COURT FILE NO.: CR10900005390000

DATE: 20131028

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

JASON LONGSHAW

Jason Mitschele, for the Crown

Rocco Loccisano, for the Defendant

HEARD: October 18, 2013

corrick j.

REASONS FOR SENTENCE

[1] On May 22, 2013, following a trial, I found Mr. Longshaw guilty of possession of cocaine for the purpose of trafficking, assault police and possession of the proceeds of crime.

The Circumstance of the Offences

[2] On July 11, 2009, Mr. Longshaw drove his car into the parking lot of a storage facility. Officer Stojic had followed him into the parking lot, and approached him as he was entering the facility. The officer asked to see Mr. Longshaw's driver's licence, insurance and ownership. Mr. Longshaw went back to his car, ostensibly to retrieve his ownership and insurance. While there, he removed a bag of what turned out to be cocaine from his person, and threw it into the back seat of his car. When Officer Stojic asked Mr. Longshaw to step away from the car, Mr. Longshaw refused and pushed Officer Stojic. Mr. Longshaw pushed the officer a second time, retrieved the bag from the back seat and ran into the storage facility with the officer in pursuit.

[3] Once inside the storage facility, Mr. Longshaw threw the bag into an office where another male was seated. Mr. Longshaw was ultimately arrested after a lengthy and violent struggle that involved other officers, who had responded to Officer Stojic's call for assistance. During the struggle, Officer Stojic suffered a broken hand when he punched Mr. Longshaw in the face.

[4] The bag Mr. Longshaw threw into the office was recovered. It contained 12.69 grams of cocaine and $5,667.00 in Canadian currency. The currency was separated into five bundles of $1,000 each secured by elastic bands.

[5] The opinion of Officer Canepa, an expert in the field of the sale and distribution of narcotics, was that the value of 12.69 grams of powder cocaine, if sold at the street level by the gram, would have been between $1,250.00 and $1,510.00 in 2009. If the entire amount were sold on the street, its value would have been between $700 and $800.00. Officer Canepa was further of the view that a person found in possession of 12.69 grams of powder cocaine and $5,667.00 in Canadian currency separated into bundles of $1,000.00 was likely a supplier to street level dealers. Above him in the hierarchy of drug dealing would be a distributor and an importer. Below him would be a street level trafficker and an addict trafficker.

The Circumstances of the Offender

[6] Mr. Longshaw was 27 years old at the time of the commission of the offences. He is now 31. He has been involved in a long-term stable relationship with his spouse, Anna Dinh. He is a father to Ms. Dinh's ten-year-old daughter and he and Ms. Dinh have a five-year-old daughter. He also has a thirteen-year-old son from a previous relationship.

[7] Mr. Longshaw does not come from a privileged background. He was left in the care of his grandmother when he was three months old. Both of his parents were drug addicts. His mother was deported to Jamaica when he was 12 years old. He has recently reconnected with her. His father has not been a stable presence in his life. Mr. Longshaw lost touch with him for many years, but recently visited him after discovering that he was staying at the Seaton House men's hostel. His father still battles drug addiction.

[8] Mr. Longshaw and his brother were raised by their grandmother, who worked long hours as a cleaner for Air Canada leaving them for periods of time on their own. They lived in the Pelham Park neighbourhood, an area known for gangs, drugs, and violence.

[9] Mr. Longshaw has not completed high school. He quit when he was in grade 11. As the author of the pre-sentence report noted, "the negative influences of the Pelham Park neighbourhood proved far more thrilling and rewarding than school" for Mr. Longshaw. His education was disrupted by his truancy and conflicts with the law.

[10] Mr. Longshaw currently cares for his daughter and step-daughter while his spouse works as an esthetician. His daughter has a medical condition that will require surgery, and he takes her to medical appointments. He is also caring for his grandmother, who is now 75 years of age and quite ill.

[11] He has previously held various labourer-type jobs. He worked for Mega City Moving and Storage for a number of years. He has been a part-time line chef at a local restaurant. Dennis Delic, Chief Executive Officer of Stacey Electric Company, wrote a letter filed as Exhibit #5, indicating that he has known Mr. Longshaw for 15 years. Mr. Longshaw has worked for him at various times. According to the pre-sentence report, Mr. Delic is also one of the owners of the moving company Mr. Longshaw worked for. Mr. Delic wrote that he has mentored many young men from the Pelham Park community in the past eight years and he is prepared to offer Mr. Longshaw full-time employment. I note that Mr. Delic is one of Mr. Longshaw's sureties in the amount of $10,000.

[12] Mr. Longshaw has the following criminal record.

1999-10-29

(1) theft under $5,000

(2) assault

(1) (1) probation 12 mths

(2) (2) $200 & probation 12 mths

2003-01-14

(1) escape lawful custody

(2) possession of a prohibited or restricted weapon knowing its possession is unauthorized

(3) assault with intent to resist arrest

(4) fail to comply with recognizance

(5) possession of a scheduled substance

(1-4) 1 day on each charge concurrent & 4 days pre-sentence custody

2004-04-05

(1) possession of a schedule I substance

(2) fail to comply probation order

(1-2) suspended sentence and probation 18 mths on each charge concurrent

2006-02-16

(1) possession of a prohibited or restricted weapon knowing its possession is unauthorized

(2) careless storage of firearm, weapon, prohibited device or ammunition

(3) possession of a schedule III substance

(1)12 mths & 6 days pre-sentence custody & 2 yrs probation & mandatory prohibition order

(2) 3 mths concurrent

(3) 30 days concurrent

[13] He was released on bail following his arrest on July 11, 2009. Until December 3, 2012, he was bound by a curfew of 10:00 p.m. and 5:00 a.m., among other conditions. That was extended to between 11:00 p.m. and 5:00 a.m. in December 2012. He has complied with the conditions of his release and has not been charged with any further offences.

