Court File and Parties

Ontario Court of Justice

Date: October 3, 2025

Court File No.: Belleville 24-13101666

Between:

His Majesty the King

— and —

Roosevelt Rush

Before: Justice R. B. Horton

Hearing Date: September 2, 2025

Reasons for Judgment Released: October 3, 2025

Counsel

L. Ross — counsel for the Crown

M. O'Doherty — counsel for the accused Roosevelt Rush

Judgment

HORTON, J.:

Guilty Pleas and Factual Basis

[1] Mr. Roosevelt Rush plead guilty before me to one count of trafficking in cocaine and one count of failure to comply with released order. The facts support that he is found to possess 55.29 g of cocaine, this having been confirmed by the Health Canada certificate.

[2] Crown submits that the appropriate sentence is two years. Defence counsel submits a sentence of six months, less one day, is appropriate. The Offender's experience as a black man was raised for the court's consideration in a previously prepared impact of race and culture assessment proffered having been prepared April 14, 2025, or an earlier sentencing seating in order to fully canvass the potential impact of this Offender's race.

[3] The court received additional information to assist in determining the appropriate sentence for this specific offender, including the following:

(a) several letters of reference in favour of Mr. Rush;

(b) letter of the Offender;

(c) criminal record of the offender, noting that Mr. Rush had not been sentenced on these charges at the time of the offence herein; and

(d) sentencing chart as prepared by the Crown.

Agreed Facts Supporting Guilty Pleas

[4] Mr. Rush was released December 2022, on charges of possession for the purposes of trafficking (two counts), proceeds of crime and possession of a loaded prohibited or restricted firearm. The release order included surety and strict conditions including GPS monitoring.

[5] Mr. Rush was found to have travelled to Belleville as noted through the GPS monitoring. However, at this time it was unknown whether he was with or without his surety. On a second occasion he was seen within the city of Belleville absent his surety resulting in his arrest for failing to comply with his release order.

[6] As a result of a search incident to arrest number of items were located, including a total of 55.29 g of cocaine, two cell phones, Canadian currency and the accused driver's license.

[7] The accused has no unused presentence custody.

[8] The accused has a criminal record. However, at the time of the offence herein, he had not yet been sentenced.

Seriousness of Cocaine and the Impact on the Community

[9] There is no disputing cocaine is an extremely dangerous and insidious drug with potential to cause a great deal of harm to individuals and to society. Likewise, possession of crack cocaine for the purpose of trafficking is a serious offence warranting emphasis on the principles of deterrence and denunciation.

[10] However, when sentencing an offender convicted of such an offence, it is incumbent on the trial judge to consider all of the principles of sentencing – including the accused's prospects for rehabilitation. Section 718 of the Criminal Code directs a sentencing judge to consider the full panoply of sentencing objectives, including, but not limited to, assisting in the rehabilitation of offenders.

Circumstances of the Offender

Social Context Evidence

[11] Mr. Rush is a 32-year-old black man who at the time of these offensives had no criminal record although admittedly waiting sentencing on serious charges for which he had entered plea. He is the father of three children, is a permanent resident of Canada, and faces the likeliness of deportation to Jamaica, due to his most recent convictions and now, these charges.

[12] Social context evidence in the form of an assessment report outlining the impact of race and culture on Mr. Rush. This report was prepared by Ms. L. Newman of the Viola Desmond Justice Institute in Montréal.

[13] The contents of this report have properly and fully been reviewed by this Court previously in the unreported reasons for sentence prepared by Madame Justice Lacelle who at paragraph 6 through 19 thoroughly summarizes the report as follows:

6. The report outlines Mr. Rush's background as a child in Jamaica. He grew up in an area that was high with criminal activity, and which affected his family's safety. It was a regular occurrence to hear gunshots. When he was 12, Mr. Rush's uncle was stabbed by a friend. His family went to the scene and Mr. Rush witnessed this horror. Another uncle was beaten to death with an iron rod when he was in high school. Mr. Rush remembers his mother's intense grief and pain following the loss of her brother. Mr. Rush has also lost two friends from Jamaica, one who was shot in the head, the other who died from cancer. He has also experienced losses in Canada, including one of Ms. McFaquhar's sons, who was murdered. Some of his experiences have affected him profoundly and he would like to explore them in counselling.

