

(e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders.

[51] Also s. 10(1) of the CDSA is of particular guidance:

Without restricting the generality of the Criminal Code, the fundamental purpose of any sentence for an offender under the Part is to contribute to the respect of the law and the maintenance of a just, peaceful and safe society while encouraging rehabilitation, and treatment in appropriate circumstances of offenders and acknowledging the harm done to victims and to the community.

[52] It is with these sentencing principles in mind that we have to assess Mr. Nimaga's sentence. In a nutshell, he is a young black man, diagnosed with ADHD and learning disabilities at a young age; as a direct result he did not obtain his high school diploma and started consuming marijuana in lieu of his ADHD medication; he graduated to hard drugs after the passing of his maternal grandfather; as a direct result of his addiction and violent behavior, he was expelled from the family home by his sole parent to protect his younger siblings; he has a criminal record for violence and breaches of bail conditions dated August 3, 2016 and for possession and trafficking drugs charges dated September 23, 2016.

[53] This sentencing is in relation to the possession for the purpose of trafficking on February 2, 2017 but not for a commercial purpose, rather because he was an addict who hung around addicted friends and they all shared and consumed the crack cocaine together. He finally attended The Salvation Army's program to kick the addiction; he enrolled in school in the hope of obtaining his high school diploma and eventually a college diploma. This is all with the ultimate goal of securing a job and a better one than if he did not have any diploma. As a direct result of the addiction counselling he took, he is now living back with his mother and five of his younger siblings.

[54] Counsel for the Federal Crown invited the Court the follow the analysis and arrive at a similar result as the judges did in R. v. Datta, [2011] O.J. No. 2685; R. v. Cummings, [1997] O.J. No. 2581, and R. v. Bayle Khandid, reasons delivered by Clifford, J. January 15, 2018.

[55] I find these decisions quite distinguishable as none address the issue of trafficking not for a commercial purpose. More specifically, Mr. Datta was not an addict and as such was considered as a true recidivist and avarice drug dealer, having a prior related conviction; and Mr. Cummings, having sold 12 grams of crack cocaine to an undercover officer and promising to provide the rest of 16 grams to make up the 1 oz. of cocaine, showed nothing substantial in favour of a positive prognosis for his rehabilitation.

[56] The sentencing principles reflect the reason why sentencing is such an individualized process. As my brother Clifford, J in Khandid, supra, at para. 15 quoted from R. v. Woolcock, [2002] O.J. No. 4927 (Ont. C.A.) at para. 17:

This shorter sentence is not intended, in any way, to minimize the seriousness of the offence or the need for general deterrence and denunciation of this serious offence. Rather, it is to provide the accused with an opportunity to be rehabilitated while simultaneously learning that this type of crime will not be tolerated. Both the community and the appellant would be better served if the appellant were given the opportunity to re-enter society, deal with his drug use problems and attempt to re-establish himself as a productive member of his community.

[57] At para. 18, Clifford, J quoted R. v. Jimale, [2016] O.J. No. 5032 (Ont. S.Crt.) at para. 10:

In determining the appropriate sentence for Mr. Jimale, consideration is given to similar offences committed in similar circumstances by similar offenders. This requires a consideration of cases that have gone on before this one. While sentencing precedents will almost always contain features that make them distinguishable, taken as a whole, they can point to a range to be considered and to the factors that will assist in placing Mr. Jimale within that range. No sentencing decision can ever act as an exact precedent.

Conclusion

[58] The aggravating factors in this case are as follows:

• The nature of the drug – crack cocaine;
• The quantity: 21.3g;
• His prior related criminal record – on September 23, 2016 he received a sentence of 100 days jail for the possession for the purpose of trafficking count;
• This offence took place while on probation for the violence and breach related convictions of August 3, 2016.

[59] The mitigating factors are as follow:

• His efforts at rehabilitation: attending the residential programing at The Salvation Army;
• His registering in adult school to complete his high school diploma;
• Returning living with his mother in a loving, structured and pro-social environment;
• The trafficking of the crack cocaine was not for a commercial purpose but rather to consume and share with addicted friends.

[60] Indeed, one has to consider Mr. Nimaga's personal background, which led him to the addiction of such devastating hard drug. This is in direct link to the offence for which he was found guilty. He trafficked the crack cocaine by using and sharing it with his other addicted friends. His girlfriend at the time had a direct link to the higher hierarchy of the drug world and as such had access to it at a much cheaper price. He and his friends consumed drugs. The officer did not search his girlfriend's car but Mr. Nimaga testified at trial that they would have found the paraphernalia he and his friends used that night to consume the crack cocaine prior to his arrest.

[61] His socio-economic background can certainly not be ignored in this case as having played a role in his addiction and therefore in this offence. No specialized services offered at school despite his diagnosis; his dropping out of school; his unemployment and the family living arrangements is certainly a testament to some of the elements of the studies Nakatsuru, J. discussed in Jackson, supra.

[62] Section 742.1 provides the framework for the conditional sentence order. Pursuant to s. 742.1(c), this sentencing option is not available for an offence under s. 5(2) of the CDSA, possession for the purpose of trafficking, as it is punishable, pursuant to s. 5(3)a) to imprisonment for life. This sentencing option, would, however, be available in this case on the count of breach of a probation order. However, contrary to Mr. Gabbidon, Mr. Nimaga has a history, albeit a short but recent one, for breaching court orders and this offence was committed while bound by a probation order. These elements make it difficult to conclude that such a sentence would be "consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2" set out in para. 742.1(a) in this particular case.

[63] Mr. Nimaga already spent 115 days of PTC at 1.5 days is the equivalent of 173 days. He spent 4.5 months in residential treatment but was discharged on a few occasions for a total of approximately 3 weeks. In light of the decision from our Court of Appeal in R. v. Downes, [2006] O.J. No. 555, I grant Mr. Nimaga 1 month credit. Therefore, this is the equivalent of a total of just over 6 months (6 months and 3 weeks) roughly.

[64] The range for this type of offence, possession for the purpose of trafficking, is one of 6 months to 2 years less one day. Mr. Nimaga certainly fits in the lower end of that range. The trafficking here was not for a commercial purpose but rather to consume and share with his addicted friends.

[65] It is after considering the sentencing purpose and principles, the aggravating and mitigating circumstances, along with Mr. Nimaga's very personal background leading to the circumstances of these offences, along with the case law I have discussed earlier, that I conclude a fit and proper sentence for him is one of 7 months. Mr. Nimaga, you have already served the equivalent of 6 months and 3 weeks, therefore you have 7 days to serve as of today, to be served concurrently on the breach of probation count.

[66] This will be followed by 18 months of probation, concurrently on both counts with the following conditions:

• Report
• Reside place approved of by probation officer
• Counselling re: drug addiction
• Sign release of information forms
• Not to possess any drugs unless prescribe in your name or over the counter
• Not to associate with anyone known to you to produce, possess or consume drugs, except while attending counselling
• Attend school or find employment
• Complete 40 hours of community service – to be completed before the end of the 17th month of this order

[67] No ancillary orders were sought, however s. 109 is mandatory in relation to the count of possession for the purpose of trafficking. This is a second related conviction and as such the Order ought to be for life – Mr. Nimaga, you are prohibited from possessing any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition, any other firearm or any cross-bow, restricted weapon, ammunition and explosive substance for life.

Released: November 14, 2018

Signed: Justice Julie I. Bourgeois