Ontario Court of Justice

Date: 2021 04 20 Court File No.: Region of Niagara 998 18 N2953

Between:

HER MAJESTY THE QUEEN

— AND —

Robert Crozier

Before: Justice J. De Filippis

Heard on: February 28 & September 14, 2020; January 12, February 11; March 24 & 29, 2021 [1] Reasons for Sentence Released on: April 20, 2021

Counsel: Mr. D. Anger, counsel for the Crown Mr. M. DelGobbo, counsel for Robert Crozier

De Filippis, J.:

[1] On June 29, 2018, the Morality Unit of the Niagara Regional Police Service commenced an investigation into Robert Crozier. Acting on information received from a confidential human source (CHS), the police conducted surveillance and obtained a warrant to search his home in Niagara Falls. That warrant was executed on July 16, 2018. In an upstairs bedroom, the police found a “cocaine processing station”. They also found a locked safe in the bedroom closet. It contained 475.7 grams of cocaine in seven bags. Crozier was arrested the same day at Clancy’s Bar in Niagara Falls. He was found in possession of $4,926.00 in cash. Several months before these events, in January 2018, Crozier won $250,0000 in a lottery.

[2] The defendant, along with Ms. Natalie Burke, were charged with possession for the trafficking in cocaine and possession of proceeds obtained by crime. The defendant brought a motion to exclude the aforementioned evidence on the basis that his right to be free from unreasonable search and seizure, as guaranteed by section 8 of the Charter of Rights and Freedoms, had been violated. In aid of this motion, he also asked to cross-examine the affiant who obtained the search warrant.

[3] For oral reasons previously given, I granted leave to cross-examine in one area; whether affiant knew that Crozier had won $250,000 in lottery winnings. Since the ITO averts to the defendant’s lifestyle in the face of no employment, failure to mention the lottery winnings could amount to deception on the part of the affiant. After hearing evidence and submissions, I found that the defendants’ rights, as guaranteed by s. 8 of the Charter were not infringed. I dismissed the motion to exclude the evidence obtained by the execution of the search warrant; see R. v. Crozier, 2020 ONCJ 43.

[4] Following the adverse Charter ruling, the defendant pleaded guilty to possession of cocaine for the purpose trafficking. After he is sentenced the charges against Ms. Burke will be withdrawn. By the time this case reached the stage of sentencing submissions, the Court of Appeal for Ontario had released its decision in R v Sharma, 2020 ONCA 478. On this basis, the Defence resisted the Crown position that jail is appropriate and advocated for a conditional sentence order (CSO).

[5] In 2012 Parliament amended the 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 the 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.

[6] I have the benefit of a presentence report (PSR) and reference letters from family members and friends; Amelia Azzarello, Monica Crozier, Ashley Graham, Harley Richards, Taylor Richards, and Brittany Whiteman. From these sources, I know the following: The defendant is now 49 years old. He is described as a good father, sibling, and friend. He earned a commendation from the Niagara Police Services Board for saving a girl from a fire. He suffers from PTSD. The defendant had a heart attack in February 2020 and had three stints inserted. He now takes heart medication. He has been unemployed and supported through Ontario Works for the past three years due to a motor vehicle accident. The defendant began using cocaine before meeting his co-accused, Ms. Burke. She is also a former cocaine user. Both intended to be “drug-free” but after Ms. Burke “had a relapse” during their relationship, both consumed cocaine together until their arrest in this matter.

[7] The defendant apologized to the court, family and friends for his crime. He explained that he “won a lottery and things got out of control”. He concluded statement by noting that he wants “to continue to be a good dad and granddad”.

[8] The PSR reflects the defendant's assertion that he pleaded guilty to "get her [the co-accused] out of his life" and added that "it's my house and my responsibility even though they were her drugs". A person who possesses drugs need not be the owner and ownership is not an element of the offence. However, this can be a relevant factor on sentencing. Although, Defence counsel noted that these statements do not mean the defendant is denying his guilt, I addressed him directly about the matter. The defendant confirmed that he owned the cocaine along with the co-accused and that he possessed the drug for the purpose of trafficking in the community.

[9] Defence counsel submits that a fit sentence is the maximum CSO, that is, two years less one day, under terms of house arrest, with appropriate exceptions, and a period of probation to follow. Counsel accepts the seriousness of this offence but argues that the presentence report and reference letters show the defendant is an otherwise good person; "there is more to him than these charges". Moreover, the defendant has been on bail for 2.5 years, no longer uses illicit drugs, and is currently on the methadone program. He recently suffered a heart attack. Counsel suggests his client is a good candidate for community supervision pursuant to a conditional sentence and emphasizes that the Court of Appeal for Ontario has held that such a sentence can also meet the principles of deterrence and denunciation.

