Court Information

Ontario Court of Justice

Date: May 9, 2019

Court File No.: Newmarket 16 06638 & 16 06640

Between:

Her Majesty the Queen

— and —

Neil Davis

Before: Justice David S. Rose

Heard on: April 9, November 13, 14, 15, 2018, March 25, 26, April 23, May 1, 2019

Reasons for Sentence released on: May 9, 2019

Counsel:

Mr. Arvisu — counsel for the Crown

Mr. Moon — counsel for the accused Neil Davis

Reasons for Sentence

Rose J.:

Convictions

[1] Mr. Davis has been convicted of:

i) Possession of Cocaine for the purpose of trafficking on August 31, 2016;

ii) Trafficking in Cocaine on August 31, 2016;

iii) Possession of Property obtained by Crime, namely money, on August 31, 2016.

[2] The trial lasted some 5 days, after which I found that Mr. Davis trafficked 3.3 g of cocaine in a parking lot to a woman Ms. Bennett; and when he was arrested a short time later had on him 26 grams, or about 1 ounce, of cocaine and some $5600 in cash. All of that happened on August 31, 2016. He is here for sentencing.

Crown and Defence Submissions

[3] The Crown asks for a 3 year penitentiary term with a s. 109 order for life, and an order under s. 487.051 on all charges as secondary designated offences. The Crown also asks for a forfeiture order directed at all property and money seized.

[4] The defence says that the appropriate sentence is a jail term of 15-18 months jail, less pre-trial custody. The pre-trial custody has three components. The first is the 3 days Mr. Davis spent in custody upon his arrest on August 31, 2016. The second is the time from when the surety revoked the bail on April 1, to the date of sentencing. The third is credit for restrictive bail conditions. The defence opposes forfeiture of the blackberry seized and also opposes the DNA order.

Personal Circumstances

[5] Mr. Davis is 35 years old and has a 2 year old child with his common law spouse. He is a high school graduate. He works with a family member doing carpentry and construction. He has a criminal record for:

• 2008 Possession for the Purpose of Trafficking – 60 days intermittent (76 days Pre-sentence custody)
• 2013 FTC Undertaking – 4 days (2 days pre-sentence custody)

Bail History and Pre-Trial Custody Issues

[6] Mr. Davis spent 3 days in jail prior to his release on bail. His bail had a term with a 10pm curfew but a curfew that permitted him out of the house with a surety. He seeks credit within pre-trial custody for that restrictive bail term. On March 28, 2019 he was arrested on other charges and his sureties applied to remove themselves from the bail. That was ordered by a Justice of the Peace, but for some reason the Order cancelling his bail was never given to a police officer and the bail was never cancelled until he appeared before me for sentencing on May 1. When the case appeared before me for Judgement on April 23, 2019 he was clearly in custody. I was told by defence counsel that he was in custody on other matters but still on bail on these charges. The defence now seeks an order that Mr. Davis is entitled to pre-trial custody credit for these charges for the time he spent in custody between April 1, and when it is up for sentencing on May 9.

Sentencing Range

[7] The range of sentence where the offender trafficked cocaine in this amount is from 6 months to 2 years less a day, see R. v. Woolcock [2002] O.J. No. 4927. In that case the Court of Appeal said that,

Many of the cases that fall at the higher end of this range involved either larger quantities of narcotics or offences committed while the accused was still on probation for a similar offence.

See also R. v. Ahmed 2016 ONCA 831.

[8] Many of the cases I was directed to are helpful if a conditional sentence was a legal sentence but it no longer is. See R. v. Burnett 2013 ONSC 5536. Other cases supplied in submissions fall within the range outlined by the Court of Appeal in Woolcock and Ahmed (supra), see R. v. Khandid [2018] O.J. No. 2059, R. v. Cardwell 2010 ONCA 445, R. v. Moran 2018 ONSC 6857, R. v. Carelse-Brown 2013 ONSC 7042. Factors increasing the sentence within that range include whether the sentence was imposed after a trial or a guilty plea, the personal circumstances of the offender, including whether he or she has a criminal record which is related.