7. Mr. Rush reports that his parents never told him that they loved him, and this bothers him. He was also raised in a household with a high level of conflict and instability. He was teased, had limited access to food, felt neglected and abandoned, and was exposed to violence, death and loss. He was introduced to substance use early.

8. The divorce of his parents when he was a teenager was also impactful for him and has contributed to Mr. Rush's need to get his father's approval, a common theme throughout his narrative according to Ms. Newman. In addition to the emotional turmoil of this separation, Mr. Rush reported feeling like the "black sheep" of his family. He was the target of teasing about his weight from family and others. He felt overlooked by family members, when compared to his siblings. At various points, Mr. Rush experienced low self-esteem and a sense of disconnection from his family. More recently, there has been some improvement, and he now had a closer relationship with his mother, with whom he communicates weekly. Her recent stroke and diagnosis of brain cancer have been a source of continuous worry for Mr. Rush.

9. Mr. Rush's relationship with his father continues to be strained. Mr. Rush's father had a history of denigrating him verbally. That Mr. Rush's father was not proud of him remains painful for Mr. Rush, who reports that his father has not reached out for some time.

10. Mr. Rush does not have a close relationship with his siblings at this time. However, he does have a relationship with Ms. McFaquhar, who was one of his father's girlfriends, and who has acted like a mother figure to him. She has known him since he was a child, and he has on occasion lived with her. Her children have known Mr. Rush their whole lives and are close to him.

11. Mr. Rush has had two significant relationships which resulted in three children. His first was when he was 19 years old, when Mr. Rush's formal immigration process started. Mr. Rush's son Roosevelt Jr. was born in 2018 when Mr. Rush was 25. Mr. Rush has co-parented his son with his son's mother, which is reported to be going well.

12. Mr. Rush's current partner, Rachel Bakker, has been in his life since 2020. They had their first child Rojae in 2021, and their second, Rosalie, in 2023. Ms. Bakker describes that Mr. Rush feels he needs to be the breadwinner in the family and likes to be able to provide. When he had difficulty finding work, this had a significant negative impact on him mentally and emotionally.

13. All persons contacted for the report described Mr. Rush as a good and involved father. During his incarceration, Mr. Rush has spoken with them daily. He also sees them every two or three weeks when their mothers bring them to visit with him at the detention centre.

14. As for his mental and physical health, Mr. Rush has hypertension and GERD. While Mr. Rush has never been diagnosed, he suspects he may have ADD or ADHD, given what he has learned in order to support his son, who has been recently diagnosed with ADHD. Ms. Baker reports he would often cry and stay in bed for long periods of time and exhibit other depressive symptoms, especially when he was not making enough money. Ms. Newman links this experience to the impact of the inability to fulfill the provider role, noting that structural barriers limiting Black's men's access to financial stability can lead to heightened stress-related health concerns.

15. As for his education, Mr. Rush completed high school in Jamaica, which ended in grade 11. In the future, he would like to complete a program in construction to be able to get employment in that field.

16. Mr. Rush has a strong work history in Canada, where he has lived since he was 19. He worked as a forklift operator with a company for two years until Covid hit. He drove an Uber to get some income. He tried to find work elsewhere in the country, but was told there were no opportunities and returned to Ontario. He got a job delivering Ikea furniture, during which he injured his back. He had to be off work and, without a family doctor, was unable to provide the documentation he needed to keep his job. Feeling that he had exhausted most of his options, Mr. Rush said he chose to engage in the illicit activities he saw his peers engaged in to have income. At the time, Ms. Baker was on maternity leave and there was not enough income to keep their apartment. While engaged in illicit activity, he was able to pay his bills and get an apartment again after living with Ms. Baker's parents. He was able to do a bit extra for his kids, such as buy them bikes, and get a car to help the family be more mobile.

