Court Information

Ontario Court of Justice

Date: October 29, 2020

Court File No.: Region of Niagara 998 18-114694

Parties

Between:

Her Majesty the Queen

— And —

Bismark Barrett

Judicial Officer and Counsel

Before: Justice J. De Filippis

Heard on: December 2, 2019; February 19 & October 15, 2020

Reasons for Judgment released on: October 29, 2020

Counsel:

• Ms. D. Polgar — counsel for the Crown
• Ms. L. Gensey and Mr. R. Durward — counsel for the accused

Introduction

[1] The defendant pleaded guilty to the offence noted below on December 2, 2019. Sentence submissions were heard on February 19, 2020. The Crown suggested a penitentiary sentence and the Defence argued for a reformatory term. I reserved my decision and the case was adjourned several times because of the pandemic. I was due to deliver reasons on October 15, 2020. Shortly before that date, the Defence asked for an opportunity to make supplementary submissions. I advised the parties that I had already written reasons for sentence but would grant the Defence request.

[2] The Defence now seeks a conditional sentence based on two grounds; (1) the impact of the pandemic on this defendant and (2) the recent decision by the Court of Appeal for Ontario in R v Sharma, 2020 ONCA 478.

[3] I will set out the decision I had intended to release, followed by the supplementary submissions and supporting material filed. I will explain why I have not been persuaded to change my original decision.

My Original Unreleased Decision

[4] On the day set for his trial in this matter the defendant pleaded guilty to possession of cocaine for the purpose of trafficking. The facts are simple: The police received information that drugs were being sold out of an apartment at 131 Vine Street in St. Catharines, Ontario. Later, a man was arrested leaving that apartment and found to be in possession of cocaine. A search warrant was obtained and executed. The defendant was found inside the apartment in question. The police seized a digital scale, 114 grams of cocaine in six bags, and $1,390 in cash.

[5] Section 5 of the Controlled Drugs and Substances Act provides for up to life in prison for this offence. In imposing sentence, I am guided by Part XXIII of the Criminal Code. The following provisions are particularly important:

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;

(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 acknowledgment of the harm done to victims or to the community.

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

[6] In applying these principles, I have the benefit of a presentence report and letters from the defendant, his parents, and partner.

[7] The defendant is 28 years old. He has never met his biological father and was raised by his mother in a public housing complex in Scarborough. He still resides there. The defendant has two children, three and two years old with a former partner. He is currently in a relationship with another woman. The mother of his children reports that the defendant "needs to re-think his priorities in regard to financial support for their children".

[8] The defendant is described as a habitual user of marijuana. He did not complete high school. Most of his grades were in the 50-60 percentiles. I understand that he did not get along with his teachers and peers. The defendant has been offered work through a relative but has chosen to pursue a career in music. In the past several years, he has not earned more than $500.00 annually from this self-employment. Notwithstanding this challenge, the defendant told the author of the presentence report that he plans to concentrate on his music and "doing more with my brand/company".

[9] The defendant has seven prior criminal convictions. Of particular concern are these: In 2014, he was found guilty of trafficking in a controlled substance. In 2017, he was found guilty of possession of a controlled substance for the purpose of trafficking and possession of the proceeds of crime. The longest sentence he has served is six months presentence custody (i.e. reflecting a sentence of nine months).

[10] The defendant has told me that he is sorry for these crimes and understands the negative effects of drugs on people and the community. He said he has had much time to reflect while on house arrest; he does not want to live this life and attributes his prior misconduct to the fact he grew up around gang members in a rough neighbourhood. He added that he has "some ideas to make money legitimately and wants to be a great father". These expressions of remorse and insight are echoed by his mother, step-father, and current girlfriend.

[11] The Crown suggests that an appropriate sentence is one of 42 months in custody. Counsel argues that specific deterrence is paramount and relies on the related criminal record as well as the fact that there is no suggestion the defendant is an addict/trafficker. The Defence advocates for a sentence of 16 to 18 months in jail. In this regard, counsel notes that the defendant grew up in a challenging environment of gangs and drugs. She also points to the fact that after spending six days in custody, her client was released on house arrest.

[12] I have paid careful attention to what the defendant and his supporters say about his remorse and insight. However, unlike many drug traffickers who appear before me, he did not commit this offence to support his own habit. Rather, he sought to profit from the suffering of others. In this regard, I am witness, on almost a daily basis, to the harm caused to individuals and the community by drug addiction. The defendant, and others like him, must be deterred from causing this harm. In this regard, I cannot ignore the fact that this is the defendant's third conviction for drug dealing.

[13] The defendant came from Toronto to Niagara Region to peddle his product. I acknowledge the concern expressed by the Crown that this appears to be a trend. To the extent this trend reflects a view that this area is an easy mark, I hope the defendant's arrest, conviction, and sentence, will show that it is not.

[14] The sentence suggested by the Crown properly reflects the principles of denunciation and deterrence. However, rehabilitation is an important consideration. Moreover, Defence counsel is right in urging me to account for the 22 months of house arrest. In these circumstances, I find that a fit sentence is one of 30 months in custody.

[15] The defendant must provide a sample of his DNA. He is also bound by a prohibition order, pursuant to section 109 of the Criminal Code, and will pay a victim fine surcharge in the amount of $200.00.

The Supplementary Submissions

[16] Defence counsel presented written and oral supplementary submissions. Counsel argues that jail will be especially difficult for him because of his susceptibility to COVID 19. It is also asserted that a conditional sentence of house arrest, in the present case, is sufficient to denounce and deter and will not impair public safety. In this regard, counsel reminds me that the defendant has been on bail for almost two years, without trouble.

