ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 10-90000301
DATE: 20121122

B E T W E E N:

HER MAJESTY THE QUEEN - and - ROY TONY DAVIS

H. Amarshi , for the Crown
E. Schofield , for Roy Tony Davis

HEARD: October 22, 2012

SPIES J.

REASONS FOR SENTENCE

Overview

[ 1 ] On June 21, 2012, following a trial before me, I convicted Mr. Davis of possession of crack cocaine contrary to s. 4(1) of the Controlled Drugs and Substances Act (“CDSA”) and breach of a term of a probation order that he keep the peace and be of good behaviour, contrary to s. 733.1(1) of the Criminal Code . I acquitted Mr. Davis of the charges of possession of cocaine for the purpose of trafficking and possession of the proceeds of crime. On October 22, 2012, counsel appeared before me for sentencing submissions.

The Facts

(a) Circumstances of the Offences

[ 2 ] Mr. Davis was arrested on December 10, 2009, coming out of Q[…] Street East (“Q[…]”), a government building which houses residents on three floors who are otherwise homeless or hard to house. Many of the residents have serious drug addiction issues. Mr. Davis was found to have 7.01 grams of crack cocaine in his pants pocket and $337 in cash.

[ 3 ] I accepted the evidence of Officer Birrell, the Crown’s expert, that the 7 grams of crack cocaine is a substantial amount of crack cocaine; considered a quarter ounce on the street or two eight balls. In his opinion it is much more than you would “normally” find on a user. He testified that “normal usage” would be .05 to .15 of a gram of crack cocaine to smoke at one time; on average .1 of a gram for a “hit”. As such 7 grams would be enough for 70 single hits. In Officer Birrell’s opinion a heavy user would use in the range of a couple of grams per day and so 7 grams would last three to four days. Officer Birrell testified that to purchase this quantity of crack cocaine it would cost in the ballpark of $400-$500 if purchased in bulk.

[ 4 ] I concluded that although Mr. Davis very likely had the crack cocaine in his possession for the purpose of trafficking, the Defence has raised a reasonable doubt on the issue of why Mr. Davis might have had the crack cocaine and cash in his possession. I found that a rational and reasonable inference that could be drawn from the evidence is that Mr. Davis was a crack cocaine addict, that he had just bought the crack cocaine found in his possession using some of the balance of the money he received from the sale of his car, that he purchased this quantity of crack cocaine for personal use in order to save some money and that he did not intend to sell any of it.

(b) Impact on the Community

[ 5 ] Based on video surveillance of the inside of Q[…], Mr. Davis is seen in the hallway of the building knocking on the door of an apartment that belonged to Vince Murphy on a number of different occasions. The theory of the Crown was that Mr. Murphy was allowing Mr. Davis to use his apartment to sell cocaine. As I found a reasonable doubt with respect to the Crown’s theory, there is no evidence that Mr. Davis’ possession of the crack cocaine found on his person had any impact on the vulnerable residents of Q[…], including Mr. Murphy who has smoked crack cocaine with Mr. Davis for a number of years.

[ 6 ] However, crack cocaine is an extremely addictive drug and in addition to the severe harm its use inflicts on a user, there is an indirect impact on the community of even possession of crack cocaine in that the purchase of crack cocaine provides a market for it and keeps drug dealers in business. In my experience it can also be said that it encourages criminal activity. As Justice Hill said in R. v. Williams , [1] crack cocaine is a “hard and highly addictive drug commonly associated with consequential criminality in our community” (at para. 15).

(c) Circumstances of Mr. Davis

[ 7 ] A presentence report (“PSR”) was prepared based on interviews conducted in the summer of 2012 and the relevant information from that report is as follows. Mr. Davis is almost 35 years old. He is a single man with a psycho-social disability; he suffers from schizophrenia, who has lived with his mother in the east end of Toronto since at least 2001. He is the father of a fifteen year old daughter who is living with her mother in Huntsville. He finds the fact that his daughter is in Huntsville to be difficult as they are not as close as they used to be. He is only able to see her every two to three months because of lack of funds.

[ 8 ] Much of the time Mr. Davis has been supported by the Ontario Disability Support Program or Ontario Works Social Assistance. He has not had regular employment and apparently cannot work for a living. His last school attendance is reported to be in Grade 11. He dropped out at the age of 16.

[ 9 ] Mr. Davis’ family doctor reports that he has prescribed medication for Mr. Davis and he complied with respect to his diagnosis of schizophrenia. This requires anti-psychotic injections every two weeks. This has been going on for the last one to one and a half years.