17. Ms. Newman writes that Mr. Rush's experiences as he attempted to earn an income to be able to survive are inextricably linked to his entity as a Black man within western culture. She writes that for black men in middle adulthood, their sense of manhood is often tied to their ability to fulfill roles such as provider, husband, father, employee and community member. However, they face systemic obstacles that hinder success in these roles. For instance, historically, they have earned below 75% of white men's wages.

18. Ms. Newman outlines how research shows that men of African descent are five times more likely to be incarcerated than their white counterparts. Black people now account for over 9% of federal inmates, while comprising only 4% of the overall population. As she notes, these findings underscore ongoing disparities rooted in systemic racism.

19. Ms. Newman concludes that Mr. Rush's involvement with the criminal justice system is inextricably tied to the systemic barriers that influenced his decision-making. Some of the factors that contributed to his social development and his increased marginalization include his exposure to trauma and losses, insufficient educational support, exposure to crime and violence in a volatile community, working in cash jobs with little to no benefits, and the impacts of the pandemic. Even so, he has exhibited strength and potential. He is an involved and loving father. He is ambitious and wants to provide for his family. He has made efforts to find work and wants to further his education and build new skills. He would be best served by accessing services and resources that are culturally responsive in a community setting. Ms. Newman identifies in her report several resources that might assist him.

Reference Letters

[14] Several people have provided letters in support of Mr. Rush, notably this court received letters in support from the following individuals:

(a) Ms. Rachel Bakker, mother of Mr. Rush's two youngest children;

(b) Ms. Emma Gillmore, mother of Mr. Rush's eldest child;

(c) Ms. Princess Mcfaquar;

(d) Ms. Shantol Rush, his sister;

(e) Ms. Amanda Edwards, his sister; and

(f) Mr. Thierry Rusell, his brother.

[15] The above individuals describe Mr. Rush similarly, noting him to be an involved father, an active member in the community and overall, a positive influence on their lives. Through these character reference letters, one can see the work ethic and potential that Mr. Rush has. Sadly, each also depicts much trauma and heartbreak which Mr. Rush has experienced in his life.

Mr. Rush's Own Words

[16] Mr. Rush prepared a written letter to this Court in which he makes a valid and sincere attempt to communicate his understanding and remorse for what has brought him before this Court. I note that, while these materials, inclusive of the letters of reference and Mr. Rush's own letter were presented to the previous court, I accept these as being equally relevant to these proceedings.

[17] It is clear that Mr. Rush has spent considerable time throughout his periods of incarceration, thinking of how he may move forward and overcome the consequences of his choices that have brought him to this point in his life. He speaks openly and with great warmth of his children, the love that he has for them, noting significantly how he wishes them to follow by his current example and to give them a life that he did not have growing up. He wants to be a role model and not follow his current path. I accept his regrets and equally his concerns for his children and how he wishes to be a positive influence on them.

Principles of Sentencing

[18] The fundamental purpose of sentencing is confirmed in s. 718. That section provides that the sanction imposed by the court should have one or more of the following objectives:

(1) To denounce unlawful conduct;

(2) To deter the offender and other persons from committing offence;

(3) To separate offenders from society, where necessary;

(4) To assist in rehabilitating offenders;

(5) To provide reparations for harm done to victims or to the community; and

(6) To promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

[19] Section 718.2 of the Code identifies additional principles of sentencing, including that the court should increase or decrease the sentence to account for any relevant aggravating or mitigating factors.

[20] The fundamental principle of sentencing is that the sentence must be proportionate to the gravity of the offence and the responsibility of the offender. Imposing a proportionate sentence is an individualized exercise. The sentence must be tailored having regard to the gravity of the offence, the blameworthiness of the offender, and the harm caused by the crime: R. v. Nur, 2015 SCC 15 at para. 43.

[21] The parity principle requires a judge to consider the range of sentence imposed in similar matters. The Criminal Code requires that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. A judge must also apply the principle of restraint. An offender should not be deprived of liberty if less restrictive sanctions are appropriate in the circumstances.

