Court Information

Ontario Court of Justice

Date: December 21, 2020

Court File No.: Kitchener 4411-998-19-5525-05, 4411-998-19-5540-05, 4411-998-19-5388-02, 4411-998-19-7638-02, 4411-998-20-3606-00

Parties

Between:

Her Majesty the Queen

— and —

Jameal Clint McInnis

Judicial Information

Before: Justice W. G. Rabley

Heard: December 1, 2020

Sentencing Judgment Released: December 21, 2020

Counsel:

• A. Pashuk and K. Ramchand, counsel for the Crown
• D. Findlay, counsel for the accused Jameal Clint McInnis

Judgment

RABLEY J.:

Facts

[1] In March of 2019, the RCMP began a four-month investigation into drug trafficking in Southern Ontario. The operation was nicknamed Project O'Woodcraft. A police agent was deployed, and an individual named Derek Shand was targeted by the investigation. Significant purchases of heroin and other drugs were made from Mr. Shand through the police agent. As a result, 869 grams of heroin were purchased over the course of three separate transactions.

[2] Jameal McInnis is the son of Clint McInnis. During the investigation, Clint McInnis was identified by the police as the supplier of the drugs to Mr. Shand. Clint McInnis has fled the jurisdiction and there is a warrant for his arrest. Mr. Shand pleaded guilty before me and was sentenced to 9 years in prison.

[3] On July 11th, 2019 the police agent met Mr. Shand to facilitate one of the drug purchases. Clint McInnis was out of the country at the time and so he made arrangements for others, including his son, to facilitate the transaction. As a result, Jameal McInnis was asked to drop off a bag at a house in Ajax. Shortly after he did so, Mr. Shand exited the garage and went to the police agent's vehicle. He gave him 200 grams of heroin and received $17,000 in cash.

[4] Jameal McInnis was present during the transfer of the money. He then departed from the residence and met up with another male. He traded a brown paper bag for a grey one which he then took back to Ajax. Jameal McInnis returned to the house and shortly thereafter Mr. Shand exited the garage and gave the police agent another 175.6 grams of heroin. In return he received a bag of cash.

[5] Jameal McInnis pleaded guilty to the charge of Possession of Proceeds of Crime. He denied that he was aware that it was heroin that was being trafficked during these transactions but acknowledged that he was in possession of $28,000 of Canadian currency and that he had been wilfully blind to the fact that the cash was the proceeds of crime.

Position of the Parties

[6] It is the Crown's position that Jameal McInnis played an important role in the trafficking of a dangerous drug. He was trusted by his father to transfer a significant amount of heroin and to act as a courier for the cash which he had to have known was for a serious criminal offence.

[7] The Crown submits that because of the quantity of drugs and Canadian currency involved, deterrence and denunciation must take a prominent role in sentencing. Therefore, when balancing the aggravating and mitigating factors, it is the Crown's position that a sentence in the range of 3 to 4 years is appropriate.

[8] Counsel for Jameal McInnis concedes that the facts in this case are serious and call for a significant sentence. It is his submission, that given the personal circumstances of his client and the role that he played in this offence, that the sentencing objectives set out in section 718 can be addressed by the imposition of a conditional sentence of 2 years less a day.

Personal Circumstances of the Offender

[9] Jameal McInnis is 21 years of age. He was 20 years old when his father contacted him and asked if he could help him out. In a PSR that was prepared, Jameal indicated that he "had no idea that my dad was involved in drugs."

[10] Although he had come to Canada with his father at the age of two, Jameal was raised by his grandparents as his father was never around. Clint McInnis would disappear out of his son's life for years at a time and the two had reconnected for only a short period of time before the events of July 11th.

[11] Jameal McInnis continues to reside with his grandparents and they are supportive of him. He completed his high school education and is intending to pursue post-secondary education in an automotive technician program. Throughout high school, Jameal worked at various jobs and he currently works in the kitchen for a hotel in Toronto.

[12] External sources expressed their shock that Jameal was involved in the criminal justice system and describe him otherwise as a "positive influence" on others. He is described as a young man who doesn't drink, doesn't do drugs and lives his life in a pro-social manner. The Crown acknowledges that Jameal McInnis was not motivated to commit the offence because of financial gain and fairly concedes that his involvement was as a result of his desire to help out his father who had recently returned into his life.

[13] Jameal McInnis pleaded guilty to the offence. He accepted responsibility for his role in this offence. It is said that the experience has had a significant impact on him. He reported to the author of the PSR "I take responsibility for my actions, I should have been more aware and I regret it." After his arrest, he was held in pre-trial custody for 36 days. Thereafter, he was released into his grandparent's care on bail terms that included house arrest.

Aggravating Factors

[14] Section 718.1 of the Criminal Code provides that a "sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender."

[15] Although Jameal McInnis was not found guilty of trafficking in heroin, the proceeds of crime in this case relate to one of the most serious drugs available in our community. It is highly addictive and puts people's lives at risk every day. Heroin trafficking has been described as a "despicable" crime and one that "tears at the very fabric of our society": see Pushpanathan v. Canada (Minister of Citizenship and Immigration). I see no reason to part ways with the denunciatory approach echoed by many others to reflect society's abhorrence to those who be involved in some manner with this drug.

[16] The quantity of Canadian currency was significant. In my view, those involved in criminal activities at a higher level should expect a stronger deterrent sentence when they are caught.

[17] Jameal McInnis continued to associate with Shand after his involvement on July 11th. The two of them were together on July 22nd when the police arrested them. At that time, he attempted to flee and reversed his car striking a police vehicle and then an uninvolved civilian vehicle. The damage caused to those cars was $18,743.47. Although he fled the scene, unlike his father, Jameal turned himself into the police.

