Court File and Parties

COURT FILE NO.: 1-601235

DATE: 20120224

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Atiba Ralph

BEFORE: Justice E. P. Belobaba

COUNSEL: E. Gilman and S. Curtis for the Crown

P. Aubin for Mr. Ralph

HEARD: January 20, 2012

SENTENCING DECISION

[1] In Reasons for Judgment released on July 8, 2011, I found Atiba Ralph guilty as charged on ten counts that arose out of an undercover police operation in the fall of 2007: five counts of trafficking in cocaine, four counts of possessing the proceeds of crime and one count of offering to transfer a firearm. I also found him guilty on a further count of possession for the purpose of trafficking that arose almost a year later in 2008 when Mr. Ralph was finally arrested and police found some crack and powder cocaine in the basement of the home where he was staying.

[2] Crown counsel asks for a global sentence of five to six years, broken down as follows: four years for the trafficking and proceeds of crime convictions, a one-year statutory minimum for the offer to transfer a firearm conviction (to be served concurrently) and another year and a half for the PPT conviction – for a total of five and a half years. The Crown also asks for a ten-year weapons ban under s. 109 of the Criminal Code and a DNA order under s.487.051.

[3] Defence counsel submits that a global sentence of two years less a day is more appropriate – the first year to be served in jail and the second year less a day in the community under strict house arrest. Defence counsel does not oppose the ten-year weapons ban or the DNA order.

[4] This is a sentencing decision that truly tests the overarching concern of the sentencing judge, “What should this offender receive for this offence, committed in the circumstances in which it was committed?”[^1] and the proposition that “individual circumstances matter.”[^2]

[5] For the reasons set out below, I have concluded that the overall sentence in this case has to be more than two years less a day. The ‘blended’ sentence of jail and house arrest as proposed by the defence is therefore not available.[^3] A penitentiary sentence is required. The more difficult question for me is the overall length of the penitentiary sentence. On the one hand, Mr. Ralph has been convicted of trafficking large amounts of cocaine; he has also been convicted of a serious firearm offence that carries a mandatory minimum. On the other hand, Mr. Ralph’s record of community service is impressive, he has a very minor and now dated criminal record, he has complied without problem with all of his bail conditions for more than four years and his prospects for rehabilitation are excellent.

[6] Mr. Ralph, please stand. Do you have anything to say before I impose sentence?

[7] Atiba Ralph, you are sentenced to three years in prison. This global sentence is broken down as follows:

• Two years for the five trafficking convictions and four proceeds of crime convictions;[^4]

• One-year mandatory minimum for the offer to transfer a firearm conviction (to be served concurrently);

• One year and 16 days for the PPT conviction, minus 16 days for pre-trial custody, for a remaining balance of one year (to be served consecutively).

[8] You are therefore required to serve a further three years in federal prison. There will also be a ten-year weapons prohibition under s. 109 and a DNA order under s. 487.051.

[9] I will now provide copies of my sentencing decision, one of which will be marked as an exhibit. However, to state the obvious, my sentencing decision is this entire decision and not just the portions that I will now highlight.

The offences

[10] Over the summer and fall of 2007, police conducted an undercover drug operation, code-named Project Shinobi. Acting on an anonymous tip, an undercover officer began to pursue a Jane and Finch “dial-a-doper” in an effort to find and arrest his back-end supplier. The undercover officer made six purchases of crack or powder cocaine from the individual that was later identified as Atiba Ralph. The drug purchases increased in size and value culminating with a sale of one ounce of powder cocaine for $1250 and, two weeks later, a sale of 250 grams of crack cocaine for $10,350. Soon after this last sale, police located and arrested the back-end, a mid-level supplier named John Kuenzler. When they searched Kuenzler’s home, police found almost a kilo of powder cocaine, 15 kilos of marijuana, digital scales and a debt list.

