COURT FILE NO.: 117/12

DATE: 20130305

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

• and -

COADY DUHAMEL

Rebecca M. Edward, for the Crown

Ariel Herscovitch, for the accused

HEARD: January 18, 2013

Mr. Justice Kenneth L. Campbell:

Reasons for Sentence

A. Introduction

[1] On December 7, 2012, at the conclusion of the trial of this matter, I delivered Reasons for Judgment finding the accused, Coady Duhamel, guilty of a total of 13 firearms, ammunition, and drug-related crimes. See: R. v. Duhamel, 2012 ONSC 6449. The accused has now served approximately 27 months in pre-trial custody in relation to these charges. The Crown seeks a global sentence in the range of eight to 10 years imprisonment, minus appropriate credit for pre-trial custody. The accused seeks a global sentence of six years imprisonment, minus appropriate credit for pre-trial custody. The parties disagree as to the credit the accused should be given for his pre-trial custody. The accused contends that he should be given 36 months credit, while the Crown contends that he should be given, if anything, perhaps a couple of months of extra credit. The parties agree that there are a number of ancillary orders that should also be made as part of the sentencing process, including forfeiture and destruction of the contraband (i.e. the firearm, ammunition and drugs), forfeiture of the proceeds of crime (i.e. the drug money), a life time weapons prohibition order and an order that the accused provide a DNA sample.

B. The Facts of the Offences

[2] In the early morning hours of December 1, 2010, a team of Toronto Police Service officers forcibly entered premises located on Beresford Avenue in Toronto to execute a search warrant. Prior to the arrival of the police, the accused and his girlfriend, Caitlin Sommers, had been sleeping together in her bedroom. When the accused saw the police at the premises in the middle of the night, he quickly grabbed a plastic bag containing the contraband articles, ran to the other end of the apartment, into the bedroom occupied by Wesley Sommers, and out onto the adjoining deck area, where he threw the plastic bag over the fence around the deck. The accused had just returned to Mr. Sommers’ bedroom from the deck area when the police entered the bedroom and placed them both under arrest.

[3] Police officers strategically positioned behind the premises near the deck area saw the plastic bag being thrown from the upstairs deck. When they recovered the plastic bag, and some of the contents that had fallen from it when it was thrown, it was discovered that the bag contained: (1) a fully loaded, black Haskell “Hi-Point” .45 calibre semi-automatic handgun, with an obliterated serial number, and with a detachable magazine containing a total of eight .45 calibre bullets, including one bullet in the chamber; (2) one nine mm. luger bullet; (3) a total of approximately 137 grams of cocaine; (4) other drug-related paraphernalia, including a glass measuring cup, ceramic mixing bowl, a knife and spoon and an electronic scale.

[4] During their search of the apartment the police also found a large quantity of Canadian currency, namely $2,055, located in the bed-side table in the bedroom occupied by the accused and Caitlin Sommers. I have concluded that this money belonged to the accused, and was the proceeds of his drug trafficking.

C. The Circumstances of the Offender

[5] There was no Pre-Sentence Report requested or ordered in this case. Instead, Mr. Herscovitch provided the following details concerning the personal circumstances of the accused.

[6] Mr. Duhamel is now 24 years old. He has two younger brothers. He has had a difficult upbringing as his mother suffers from physical and mental disabilities and substance abuse issues, and his father has been periodically unemployed, with their family having to rely, at times, on social assistance. The accused has, from time to time, been put in the position of having to care for his younger brothers, who are now 18 and 12 years of age. Mr. Duhamel also has his own son, who is now four years of age, and who he tries to visit when he can. The accused has a grade nine education and has, periodically, worked sealing driveways and landscaping. He may eventually be able to return to this line of work, although he wants to work towards becoming a personal trainer based upon his interest in physical fitness. Mr. Duhamel also hopes to be able, during the course of sentence, to continue with his high school education so as to be able to secure legitimate employment upon his release.

[7] Mr. Duhamel has not had steady, legitimate employment over the past few years. Indeed, I am satisfied that, at the time of his arrest on these charges, Mr. Duhamel was engaged in the business of selling cocaine. That inference is irresistible from the various items that were in his physical possession minutes prior to his arrest. More particularly, the plastic bag that he jettisoned from the upstairs deck area of the Sommers residence contained approximately 137 grams of cocaine, which defence counsel admitted was not for personal use, but was for the purposes of trafficking. The glass measuring cup and ceramic mixing bowl had traces of cocaine residue, and were found along with a knife and a spoon. The accused was apparently preparing cocaine for the purposes of sale. The $2,055 that the police found in the bed-side table where Mr. Duhamel slept in the Sommers residence was the proceeds of his earlier drug sales. The fully loaded, .45 calibre semi-automatic handgun, with an obliterated serial number, was another one of his tools of the drug trade that enabled him to conduct his cocaine business.

