Court Information

Court File No.: Central East Region: Oshawa Courthouse 19-25266

Date: December 22, 2020

Ontario Court of Justice

Parties

Between:

Her Majesty the Queen

— and —

Alexander Douglas Woodcock

Before the Court

Justice: Peter C. West

Guilty Plea: October 20, 2020

Oral Submissions Heard: October 20, 2020 and December 22, 2020

Oral Reasons for Sentence Delivered: December 22, 2020

Counsel

For the Crown: M. Hill

For the Defendant: J. DiLorenzo

Decision

WEST J.:

Introduction

[1] On October 22, 2020, Mr. Woodcock pleaded guilty to a charge of simple possession of cocaine that occurred on July 28, 2019. After submissions were made as to sentence I ordered a presentence report to provide further information concerning Mr. Woodcock's background and character. As will be seen, the underlying facts leading to the discovery of the illicit substances found in Mr. Woodcock's bedroom, as a result of the execution of a search warrant, are unusual and provide an explanation for the delay in Mr. Woodcock's guilty plea.

[2] On July 27, 2019, a friend visited Mr. Woodcock at his house. This person brought a shotgun. At some point this shotgun discharged causing a hole through the drywall into Mr. Woodcock's mother's adjoining bedroom. The pellets continued through the outer wall and travelled across to the next door house and struck the outer wall of that home. One of the pellets pierced the outer wall and entered the owner's bedroom, striking and left an indentation in the wall before it bounced off, landing on the bedroom floor. No one was home when this occurred and the homeowner discovered the damage to her bedroom wall when she returned home and called the police.

[3] Mr. Woodcock and a tenant in his house repaired the walls in Mr. Woodcock's mother's bedroom. The police attended at the neighbour's house at 2:16 a.m. on July 28, 2019. They went to Mr. Woodcock's house and were allowed into the house by his mother. The police determined no one was injured and at 3:13 am, Mr. Woodcock was arrested. A search warrant was obtained and upon searching Mr. Woodcock's bedroom, the police found 2 individually wrapped packages of cocaine (5 g and 2.6 g) as well as 0.5 g of crystal methamphetamine in a box on a shelf in the bedroom closet.

[4] The identity of the individual who brought the shotgun to Mr. Woodcock's house is unknown.

[5] On the eve of Mr. Woodcock's trial for gun charges and possession for the purpose in trafficking of the illicit substances the Crown determined there was no reasonable prospect of conviction of the more serious charges and offered Mr. Woodcock a plea to simple possession of cocaine. I was advised by Ms. DiLorenzo that Mr. Woodcock has always been prepared to resolve the charges by a guilty plea to simple possession, but this was not acceptable to the Crown until just before the scheduled trial date.

Position of the Parties

[6] The Crown is seeking a 60 day sentence and 3 years probation with terms for counselling. The defence is seeking a conditional discharge with probation having regard to the fact Mr. Woodcock pleaded guilty and he is a youthful first offender, who at time of commission of offence was user of cocaine and this incident was a significant wake-up call, which has changed the path of his life.

Victim Impact Statement

[7] The Crown did not provide a victim impact statement in this case, perhaps because the more serious charges are to be withdrawn. It is not difficult to imagine the traumatic impact to Mr. Woodcock's neighbour resulting from the discovery that a shotgun had been discharged in Woodcock's home, the shotgun pellets going through two walls with one of the shotgun pellets entering your bedroom causing an indentation in the wall. I also have no doubt Mr. Woodcock's mother would also have been horrified by this discovery. Although Mr. Woodcock did not plead guilty to the more serious gun charges as the Crown is withdrawing them, Mr. Woodcock's guilty plea to possession of cocaine arises from those background factual circumstances.

Background of the Offender

[8] Mr. Woodcock was 23 at the time of the offence and has no prior youth court or criminal record.

[9] Mr. Woodcock had a somewhat difficult upbringing as his parents were not together from the time he was very young. His relationship with his father was filled with disappointment, broken promises and even physical incidents when he was a teenager. The PSR reflects there were occasions police would have to attend Mr. Woodcock's father's house and remove Alexander and return him to his mother's home. Although he and his mother had to move on many occasions to different apartments, Mr. Woodcock has a strong, positive and supportive relationship with his mother and his maternal grandparents. Letters from his mother and grandmother were provided, which support this. Mr. Woodcock has not maintained much contact with his father. An important aspect of Mr. Woodcock's childhood and teen years was his involvement with playing hockey. This continued until he began hanging out with an unfavourable crowd of peers and his unresolved anger towards his father eventually leading to his getting involved with fighting in hockey.