[17] The Crown submits that correctional institutions have strict protocols with respect to the pandemic and have done a good job in mitigating the spread of infection. Counsel points out that as a resident of Toronto, the defendant is already at a greater risk of infection. The Crown's primary argument is that the defendant is not eligible for a conditional sentence because the right sentence exceeds two years.

Analysis

[18] I have a letter, dated October 9, 2020, from Dr. I. Fejer, as follows:

To whom it may concern,

Bismark Barrett has been a patient of mine for several years. This gentleman has a long history of asthma. Occasionally, it acts up and when that happens, he needs to take medication.

I trust that this information is sufficient.

[19] The defendant also presented a letter to me. He states that he has had asthma since childhood and is worried he will be more easily susceptible to COVID if he is sent to jail.

[20] The Ontario Court of Appeal has ruled that the impact of the COVID-19 pandemic represents a collateral consequence which may be considered at sentencing, although not to the point of reducing a sentence beyond what would otherwise be fit in the circumstances. R v Morgan, 2020 ONCA 279. Like many of my colleagues, I have taken the pandemic into account in sentencing. For example, in R v Yzerman, 2020 ONCJ 224, the sentence imposed reflected not only the offender's increased risk in jail (due to being HIV, among other ailments) but the fact that the worry inherent in this risk means his sentence would be harder to endure.

[21] In Yzerman, I had detailed information about the offender's underlying ailments. I do not have that here. I do not know the seriousness of the defendant's asthma. A reasonable interpretation of Dr. Fejer's letter is that it is relatively minor. I accept that the defendant may sincerely worry about his susceptibility to COVID-19, but this is not enough to alter my original opinion with respect to sentence.

[22] Section 742.1 of the Code lists four criteria that a court must consider before deciding to impose a conditional sentence: (1) the offender must be convicted of an offence that is not punishable by a minimum term of imprisonment; (2) the court must impose a term of imprisonment of less than two years; (3) the safety of the community would not be endangered by the offender serving the sentence in the community; and (4) a conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2.

[23] In 2012 Parliament amended the Criminal Code, by virtue of the Safe Streets and Communities Act, with the effect that a conditional sentence would no longer be available for anyone convicted of an offence that carries a maximum sentence of 10 years or more. In Sharma, an aboriginal offender challenged this restriction on the availability of conditional sentences on the basis that it violates sections 7 and 15 of the Charter of Rights and Freedoms. In a split decision, a majority of the Court agreed. Although the case was argued with respect to aboriginal sentencing issues, the Crown did not ask the Court to limit its judgment to such offenders and the Court did not do so. Accordingly, a conditional sentence is now available to Mr. Barrett. That said, I have not been persuaded it is fit and proper in this case.

[24] Denunciation and deterrence can be reflected through a conditional sentence, even in the most serious offences. The Court of Appeal for Ontario made this clear in a case involving criminal negligence causing death. In R v Kutsukake, the court set aside a jail sentence and substituted a conditional sentence because the trial judge did not consider appropriate alternatives to incarceration. The offender in that case was a 20-year-old first offender who had agreed to pull the deceased behind her car while he was on a skateboard. She reached a speed of 80 km/hour. The deceased fell and was struck by another car. The Court of Appeal considered the leading case of R v Proulx, 2000 SCC 5, and stated as follows:

The Supreme Court of Canada held, at para. 114, that even in the presence of aggravating factors which might indicate the need for denunciation and deterrence, "a conditional sentence may provide sufficient denunciation and deterrence, even in cases in which restorative objectives are of diminished importance." Writing for the court, Lamer C.J.C. added at para. 100: A conditional sentence can achieve both punitive and restorative objectives. To the extent that both punitive and restorative objectives can be achieved in a given case, a conditional sentence is likely a better sanction than incarceration. Where the need for punishment is particularly pressing, and there is little opportunity to achieve any restorative objectives, incarceration will likely be the more attractive sanction. However, even where restorative objectives cannot be readily satisfied, a conditional sentence will be preferable to incarceration in cases where a conditional sentence can achieve the objectives of denunciation and deterrence as effectively as incarceration. This follows from the principle of restraint in s. 718.2(d) and (e), which militates in favour of alternatives to incarceration where appropriate in the circumstances.

[25] For the reasons set out in my original unreleased decision, I am of the view that the need to denounce and deter in this case means that the second and fourth criteria in section 742.1 are not met. That is, a sentence exceeding two years is required to meet the fundamental principles of sentencing. Indeed, I am strengthened in this view by the defendant's letter, filed as part of the supplementary submissions. The defendant repeats what he told me before; namely, that he is sorry for what he has done, has learned his lesson and intends to live a productive life. However, he also wrote this: "The crime I've been convicted for is not violent and I am not a violent person. I don't pose a risk to society". This is inconsistent with his earlier statement expressing an appreciation for the social consequences of his crime. The defendant does not appear to fully understand that the distribution of hard drugs causes substantial harm to the community. As such, one must ask whether the third criterion in s. 742.1 is not engaged by this repeat offender.

Result

[26] The supplementary submissions, and the related material filed, do not persuade me to alter my original decision. The defendant is sentenced to 30 months in custody. He must provide a sample of his DNA. He is also bound by a prohibition order, pursuant to section 109 of the Criminal Code, and will pay a victim fine surcharge in the amount of $200.00.

Released: October 29, 2020

Signed: Justice J. De Filippis