[ 10 ] Mr. Davis thinks very highly of his mother and her advice and oversight. They are living in a two bedroom apartment leased with Toronto Community Housing and Mr. Davis pays $135 per month towards rent.

[ 11 ] Mr. Davis’ father died earlier this year of natural causes. Mr. Davis was close to him but according to his mother has handled the death well. His parents separated when he was about ten years old. Although they were heavy drinkers, there is no report of abuse or domestic assaults or related abuse in the home.

[ 12 ] Mr. Davis has a criminal history of 21 offences over an intermittent youth and adult record from 1990 when he was 13 to 2011 when he was 34. Some were committed during community supervision. As a youth the convictions include possession of a weapon and various property offences including taking a motor vehicle and possession of property obtained by crime over $1,000, theft, and possession of break-in instruments.

[ 13 ] As an adult Mr. Davis was convicted of possession for the purpose of trafficking of cocaine at least twice in 2001 and possibly four times. Mr. Amarshi submitted that he was convicted of this offence in June 2001, again in September 2001, and of two counts of possession of a Schedule I substance for the purpose of trafficking in December 2001. Based on the Case Tracking the substance was cocaine. Mr. Amarshi submitted that it appears that a global resolution was reached for all of these convictions, namely 108 days of time served. This sentence also applied to possession of a weapon conviction at the same time. In addition to time served there was a suspended sentence plus twelve months probation with conditions. As I reviewed the Case Tracking again however, I believe there were only two convictions from June and September 2001 that were disposed of in December 2001. Mr. Davis’ last conviction for a drug offence was in May 2008 when he was convicted of two counts of possession of cocaine for the purpose of trafficking. He was sentenced to 171 days presentence custody plus eighteen months probation. This appears to be the longest time that Mr. Davis has been incarcerated; i.e. almost six months.

[ 14 ] In addition to these drug offences, Mr. Davis has numerous other convictions for serious offences including weapons offences, obstructing peace officers, assaulting peace officers, resisting arrest, disarming a peace officer, a further theft conviction and a conviction for perjury. In addition Mr. Davis has been convicted of failure to comply with recognizance as a youth offender, failure to comply with recognizance in March 2007, and failure to comply with recognizance in September 2001. Mr. Davis’ criminal record shows a conviction for failure to comply with a probation order in December 2006, but Mr. Schofield did not admit this conviction as he had no recollection of this and has been acting for Mr. Davis for a number of years. I gave Mr. Amarshi leave to obtain proof of this conviction which Mr. Schofield consented to, but I did not receive such proof.

[ 15 ] Mr. Davis and his mother, who acted as his surety, assert that he has been clean and sober since his release from jail on December 18, 2009. Mr. Davis described the offence as a “one time event to let off some steam when I had a bunch of cash (from his father’s sale of his car for $2,000)”. He said that he used the last of the money he had left after spending money on clothing, shoes and taking his daughter shopping. However, Mr. Davis reported to the author of the PSR that he had used crack cocaine persistently for eighteen years prior to participating in a methadone treatment program from April to July 2009 which terminated when he returned to custody. He also reported that he took oxycontin in powder form by snorting and injection (as a result, in 2008 he was diagnosed with Hepatitis C from intravenous drug use) and that he has tried heroin and liked it a lot although he prefers oxycontin. Mr. Davis grudgingly admitted that he continued to use opiates namely oxycontin and crack cocaine at that time and that he still gets cravings for crack once in a while and that he practices distraction. He stated that if these cravings ever got unmanageable he would definitely go on the methadone program again because he found it helped. He reported that historically he went to the Donwood Institute Centre for Addiction and Mental Health for residential treatment for seven to eight days. He then left because he felt better. However, once he left the program he reported that he promptly started using again.

[ 16 ] Mr. Davis reported completing a substance abuse counselling program in 2010. According to the PSR, the records show that he was on a wait list. Mr. Davis asserted that he successfully completed it and told the author of the PSR that he was going to give his certificate to his counsel for submission to the court. No such certificate was provided and so I cannot conclude that this program has been completed.

[ 17 ] Given this history of attempts at treatment and Mr. Davis’ admitted long standing crack cocaine use and the evidence that suggests that at least when he could afford it he was a heavy user, I am not convinced that he has overcome this addiction. I agree with Mr. Amarshi that methadone is a program for opiates and is probably not helpful with an addiction to crack cocaine. As such, the PSR report suggests Mr. Davis has only ever received treatment for his oxycontin addiction and in any event all treatment efforts directed at oxycontin have failed.

[ 18 ] There may be issues with alcohol as well. Mr. Davis claimed not to drink much alcohol and only a “few drinks” on weekends but said he would have anywhere up to 20 drinks of beer when he is camping. I would hardly characterize that as a “few”. He says if he is home he has a maximum of six-pack of beer or six rye and Cokes over a weekend and that for the past three years he has only drunk on the weekends.