[10] Mr. Woodcock candidly advised the probation officer his relationships with women in the past have been harmful as he has engaged in obsessive compulsive behaviour, which would result in the relationship ending. This would lead to him harming himself or threatening to harm himself. He has been hospitalized twice for harming himself, once for cutting himself so severely that police had to take him to hospital and the other when he overdosed on pills. These hospital stays led to him receiving intensive treatment for his thoughts, attitudes and behaviours. He advised he believed he learned a lot about healthy relationships. He reported completing Anger Management counselling at John Howard in 2018 as well as Drug and Family Counselling. His mother advised she discovered her son had cut himself so deeply she had to call the police and ambulance so he would be taken to hospital. He was diagnosed with Borderline Personality Disorder and was seen by a psychiatrist for a couple of years. He is not currently on any medication and not currently seeing a psychiatrist. Mr. Woodcock denies any suicidal ideations currently.

[11] The probation officer believed he had an awareness of his need to continuing addressing life skills. Mr. Woodcock expressed a willingness to continue in counselling as he found counselling to be helpful in the past.

[12] He is the father of two children (ages 6 and 4) and although not currently in a romantic relationship with his boys' mother, she provided a letter in the materials provided by the defence attesting to the fact he is a good father and actively involved in their lives. She also opined Mr. Woodcock has made mistakes but is seriously trying to be a better person.

[13] Mr. Woodcock completed Grade 11 and then his son was born, and he quit school to work. He has always worked since he was 17, initially for a year in a coffee shop, then two years at Sunroom Company, landscaping before being hired by GM auto plant in Oshawa, where he worked for three and a half years. He was transferred to another auto plant but was let go when he was in custody in relation to this incident and was let go for "job abandonment."

[14] He is currently working in landscaping with his uncle, at Bolton Contracting. His uncle provided a letter, which indicates that Mr. Woodcock has had struggles in the past but is a hard worker and currently seems like a changed person with his focus now on work his children and being a better person. He is also now working with Ontario Works to obtain his high school diploma and wants to get an apprenticeship in the trades.

[15] Mr. Woodcock's use of alcohol was with friends at parties but currently only has a drink or two. His mother reports no concerns with consumption of alcohol. He admitted to using cocaine in his later teen year as it was always available and used it for two years leading up to the police charging him. He reported he is no longer using cocaine. His mother was upset she did not see the signs but she currently believes he is not using because of how different his behaviour is now.

[16] Mr. Woodcock at one point believed his ability in hockey might have led to a professional career but this ended when he was having his struggles with school and girlfriends and he dropped out. Currently he is trying to get involved again, now as a coach and he contacted his old coach and acted as a coach and trainer for an AA hockey team from 2018-2019. This is something he would very much like to pursue, particularly with his own children as they get older.

[17] Mr. Woodcock, according to the probation officer, has taken responsibility for his actions and expressed remorse for his actions.

Mitigating and Aggravating Circumstances

[18] Mr. Woodcock pleaded guilty, which demonstrates his remorse and acceptance of responsibility for his actions. These are mitigating circumstances. Mr. Woodcock's always intended to plead guilty to the charge of simple possession; however, this plea was not acceptable to the Crown. Although a trial date was set, this was as a direct result of the Crown's position to proceed on the more serious charges and as soon as this position changed Mr. Woodcock pleaded guilty to simple possession. I understood the Crown made this offer upon reviewing the evidence, recognizing the prospect of a conviction was very weak to non-existent and was able to call of both civilian and police witnesses. As a result, this matter did not proceed to trial and I view the cost savings to the administration of criminal justice as being mitigating.

[19] Mr. Woodcock is a youthful first offender, who has lived a pro-social life, gainfully employed since leaving high school at the age of 17 and a dedicated and committed father to his two sons. This is a mitigating circumstance recognized by the Ontario Court of Appeal in R. v. Stein, 15 C.C.C. (2d) 376, when Justice G. Arthur Martin held sentencing judges should look to alternatives to incarceration for first offenders. Also, Justice Rosenberg who in making comments about R. v. Stein in a case called R. v. Priest, 110 C.C.C. (3d) 289, indicated:

That it is then an important principle of sentencing in this province that the sentence should constitute the minimum necessary intervention that is adequate in the circumstances.

[20] Mr. Woodcock has been on bail since July 2019 and has not encountered any further involvement with the police. He was on a house arrest bail from August 9 to December 13, 2019, when his house arrest was changed to a curfew. In my view this is a mitigating circumstance.

