FRIDAY, SEPTEMBER 20, 2013

REASONS FOR SENTENCE

O’MARRA, B., J. (Orally)

THE COURT: These are my reasons for sentence relating to Mr. Italiano and Mr. Abdul-Hamid.

Mr. Italiano and Mr. Abdul-Hamid were each charged with trafficking in cocaine contrary to s.5(1) of the CDSA. On January 15, 2013, both accused re-elected trial by judge alone and pleaded not guilty.

Mr. Abdul-Hamid applied to exclude evidence seized by the police based on alleged violations of the Charter. On January 22nd, 2013, I dismissed that application and ruled that the drugs seized were admissible.

Counsel for both the accused and the Crown then agreed that the evidence heard on the Charter motion would apply to the trial of both accused.

Counsel for Mr. Italiano made a further admission that Canadian currency in excess of $30,000 seized by the police belonged to Mr. Italiano.

This concluded the evidence for the Crown. Neither accused chose to call any evidence and had no submissions as to proof of the Crown’s case. Both counsel for the accused conceded that the charges had been made out against both accused but preserved the pleas of not guilty for each of their clients.

Based on the above, I registered convictions against both accused.

THE FACTS

In the early afternoon of November 19th, 2008, plain clothes members of Toronto Police Service set up surveillance on a residence.

Mr. Italiano was observed to arrive in a vehicle and enter the residence. He came back out shortly thereafter carrying a distinctive-looking shoe box. He drove away. Shortly thereafter, Mr. Italiano stopped his vehicle curb-side at an intersection. Mr. Abdul-Hamid then entered Mr. Italiano’s car by the passenger door. Mr. Abdul-Hamid then left Mr. Italiano’s vehicle carrying the distinctive shoe box, got into his own car and drove away.

Shortly thereafter, police stopped Mr. Abdul-Hamid and arrested him at gun point.

The police recovered the distinctive-shoe box that contained a kilo of cocaine on the floor in the rear passenger area of his vehicle. Mr. Italiano was arrested later. Canadian currency in excess of thirty thousand dollars was later seized in his residence and is admitted to be his property. It was also admitted by both accused, through their counsel, that the cocaine seized was of a quantity of approximately one kilogram.

POSSESSION OF THE PARTIES

The Crown position for Mr. Italiano is a sentence of nine years imprisonment and for Mr. Abdul-Hamid, eight years. Mr. Christie and Mr. MacDonald both submit a range of between three and three and a half years for their clients. I was not advised of any pre-trial custody for either accused and my understanding is that when they were arrested they were released within a day or so of being arrested. They have been on bail since that time. There was no claim by either accused for any credit for the length of time that they were on bail or related to the particular terms of bail.

ANTECEDENTS OF MR. ITALIANO

Exhibit one on sentence was a pre-sentence report. Mr. Italiano was born on December 1st, 1971. He is single. He has no dependents. He is now in a relationship and has plans for a family but those plans are on hold pending these proceedings.

Mr. Italiano has a prior conviction. In January 4th of 1994 at Toronto he was convicted of possession of a narcotic for the purpose of trafficking. He received a sentence of ninety days to be served intermittently as well as a probationary term.

Mr. Italiano grew up in a positive home and family life. He has been steadily employed since he was sixteen years of age including starting his own trucking company which he was involved in for a few years. At the age of thirty-three he invested in a restaurant featuring vegetarian cuisine. Later his sister joined in the business and it became a vegan restaurant. This restaurant business was quite successful and it led to the manufacturing of gourmet products. Currently, the business that Mr. Italiano is involved in employs some fifteen people. The pre-sentence report indicated that for 2012 the sales for this company were approximately one million dollars and for 2013, the projected sales are, excuse me, let me go back. Sales for 2012 were one million dollars and for 2013 a projected of two million dollars.

Between the ages of nineteen and twenty-five Mr. Italiano declared to the author of the pre-sentence report his drug use during those years of his life. He indicated that he used marijuana and hashish. He indicated that at the age of twenty-one, while he was still in school, he sold drugs to help support a hashish habit.