[ 19 ] One of the terms of Mr. Davis’ release on these charges was to undertake such counselling as recommended by his surety, his mother. According to the PSR, Mr. Davis’ mother did not send him to a substance counselling program because he was at home all the time prior to the variation to curfew and she did not think it was necessary. She stated that if she is ordered to she will endeavour to ensure his compliance.

[ 20 ] Mr. Davis successfully completed an anger management program in February 2009 while in custody, a healthy relationships program in March 2009, and a change is a choice corrections program which instructs in anti-criminal thinking in April 2009.

Legal Parameters

[ 21 ] The maximum sentence for possession of crack cocaine is seven years pursuant to s. 4(3)(a) of the CDSA . The maximum sentence for breach of a term of a probation order is two years pursuant to s. 733.1 (a) of the Criminal Code . No minimum sentences are prescribed for either offence.

Positions of Crown and Defence

[ 22 ] Mr. Amarshi takes the position that a sentence in the range of 45-60 days intermittent is warranted or, in the alternative, that Mr. Davis should receive a conditional sentence.

[ 23 ] Mr. Amarshi opposes a suspended sentence and a period of probation as he submits that it does not reflect the seriousness of the substance, Mr. Davis’ criminal record or the amount of crack cocaine that he had. He submits that crack cocaine is highly addictive and it is especially an issue at Q[…], an area where there are vulnerable residents. It encourages criminal activity and there must be a real sanction for its illicit use. Mr. Amarshi submitted that there is a need to emphasize general deterrence and in particular specific deterrence in this case. He argued that it is clear from Mr. Davis’ PSR that he has a history of crack cocaine use. He has sought and received treatment in the past. Nevertheless, he was holding a large amount of crack cocaine at the time of his arrest. It is his position that in light of Mr. Davis’ record of breach of probation and terms of recognizance, a probation order is not suitable whereas if a conditional sentence is imposed, the sanction for a breach is more serious as the offender would likely serve the remainder of his sentence in custody. Mr. Amarshi did agree however, that rehabilitation of Mr. Davis is to be emphasized.

[ 24 ] Mr. Amarshi submitted that any counselling be directed to specifically address Mr. Davis’ crack cocaine addiction, that Mr. Davis not be permitted to attend at Q[…] and that he be required to continue treatment with Dr. Faier.

[ 25 ] Mr. Amarshi also requested an order forfeiting the cash and the crack cocaine that was seized from Mr. Davis. Mr. Schofield did not make any submissions objecting to this request.

[ 26 ] Mr. Schofield’s position is that Mr. Davis should be given a sentence of time served and probation requiring him to take counselling as directed by the probation officer. Mr. Davis was in custody for nine days before his release and is entitled to 18 days credit. He spent 17 months on house arrest between December 10, 2009 and May 25, 2011. After that his conditions were varied so he could complete his community service hours from his previous sentence.

[ 27 ] When I called upon Mr. Davis he simply advised me that it is for me to decide what an appropriate sentence is in this case.

Case Law

[ 28 ] Neither counsel provided any cases to me dealing with sentencing for possession of crack cocaine. I have considered the only reported decision of this court that I am aware of, R. v. Simmonds [2] .

In that case Justice Croll sentenced an offender for possession of almost four grams of cocaine to five months imprisonment. A jury had acquitted the offender of possession for the purpose of trafficking. The offender had a criminal record dating back to 1977 for ten drug related offences including trafficking. His previous sentences for possession offences were five months, two months and three months imprisonment including pre-trial custody. At the time of the offence, the accused was on bail for drug trafficking related charges. He initially did not appear on the charges and was not apprehended until he returned to Canada seven years later. At the time of sentencing the offender had been in pre-trial custody for 74 days and so with a 2:1 credit the sentence in effect was one day plus 74 days pre-trial custody. In addition a period of one year of probation was imposed.

In the course of her reasons, Justice Croll referred to the fact that the evidence of an officer called by the Crown was that the 3.95 grams of cocaine found on the offender would be more in his opinion than the typical crack addict would have in his possession. She considered the offender’s addiction as a factor in sentencing and found that the late guilty plea made after she dismissed the Charter motions to have a slight mitigation effect. She determined that as there was a real risk of reoffending, namely continued drug possession, which is extremely harmful to the community, that she was not persuaded that a conditional sentence was appropriate. One had not been requested by counsel. Croll J. concluded that the most relevant sentencing objectives were general and specific deterrence and that given the pattern of behaviour demonstrated by the offender based on his criminal record, the need for a sentence that addressed the goal of specific deterrence was important.