[22] Further, section 10(1) of the Controlled Drugs and Substances Act applies in this context. It states that the fundamental purpose of any sentence for an offence under this Part is to contribute to the respect for the law and the maintenance of a just, peaceful and safe society while encouraging rehabilitation, and treatment in appropriate circumstances, of offenders and acknowledging the harm done to victims and to the community.

Principle of Restraint

[23] The Criminal Code codifies the principle of restraint in ss. 718.2(d) and (e). The restraint principle operates both when deciding whether incarceration is appropriate, and if so, it must be considered in fixing the length of that incarceration. This is particularly so with young and youthful first offenders, as well as first offenders: R. v. Priest, [1996] O.J. No. 3369; R. v. Batisse, 2009 ONCA 114, 93 O.R. (3d) 643 (C.A.). The sentencing objective of rehabilitation must be considered, even though in serious cases and cases involving violence, it is not the determinative factor: Batisse at para. 34. Courts must be mindful to not focus exclusively on general deterrence to the exclusion of consideration of specific deterrence and rehabilitation.

[24] Like other sentencing principles, however, the restraint principle "operates within the boundaries set by the fundamental principal of proportionality". This is because "the fundamental principle of proportionality must prevail in every case": Morris at para. 112, citing R. v. Suter, 2018 SCC 34 at para. 56.

Principle of Totality

[25] This sentence follows an early sentencing in which Mr. Rush received a significant custodial sentence for similar offences though relating to possession for the purpose of trafficking in fentanyl and gun related offences. The charges for which Mr. Rush is being sentenced here were committed prior to the earlier sentencing and it is appropriate that the current sentence which he is serving be considered in determining a fit and reasonable sentence.

[26] Judges must ensure that a series of sentences are "just and appropriate": s. 718.2(c). "This involves taking 'one last look at the combined sentence' to assess whether it is 'unduly long or harsh, in the sense that it is disproportionate to the gravity of the offence and the degree of responsibility of the offender'". Sentences may be adjusted by making some concurrent to respect the totality principle. If this "does not achieve a just and appropriate sentence", a judge may reduce the length of one or more sentences.

R. v. Morris

[27] The case of R. v. Morris, 2021 ONCA 680, which dealt with the impact of anti-Black racism on sentencing, is relevant to determining a fit sentence in this case. This is particularly so since I have the benefit of an IRCA report in considering the appropriate sentence for Mr. Rush.

[28] Morris provides that social context evidence relating to an offender's life experiences may be used where relevant to mitigate the offender's degree of responsibility for the offence and/or to assist in the blending of the principles and objectives of sentencing to achieve a sentence which best serves the purposes of sentencing as described in s. 718. This is so even though an offender's experience with anti-Black racism does not impact on the seriousness or gravity of the offence – anti-Black racism remains relevant for other reasons. Morris also directs courts that "a generous gateway for the admission of objective and balanced social context evidence should be provided": at para. 13; see also R. v. Stewart, 2022 ONSC 6997.

[29] Further, Morris "explains that in order for circumstances related to systemic discrimination to be a factor in sentencing, there must be some connection between the offences and the disadvantages the offender faced tied to systemic discrimination": Stewart at para. 70; Morris at paras. 76 and 97. I will address how this applies to Mr. Rush later in these reasons.

Collateral Consequences

[30] There are, undoubtedly, important collateral consequences to be considered in this case, namely the immigration and family consequences that will occur following the sentencing of Mr. Rush. Their relevance flows from the application of the principles of individualization and parity. The weight to be given to collateral consequences varies from case to case and should be determined having regard to the type and seriousness of the offence: at para. 12.

[31] The weight in my view of these consequences is significantly, if not wholly, vacated as a result of his earlier conviction and sentence however I will briefly review these.

[32] Mr. Rush is not a Canadian citizen and he is likely to be deported as a result of these offences. This is a significant collateral consequence.

[33] While a sentencing judge may exercise her discretion to take collateral immigration consequences into account, the sentence imposed must remain proportionate to the gravity of the offence and the degree of responsibility of the offender.

[34] A custodial sentence will have significant consequences for Mr. Rush, his children, and their mothers. These consequences are appropriately to be weighed in determining a fit sentence: see also R. v. D.B., 2025 ONCA 577. As noted given his prior sentencing the effects of this particular sentencing will not result in a significant change to the existing circumstances but I am aware that the additional sentence will further prolong the already existing consequences to all.

