Court Information

Date: May 4, 2020

Information No.: 19/5606

Ontario Court of Justice

Her Majesty the Queen v. Shayne O'Loughlin

Reasons for Judgment

Before the Honourable Mr. Justice S. Pratt

On the 4th day of May, 2020 in Windsor, Ontario.

Appearances

• A. D'Alessandro – Federal Prosecutor
• R. Russon – Counsel for Mr. O'Loughlin

Reasons for Sentence

PRATT, O.C.J. (Orally):

Shayne O'Loughlin, the Defendant, has pleaded guilty to one count of possession of a Schedule I substance for the purpose of trafficking. The substance in question was 7.6 grams of powdered cocaine found on his person after police initiated a traffic stop with a vehicle in which he was a passenger. In addition to the cocaine the Defendant also had a scale and a cell phone at the time of the search.

The Crown seeks a sentence of 90 days jail. Through counsel the Defendant argues that his pre-sentence custody of 30 days enhanced to 45 days is sufficient. He acknowledges that such a sentence is below the normal range for this offence but argues that the worldwide Corona Virus Pandemic and the consequent increased risk to persons in custody should be taken into account. These reasons explain my decision on a fit and appropriate sentence.

The Facts

On the 31st of July the Defendant was the front seat passenger in a vehicle driven by Orlando Newman. Police noticed the vehicle and Mr. Newman committed several traffic offences, they initiated a traffic stop. There was an odour of alcohol emanating from Mr. Newman's breath so police administered an Approved Screening Device Test. The result was 27 milligrams percent well below the legal limit. Unfortunately for Mr. Newman determined that he was bound by a recognizance that prohibited any alcohol consumption. He was arrested and the vehicle was searched. Police found several items: One, baggies with what police believed to be cocaine residue; two, a large knife; three, $9,610 in Canadian Currency; and four, a bag with seven cell phones, a USB Stick and SD memory cards in the vehicle center console. Police believed this gave them reasonable ground to arrest both occupants for possession of a controlled substance for the purpose of trafficking. When the Defendant was searched incident to his arrest the cocaine, scale and cell phone were discovered.

The Defendant is 27 years old. His only criminal history is a conditional discharge from February 2019 following charges of assault and mischief. He has no prior drug offences on his record. I have had the benefit of a Pre-Sentence Report in this matter. It details a difficult childhood for the Defendant. His mother left him when he was very young. He remained with his father who suffered from an alcohol addiction. As a result he divided his time between his father and his paternal grandmother. Both his father and grandmother have since passed. The Defendant now has two children of his own though they live with their mother in London, Ontario and he sees them only rarely. I note this is because of transportation issues not a lack of desire to see them.

His education is limited as is his employment experience. He has unfortunately experienced the same difficulties with alcohol that plagued his father. He has been offered counselling through probation but has not followed through on these opportunities. His probation officer reports that the Defendant is a "challenging individual" who needs to do more than talk about making changes in his life. He needs to take concrete steps to make those changes a reality.

In his favour, the Probation Officer reports that he can "confidently say that the offender is not criminal in his orientation as he is not motivated by financial gain or greed nor deviant in his pattern of thinking. When looking at the offender's pattern of offending behaviour the offender's need for acceptance and affirmation which stems from traumatic experiences during his adolescence as well as formative years has played a role in his decision making".

It appears to me that the Defendant has had and continues to have significant challenges in his life. I have heard that he is currently facing other charges of a serious nature while I do not know anything about them it seems that his involvement with the Court System will not end today. Coupled with his addiction and personal challenges I recognize that he has a difficult road ahead of him. But despite the difficulty he can choose not to let his past define him, history has not been kind to him but he has a role to play in determining his future. Talking about counselling and other positive steps shows me that he at least understands the importance of taking action to improve his situation. I am hopeful that he will put his words into action. There are many people starting with his probation officer who are willing to help if he will let them.

The Defendant has 30 days of pre-sentence custody up to today. He will be given enhanced credit for that time on a 1.5 to 1 basis meaning he has the equivalent of 45 days of pre-sentence custody. I was told that the Defendant spent the first 14 days of his pre-sentence custody in isolation, that factor will be considered when assessing a fit sentence.