[10] The Crown submits that the appropriate sentence is one of five years, along with certain ancillary orders (that are not in dispute). Counsel notes that the defendant possessed one pound of cocaine for the purpose of trafficking and argues that the range of sentence is 5 to 8 years. The Crown acknowledges the mitigating effect of the guilty plea but points out it came after an adverse ruling with respect to his Charter application. Counsel submits that the reference letters and the defendant’s medical issues justify a sentence at the bottom of the range, but that there is nothing in this case that takes it below a penitentiary sentence such that a conditional sentence order is on the table.

[11] 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:

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.

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

[12] Proportionality means that the severity of a sentence will depend on the serious­ness of the offence as well as the moral blameworthiness of the offender; see R v Lacasse, 2015 SCC 64. Personal circumstances are relevant in determining proportionality in light of the seriousness of the offence, but they do not alter the seriousness of the offence: see R v Schofield [2019] B.C.J. No. 22 (BCCA).

[13] Drug addiction, especially to “hard drugs” is a pressing social problem. It causes misery to the addict, suffering by those who love the addict, much secondary crime, and significant social costs to deter and rehabilitate the addicts. This is why penalties have been severe for those who traffic in such drugs, even for relatively small amounts: R. v. Woolcock [2002] O.J. No. 4927 (Ont. C.A.).

[14] 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. In R. v. Proulx, 2000 SCC 5, the Supreme Court made it clear that "a conditional sentence may provide sufficient denunciation and deterrence, even in cases in which restorative objectives are of diminished importance."

[15] In R v Mori, 2020 ONCJ 620, I sentenced a man to the maximum CSO for possessing heroin for the purpose of trafficking. The circumstances of that unusual case are fully set out in my reasons. In conclusion, I noted as follows: (at paragraphs 39 – 40)

I agree with the Crown that the door opened by Sharma must be restricted to the exceptional case. Otherwise, Sharma would overrule decades of established law in Ontario about the penalties for trafficking in hard drugs. I do not read Sharma to say that – and one would expect express language if that was the intent. Moreover, it is not for me to open that door more widely; such further direction must come from the Court of Appeal.

My conclusion that this is an exceptional case is grounded in evidence. The promising prospect for rehabilitation is not based on a wish or a prayer. It does not come to me by the untested statements of the defendant presented through the submissions of his lawyer. The structure and resources available to the defendant and the future plan was detailed in written statements filed on consent. Moreover, the two main authors of those statements also testified and offered themselves for cross-examination. I consider the last point to be important. Unless a fact is abundantly plain or agreed by the parties, exceptional circumstances should require proof by evidence.

[16] I am confident of my cautionary approach in Mori by the recent decision of the Court of Appeal for Ontario in R v Brown, 2021 ONCA 35. In that case, two offenders pleaded guilty to possession of cocaine for the purpose of trafficking. The amounts involved were larger than the present case; two kilograms of cocaine. Brown was sentenced to four years and seven months’ incarceration. Johnson was sentenced to six years and five months’ incarceration. In dismissing the appeals against sentence, the Court of Appeal for Ontario stated that, “[t]he appellants submit that the sentencing judge’s starting point for sentences involving possession for the purpose of trafficking – “five to eight years” – was too high. We do not accept this submission. This range is supported by case law…”.

[17] 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.

[18] The defendant’s love and support of family and friends is confirmed by the letters I have received. Given the well-known harm caused by this offence to individuals and society, it is clear that his generosity and kindness did not extend to the broader community. The defendant’s personal circumstances, especially his heart issues, serve to mitigate penalty. However, these circumstances do not justify the result in Mori. This is not an exceptional case that takes it out of the penitentiary range. As such, a CSO is not available.

[19] The defendant is sentenced to three years in the penitentiary.

[20] I also impose the following ancillary orders; the defendant will provide a sample of his DNA and will be subject to a section 109 order for ten years. He will pay a victim fine surcharge in the amount of $200, within six months, or serve two days in jail in default.

Released: April 20, 2021 Signed: Justice J. De Filippis

Footnotes

[1] After the appearance on February 28, 2020 the Charter Motion was adjourned several times because of the pandemic. After the defendant pleaded guilty, sentencing was adjourned for several months because Defence counsel was involved in another lengthy trial.