[8] The accused has a significant youth and adult criminal record, especially for a young man only 24 years of age. This record displays findings of guilt in relation to 13 earlier offences, including convictions for drug trafficking, failing to comply with a recognizance, failing to appear, aggravated assault, unauthorized possession of a loaded prohibited firearm, possession of cocaine for the purposes of trafficking, and obstructing a police officer. This criminal record commences in 2006, and contains entries in almost every year since then. The accused has received a variety of probationary and custodial sentences, but his longest previous term of imprisonment is two years less a day. He has previously been prohibited from the possession of any weapons. Indeed, Mr. Duhamel was subject to at least one such weapons prohibition order at the time he committed his present firearms offences. He was also on bail at the time he committed all of the present offences.

D. The Positions of the Parties

[9] The Crown argues that the accused should be effectively sentenced to a penitentiary term of imprisonment in the range of eight to 10 years. The Crown contends that the accused should be given only a couple of months credit beyond the usual 1:1 credit mandated by s. 719(3) of the Criminal Code. In the result, the Crown sought the imposition of a penitentiary sentence in the range of close to six to eight years, after the accused was given credit for his pre-trial custody.

[10] The accused argues that he should be effectively sentenced to a penitentiary term of six years imprisonment. Further, the accused contends that, given the difficult circumstances of his pre-trial detention at the Toronto East Detention Center, he should be given the exceptional 1.5:1 credit, under s. 719(3.1) of the Criminal Code, for a significant number of the days he spent in pre-trial custody, resulting in a total credit of some 36 months. In the result, the accused sought the imposition of a three year term of imprisonment, after receiving this enhanced credit for his pre-trial custody.

[11] As I have indicated, the parties agree that certain ancillary orders should be made as part of the sentencing process in this case.

E. The Rule Against Multiple Convictions

[12] The parties agree as to the application of the rule against multiple convictions for the same crime in this case. More specifically, the parties agree that the finding of guilt with respect the first count of the “firearms indictment,” charging the accused with possession of a firearm knowing that he was not the holder of a license for the firearm, contrary to s. 91(1) of the Criminal Code, should be stayed, but that the accused should be convicted in relation to all of the remaining counts on both indictments. I agree with this joint position. See: R. v. Kienapple, 1974 14 (SCC), [1975] 1 S.C.R. 729. Accordingly, convictions are entered on all counts of both indictments, with the single exception of the first count on the “firearms indictment” which is stayed.

F. The Governing Sentencing Principles

[13] According to s. 718 of the Criminal Code, the “fundamental purpose” of sentencing is to contribute 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, namely: (a) to denounce unlawful conduct; (b) to deter the offender and others 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 the community; and (f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and the community. Further, according to s. 718.1 of the Code, the “fundamental principle” of sentencing is that a sentence “must be proportionate to the gravity of the offence and the degree of responsibility of the offender.”

[14] Section 718.2 of the Code also dictates that, in imposing sentence, the court must also take into account a number of principles including the following:

• A sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender;
• A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;
• Where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;
• An offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and,
• All available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.

G. The Aggravating Circumstances

1. The True Aggravating Circumstances in this Case

[15] In advancing her position on behalf of the Crown, Ms. Edward relied upon a number of aggravating circumstances present in this case. She noted that the accused was on bail at the time he committed the offences. She noted that the accused was subject to at least one weapons prohibition order at the time he committed the present firearms and ammunition relation offences. The Crown argued that this case revealed the toxic mix of guns and drugs, and established that the accused had been operating a cocaine enterprise. She also observed that the accused had a lengthy criminal record for the commission of precisely these kinds of offences. I accept all of these submissions, and agree that these must be considered as aggravating circumstances in this case.

2. Not a Breach of Trust Case

[16] There are, however, aspects of the Crown’s argument in relation to alleged aggravating circumstances that I do not accept. First, the Crown suggested that Mr. Duhamel violated a “breach of trust” in the commission of these offences as both Wesley and Caitlin Sommers were placed in jeopardy as a result of his criminal conduct in relation to their residence. I disagree.

[17] No doubt the unexpected late-night arrival of the Emergency Task Force (ETF) and the other Toronto Police Service officers, and their forced entry into the Sommers residence, was a scary event for the two Sommers siblings. There is equally no doubt that the long-outstanding criminal charges against Wesley and Caitlin Sommers weighed heavily upon them. But Mr. Duhamel was in no position of trust in relation to the Sommers siblings. Moreover, Mr. Duhamel was not responsible for the charging decision that was made by the police, or the decision of the Crown to continue with their prosecution of the two young Sommers.