Aggravating and Mitigating Factors

There are several factors that add to the seriousness of the offence committed by the Defendant. First, the nature of the substance, cocaine is a deadly drug that is rightfully included in Schedule I of the Controlled Drugs and Substances Act alongside the most serious drugs prohibited by law. There may be a temptation to consider cocaine to be on the lower end of the Schedule I spectrum now that other substances like Methamphetamine and Fentanyl have become more prevalent. Courts should resist that temptation. The fact that there are other drugs equally or more harmful than cocaine does not mitigate the seriousness of cocaine possession. We do not view the possession of a 9 millimetre pistol as less serious than possession of a 45 calibre pistol simply because it is less powerful. The same reasoning should apply to controlled substances.

Second, the amount of the substance. Possession of 7.6 grams of cocaine reflects more than personal use. This is an amount meant for resale. The Defendant acknowledged this with his plea. There is the presence of the scale, this reinforces the idea that the cocaine found on the Defendant was meant to be sold. There is no other reason for him to have been carrying a scale in these circumstances other than to separate out the 7.6 grams into smaller, more easily sold amounts.

Conversely there are factors that mitigate the seriousness of this offence. First, the Defendant has no prior drug offences on his record. Indeed he has no convictions on his record at all. Second, he has entered a guilty plea. This is a sign of remorse and him taking responsibility for his actions. Third, in my view this is a meaningful guilty plea. While I recognize that I only heard a brief synopsis of the allegations it seems to me that there was a legitimate constitutional issue that could have been argued related to the search of the vehicle and the subsequent arrest of the Defendant. Had that been argued successfully the result could have been the exclusion of the cocaine from evidence. This was a significant triable issue that the Defendant refrained from pursuing, this makes his plea more significant. Fourth, while not excusing his actions, the Pre-Sentence Report indicates that his behaviour is not motivated by greed. I note though that that contention seems a bit shaky given the nature of the charge or deviance but by a desire to be accepted. The difficulty seems to be the crowd from which the Defendant seeks that acceptance.

Position of the Parties

The Crown takes the position that a fit sentence would be 90 days jail. This is below the usual range for an offence like this but it takes into account the specific circumstances of the Defendant and his background. Ordinarily the Crown says, "This offence would attract a sentence of between 6 months jail and two years less a day". Counsel for the Defendant does not take issue with the range put forward by the Crown. He does not argue that in ordinary times a sentence of 90 days jail would be considered quite lenient but he says these are not ordinary times. The Defendant seeks a sentence of time served, 45 days followed by probation.

As of the date of this judgment the world is in the grips of a viral pandemic. The illness known as Corona Virus Disease 2019 or COVID-19 has infected over 3.3 million people and killed nearly 240,000. In Canada there have been over 56,000 cases and over 3500 deaths. There is no known treatment for the disease and no vaccine although researches around the world are looking to find both.

Courts across Canada have grappled with how this pandemic should affect sentencing. I have considered this issue at some length in the decision of Regina v. Kurt Durance which is also being released today in which I will make available to counsel in this case. To avoid needless repetition I adopt my comments from that case and apply them to the Defendant's situation with necessary adjustments which I will detail now.

In both the present case and the Durance case I was given an affidavit of Dr. Aaron Orkin. My comments on the affidavit as set out in Durance apply here. In summary however I give the affidavit little weight on the issue of incarceration specific pandemic concerns. In response to the pandemic the Ministry of the Solicitor General has taken several significant steps. Thousands of inmates have been released from custody, screening of inmates and staff is ongoing and extensive, isolation and sanitation measures have been put into place. For their part the Courts have also taken a hard look at the sentences to be imposed on non-violent offenders with a view to minimizing the inmate population.

The Defendant while in the same situation generally as Mr. Durance comes to that situation with his own unique circumstances. Unlike Mr. Durance he is not guilty of a violent offence. Unlike Mr. Durance he does not have a long record of serious related offences. In my view, the Defendant is precisely the kind of offender being contemplated by Courts and Correctional Managers when shorter than normal sentences and releases are entertained.