[21] All of the collateral contacts approached by the probation officer as well as the 6 character letters provided by the defence provided positive information about Mr. Woodcock's changed behaviour and the fact he has stopped using cocaine and other illicit substances. This is a mitigating circumstance.

[22] Cocaine is a schedule 1 substance under the Controlled Drugs and Substances Act, which is an aggravating circumstance.

Sentence Imposed

[23] Mr. Woodcock had a very positive presentence report, which set out a number of steps he has taken in addressing issues in his life that resulted him being charged with the offences he faces. The PSR also reflected a great deal of insight and awareness on Mr. Woodcock's part of how he needed to change his future behaviour, and this was confirmed by the character letters provided by Ms. DiLorenzo.

[24] In R. v. Stein (1974), 15 C.C.C. (2d) 376 at page 377, Martin J.A. made it clear that in the case of a first offender, the court should explore all other dispositions before imposing a custodial sentence:

It is the view of the Court that the sentence imposed upon the appellant does reflect an error in principle. In our view, before imposing a custodial sentence upon a first offender the sentencing Court should explore the other dispositions which are open to him and only impose a custodial sentence where the circumstances are such, or the offence is of such gravity that no other sentence is appropriate. In our view, this offence does not fall within the category of offences where a custodial sentence is the only appropriate sentence to be imposed upon a first offender, nor are there other circumstances which require the imposition of a custodial sentence. [Emphasis added]

[25] In R. v. Priest (1996), 110 C.C.C. (3d) 289 Rosenberg, J.A. made the following comments concerning R. v. Stein, supra, (at paras. 18 and 19) as well as addressing the issues raised in sentencing a first offender:

As the Stein case shows, it has been an important principle of sentencing in this province that the sentence should constitute the minimum necessary intervention that is adequate in the particular circumstances. This principle implies that trial judges consider community-based dispositions first and impose more serious forms of punishment only when necessary. These principles have now been codified in the recently proclaimed sections 718 and 718.2 of the Criminal Code. Section 718.2 (c) instructs that separation of offenders from society is an appropriate objective of sentencing "where necessary". Section 718.2 (d) directs that an offender should not be deprived of liberty "if less restrictive sanctions may be appropriate in the circumstances".

The principle embodied in now s. 718.2(e) was of particular significance in this case. It provides that "all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders".

[26] In R. v. Batisse, 2009 ONCA 114, [2009] O.J. No. 452, at paras. 32 to 34, the Ontario Court of Appeal held:

…the appellant was a first offender. As such, the restraint principle requires that a sentencing judge consider all sanctions apart from incarceration and where, as here, incarceration must be imposed, the term should be as short as possible and tailored to the individual circumstances of the accused: see R. v. Priest (1996), 30 O.R. (3d) 538 (C.A.), at p. 545.

…the principle of restraint requires the sentencing judge to consider rehabilitation in determining the appropriate length of the sentence. In lowering a sentence given to a first offender, this court stated in R. v. Blanas (2006), 207 O.A.C. 226, at para. 5:

[G]eneral deterrence cannot be the sole consideration. The appellant is relatively youthful and has no prior record and appears to have the full support of her family and community. Appropriate consideration must be given to the rehabilitation of the appellant.

In serious cases and cases involving violence, rehabilitation alone is not the determinative factor - general deterrence and denunciation are also significant factors to be considered. However, as this court ruled in R. v. Dubinsky, [2005] O.J. No. 862, at para. 1, it is an error to focus almost exclusively on general deterrence and fail to consider individual deterrence and rehabilitation, especially when sentencing a first offender.

[27] The determination of a proper sentence in this case calls for a consideration and balancing of the principles of sentencing set out in ss. 718 to 718.2 of the Criminal Code, as well as the aggravating and mitigating factors which exist in this case. I have set out above a number of aggravating and mitigating factors and circumstances which I must consider in determining an appropriate sentence.

[28] The overarching principle of sentencing is that the sentence imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Proportionality is best determined by considering all the aggravating and mitigating factors while keeping in mind the objectives of sentencing, which include:

• General and specific deterrence;
• Denunciation;
• Rehabilitation;
• Reparation to society or the victim;
• Separation from society where necessary;
• The need to promote a sense of responsibility in offenders and acknowledgement of the harm done to victims and the community.

[29] How much weight I place on any one objective will depend on the facts of each case.