[18] By stealthily conducting his cocaine selling enterprise in the manner he did, Mr. Duhamel created a situation where the investigating police officers and the prosecuting Crown might believe that the Sommers siblings were also involved in this illegal business, but this risk did not, as a matter of law, create a position of trust between the accused and the Sommers siblings.

3. Testimonial Admissions of Other Firearms Offences is Not Admissible

Section 13 of the Charter of Rights and Section 5(2) of the Canada Evidence Act

[19] The Crown argued that certain admissions made by Mr. Duhamel, during the course of his testimony in other unrelated criminal proceedings, should also be considered as an aggravating circumstance on the issue of sentence, in that these admissions reveal the continuing dangerousness of Mr. Duhamel, the safety risk he poses to the public, the reduced likelihood of his rehabilitation, and the coincident need for a sentence which emphasizes general and specific deterrence.

[20] On December 13, 2012, just a week after the release of my Reasons for Judgment in this case, Mr. Duhamel appeared as a defence witness before Kelly J. in a criminal case styled R. v. Andrew Eagan. Mr. Duhamel had been compelled to appear as a witness by means of a subpoena. At the very outset of his testimony, Mr. Duhamel claimed the protection of s. 5 of the Canada Evidence Act, R.S.C. 1985, chap. C-5, and was advised of the automatic constitutional protection provided by s. 13 of the Charter of Rights.

[21] Thereafter, Mr. Duhamel testified to an incident that took place on July 8, 2010 where a friend of his got into a fight and was stabbed in the chest. Mr. Duhamel admitted that, at the time, he had two loaded Smith & Wesson handguns – a “chromed out” .40 calibre and a black nine millimeter – in the waistband of his pants. Later, Mr. Duhamel borrowed a knapsack belonging to Mr. Eagan, put his two firearms in this knapsack (unbeknownst to Mr. Eagan), and then “stashed” the knapsack nearby, hoping to conceal them from the police. Later that night, when Mr. Duhamel and Mr. Eagan went back to the location where the knapsack was hidden, the police were there. Mr. Duhamel and Mr. Eagan tried to flee, but were both quickly arrested. Mr. Eagan was charged with unlawful possession of these two loaded restricted firearms as they were found by the police in his knapsack. Mr. Duhamel was also charged, but the Crown eventually withdrew the charges against him. Essentially, in this sworn evidence, Mr. Duhamel claimed ownership of the two firearms, and explained that Mr. Eagan was not aware he had put them in his knapsack. In cross-examination by the Crown, Mr. Duhamel explained that he had purchased both of these firearms for his own protection as soon as he was released from jail following his last firearms offence. He also admitted discharging one of the firearms sometime before this incident on July 8, 2010.

[22] The Crown tendered a transcript of this testimony on the issue of sentence, and argued that the sentence to be imposed upon the accused should be increased due to the testimonial admissions made by Mr. Duhamel. The defence challenged the admissibility of this evidence, arguing that its use by the Crown would contravene both s. 5 of the Canada Evidence Act and s. 13 of the Charter. I agree with defence counsel that this testimony is not admissible on the sentencing hearing in this matter.

[23] In R. v. Nedelcu, 2012 SCC 59, the Supreme Court of Canada made it clear that according to the constitutional protection provided by s. 13 of the Charter of Rights, where an accused gives compelled, incriminating evidence in other earlier proceedings, that testimony is not subsequently admissible against them in a criminal case for any purpose, except in a prosecution for perjury or giving contradictory evidence. See also: R. v. Henry, 2005 SCC 76, [2005] 3 S.C.R. 609; R. v. Dubois, 1985 10 (SCC), [1985] 2 S.C.R. 350; R. v. Noël, 2002 SCC 67, [2002] 3 S.C.R. 433. In my view, that rule has direct application in the present case to prevent the admission of the compelled, incriminating testimony of the accused in R. v. Eagan.

[24] In R. v. Nedelcu, the accused took the victim for a ride on his motorcycle, crashed into a curb and the victim suffered permanent brain damage. The accused was charged with dangerous driving causing bodily harm and impaired driving causing bodily harm. He was also sued civilly by the victim and his family. In his examination-for-discovery in the civil litigation, the accused testified that he had no memory of the events from the day. However, at his subsequent criminal trial, the accused provided a detailed account of the day’s events leading up to and during the accident. The Crown was permitted to cross-examine the accused on his civil discovery evidence. The trial testimony of the accused was found to be unreliable and he was convicted of dangerous driving causing bodily harm. The Court of Appeal allowed the appeal by the accused, but the Supreme Court of Canada restored the conviction.