[35] In R. v. Habib, 2024 ONCA 830, Tulloch C.J., writing for the court, provided guidance on how to address these consequences in cases where the victim of the crime is not a family member of the defendant. He stated:

As recognized in R. v. Spencer (2004), 72 O.R. (3d) 47 (C.A.), at para. 46, leave to appeal refused, [2005] S.C.C.A. No. 4, it is an unfortunate reality that sentencing defendants to prison often harms their families. Family members are deprived of the defendant's love and care and suffer the emotional pain of separation. They must often assume the added burdens of the breadwinning and caregiving responsibilities that the defendant formerly performed. Further, they may suffer financial hardship, educational deprivation, and even the loss of the family residence. See R. v. Nikkanen (1999), 140 C.C.C. (3d) 423 (Ont. C.A.), at paras. 14-15, leave to appeal refused, [1999] S.C.C.A. No. 624.

The courts have been careful not to let these consequences overwhelm the other principles of sentencing. See R. v. Dent, 2023 ONCA 460, 167 O.R. (3d) 161, at para. 124. As emphasized in Spencer, these consequences are not an excuse to overlook the harm that the defendant's criminal conduct caused victims of crime, or the importance of protecting those victims and society, or the need for denunciation and deterrence.

Further, these consequences cannot justify imposing a disproportionate sentence. Thus, this court has sometimes imposed or affirmed significant prison sentences to respect the other principles of sentencing even after accounting for family separation consequences, as in Spencer.

But as Spencer ruled, sentencing judges must "preserve the family as much as possible" within these limits. As that case explained, if incarceration is necessary, sentencing judges must give serious and sufficient consideration to family separation consequences in "determining the length of [the] prison term." See at para. 47.

Thus, depending on the facts, family separation consequences may justify a sentence adjustment – even a significant one – or a departure from the range. See R. v. Forsythe, [1976] O.J. No. 1026 (C.A.), at paras. 5-6. This is true even for grave offences that require deterrence and denunciation, as in Spencer, where the court considered that the defendant had "much to offer her children" in setting the sentence.

[36] In R. v. Spencer, the court overturned a conditional sentence for a black single mother who was convicted of importing 733 grams of cocaine into Canada, and who was at risk of deportation. The court found that a jail sentence of 40 months should have been imposed.

[37] The offender had three young children at the time of sentencing. In considering these circumstances and their impact upon the determination of a fit sentence, Doherty J.A. wrote at paras. 46-47:

It is a grim reality that the young children of parents who choose to commit serious crimes necessitating imprisonment suffer for the crimes committed by their parents. It is an equally grim reality that the children of parents who choose to bring cocaine into Canada are not the only children who are the casualties of that criminal conduct.

Children, both through their use of cocaine and through the use of cocaine by their parents, are heavily represented among the victims of the cocaine importer's crime. Any concern about the best interests of children must have regard to all children affected by this criminal conduct.

The fact that Ms. Spencer has three children and plays a very positive and essential role in their lives cannot diminish the seriousness of her crime or detract from the need to impose a sentence that adequately denounces her conduct and hopefully deters others from committing the same crime. Nor does it reduce her personal culpability. It must, however, be acknowledged that in the long-term, the safety and security of the community is best served by preserving the family unit to the furthest extent possible. In my view, in these circumstances, those concerns demonstrate the wisdom of the restraint principle in determining the length of a prison term and the need to tailor that term to preserve the family as much as possible. Unfortunately, given the gravity of the crime committed by Ms. Spencer, the needs of her children cannot justify a sentence below the accepted range, much less a conditional sentence. [emphasis added]

The Offence

[38] In determining a fit sentence, a sentencing judge must be mindful of the principles of sentencing that have been applied similar offences of cocaine trafficking.

[39] As stated earlier, cocaine trafficking is a serious offence warranting emphasis on the principles of deterrence and denunciation. I have instructed myself on the above sentencing principles and considerations, together with the objective of assisting Mr. Rush in his rehabilitation.