Aggravating Factors

[9] In this case the aggravating factors include the nature of the substance, namely cocaine, which is an addictive substance causing harm to the community at large. The amount seized from Mr. Davis, namely 1 ounce supports a finding that Mr. Davis is not a street level trafficker selling smaller amounts at the behest of someone else, but rather a mid-level trafficker with the resources to obtain 1 ounce of cocaine to sell himself. The amount of cash seized supports a finding that Mr. Davis was making substantial amounts of money from drug dealing. It is an aggravating factor that Mr. Davis has a criminal record for a similar offence. That sentence was about 4.5 months jail. That entry on his criminal record is 10 years old, which is a gap diminishing the weight of the record to some extent.

[10] It is not an aggravating factor that Mr. Davis was found guilty after a trial. The fact that he had a trial only permits me to make a finding that he is not remorseful. There is nothing in the record which permits a finding of remorse, and I find that he is unremorseful.

Mitigating Factors and Rehabilitation

[11] I find that there are some rehabilitation prospects for Mr. Davis. He is 35, which is young enough to still make a meaningful, lawful contribution to his life and the lives of those around him. His prospects for rehabilitation are somewhat dimmed by the fact that at 35 he hasn't done much with his life. He has a 2 year old daughter who I am sure he loves very much, and if there are prospects for rehabilitation it is in that relationship. I sincerely hope that he is inspired by his status as a father to walk a different path when his custodial sentence is completed.

Sentencing Principles

[12] Sentencing for this offence must take into account Parliament's direction. The Controlled Drugs and Substances Act speaks to that.

10(1) Purpose of sentencing Without restricting the generality of the Criminal Code, the fundamental purpose of any sentence for an offence under this Part is to contribute to the respect for 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.

[13] Going beyond s. 10(1) of the CDSA it is an aggravating factor under s. 10(2) of the CDSA that was previously convicted of a designated substance offence.

Custodial Sentence

[14] Sentencing is not an exercise in precision, but rather one which balances all of the sentencing objectives. In this case I find that what pulls the sentence to the upper end of the range from Woolcock and Ahmed is that Mr. Davis had so much money at the same time and place as the ounce of cocaine. He was involved in a very lucrative drug dealing enterprise with evidence of drugs sold in the past (in the form of cash) and drugs to be exchanged for more cash (the one ounce). The transaction with Ms. Bennett was indicative of how quickly and efficiently that can be done. What also pulls the sentence to upper end of the range is Mr. Davis' past entry for a designated substance offence. I would not fix the sentence at the extremity of the range simply because I find that there are some prospects for rehabilitation. Under the circumstances the sentence will be 21 months.

[15] From that will be credited the 3 days Mr. Davis spent in custody between the time of his arrest and the time he was released on bail, as well as the 8 days he was in custody from when I cancelled his bail on May 1 and the time of his sentence on May 9. Those two time periods totals 11 days, for which he will be credited for 16 days.

Downes Credit

[16] Mr. Davis argues that the curfew term in his bail is sufficiently restrictive that he should be entitled to credit for that as part of pre-sentence custody. The bail term requires Mr. Davis to be inside his residence from 10pm to 6 am each night unless he is in the company of a surety. In submissions I asked Mr. Moon if he had information about what effect that had on Mr. Davis and he said that it amounted to "infantilization". I was given no specific information about the curfew's effect on Mr. Davis which might support such a characterization. A curfew is a far cry from house arrest. A curfew permits the bailee to be free to move about from early morning until late at night. But with that said, a curfew does amount to some temporal restriction on the liberty the accused. In this case it is mitigated by the permission of being allowed out of the residence in the company of a surety. Therefore I would apply R. v. Downes, 2006 CarswellOnt 778 (CA) in the following way. The curfew is a restriction of Mr. Davis' liberty on its face. There is no information from which I can find that it had a specific impact. The curfew itself has an exception which further limits the negative impact of the curfew. The curfew is still a mitigating factor on sentence, and I would reduce the 21 month sentence by 2 weeks to reflect that mitigating factor. The starting point for the sentence is therefore 20.5 months.