[25] In interpreting s. 13 of the Charter, Moldaver J., delivering the judgment of the majority of the court, held at para. 6-11, that this evidentiary protection is applicable in any case where the “twin requirements” of s. 13 are met, namely, in any case where a person has given incriminating evidence under compulsion at the prior proceeding. Moldaver J. explained the quid pro quo that operates in relation to s. 13 of the Charter. More particularly, Moldaver J. observed that in cases where a person is compelled to provide testimony which may well be incriminating, and may not refuse to answer questions, it is only fair that the state is denied any subsequent use of that evidence to incriminate the person in any other proceeding, except in a prosecution for perjury or for the giving of contradictory evidence. Moldaver J. effectively defined “incriminating” evidence as evidence given at an earlier proceeding which the Crown seeks to use at a subsequent proceeding to prove or assist in proving the guilt of the accused in relation to some offence. Moldaver J. accepted, at para. 16, that the time for determining whether the evidence from a prior proceeding is “incriminating” is the time when the Crown seeks to use it at the subsequent hearing. See also: R. v. Dubois, 1985 10 (SCC), [1985] 2 S.C.R. 350, at pp. 363-364. However, Moldaver J. concluded that this view of s. 13 of the Charter does not prohibit the use of earlier testimony that is tendered for the sole purpose of impeaching the witness’s testimony at the subsequent proceeding.

[26] There are passages in the judgment in R. v. Nedelcu, particularly at para. 9-10, 16, 19, 30, 37, where Moldaver J. frames the prohibited use of the earlier testimony in terms of the Crown being prevented from using the earlier evidence to prove the guilt of the accused for the crimes for which the accused “is being tried.” Viewed in isolation, these passages might suggest that there is no violation of s. 13 of the Charter in cases, such as the present one, where the Crown seeks to use the earlier testimony of the accused to prove the guilt of the accused for other crimes for which the accused is not being tried. Importantly, however, in other passages of the R. v. Nedelcu judgment, particularly at para. 7, 11, 15, 30, 36, 41, Moldaver J. frames the prohibited use of the earlier testimony more generally in terms of the Crown being prevented from using the earlier evidence for “any purpose” in any “other proceeding” against the accused except in a prosecution for perjury or for the giving of contradictory evidence. For example, at para. 15, Moldaver J. stated:

Hence, the Crown should not be able to use it for any purpose at the witness’s subsequent trial. That in my view is the “quo” that forms the second half of s. 13. Apart from using it in a prosecution for perjury or for giving contradictory evidence, it will be off limits to the Crown.

[Emphasis added]

[27] In my view, this more general articulation of the protection provided by s. 13 of the Charter is the protection the court in R. v. Nedelcu sought to announce and provide. This is the protection that is reflected in the statutory language employed in s. 5(2) of the Canada Evidence Act, which states that, where the protection of the section is claimed, and the witness is compelled to answer questions, the answers given “shall not be used or admissible in evidence against him in any criminal trial or other criminal proceeding against him” thereafter taking place, other than a prosecution for perjury or the giving of contradictory evidence. Similarly, this is also the protection that is reflected in the constitutional provisions of s. 13 of the Charter, which states that a witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to incriminate that witness “in any other proceedings” except in a prosecution for perjury or for the giving of contradictory evidence. Accordingly, in my view, as the judgment in R. v. Nedelcu suggests, the Crown may not use any earlier, compelled testimony from the accused to subsequently incriminate him or her by establishing his or her guilt in relation to any alleged criminal conduct (whether charged or not).

[28] Nevertheless, the Crown argued that s. 13 of the Charter had no application to sentencing proceedings. In advancing this position, the Crown relied primarily upon the decisions in R. v. Jones, 1994 85 (SCC), [1994] 2 S.C.R. 229, at pp. 279-280; R. v. Ervin (2003), 2003 ABCA 179, 176 C.C.C. (3d) 52 (Alta.C.A.) at para. 10-13; R. v. Angelillo, 2006 SCC 55, [2006] 2 S.C.R. 728, at para. 19, 30; R. v. Paul (2010), 2010 ONCA 696, 262 C.C.C. (3d) 490 (Ont.C.A.) at para. 25-30; R. v. Gettliffe-Grant, [2006] B.C.J. No. 3366 (S.C.) at para. 35. However, none of these cases supports the general proposition that s. 13 of the Charter has no application to sentencing proceedings. Nor do any of these cases support the proposition that the Crown can rely, at the sentencing hearing of the accused, upon earlier compelled testimony of the accused in other unrelated proceedings, to prove the alleged guilt of the accused in relation to other criminal offences not before the sentencing court. Moreover, even if any of these decisions could be so broadly interpreted, such an interpretation would be very difficult to square with the subsequent controlling decision of the Supreme Court of Canada in R. v. Nedelcu.