Mitigating Factors

[18] There are a number of mitigating factors that need to be taken into account. They are:

(a) The plea of guilty and genuine remorse expressed by the accused. Even though the case against Mr. McInnis is strong, he still deserves credit for a guilty plea: R. v. Santos (1993), 67 O.A.C. 270 at para. 2. The plea was entered relatively early in the process. His plea of guilty is an important factor because of the savings of resources and his acceptance of responsibility;

(b) The motivation for the offence. In this case, Mr. McInnis was not motivated by greed or by profit but by the desire to help out his father who he did not know to be involved in drugs and who had recently come back into his life;

(c) The lack of any criminal record. Jameal McInnis is a first offender;

(d) His youthful age and the positive background of the offender. He is also described as a good influence on others, appears to have a bright future and otherwise contributes to the community in a positive way.

Analysis

[19] Counsel have provided me with the decision of R. v. Bonnyman and Lussier-Young, 2017 NBQB 113 of the New Brunswick Queen's Bench which appears to be the only case on point. The facts are somewhat similar to the case before me. I agree with the position stated by Justice Morrison who said:

"I acknowledge the submission of defence counsel that each sentence must be crafted to fit the individual circumstances of each case and each offender and that the Court can never lose sight of the goal of rehabilitation in imposing a fit sentence. However, the primary objectives of the Court in sentencing an offender in these types of cases are denunciation and general deterrence."

[20] In Bonnyman, the two accused were cross-country couriers for a crime group involved in large scale trafficking operations. When they were arrested, they were found with over $300,000 worth of cash concealed in vacuum-sealed bags. Morrison J. cited with approval the comments by Justice Roscoe in R. v. Jones, 2003 NSCA 48 where it was stated at paragraph 9:

"it is indisputable that a courier is an integral part of the distribution system in the drug business. Drugs and money have to be delivered from the importation or cultivation location to the dealers and the users. Couriers provide that critical link between the wholesalers and retailers, often shielding the major stakeholders from detection. In Nova Scotia, couriers have not traditionally been regarded as less culpable or treated more leniently than other middlemen in the organization."

[21] Ms. Bonnyman was sentenced to two years in prison. Mr. Lussier-Young received a sentence of 34 months in jail. Counsel for Ms. Bonnyman sought a conditional sentence. Justice Morrison reviewed the availability of such a sentence and concluded that it would not meet the "fundamental purpose and principles of sentencing set out in section 718 to 718.2 of the Criminal Code."

[22] As part of his rationale for rejecting this sentencing option, Morrison J. found that although Ms. Bonnyman had a positive PSR, she was not "one of those rare persons convicted of a serious offence who can truly be described as a person of otherwise good character".

[23] Counsel for Mr. McInnis submits that unlike Ms. Bonnyman, Mr. McInnis fits within the exception detailed by Justice Morrison and that I ought to consider the maximum reformatory sentence but allow Mr. McInnis to serve it as a conditional sentence. In this case, the Crown fairly concedes that such a sentence could satisfy the principles of 718 to 718.2 but submits that it is not available because the range of sentence in this case should exceed two years.

[24] In my view, this is a situation where the court must truly balance the competing factors of sentencing. Jameal McInnis played an important part in the transfer of a significant amount of money relating to the sale of a substantial amount of heroin. This clearly calls for a deterrent sentence. However, he is a youthful first offender who pleaded guilty to the offence and has expressed genuine remorse. He comes from a pro-social background and became involved because of his desire to please his father rather than for profit or personal gain.

[25] The letters of reference filed on behalf of Mr. McInnis and the PSR speak in a very positive way about him. He has also had a true taste of incarceration having spent 36 days in custody pending his release and then, a number of months on house arrest as part of his bail. I am confident he understands that should he breach the terms of a conditional sentence order that he will likely serve the balance of the sentence in a real jail.

[26] Counsel made submissions regarding the increased harshness to an offender because of Covid-19. I do take into account the pandemic that we are currently experiencing and the fact that the 'second wave' of infections is truly upon us. Although Covid-19 cannot be used to create a sentence that is "disproportionate to the gravity of the offence or the moral blameworthiness of the offender", it is a factor to be taken into account with all of the others: R. v. Morgan, 2020 ONCA 279, R. v. Walker, 2020 ONSC 7029.

[27] When I balance all of the aggravating and mitigating factors, I believe that Jameal McInnis could be described as "one of those rare persons convicted of a serious offence who can truly be described as a person of good character" and that a sentence of two years less a day is in the range for this particular offence and this particular offender in these particular circumstances.

Sentence

[28] Therefore, the sentence will be one of two years less a day. I will deduct 59 days which represents 36 real days enhanced by 1.5 and an additional 5 days for lock downs. I will also deduct a further 30 days for Downes credit given the house arrest terms for a number of months before a variation was granted. Therefore, the sentence will be one of 21 months in addition to pre-sentence custody.

[29] I am also satisfied that the ends of justice can be met by having Mr. McInnis serve the remaining 21 months of his disposition by way of a conditional sentence. Given the unique circumstances of this offender, I am satisfied that Mr. McInnis would not endanger the safety of the community and that the other parameters of s. 742.1 have been met.

[30] Mr. McInnis will provide a sample of his DNA. It is my view that the seriousness of the offence requires that DNA be given by Mr. McInnis and that his privacy interests are secondary in a case such as this.

[31] There will be a $200 victim surcharge. That will be payable in 60 days. I do not see that this as a case for probation. In my view, the lesson necessary will be well learned by Mr. McInnis by the lengthy conditional sentence and I cannot identify any particular issues or supervision concerns that need to be addressed by probation.

[32] I would welcome counsel's submissions as to the terms of the conditional sentence order.

Released: December 21, 2020

Signed: Justice W. G. Rabley