Mr. Italiano has had continued support from his mother, sister, and girlfriend, who are all aware of these criminal proceedings.

I have already referred to the one prior conviction that Mr. Italiano had some twenty years ago. Since then, Mr. Italiano claims not to have an addiction to or even regular use of illicit narcotics. He has prospered in a business that is what I would describe a going concern, and I mean that in a very positive way. I ask the question, why would he be involved in incident such as this where he is picking up, transporting, and handing off a significant commercial quantity of cocaine? The only reason can be to make money.

REPORTER’S NOTE: References to Mr. Abdul-Hamid were recorded but not transcribed for the purposes of this transcript order.

THE STATUTORY PRINCIPLES OF SENTENCE

These are set out in s.718 of the Criminal Code and I have considered all of those factors in this hearing.

THE AGGRAVATING FEATURES

1. The two accused before the Court were part of a team that was involved in the drug trafficking.

2. The very nature of the drug, cocaine is a more serious substance than marijuana.

3. The quantity involved, approximately a kilo of cocaine.

4. Neither accused appears to have a drug addiction and thus this crime apparently was committed solely for commercial reasons.

MITIGATING FACTORS

These two accused are not entitled to mitigation that would otherwise be available on a guilty plea. However, I want to point out and I am factoring in that this trial proceeded first on a Charter application by Mr. MacDonald to exclude drugs seized by the police. Mr. Christie was permitted to cross-examine police officers even though his client, in law, lacked standing to challenge the seizure of the drugs from Mr. Abdul-Hamid. Having said that, the outcome of that application had obvious implications for Mr. Italiano, so Mr. Christie was given some latitude and participated in cross-examining some of the officers on the Charter application brought by Mr. MacDonald.

There were legitimate Charter issues litigated by Mr. MacDonald. When the Charter application was dismissed, both accused agreed, through their counsel, to apply the evidence to the trial proper.

And, further, they both made admissions that included the fact that the drugs seized were cocaine and the specific quantity of the cocaine.

In this case, the defence have both properly reserved their clients’ not guilty pleas for appeal purposes. They called no evidence, and they made no submissions in opposition to a finding of guilty of their clients. Both counsel conceded the Crown’s case, said the case was made out once the drugs were seized and admitted as evidence, but, as I say, quite properly and fairly, preserved their clients’ rights on the not guilty pleas. This was a focused and expeditious defence on legitimate merits for which both accused are entitled to some degree of mitigation.

THE LAW

And I entitle this next topic the perils of cocaine.

The Perils of Cocaine

Cocaine is an insidious drug that has wreaked havoc in the lives of individuals and society in general.

In a case before the Supreme Court of Canada, and I’ll spell it because it’s quite a long word, P, as in Peter, U-S-P, as in Peter, A-N, as in neighbour, A-T-H-A-N, Puspanathan v. Canada, Minister of Citizenship and Immigration, reported at [1998] 1 S.C.R. 92, Justice Corey, spoke of the socio-economic costs of illicit drug use in Canada. He indicated as follows,

“The cost to society of drug abuse and trafficking in illicit drugs are at least significant if not staggering. They include direct costs such as health care and law enforcement and indirect costs of lost productivity. The significant and often tragic consequences serve to emphasize that the harm caused by trafficking in illicit drugs is very properly a matter of grave concern in Canada as it is throughout the World.”

In a judgment of the Superior Court of Ontario, R. v. Toms [2001], O.J. No. 4844, page 5, the Court noted as follows,

“The harmful effects of cocaine in our community are two-fold. Not only do families suffer when a member becomes addicted but so does the community as a whole. Addicts often resort to criminal activity to support their habits and innocent citizens suffer losses at their hands.”

In another decision the Superior Court, R. v. Hoang and Pham [2002] O.J. No. 1355 at para 71, Justice Casey Hill noted as follows,

“Those that contribute to the availability of unlawful drugs on our streets and in our schools are engaged in a commercial enterprise often inextricably linked to consequential criminality and other social evils.”