In Regina v. McGrath at 2020 ONCJ 192, Justice Berg considered the Superior Court Decision of Regina v. Kandhai at 2020 ONSC 1611 and stated as follows:

"While the decision of the Superior Court in Kandhai is indeed predicated to an extent on the existence of the pandemic it does not stand for the proposition that all other sentencing principles and factors must be held in abeyance as the illness runs its course through our society. What it does stand for is the principle that where there are urgent, exigent circumstances an offender who has served most of an anticipated appropriate sentence can receive a lesser sentence to mitigate those circumstances. This is made patently clear by Justice Harris in the last sentence of paragraph 7 of the decision given how much time he has served thus far in custody it is in Mr. Kandhai's interest and the public's interest as well that he be released at this point of time".

I agree with and adopt this statement. In the present case the Crown is seeking 90 days' jail. The Defendant is arguing that an effective 45 day sentence equates to having served "most of an anticipated appropriate sentence" such that time served is itself now an appropriate sentence. I am unable to agree with this submission. Half is not most. To find otherwise would stretch the reasoning in Kandhai and McGrath to a potentially absurd extent.

Incarceration at this time is more onerous than usual. Visits have been largely suspended as have activities within the institutions. Lockdowns are not uncommon when an inmate is suspected of infection. Psychological stress is no doubt higher among both inmates and staff. There is no request for special consideration on the basis of the Defendant's personal health or a correctional institution's inherent inability to respond to the pandemic rather it is a request for as the Defendant's Counsel put it candidly if somewhat inartfully a "COVID discount".

I wish to stress that there is no such thing as a "COVID discount". Even with the far reaching effects of the pandemic across Canada and the world each case must be decided on its own merits and facts. There will be cases where the charges, the offender and his or her background are such that the pandemic can play no role in reducing a sentence. We cannot forget the protection of the public is a valid consideration in sentencing. There will be times when separating an offender from society is simply necessary pandemic or not.

The Sentence

I agree that a sentence of 90 days jail followed by probation is appropriate in this case. The Defendant will received credit for the equivalent of 45 days pre-sentence custody leaving 45 days to be served. In recognition of the 14 days spent in isolation that remaining 45 days will be reduced by 7 days. From today therefore the Defendant will have a further 38 days jail to serve.

Taking into consideration all the factors present in this case including a lack of a related record, the meaningful guilty plea and the increased onerousness of incarceration at this time the Defendant will be permitted to serve this sentence on an intermittent basis. He will be processed today and then report to the designated correctional institution on Friday the 8th of May no later than 7 p.m. He will serve his sentence until 6 a.m. on Monday the 11th of May and then on consecutive weekends until the sentence is served. This is subject to any temporary absence passes the institution may see fit to issue to him. While not in custody the Defendant will be bound by a probation order. That order will also require the statutory conditions. He is also required that he present himself to the designated correctional institution in a sober condition.

Following the custodial sentence the Defendant will be placed on probation for a period of 18 months. In addition to the statutory conditions the terms will be:

1. Report by telephone to a probation officer within 72 hours of your release from custody and thereafter as required by your probation officer.

2. Co-operate with your probation officer by signing any such releases the probation officer requires to monitor your compliance with this order.

3. Do not contact or communicate in any way directly or indirectly including electronically with Orlando Newman.

4. Do not purchase, possess or consume any non-medically prescribed drugs or controlled substances.

5. Attend and actively participate in all counselling and rehabilitative sessions as directed by your probation officer including but not limited to substance abuse counselling.

6. Do not possess anything defined in the Criminal Code as a weapon.

There will also be an order pursuant to Section 109 of the Criminal Code prohibiting the Defendant from possessing anything in that Section for a period of ten years. There will be an order requiring the Defendant to provide a sample of his DNA for inclusion in the National DNA Data Bank. There will be an order of forfeiture for all items listed in the draft order provided by the Crown which I will email on the conclusion of this proceeding. I am hopeful that the Defendant will take advantage of the resources available to him and in fact turn his words into action and I wish him luck. That is my sentence.

Victim Surcharge

MR. RUSSON: He is currently not working and struggling with mental health issues Your Honour. I would ask that you consider waiving that in the circumstances.

THE COURT: Mr. D'Alessandro, what do you say about that?

MR. D'ALESSANDRO: Your Honour, given my friend's comments I am not pursuing it.

THE COURT: All right. There will be no Victim Surcharge imposed in this matter. Mr. O'Loughlin I wish you luck sir.

MR. O'LOUGHLIN: Thank you.

Released: May 4, 2020 Justice S. Pratt Ontario Court of Justice