[30] A sentencing judge must also have regard for s. 718.2, which provides: a sentence should be increased or decreased to account for any aggravating and mitigating circumstances (s. 718.2(a)(i) – (vi)); a sentence should be similar to other sentences imposed on similar offenders in similar circumstances (s. 718.2(b); the combined duration of consecutive sentences not be unduly long (718.2(c)); an offender not be deprived of liberty if less restrictive sanctions may be appropriate (s. 718(d)); and all available sanctions other than imprisonment that are reasonable in the circumstances be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders (s. 718.2 (e)).

[31] Certainly in a case of possession of schedule 1 substance – like cocaine, the sentencing principles of denunciation and deterrence are important, however, the principles of rehabilitation and restraint cannot be discounted or ignored, particularly when dealing with a youthful first offender. Further, general deterrence and denunciation should not be over-emphasized (see Batisse, 2009 ONCA 114, [2009] O.J. No. 452, at paras. 32 to 34). It is only one factor the Court must consider (see R. v. Sears, [1978] O.J. No. 435 (C.A.)).

[32] Sentencing is a highly individualized process (see R. v. M. (C.A.), [1996] 1 S.C.R. 500, at paragraph 92) and must be proportionate to the gravity of the offence and the degree of responsibility of the offender. It is to be increased or reduced to account for any aggravating or mitigating circumstances. It should strive to be similar in relation to other sentences imposed on similar offenders in similar circumstances but needs to also address the specific and particular circumstances of the offender to be sentenced.

[33] Mr. Woodcock has been involved in volunteering his time and skill in coaching and training young boys' hockey. He has two sons of his own who are reaching hockey age. A criminal conviction would end any aspirations he might have to coach hockey. Recently in R. v. Suter, 2018 SCC 34, [2018] S.C.J. No. 34, the Supreme Court addressed the impact of collateral consequences in determining a proportionate sentence by sentencing judges. Justice Moldaver, for majority, held in para. 27, "… An offender's level of moral blameworthiness will vary significantly depending on the aggravating and mitigating factors in any given case. In unique cases, mitigating factors, collateral consequences, or other attenuating circumstances relating to the offence or offender may warrant a sentence that falls below this broad range." He went on to note:

47 There is no rigid formula for taking collateral consequences into account. They may flow from the length of sentence, or from the conviction itself: see R. v. Pham, 2013 SCC 15, [2013] 1 S.C.R. 739, at para. 11

48 Though collateral consequences are not necessarily "aggravating" or "mitigating" factors under s. 718.2 (a) of the Criminal Code -- as they do not relate to the gravity of the offence or the level of responsibility of the offender -- they nevertheless speak to the "personal circumstances of the offender" (Pham, at para. 11). The relevance of collateral consequences stems, in part, from the application of the sentencing principles of individualization and parity: ibid.; s. 718.2(b) of the Criminal Code. The question is not whether collateral consequences diminish the offender's moral blameworthiness or render the offence itself less serious, but whether the effect of those consequences means that a particular sentence would have a more significant impact on the offender because of his or her circumstances. Like offenders should be treated alike, and collateral consequences may mean that an offender is no longer "like" the others, rendering a given sentence unfit.

56 I agree with the Court of Appeal that the fundamental principle of proportionality must prevail in every case -- collateral consequences cannot be used to reduce a sentence to a point where the sentence becomes disproportionate to the gravity of the offence or the moral blameworthiness of the offender. There is, however, no requirement that collateral consequences emanate from state misconduct in order to be considered as a factor at sentencing

[34] Mr. Woodcock was also in pre-trial custody for 13 days before being released on a house arrest release order. On a 1.5 to 1 basis this translates to 20 days of pre-trial credit, pursuant to R. v. Summer. In addition, Mr. Woodcock was on house arrest, from August 9, 2019 to February 6, 2020, for 181 days before his house arrest was varied to a curfew between.

[35] Mr. Woodcock's house arrest was a very restrictive recognizance of bail which required him to observe a "curfew to be in his residence at all times except in the company of his sureties, attending court or his lawyer's office or medical emergencies."

[36] In R. v. Downes (2006), 205 C.C.C. (3d) 488, Rosenberg, J.A. held that "time spent under stringent bail conditions, especially under house arrest, must be taken into account as a relevant mitigating circumstance." (See para. 33)

Stringent bail conditions, especially house arrest, represent an infringement on liberty and are, to that extent, inconsistent with the fundamental principle of the presumption of innocence. House arrest is a form of punishment, albeit of a different character than actual incarceration. Pre-sentence house arrest varies little in character from the house arrest that is often imposed as a term of a conditional sentence under s. 742.1 of the Criminal Code. (See para. 29)