Pre-Sentence Credit for Period from April 1 to May 1

[17] Mr. Davis was arrested, I am told, on other charges on March 28. On April 1 his sureties applied to remove themselves from their obligations to the Court. Mr. Davis' bail was only cancelled by me on May 1 during submissions on sentence. Mr. Arvisu advises that the Order to cancel the bail never moved out of the Court office during that period, and the police therefore never acted on it. When he appeared before me for Judgement on the trial, Mr. Davis was in custody. Counsel for Mr. Davis said on that day that Mr. Davis was still on bail on these charges. I was told that the Crown obtained a Judge's Order to bring him before me to hear reasons for judgement.

[18] S. 766(2) of the Criminal Code stipulates that once a person withdraws as a surety then the police may arrest on the strength of a warrant. That was never done here. As such the bail was never cancelled. Certain consequences follow when a surety withdraws. If it is done without the accused present the accused is entitled to a new bail hearing. If the surety withdraws with the accused at the courthouse a surety substitution is permitted. Because the bail was never cancelled that was never done. The fact remains that Mr. Davis was not arrested on March 28, 2019 because of anything to do with this case. He was arrested because of other charges for which I have not been told the specifics. Under these circumstances I would not grant him pre-trial custody for the period from April 1 to May 1, 2019. At law he was not in custody on these charges during that period, he was in custody on other charges. There is no factual or legal nexus which I can discern between the charges before me and the other charges.

[19] To summarize the custodial portion of the sentence, the sentence will be 20.5 months concurrent on each charge. From 20.5 months will be deducted 16 days pre-trial custody. The remaining sentence will be 20 months.

Ancillary Orders

[20] There will be a s. 109 Order for life. I find that it is in the best interest of the administration of justice that Mr. Davis provide a sample of his DNA for transmission to the National DNA databank, considering the facts found in this case and his prior criminal record.

Forfeiture Order

[21] The test for whether a forfeiture order should be made is whether the property is offence related on a balance of probabilities, see R. v. Durette 2014 ONCA 747. The Crown seeks such an order against all property seized from Mr. Davis on arrest. The defence opposes only the part of order that seeks to forfeit the blackberry device seized from Mr. Davis on his arrest. In this case I have found that Mr. Davis met Ms. Bennett in a parking lot and sold her drugs. She arrived in a car, as did Mr. Davis. It was no accident that they both ended up in the same parking lot at the very same moment. It was clearly a pre-arranged meeting. I find on a balance of probabilities that the meeting must have been arranged via some form of electronic device. There is no evidence that either Ms. Bennett or Mr. Davis knew each other for some reason other than the supply and purchase of drugs. The blackberry was the only electronic device found on Mr. Davis a short time after the drug deal which could explain the communication. Under the circumstances, and given the lower standard of proof I order forfeiture of the blackberry and all other items seized from Mr. Davis at the time of his arrest.

Probation

[22] Mr. Davis asks to be placed on probation. I would not have done so were it not for the submissions of counsel. Mr. Davis has established in his evidence that he has a significant distrust for the police because of an incident several years ago when the police arrested him and shot his dog. With that in mind I openly question the utility of Probation. Would imposing statutory terms on him and bringing him into the contact of a probation officer for purposes of counselling be helpful to him? I will, however, take counsel at his word that this is something that Mr. Davis wants, and so I would impose a 12 month probation term once he completes the custodial portion of his sentence. Aside from the statutory terms of probation Mr. Davis will report within 48 hours of his release from custody, and thereafter as directed. He will take counselling as directed by the probation officer and sign any necessary releases, consents etc. to ensure complete compliance with the counselling term.

Released: May 9, 2019

Signed: Justice David Rose