[11] Kuenzler was tried and convicted on a number of drug charges, including two counts of trafficking – one relating to the $1250 sale of the ounce of powder cocaine and the other relating to the $10,350 sale of the 250 grams of crack cocaine. Crown counsel asked for a sentence of eight to ten years. Madam Justice Kiteley sentenced Kuenzler to four years, primarily because of a documented gambling addiction.[^5]

[12] About nine months after Kuenzler’s arrest, Mr. Ralph was arrested and charged with six counts of trafficking, and six proceeds of crime counts. As the trial began, Crown counsel stayed the first two counts dealing with the sale of 3.06 grams of crack for $180 and focused on the next five sales, the last two being the one ounce sale of powder and the 250 gram sale of crack.[^6]

[13] Mr. Ralph was also charged with offering to transfer a firearm, which in 2007 carried a statutory minimum of one-year imprisonment. As they were driving back from Scarborough to Jane and Finch, after purchasing the one ounce of powder for $1250, Mr. Ralph told the undercover officer that he could get him anything he needed, including “a nine milli semi-auto for, like, $1800.” I agree with Crown counsel that the one-year mandatory minimum is appropriate and on these facts should be served concurrently.

[14] When Mr. Ralph was arrested in the fall of 2008, police found just under an ounce of crack and about a half-ounce of powder cocaine in the basement of the house where he was staying. Hence the PPT charge.

The offender

[15] Atiba Ralph is 33 years old. He was 28 in 2007 when he sold the drugs to the undercover officer. He is a high school graduate. He has four children, aged two to eight, who currently live with their mother. The members of his immediate family have no criminal records, are well-educated and have full-time jobs.

[16] Mr. Ralph is an aspiring rap musician. His album titled, “Voice of Jane and Finch” is available commercially and on ITunes. In 2005, Mr. Ralph hosted and starred in “Toronto Rap Project”, a documentary that won that year’s Real World Film Festival. He has had a number of part-time and full-time jobs working at courier companies, restaurants and call centres.

[17] When he is not involved with his music, Mr. Ralph works as a volunteer in community organizations that deal with high risk youth, such as the Jane and Finch Boys and Girls Club and Friends in Trouble. He has also been volunteering at Jane-Finch.com, the community website. Mr. Ralph spends about 15 to 25 hours a week doing community-volunteer work. Several of the organizations provided letters of reference, describing Mr. Ralph’s commitment and dedication to working with the young people in the Jane and Finch community. One writer described him as a “man of real heart, soul, passion and talent.” Another described him as “an individual who wants the best for everyone.” Mr. Ralph’s commitment to the Jane and Finch community is evident in a CBC interview that was recorded in 2005 and was marked as an exhibit on sentencing.

[18] In his affidavit to the court, Mr. Ralph described his life to date and how these criminal charges have shamed and disgraced his family. He has lost their respect and admiration. He says he shares his family’s disappointment and that he is determined to improve and redeem himself “in the eyes of the people I care about.” Mr. Ralph’s dream is to study sociology at York University and turn his community volunteer work into a career. I assume he will also continue writing and performing his music.

[19] In her letter to the court, Mr. Ralph’s mother (who refused to act as his surety because she was so upset with his criminal misconduct) writes that Atiba associated himself with “the wrong crowd.” However, he has “taken full responsibility for what he has done ... he regrets every minute of it and really wants to move forward with his life in a positive way. He has been extremely remorseful.” I accept this assessment.

[20] Over the last four years while waiting for trial, Mr. Ralph has complied fully with his bail conditions. He has a minor and dated criminal record – a conviction for drug possession ten years ago that resulted in a $500 fine.

Aggravating and mitigating factors

[21] There are several aggravating factors: Mr. Ralph sold a large amount of cocaine to the undercover police officer; cocaine is an extremely dangerous drug that causes immeasurable harm to both the individual and the community;[^7] almost a year after the sales to the undercover, when he was arrested, Mr. Ralph was found with about 1 ½ ounces in his possession; he made the drug sales purely for financial gain (he was not an addict) probably to subsidize his music career. This is criminal conduct that should be denounced and deterred.

[22] The mitigating factors are these: Mr. Ralph is a dedicated community worker who devotes a substantial amount of time to the young people in the Jane and Finch area; he has a criminal record but it is minor and dated; over the last four years, Mr. Ralph has complied fully with his bail conditions; he is remorseful and wants to return to school to become a social worker and continue working in the community. There is little likelihood that he will re-offend. He already appears to be rehabilitated.