The Ontario Court of Appeal in a case R. v. Daya [2007] O.J. No.3865 at para 18 indicated as follows,

“This Court and the Supreme Court of Canada have time and time again elaborated on the perils of cocaine and the immeasurable harm it causes to society.”

In a case out of the Ontario Court of Appeal, R. v. Bajada 2003 15687 (ON CA), [2003] O.J. No. 721 at para 13 the court indicated that,

“It would appear that sentences of five to five and one half years are not uncommon for possession of a substantial amount of cocaine for the purposes of trafficking following an accused plea of guilty or where the accused has no prior record.”

In another case out of our Court of Appeal, R. v. Bryan 2011 ONCA 273, [2011] O.J. No. 1581, the court was dealing with a case involving the trafficking of one pound of cocaine, and at paragraph one the Court indicated that,

“Normally, in cases of this nature, sentences of five to eight years would reflect the proper range for someone without a record convicted of possession for the purpose of trafficking in slightly more than a pound of cocaine.”

This case should not be taken as suggesting otherwise.

RESULT

In my view, there is no basis to distinguish the roles of either Mr. Italiano and Mr. Abdul-Hamid in this case. Mr. Italiano has a prior conviction for possession of a narcotic for the purpose of trafficking, albeit in 1994, for which he received an intermittent jail term of ninety days.

The Ontario Court of Appeal in a case that I’ve referred to in Bryan has indicated the range of a possession for the purpose of trafficking a pound of cocaine of between five and eight years.

I would make the following ancillary orders that these offences I believe are secondary designated offences, and I’m ordering that both Mr. Italiano and Mr. Abdul-Hamid provide DNA samples pursuant to s.487.051(3).

Further, according to s.16(1)(a) of the CDSA, I’m ordering that the substance seized be forfeited to Her Majesty in the Right of Canada to be disposed of by the Minister as the Minister sees fit.

In this case, bearing in mind all the factors, in my view, the appropriate sentence in this case is,

For Mr. Italiano, six and a half years, and for Mr. Abdul-Hamid six years.

THE COURT: Now are there any questions about the disposition or further submissions on any other topic?

MS. BENZAKEIN: Thank you, Your Honour. I do have two other submissions. One, is on the subject of ancillary orders. Section 109 order is mandatory. For Mr. Abdul-Hamid the Crown submit that ten years is the mandatory term. Mr. Italiano, given his prior conviction, a term of life would be mandatory in my submission.

And then there will be the matter of the forfeiture of the funds seized but I’ll sit down for the time being as my friends have submissions with respect to sentence.

THE COURT: Yes, first, could I hear from both counsel including on the s.109 order. Mr. Christie, any comments?

MR. CHRISTIE: My friend is correct with respect to her submissions Your Honour.

THE COURT: Thank you. I do... on that, so I will make the order, a s.109 order in regard to Mr. Italiano for life. And any submissions from Mr. MacDonald?

MR. MacDONALD: I have no submissions Your Honour.

THE COURT: And it will be ten years for Mr. Abdul-Hamid.

REPORTER’S NOTE: Discussions regarding forfeiture, recorded but not transcribed for the purposes of this transcript order.

Re: Mr. Italiano Re: Forfeiture, matter adjourned to November 12, 2013 at 2:15 p.m.

A D J O U R N E D (10:12 a.m.)

Form 2

Certificate of Transcript

Evidence Act, Subsection 5(2)

I, LINDA L. GRIST-ALGIE, Certified Court Reporter and Authorized Court Transcriptionist certify that this document is a true and accurate transcription of the DRD tape recording of Her Majesty the Queen vs. Christopher ITALIANO in the ONTARIO SUPERIOR COURT OF JUSTICE held at TORONTO, ONTARIO, on

Friday, SEPTEMBER 20, 2013 taken from Recording Number 4899_7-3_20130920_091006__25_OMARRABR to the best of my skill and ability,

Linda L. Grist-Algie
Certified Court Reporter
Authorized Court Transcriptionist