Thus, a trial judge faced with an offender who has spent time on bail under house arrest should adopt a flexible approach. In the end, the amount of credit and the manner in which it is taken into account as a mitigating factor is a matter for the trial judge. That factor must be considered along with the myriad of other mitigating and aggravating circumstances that may impact on the sentence in a given case. (See para. 36)

[37] The Crown did not argue that R. v. Downes had no application to this case. In my view, the appropriate credit for the 181 days would be 55 days of credit. I recognize there is no formula for determining the appropriate amount of credit to be assessed from stringent bail conditions. This means Mr. Woodcock has 75 days of pre-trial custody credit based on Summers and Downes. In my view there is no need for any further period of custody to be imposed and the issue is whether Mr. Woodcock can be granted a conditional discharge as requested by the police or because a conviction is necessary on the facts of this case and therefore a suspended sentence with probation should be imposed.

[38] Section 730 of the Criminal Code outlines the criteria for the imposition of a discharge. A discharge cannot be imposed where the offence is one where a minimum sentence exists or where the maximum penalty for the offence is 14 years or more. Moreover, a discharge may only be granted where it would not be contrary to the public interest and would be in the best interest of the offender.

[39] I recognize there are cases where the circumstances surrounding serious offences will sometimes require a custodial sentence or at a minimum a conviction to be imposed despite the accused being a first offender. However, there are cases where the totality of the circumstances allow for the granting of a conditional discharge where it is not contrary to the public interest in cases involving simple possession of Schedule 1 substances. (see R. v. Fallowfield (1973), C.C.C.(2d) 450 (BCCA); R. v. Parks, 2020 ONSC 3941; R. v. Sadowski, [2016] O.J. No. 3780 (OCJ); R. v. Loder, [2019] O.J. No. 3950 (OCJ) and R. v. Gosline-Beroog, [2019] O.J. No. 5126 (OCJ).) There is no minimum sentence and the maximum sentence available is less than 14 years. A conditional discharge is clearly in Mr. Woodcock's best interest. The issue which must be determined is whether granting a conditional discharge is contrary to the public interest. Put another way, the issue to be determined is whether a conviction needs to be imposed to appropriately reflect the principle of general deterrence and denunciation or whether a conditional discharge can be imposed, which will adequately address general deterrence and denunciation, as well as recognize the importance of restraint and rehabilitation having regard to the fact Mr. Woodcock is a youthful first offender.

[40] A collateral consequence, which should also be considered in determining an appropriate sentence is the fact that if Mr. Woodcock is convicted he will not be able to get past a vulnerable person sector check and he would not be able to continue volunteering as a coach involving a children's hockey team. In my view, a criminal conviction could detrimentally impact those pursuits. I should note however, even if this collateral consequence were not present it is my view a conditional discharge on the facts of this case is not contrary to the public interest.

[41] In R. v. Gosline-Beroog, Justice Band referred to a decision of Justice Durno in R. v. T.O., 2015 ONSC 1169, and drew the following guidance:

1. Discharges are not limited to the most trivial matters. They can be used judiciously even where deterrence and denunciation are called for,

2. They are not necessarily less effective in terms of deterrence than criminal convictions, such as suspended sentences and probation, and they should be given serious consideration where a criminal record will have a tendency to interfere with employment prospects.

[42] In R. v. D'Souza, 2015 ONCA 805, at paragraphs 3-5, the Court of Appeal held discharges are not restricted to trivial offences and the over-emphasis on the nature of the offence must be avoided, here an accused was granted a conditional discharge where the sentencing judge placed too much emphasis on general deterrence for trafficking in a schedule II drug, where a first offender had made tremendous progress in overcoming an addiction to marihuana, doing volunteer work and attending university.

[43] In my view a conditional discharge is clearly in Mr. Woodcock's best interests having regard to the fact he is a youthful first offender, who had mental health challenges and difficulties as a high school student, which he partially dealt with and is willing to address further through continued counselling while on probation, the fact he was likely self-medicating with cocaine as he was no longer taking prescribed medication for his mental health issues, he is still working to complete his Grade 12 and believes he wants to get an apprenticeship in a trade and he sees himself giving back to the community by using his hockey skills to volunteer as a hockey coach/trainer in the future. For all of the reasons indicated above it is also my view the giving of a second chance to Mr. Woodcock by granting him a conditional discharge with probation is not contrary to the public interest. In fact, it is my view it is in the public interest to do so.

[44] 60 days of pre-trial custody credit should be reflected on the Information, as being considered by me in determining a conditional discharge is a proportionate and appropriate sentence taking into account the totality of the circumstances surrounding the offence and Mr. Woodcock's personal attributes.

Released: December 22, 2020

Signed: Justice Peter C. West