Principles of sentencing

[23] The fundamental purpose of sentencing, as set out in s. 718 of the Criminal Code, is to contribute to respect for the law and the maintenance of a just, peaceful and safe society. All trial judges in Canada are required by law to impose a just sanction that has one or more of the following six objectives:

1. To denounce unlawful conduct;

2. To deter the offender and others from committing offences;

3. To separate offenders from society where necessary;

4. To assist in the rehabilitation of 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 acknowledge the harm done to victims and to the community.

[24] It is a fundamental principle of sentencing that the sentence imposed be proportionate to the gravity of the offence and the degree of responsibility of the offender. The paramount question in sentencing is, “What should this offender receive for this offence, committed in the circumstances in which it was committed?”

[25] The sentencing objectives in this case are denunciation and deterrence.

Analysis

[26] The sentences for cocaine trafficking vary considerably. They range from house arrest to multi-year prison terms depending on the facts and the individual circumstances. As Justice Harris concluded in Rebello,[^8] after conducting “an extensive review” of the case law in Ontario, the range of sentence, for example, for three transactions totalling about 4 ounces, was anywhere from 20 months to five years.[^9] The sentence in Rebello (4 ounces, guilty plea, no record) was two years less a day in a blended jail term and house arrest. The sentence in Acorn (3½ ounces, guilty plea, no record) was 22 months, minus four months credit, resulting in a blended sentence of jail (three months) and house arrest (15 months).[^10] On the other hand, where the offender is a mid-level supplier selling 5½ ounces and is convicted of both trafficking and conspiracy, the sentence will be five years.[^11] As a general rule, the greater the amount of cocaine, the higher the position in the supply chain, the longer the criminal record, the longer the sentence.[^12]

[27] Here, a large amount of cocaine was sold to the undercover officer. Putting aside the last 250 gram sale, the total amount sold was about 2 ounces. When you add the 1½ ounces found when Mr. Ralph was arrested, the overall total is about 3 ½ ounces. However, one cannot ignore the last sale of 250 grams or 9 ounces. Crown counsel submits that the overall total is therefore 12 ½ ounces – a large amount by any measure.

[28] Further, says the Crown, Mr. Ralph was not simply a street-corner dealer selling $20 pieces of crack cocaine. He carried on a multi-ounce business via cell-phone and agreed-to delivery arrangements. As Justice Kiteley put it in Kuenzler, the offender herein was a “front” for his mid-level supplier.[^13]

[29] Crown counsel points to Colquhoun[^14] (four ounces, guilty plea, no record, sentence of 2½ years) and Challenger[^15] (six ounces, no record, sentence of 3½ years) as starting points for my analysis. Mr. Ralph sold 11 ounces, was found in possession of another 1½ ounces, did not plead guilty and is not a first-time offender. Hence, argues Crown counsel, a sentence of five and a half years is just and appropriate.

[30] I pause to note that, in my view, Mr. Ralph’s decision to enter a ‘not guilty’ plea and be tried on the merits was completely understandable. He had a legitimate s. 11(b) argument (33 months of delay from arrest to trial) and a reasonable entrapment submission. Both motions failed but they should have been brought. Mr. Ralph was right not to plead guilty. Also, his criminal record, as already noted, is dated and relatively minor.

[31] I agree, however, with Crown counsel that given the quantities involved a penitentiary sentence is warranted. But I do not agree, given the particular facts of this case, that a sentence of five and a half years is just and appropriate. I refer again to the sentencing objectives set out in s. 718 and to the overarching question: “What should this offender receive for this offence, committed in the circumstances in which it was committed?”

[32] Consider the following.

[33] First, this is a case that requires little to no specific deterrence. Mr. Ralph has lived in the community for the last four years without re-offending. He has complied fully with his bail conditions. He has accepted responsibility for his criminal conduct and, in my view, has expressed sincere remorse. Further, drug charges aside, he is an exceptional young man – his commitment and involvement in his community is, to say the least, impressive. His concern for others seems to be rooted in the core of his character.

[34] I point to what Mr. Ralph did the day he was arrested. Here is my description of what happened as the police officers were about to take him into custody:

Ralph … asked Sgt. Singh if he could speak to him alone. Sgt. Singh agreed and the two of them sat down on a bench on the front porch of the house ...