[29] In the circumstances of the present case, while the Crown argued otherwise, I have no doubt that in tendering the transcript of the testimony of the accused in the unrelated criminal proceedings in R. v. Eagan, the Crown seeks to employ this earlier compelled testimony of the accused to “incriminate” him in these proceedings by establishing his guilt in relation to the firearms offences he admittedly committed on or about July 8, 2010. Indeed, in my view the only way for the Crown to be able to argue that the testimonial admissions by the accused reveal an ongoing dangerousness, safety risk, and a reduced likelihood of rehabilitation, is to contend that these testimonial admissions “incriminate” him in other firearms offences.

[30] In the result, properly applying the decision of the Supreme Court of Canada in R. v. Nedelcu, in my view the proposed use of this evidence would be in violation of both s. 13 of the Charter of Rights and s. 5(2) of the Canada Evidence Act. Accordingly, I rule that the tendered transcript of the earlier testimony of the accused in R. v. Eagan is not admissible as evidence in this matter. I will, therefore, disabuse my mind of the contents of this transcript and wholly ignore it in sentencing Mr. Duhamel.

H. The Mitigating Circumstances

[31] There are a number of mitigating circumstances in this case that must also be considered. Foremost in this regard is the age of the accused. He is but 24 years of age. He is also the father of a young child. According to the letter from the accused’s father, the accused continues to have the support of his family. He has also been able, periodically, to return that support by helping his mother and his brothers. Further, while the accused has served previous terms of imprisonment, his longest previous sentence is two years less a day. In these circumstances the rehabilitation of the accused remains an important consideration. Moreover, given his age, the sentence imposed upon the accused should be no longer than necessary to proportionately reflect the gravity of the crimes committed by the accused, and to provide the necessary elements of denunciation and deterrence (general and specific). See: R. v. B.(Q.) (2003), 2003 4187 (ON CA), 63 O.R. (3d) 417 (C.A.) at para. 36.

I. The Applicable Mandatory Minimum Sentence of Imprisonment

[32] The Crown contends that the mandatory minimum period of imprisonment in this case is one of five years. The Crown argues that since the accused has been previously found guilty of an offence contrary to s. 95(1) of the Criminal Code, he is liable to the increased mandatory minimum term of five years imprisonment under s. 95(2)(a)(ii) of the Code. The accused argues, on the other hand, that this increased mandatory minimum sentence of imprisonment does not apply in this case as the Crown has not given the appropriate notice of an increased penalty under s. 727(1) of the Code.

[33] There is no doubt that the accused has previously been convicted of a firearms offence contrary to s. 95(1) of the Code. The offence is clearly displayed on his criminal record. According to s. 95(2)(a)(ii), the fact that the accused has now been convicted of a second firearms offence contrary to s. 95(1) means that the accused is liable to a mandatory minimum sentence of five years imprisonment.

[34] Section 727(1) of the Code provides, however, that where an offender is convicted of an offence for which a greater punishment may be imposed by reason of their previous convictions, “no greater punishment shall be imposed on the offender” by reason of their previous convictions “unless the prosecutor satisfies the court that the offender, before making a plea, was notified that a greater punishment would be sought by reason thereof.” In short, unless the Crown can establish that, prior to plea, the accused was expressly notified that the Crown would be seeking a “greater punishment” by reason of the previous conviction of the accused, the increased mandatory minimum sentence is not applicable.

[35] In the present case the Crown cannot establish that it met the notification requirement contained in s. 727(1) of the Code. There is no doubt that the accused was advised, at least informally, that the Crown would, at the end of the trial, be seeking the imposition of a lengthy penitentiary sentence if the accused was convicted. There is also no doubt that the specific numbers that were mentioned by the Crown were all greater than five years. However, at no point prior to the plea by the accused did the Crown ever expressly advise the accused, even informally, that the Crown would be seeking the imposition of an increased mandatory minimum term of imprison by reason of the previous conviction of the accused.