Sentencing Ranges for Similar Offences and Offenders

[40] Similar offenders with similar circumstances should receive similar sentences for like offences. This is the parity of sentencing but is not to override the principle of proportionality when determining the fitness of a sentence.

[41] The Crown submitted a sentencing brief of what may be characterized as similar cases. I am mindful that no two cases are identical and in this particular instance it is noted that the cases provided were situations of significantly greater amounts of cocaine. Nonetheless I accept the range of sentence would be 2-5 years for a dealer of a quantity similar to this circumstance, being characterized as a mid level trafficker. That is though only a starting point and as in any situation with proposed ranges it is subject to the particular circumstances of a particular offender.

Aggravating Factors

[42] The following aggravating circumstances are established:

(a) The quantum of cocaine, a dangerous drug, was significant, being just shy of 2 ounces;

(b) Mr. Rush is not an addict-dealer having commenced his criminality for financial gain, whether as a means to support his family or otherwise;

(c) The Offender was on release conditions for drug charges when arrested on the subject charges.

Mitigating and Contextual Factors

[43] There are several mitigating and contextual factors that have been established:

(a) Mr. Rush has entered his plea of guilt avoiding the need for a trial. It is noted that the Crown's case appears strong, with potential defences not readily apparent;

(b) Mr. Rush has shown a sincere level of remorse evidenced by both his plea and his letter voicing a genuine regret for his actions and the harm which he has caused not only to his family but the community at large;

(c) The social context evidence in the form or an Impact of Race and Cultural Assessment supports that Mr. Rush's life choices and opportunities have been informed by systemic discrimination as has his engagement in the criminal justice system as a young black man;

(d) Mr. Rush has significant family support, support which continues. Those that love him are many and strongly speak to his kindness, his devotion to his children and his strong work ethic. Notably he has the support of the mothers of his children;

(e) Mr. Rush is a young man and is to be sentenced as a first-time offender given that these charges arose prior to his sentencing on the earlier charges;

(f) Mr. Rush faces a significant likelihood of deportation. While the sentencing in this case will certainly be considered it is apparent that his existing conviction and the resulting sentence is likely to inform this decision notwithstanding the sentence issued in this proceeding; and

(g) Mr. Rush has shown that he has a willingness to engage and address the underlying issues and to accept the penalties that he faces. I accept that he has a reasonable prospect for rehabilitation and to become a pro-social member of his community.

Discussion and Conclusion

[44] Trafficking in cocaine is a serious offence that attracts a significant sentence. In this instance Mr. Rush was on bail for trafficking in significantly dangerous drugs and was arrested for similar offences albeit not Fentanyl. Again, I am mindful he had not yet been sentenced.

[45] I would characterize Mr. Rush as a mid-level trafficker of cocaine. He is not an addict trafficker and elected to do this purely for financial gain.

[46] Assessing Mr. Rush's moral responsibility is a more delicate task. The social context evidence and findings made herein assist this Court. I accept that Mr. Rush experienced systemic and personal discrimination as a Black man, and that this has certainly played a role in his criminality.

[47] There is a reasonable prospect that Mr. Rush can be rehabilitated, factoring in his relatively young age, his expressed insight, his strong family support and his devotion to his children.

[48] This offence is significant, and his moral culpability is high. A proportionate sentence on these considerations alone would warrant a penitentiary sentence of 24 months.

[49] I would have otherwise sentenced Mr. Rush to such a sentence but for the fact he is serving a significant penitentiary sentence of 6 years and the mitigating circumstances outlined. Mr. Rush will be sentenced to 12 months custody.

[50] The sentence will be as follows:

(a) 12 months custody in relation to Count 4, Possession for the Purpose of trafficking cocaine;

(b) There is no pre-sentence custody to be credited;

(c) 90 days concurrent on count 2, the failure to comply to release conditions;

(d) S. 109 weapons prohibition for life;

(e) DNA – secondary designated offence on both counts; and

(f) Forfeiture order for all items seized.

Released: October 3, 2025

Signed: Justice R. B. Horton