** Ralph asked Singh, “What is this about?” and Singh explained the drug investigation, the outstanding warrant and the charges that Ralph had sold drugs to an undercover police officer. Ralph then said this: “I don’t want to stress out my baby-mother. I have some stuff in the house that I don’t want my baby-mother finding or the kids getting into.”**

** Sgt. Singh asked him, “Where and what?” Ralph replied, “Come with me. I will give it to you.” Mr. Ralph, still handcuffed, led them to the basement and then, gesturing with his head toward a corner said, “There’s coke in a leather box.” Singh noticed a dresser with an open bottom drawer and a black leather box in the drawer. Inside the box, Singh found two baggies of what looked like cocaine ... **[^16]

[35] In other words, Mr. Ralph, concerned about the others in the house, voluntarily told the police about the cocaine, led them to the basement and showed them where it was. He was charged with PPT, of course, but these actions when he was arrested say something about his character and a concern for others that explains the many hours that Mr. Ralph devotes to his community.[^17]

[36] Secondly, although this is certainly a case for general deterrence and denunciation, the question is the level or degree of punishment. And this, in turn, depends again on what is just and appropriate given the particular facts and circumstances. I am not persuaded, on the particular facts of this case, that the objectives of denunciation and deterrence justify or require a five-year sentence. In my view, a sentence closer to three years is much more appropriate. I have come to this conclusion for the following reasons:

(i) Police could have arrested Mr. Ralph after just two sales. They knew who he was because the undercover officer identified him in a photo-lineup. But they continued to use him, pushing him to make larger and larger sales in order to find and arrest his back-end supplier. On the two largest sales, for $1250 and then $10,350, Mr. Ralph had to get the product directly from his supplier. The undercover officer drove Mr. Ralph to a prearranged meeting spot in Scarborough, the supplier arrived in his SUV and the exchange of cash for product was concluded. This led to the arrest of John Kuenzler the mid-level supplier who in due course was convicted and sentenced to four years. This is the kind of police work that all of us expect and approve of – use the front-man to locate and arrest the back-end supplier. However, I question whether it is just and appropriate to hold Mr. Ralph, the meeting place go-between, completely responsible for the last two sales, and in particular, the extra-large last sale. Mr. Ralph is certainly not blameless, far from it, but given these circumstances the extra-large last sale should not, in my view, necessarily and automatically result in an extra two or more years in prison. I will return to this point.

(ii) The sentence on the PPT charge has to be tempered somewhat by the fact that the police found the 1½ ounces in the basement of the home where Mr. Ralph was staying because Mr. Ralph told them and showed them. Nonetheless, this remains a serious PPT charge because it shows that Mr. Ralph was still selling smaller amounts of cocaine months later. I agree with Crown counsel that the PPT sentence must be served consecutively.

(iii) General deterrence is a long-standing sentencing objective. A sentence of incarceration achieves some general deterrent effect but its measurement is very difficult.[^18] Indeed, as the Court of Appeal observed, “the general deterrent effect of incarceration has been and continues to be somewhat speculative.”[^19] Recorded offence rates do not, in fact, vary inversely with the severity of penalties.[^20] The old principle that it is more the certainty than the severity of punishment which is likely to produce a deterrent effect has not been invalidated by empirical research.^21 In other words, if general deterrence alone were the objective, there would be little difference, in terms of demonstrable empirical impact, between a sentence of say, four years, and a sentence of three years. Or, in this case, between a sentence of three and a half years (which I was initially considering) and three years (which I have imposed).

(iv) The other sentencing objective that remains very important in this case is that of denunciation. The sale of powder and crack cocaine in the amounts that were sold herein must be denounced unequivocally. In my view, on the particular facts before me, a sentence of three years in prison is a sufficient and appropriate expression of societal denunciation.

[37] I acknowledge that there are sentencing decisions where four to five years or even more have been imposed in roughly analogous circumstances, rather than the three years being imposed herein. I use the words “roughly analogous” advisedly because actual sentences only become understandable when the specific facts and circumstances are carefully compared. To state as a general rule, that trafficking in 10 ounces or more of cocaine should attract a sentence of five years or more even for a first offender is instructive but not determinative. As the Court of Appeal stated in Jacko, “To consider a range of sentences as creating a de facto minimum sentence misses the point [and] ignores the fundamental principle of proportionality ... individual circumstances matter.”[^22] Sentencing is an inherently individualized process.[^23]

[38] I have considered all of the evidence before me, paying particular attention to the individual circumstances of the offender and his role in the 250 gram offence and the post-arrest PPT offence. I have concluded, on the particular facts of this case, that three years is a just and fit sentence.