[36] The statutory notice requirement under s. 727(1) of the Code is not an onerous obligation. According to the authorities that discuss the operation of s. 727(1), compliance with this provision can be quite easily accomplished. There is no prescribed form that must be employed, or technical legal preconditions that must be followed. At a minimum, however, the Crown must be able to prove that, before the accused entered his or her plea, the Crown did, in fact, notify the accused that a “greater punishment” would be sought by the Crown “by reason” of some “previous conviction” of the accused. See: R. v. Monk (1981), 1981 1649 (ON CA), 62 C.C.C. (2d) 6 (Ont.C.A.); R. v. Duncan (1983), 1982 356 (BC CA), 1 C.C.C. (3d) 444 (B.C.C.A.). It is not enough for the Crown to simply indicate to the accused that a significant term of imprisonment would be sought by the Crown upon conviction – even one longer than the statutory “greater punishment.” The accused must be notified that this “greater punishment” would be sought by the Crown by reason of his or her previous conviction.

[37] As the Crown has simply not met this notice requirement in the present case, according to the operation of s. 727(1) of the Code, “no greater punishment shall be imposed on the offender” by reason of their previous conviction. Therefore, notwithstanding the reality that the accused has been previously convicted of a firearms offence contrary to s. 95(1) of the Code, I agree with the accused that the Crown’s failure to comply with the notice requirement of s. 727(1) of the Code means that the mandatory minimum sentence in this case, under s. 95(2)(i) of the Code, is three years imprisonment.

J. The Total Effective Sentence in this Case

[38] In my view, considering all of the circumstances of this case and the governing legal principles, the accused should, in the end, receive an effective sentence of seven (7) years imprisonment.

[39] The aggravating circumstances of this case require the imposition of a sentence that reflects the overall gravity of the offences committed by the accused, and which properly denounces and deters the commission of these types of crimes. The accused was engaged in the business of selling cocaine and he employed an illegal loaded firearm to assist him in that unlawful enterprise. The accused is not personally addicted to cocaine, but rather elected to engage in the business of its sale for profit and as his livelihood. The toxic combination of cocaine and loaded firearms must be met with sentences that properly protect the public and which send the unmistakable message that serious crimes of this nature will result in serious penitentiary sentences from the courts. See, for example: R. v. Brown, 2010 ONCA 745, at para. 14; R. v. Brown, [2007] O.J. No. 5338 (S.C.J.) at para. 34-38; R. v. Chambers, 2012 ONSC 817, at para. 15-17. A more lenient sentence would not accomplish these important goals.

[40] The circumstances of this case also require the imposition of a sentence that provides the necessary element of specific deterrence. It is important in this regard to recall that, notwithstanding his relative youth, the accused has a significant criminal record, which includes earlier convictions for both firearms and drug offences. Further, at the time of the commission of these offences, the accused was on bail on other charges, and was subject to at least one weapons prohibition order. As the previous sentences and orders imposed upon the accused, including a maximum reformatory term of imprisonment, have not served to deter him from the commission of further serious offences, a penitentiary sentence of significantly greater duration is required. The accused must understand that, if he continues to commit serious criminal offences, such as the armed selling of cocaine, he will necessarily be subjected to increasingly significant sentences of imprisonment.

[41] At the same time, however, an effective sentence of seven (7) years imprisonment does not ignore the potential rehabilitation of the accused, especially after the appropriate credit is given for his pre-sentence custody. This sentence will not be a crushing one for the accused, nor should it dash his hopes for the future. The accused is still a relatively young man who can work towards his rehabilitation, so that he can eventually return from prison as a productive and contributing member of society.

K. Credit for Pre-Trial Custody

[42] The accused has now been in custody for approximately 27 months. Throughout that period of time, he has been incarcerated at the Toronto East Detention Center.

[43] According to s. 719(3) of the Code, a court, in determining the sentence to be imposed on a convicted offender, may take into account any time spent in custody by the accused as a result of the offence, but that the credit for such pre-sentence custody must be limited to “one day for each day spent in custody.” Under the “exception” to this general rule, outlined in s. 719(3.1) of the Code, where “the circumstances justify it” the credit given for pre-sentence custody may be increased to a maximum of “one and one-half days for each day spent in custody.”

[44] These statutory provisions were part of the Truth in Sentencing Act, S.C. 2009, chap. 29, which came into force on February 22, 2010. These statutory provisions limit the amount of credit that can properly be accorded to the accused in the present case as the offences committed by the accused did not take place until after February 22, 2010. See: R. v. Clarke, 2013 ONCA 7. Accordingly, the accused may receive up to a maximum of 1.5 days for each day of his 27 months of pre-sentence custody in this case, if that maximum credit is justified in the circumstances of this case.