Principles of Sentencing

[ 29 ] The principles of sentencing are set out in ss. 718 , 718.1 and 718.2 of the Criminal Code and I am guided by those principles. The most fundamental principle is proportionality in s. 718.1 ; the fitness of the sentence must reflect the gravity of the offence and the degree of responsibility of the offender. S. 10 of the CDSA sets out further principles to be taken into consideration in imposing a sentence for drug offences, many of which duplicate those found in the Code .

Analysis

[ 30 ] In my view the main aggravating factor relevant to sentence in this case is the nature of crack cocaine, which I have already mentioned and the substantial quantity of crack cocaine found in Mr. Davis’ possession. I have already referred to the evidence of Officer Birrell as to how quickly such a quantity would likely be consumed. Mr. Davis told the author of the PSR that the amount of crack cocaine in his possession would have sustained his use for thirty hours continuously. Based on the evidence of Officer Birrell that would be extremely heavy use over a relatively short period of time. I agree with Mr. Amarshi that given this quantity Mr. Davis is an outlier and shouldn’t be treated like most crack cocaine users who buy a “twenty piece” for personal use.

[ 31 ] Mr. Amarshi also relied on the fact that Mr. Davis was an unwelcome guest at Q[…] in that he was trespassing and “skulking” the halls and the fact that a good proportion of residents in that building suffer from addictions. Mr. Amarshi submitted that “use begets use”. In my view I cannot rely on these factors in sentencing Mr. Davis as I have no evidence as to where he bought the cocaine or that he was using any of this particular quantity of cocaine with Mr. Murphy or in Mr. Murphy’s apartment.

[ 32 ] As for mitigating factors, I will consider the fact that crack cocaine is an extremely addictive drug and that Mr. Davis, at least at the time of this offence, was clearly addicted to it.

[ 33 ] Although I disagree with Mr. Davis’ mother’s decision not to compel him to undertake counselling for his various addictions to drugs, she clearly is a supportive and devoted mother and Mr. Davis has a strong respectful relationship with her. Mr. Davis is very fortunate to have her continued support. However, he has lived with her for some time and she clearly has not known about the extent of his drug addiction and his criminal record despite her love and support. That said, as Mr. Schofield pointed out, there have been no new charges against Mr. Davis since this offence.

[ 34 ] Mr. Davis cannot be penalized for insisting on his right to a trial particularly in this case where he readily admitted his possession of crack cocaine and defended only on the basis that it was for personal use and not for trafficking. To some extent those admissions can be considered as mitigating factors although Mr. Davis has not expressed any remorse for these particular offences.

[ 35 ] Mr. Davis spent 17 months on house arrest between December 10, 2009 and May 25, 2011. After that his conditions were varied so he could complete his community service hours from his previous sentence. This is a factor to consider [3] but Mr. Davis has not been employed and was living with his mother in any event so I do not consider this to be a significant factor as house arrest would not have been particularly difficult for Mr. Davis.

[ 36 ] I turn then to what is an appropriate sentence in this case. Clearly denunciation and deterrence, both general and specific, given Mr. Davis’ earlier convictions for possession of cocaine for the purpose of trafficking, are paramount considerations in this case. However, if Mr. Davis is to break out of this cycle of repeated criminal activity in my view, he needs to be completely free of his addiction to crack cocaine and all other illicit drugs. As such the potential for rehabilitation is important. Without proper treatment in my view Mr. Davis is at serious risk of reoffending and certainly his extensive criminal record bears that out. In my view the need for specific deterrence in this case is best accomplished by rehabilitation and treatment. Mr. Davis is living in a supportive environment and I would hope that he could lead a productive life if he is free from these addictions.

[ 37 ] In my view the Crown’s position that there be a further period of incarceration of 60 days would be more than reasonable in this case although I do not see any reason why it should be served intermittently. I also do not consider that a conditional sentence for such a relatively short period would be warranted. However, I agree with Mr. Amarshi that Mr. Davis needs a strong incentive to actively participate in a drug treatment program that addresses his addiction to crack cocaine and oxycontin and perhaps other drugs.

[ 38 ] Considering the time served of 18 days, the fact Mr. Davis appears to be addicted to various drugs, the fact that if he has access to cash he is a heavy user of crack cocaine, and the paramount need to treat Mr. Davis’ drug addictions in order to ensure that he is able to become a law abiding citizen again, I have concluded that a suspended sentence pursuant to s. 731 (1) (a) of the Criminal Code and a period of probation of two years is most appropriate. The focus of this period of probation will be on treatment for drug addictions. In my view Mr. Davis also needs to find something productive to do with his time. If he is unable to work at any kind of job he should at least find activities that are more satisfying that staying home and playing on the computer. Hopefully that can be achieved through community service which will also be a term of the probation.