[39] Atiba Ralph, you are sentenced to three years in prison. This global sentence is broken down as follows:

• Two years for the five trafficking convictions and four proceeds of crime convictions; the breakdown here is as follows:

▪ Two years on count 11;

▪ A year and a half on count 9 (concurrent);

▪ One year on count 7 (concurrent);

▪ One year on count 5 (concurrent);

▪ Six months on count 3 (concurrent);

▪ Six months on each of the four proceeds of crime counts 4, 6, 8 and 12 (concurrent);

• One year mandatory minimum on the offer to transfer a firearm conviction, count 15, (to be served concurrently with the two years on count 11);

• One year and 16 days on the possession on the purpose of trafficking conviction, count 13, minus 16 days for pre-trial custody[^24] for a total of one year, to be served consecutively to the two years on count 11.

[40] You are therefore required to serve a further three years in federal prison. There will also be a ten-year weapons prohibition under s. 109 and a DNA order under s. 487.051.

[41] You have been spared a longer sentence, Mr. Ralph, because of the good work you are doing in the community and the particular facts herein. Do the time and get out as soon as you can. Good luck to you.

Belobaba J.

**Date: ** February 24, 2012

[^1]: R v. Sears, 1978 CanLII 2277 (ON CA), 39 C.C.C. (2d) 199 (C.A.) at 199.

[^2]: R v. Jacko, 2010 ONCA 452, at para. 90.

[^3]: A conditional sentence is only available if, amongst other things, the overall sentence is less than two years: s. 742.1(2).

[^4]: A more detailed breakdown is provided at the end of this decision in para. 39.

[^5]: R v. Kuenzler, [2010] O.J. No. 3125 (S.C.J.)

[^6]: The five sales: (i) 6.8 gm of crack for $350; (ii) 13.75 gm of crack for $700; (iii) 13.77 gm of crack for $650; (iv) 27.78 gm of powder for $1250; and (v) 250 gm of crack for $10,350.

[^7]: R v. Daya, [2007] O.J. No. 3865 (C.A.)

[^8]: R v. Rebello, [2010] O.J. No. 650 (Ont. C.J.)

[^9]: Ibid., at para. 19.

[^10]: R v. Acorn, [2010] O.J. No. 1626 (Ont. C.J.)

[^11]: R v. Murray, [2007] O.J. No. 3095 (S.C.J.)

[^12]: Ibid, at para. 65.

[^13]: Kuenzler, supra note 5 at para. 5.

[^14]: R v. Colquhoun, [2002] O.J. No. 5412 (S.C.J.)

[^15]: R v.Challenger, [2001] O.J. No. 5744 (S.C.J.)

[^16]: 2011 ONSC 3407, at paras. 20 to 22.

[^17]: I agree with Crown counsel that Mr. Ralph is not a “role model” for the young people in his community, at least not in the traditional sense. When he was interviewed by the CBC in 2005 he was brazenly rolling a “blunt” (a cigar stuffed with marijuana); he talked openly about the well-documented link between poverty and crime and about young people selling drugs as a “second job”; and, on occasion, his rap music contains lyrics that seem to glamorize gun crime. But Mr. Ralph has never professed to be a role model. He is at best a dedicated and committed community volunteer who has been able, with his media interviews and his music, to achieve the street-level credibility you need to work with young people.

[^18]: The Report of the Canadian Sentencing Commission, (The Archambault Report, 1987) at 136-37, as cited in R v. J.W. 1997 CanLII 3294 (ON CA), [1997] O.J. No. 1380 (C.A.) at para. 47.

[^19]: R. v. J.W., ibid, at para. 47

[^20]: The Archambault Report, supra, note 18, at 137, as cited in R v. J.W., at para. 47.

[^22]: R v. Jacko, supra, note 2, at para. 90.

[^23]: Ibid., at para. 93.

[^24]: Eight days of actual pre-trial custody at the conventional two-for-one credit equals sixteen days.