[45] The accused led evidence at the sentencing hearing in an attempt to justify the exceptional credit provided in s. 729(3.1) of the Code. That evidence reveals the following about the nature of the pre-sentence custody served by the accused;

• For 74 days the accused was “triple bunked” in that three men were placed in a cell that was designed for only two men. This required one of the three men to sleep on a mattress on the floor. There is no evidence as to whether or not it was the accused that had to sleep on the floor.
• The facility was locked-down for 13 full days. Accordingly, the accused, like the other inmates of the facility, were kept in their cells the entire day, for 13 days. This may have happened because of institutional searches for contraband, or for maintenance work or some emergency in the facility. This would prevent the inmates from accessing the showers and the telephones, and from participating in day-time programs (e.g. anger management). But it would not usually interfere with visitations from family members or lawyers.
• The facility was also locked-down for an additional four full days, and a total of 65 evenings as a result of inadequate staffing levels in the facility. This might potentially have interfered with “chapel” that sometimes was scheduled during the evenings.
• There were 338 days when the accused was not given the opportunity of going outside to the “yard” (ie. a large, walled concrete room with an open ceiling, covered on top with a net). Normally, inmates were permitted to spend 20 minutes in the yard each day. This number of 338 days included days when there was bad weather, the institution was locked-down, the inmates were absent for court appearances, and days when they simply refused to go to the yard. The majority of these days were due, however, to staff shortages.
• The accused spent a total of some three or four weeks in segregation as a result of various acts of misconduct on his part while he was in the East Detention Center.

[46] The question that must be resolved in this case, in giving the accused the legally appropriate credit for his pre-sentence custody, is whether these are the kinds of pre-sentence circumstances that justify an award of some enhanced credit to the accused under s. 719(3.1) of the Code – and, if some enhanced credit is indeed appropriate, precisely how much credit should be accorded?

[47] According to the Truth in Sentencing Act, as now reflected in ss. 719(3) and (3.1) of the Code, the general rule is that time spent by an accused in pre-sentence custody should not be given any enhanced credit. Rather, such pre-sentence custodial time should generally be credited on a straight “one for one” basis (ie. the custodial sentence to be imposed should be reduced by one day for every one day served in pre-sentence custody). Clearly, Parliament wanted to put an end to the common practice that had developed whereby courts would typically provide an enhanced credit of “two for one,” or sometimes even “three for one” for pre-sentence custody in the reduction of sentences that would otherwise have been imposed. As Laskin J.A. stated in R. v. Clarke, at para. 22, “[o]ne obvious purpose of the Truth in Sentencing Act is to reduce the credit available for the population of offenders detained before sentencing.” Now, the only “exception” to the general “one for one” rule permits a sentencing court to give some enhanced credit, up to a maximum of 1.5:1, “if the circumstances justify it.”

[48] While the language used in s. 719(3.1) does not expressly require “exceptional” or “extraordinary” circumstances, the purpose of the section, as the heading makes clear, is to create an “exception” to the general rule that there be no enhanced credit for pre-sentence custody. In my view, in order to give proper effect to the operation of this “exception,” the phrase “if the circumstances justify it” should be interpreted so as to require proof of the existence of pre-sentence custodial circumstances which are in some way out of the ordinary. In other words, there must be something that is exceptional about the circumstances of the pre-sentence custody that justifies the enhanced credit. If enhanced credit were invariably accorded to any accused detained prior to sentencing to account, for example, for the absence of earned remission or parole in the pre-sentence context, s. 719(3.1) of the Code would cease to play the role of an “exception,” and would, instead, effectively supplant the general rule articulated by Parliament in s. 719(3). See: R. v. Morris, 2011 ONSC 5206, at para. 31-56; R. v. Boyd, 2012 ONSC 6219, at para. 7-16: R. v. Caceres and Deelarbi, 2012 ONSC 5214, at para. 59-80; R v. Hawk, 2012 ONSC 4745, at para. 55-76.

[49] Proceeding on this understanding of s. 719 (3.1) of the Code, the important questions become: (1) whether any of the conditions of pre-sentence custody endured by the accused in the present case were exceptional or out of the ordinary so as to justify some enhanced credit; and (2) if any of those conditions can fairly be said to fall within the statutory “exception” to the general rule, how much enhanced credit should be given to the accused for his pre-sentence custody.

[50] I have no difficulty concluding that the evidence establishes that some of the conditions of the accused’s pre-sentence custody fall within the scope of the exception in s. 719(3.1) of the Code. Being “triple-bunked” in crowded cells and denied time outside in the “yard” for significant periods of time are both custodial hardships that can fairly be described as exceptional for purposes of s. 719(3.1) of the Code. As Thorburn J. stated in R. v. Alexander, 2012 ONSC 6117, at para. 52, such custodial circumstances are “beyond the reasonable expectation of a person awaiting trial and sentence.” They are “exceptions to the reasonably expected norms” of pre-sentence detention. Accordingly, these unusual custodial hardships justify some enhanced credit.