[ 39 ] Mr. Davis must understand that by giving him a suspended sentence, if he does not comply strictly with all of the terms of his probation and seriously commit himself to treatment, he will appear again before me for sentencing. The fact he may very well end up in jail should this occur, should act as a specific deterrent to him and given the public can be assured of this then this should send a message for general deterrence as well. I am satisfied that this sentence achieves the right balance of all of the sentencing goals in this case.

[ 40 ] A separate sentence for the conviction of breach of probation must be imposed. In all of the circumstances, a fine of $300 is appropriate and it will be paid from the cash seized from Mr. Davis at the time of his arrest.

Final Disposition

[ 41 ] Mr. Davis would you please stand.

[ 42 ] For the reasons I have given, with respect to the conviction of possession of crack cocaine, the passing of sentence is suspended for a period of 24 months during which you will be subject to the terms of my probation order. With respect to the conviction of breach of probation I sentence you to a fine of $300. Pursuant to s. 734(5) of the Criminal Code all of this fine will be taken from the moneys found in your possession at the time of your arrest.

[ 43 ] I therefore direct that you be released upon the terms of a probation order of 24 months on the following conditions:

(a) The compulsory statutory conditions as set out in section 732.1(2) of the Criminal Code ;

(b) In addition to the compulsory conditions, it is ordered that you comply with the following optional terms and conditions as permitted by section 732.1(3) of the Code :

a) Report to a probation officer within two working days of today and thereafter, when required by the probation officer and in the manner directed by the probation officer;

b) Remain within the jurisdiction of the court unless written permission to go outside that jurisdiction is obtained from the court or the probation officer;

c) Continue to reside with your mother and pay her rent as is agreed upon.

d) Abstain from the purchase, possession or consumption of any drugs or other substances prohibited by law except in accordance with a medical prescription;

e) Abstain from owning, possessing or carrying any weapon including any offensive weapon, ammunition, explosive substance or weapon as defined in the Criminal Code ;

f) Continue to see your family doctor, Dr. Faier, bi-weekly or as required by him and take all medication(s) as prescribed by him for the treatment of your schizophrenia, including the bi-weekly anti-psychotic injections, and once Dr. Faier retires, to a doctor arranged by him or another family doctor;

g) Attend and actively participate in such treatment program(s) for drug addiction as recommended by your probation officer and sign releases to monitor compliance as needed;

h) Perform 240 hours of Community Service Work as directed by your probation officer. The work is to commence within 60 days from today and shall be completed at a rate of not less than 10 hours per month in consecutive months and shall be completed to the satisfaction of your probation officer, which will include providing your probation officer with proof of attendance and completion of community service assignments;

i) Do not have any contact with, or be in the company of, or associate with, anyone known to have a criminal record or who is the subject of criminal charges, including Vince Murphy, except for members of your family.

j) Do not attend at Q[…] Street East, Toronto or be within 100 metres of that address.

[ 44 ] In addition, pursuant to section 491.1(2) of the Criminal Code I make an order forfeiting the crack cocaine seized at the time of your arrest

[ 45 ] I also make the following directions. Firstly, that the Clerk provide you with a copy of the probation order and an explanation if requested. Secondly, that the Clerk explain to you the substance and procedure of ss. 732.2 and 733.1 to ensure that you understand the conditions that have been imposed on you, what may occur if you violate any of those conditions, and the procedure to be followed if you wish to make an application to change any of the optional conditions of the order. Thirdly, that the Clerk certifies that the order and explanations have been given and that you have indicated your understanding of them. In the event the Clerk cannot so certify, you will be brought back before me for further directions. Please pay very careful attention to all of these conditions and this information.

[ 46 ] Mr. Davis, I must tell you that breach of any of these conditions will be taken very seriously by this Court. Not only will you have breached a court order; namely the terms of your probation, but you will be brought back before me to consider what sentence should be imposed for the conviction of possessions of cocaine. You must appreciate that incarceration could very well be the result if any of the conditions of your probation are breached. I hope that the conditions that I have imposed will bring home to you the seriousness of your conduct, and assist you in getting proper treatment for your drug addictions. I hope you find some community service work that you find rewarding.

[ 47 ] Mr. Davis, I see this as a last chance for you to become a productive and law-abiding member of our community. You are still reasonably young. If you fully commit to a treatment program, what you do with the rest of life will be up to you.

SPIES J.

Released: November 22, 2012