[51] The more difficult task is the quantification of these exceptional circumstances in terms of the enhanced credit that should be awarded. There is no ready formula that can be applied to such custodial hardships to arrive fairly and efficiently at a numerical value for the appropriate enhanced credit. In my view, however, without trying to apply any mathematic equation or numerical ratio, a fair and reasonable enhanced credit to the accused for these exceptional custodial hardships, is an additional three months credit for his pre-sentence custody. This effectively reduces the sentence that would otherwise have been imposed upon him by three additional months of imprisonment. The total of 36 months of credit that was proposed by the accused would have given him approximately nine months of enhanced credit. This would be an excessive and unjustified award. Accordingly, for the approximately 27 months of pre-sentence custody already served by the accused to-date, he will be given credit, under the combined operation of ss. s. 719(3) and 719(3.1) of the Code, for a total of 30 months imprisonment – or two and a half (2½) years imprisonment.

L. The Sentence Imposed

[52] I have already indicated that, in all of the circumstances of this case, the accused should be given an effective sentence of seven (7) years. Accordingly, after applying this credit of two and a half (2½) years for the pre-sentence custody served by the accused, the accused is now hereby sentenced to a term of four and a half (4½) years imprisonment. That sentence is imposed, more specifically, as follows in relation to the counts of the two indictments:

• With respect to count three of the “firearm indictment,” possession of a “loaded restricted firearm” together with readily accessible ammunition, while not the holder of any authorization, license or registration certificate, contrary to s. 95(1) of the Criminal Code, the accused is sentenced to three (3) years imprisonment.
• With respect to count one of the “drug-related indictment,” possession of a controlled substance (cocaine) for the purposes of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act, the accused is sentenced to one and a half (1½) years imprisonment (consecutive).
• With respect count two of the “drug-related indictment,” possession of the proceeds of crime ($2,055), contrary to s. 354(1)(a) of the Criminal Code, and count nine of the “firearm indictment,” failing to comply with a recognizance contrary to s. 145(3) of the Code, the accused is sentenced to one and a half (1½) years imprisonment (both sentences concurrent).
• As I have already indicated, the first count of the “firearms indictment,” possession of a firearm without a license, contrary to s. 91(1) of the Code, is stayed by reason of the rule against multiple convictions.
• With respect to all of the remaining counts of the “firearm indictment,” (counts two, four through eight, and counts ten and eleven), the accused is sentenced to three (3) years imprisonment (all concurrent).

[53] This results, as I have indicated, in a total sentence of four and a half (4½) years imprisonment, after giving the accused credit for his pre-sentence custody.

M. Ancillary Sentencing Orders

[54] In addition, with the agreement of the parties, I make all of the following ancillary sentencing orders:

• Pursuant to s. 491(1) of the Criminal Code, I order that the firearm and ammunition that has been seized and detained in this case be forfeited to Her Majesty in right of Ontario and thereafter disposed of as directed by the Attorney General.
• Pursuant to s. 16(1)(a) of the Controlled Drugs and Substances Act, I order that the drugs seized and detained in this case be forfeited to Her Majesty in right of Canada and thereafter disposed of as directed by the Minister of Health.
• Pursuant to s. 462.37 of the Criminal Code, I order that the proceeds of crime, the $2,055 in drug money, be forfeited to her Majesty in right of Canada to be disposed of as directed by the Attorney General or otherwise dealt with according to the law.
• Pursuant to ss. 109(1)(b) and 109(2) of the Criminal Code, I order that the accused be prohibited: (1) from the possession of any prohibited firearm, restricted firearm, prohibited weapon, prohibited device, and prohibited ammunition for life: and (2) from the possession of any firearm (other than a restricted or prohibited firearm), cross-bow, restricted weapon, ammunition, and explosive substance for life.
• As the accused has been found guilty of a “secondary designated offence,’ namely, possession of cocaine for the purposes of trafficking, pursuant to s. 487.051(3) of the Criminal Code, I order the taking of bodily substances from the accused for forensic DNA Analysis.

N. Conclusion

[55] In the result, the accused is sentenced to a total of four and a half (4½) years imprisonment. I have endorsed the indictments and the warrant of committal accordingly. The accused is also subject to all of the ancilliary sentencing orders that I have issued.

Kenneth L. Campbell J.

DATE: March 5, 2013

COURT FILE NO.: 117/12

DATE: 20130305

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

• and -

COADY DUHAMEL

REASONS FOR SENTENCE

Kenneth L. Campbell J.

Released: March 5, 2013