Positions of the Parties

[14] Mr. Mitschele, on behalf of the Crown, submitted that an upper reformatory sentence is appropriate given Mr. Longshaw's related and relevant criminal record and his position in the drug hierarchy as a distributor to street-level dealers. He also requested an order forfeiting Mr. Longshaw's automobile, a DNA order, and a lifetime weapons prohibition order. Mr. Longshaw consented to the ancillary orders sought by the Crown. I made the forfeiture order on October 18, 2013, and will make the remaining ones today.

[15] On behalf of Mr. Longshaw, Mr. Loccisano conceded that an upper reformatory term of imprisonment is called for, but submitted that a sentence of two years less one day to be served in the community pursuant to a conditional sentence order, followed by a period of probation, would be appropriate.

Applicable Principles of Sentencing

[16] Sentencing is never an easy task for a trial judge. My discretion in determining a fit sentence is guided by the sentencing principles set out in the Criminal Code.

[17] 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" by imposing sentences that have one of six objectives. The objectives include denouncing unlawful conduct, deterring the offender and others from committing crimes, separating offenders from society, where necessary, assisting in the rehabilitation of the offender, providing reparations for harm done to the victim or to the community and promoting a sense of responsibility in the offender. Any sentence imposed must be proportionate to the gravity of the offence and the responsibility of the offender: s. 718.1 of the Criminal Code.

[18] Keeping in mind the purposes of sentencing, I am also required by section 718.2 to impose a sentence taking into account the following:

▪ any relevant aggravating or mitigating circumstances relating to the offence or the offender;

▪ the sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

▪ an offender should not be deprived of liberty if less restrictive sanctions are appropriate; and

▪ all available sanctions other than imprisonment that are reasonable in the circumstances must be considered.

[19] At the time of the commission of these offences, s. 742.1 permitted the imposition of a conditional sentence for the offences of possession of cocaine for the purpose of trafficking, assault police and possession of proceeds of crime provided that the following three conditions were met. First, the sentence of imprisonment imposed must be less than two years. Second, service of the sentence in the community would not endanger the safety of the community; and third, permitting the offender to serve the sentence in the community would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2 of the Criminal Code.

[20] There is no dispute that an appropriate sentence would be one that is less than two years. The dispute is whether a conditional sentence would be consistent with the fundamental purpose and principles of sentencing and whether such a sentence would endanger the safety of the community.

[21] The paramount objectives of sentencing in this case must be the denunciation of Mr. Longshaw's conduct as well as deterrence, both general and specific, given Mr. Longshaw's prior convictions and the fact that he was engaged in the drug business for financial gain. The rehabilitation of Mr. Longshaw is also important and must not be overlooked.

[22] Both counsel have provided me with a number of cases, from both trial and appellate courts, in support of their respective submissions that a conditional sentence for possession of cocaine for the purpose of trafficking is or is not a fit disposition. A review of the cases demonstrates that sentencing is not an exact science. It is instead a profoundly individualized process driven by the unique facts of every offence and the unique characteristics of every offender. As Doherty J. A. noted in R. v. Hamilton, 2004 CanLII 5549 (ON CA), [2004] O.J. No. 3252, "most attempts to describe the proper judicial approach to sentencing are as close to the actual process as a paint by numbers landscape is to the real thing." The circumstances of any case, including this one, can be readily distinguished from any other case. It is always necessary to consider and apply all of the sentencing principles under the Criminal Code, having regard to the unique circumstances of the case.

Aggravating and Mitigating Factors

[23] I turn now to the aggravating and mitigating factors of this case.

[24] First, the aggravating factors:

1. Mr. Longshaw has been found guilty of possession of cocaine for the purpose of trafficking. Cocaine is a dangerous drug that wreaks havoc on the lives of addicts, their families and the community at large.

2. The quantity of cocaine and the manner in which it was packaged indicate that it was not being sold at the street level, but was being sold to street level dealers.

3. Mr. Longshaw was not a drug addict supporting his habit. He was engaged in the drug business for financial gain.

4. Mr. Longshaw has a criminal record. He was convicted of assault in 1999 as a youth, and in 2003, was convicted as an adult of assault with intent to resist arrest. He has been convicted three times of possession of scheduled substances. His last conviction in 2006 was coupled with a conviction for possession of a prohibited or restricted weapon.

5. Mr. Longshaw's violent reaction to being arrested is an aggravating factor in this case. He engaged at least three police officers in a violent struggle to avoid being handcuffed. During that struggle, Officer Stojic suffered a broken hand after punching Mr. Longshaw in the face.

[25] This case also has the following mitigating factors that I must consider.

1. Mr. Longshaw has strong family support. His spouse has attended court with him each day.

2. His early life was difficult, having been abandoned by his parents at a young age.

3. He has expressed remorse for his actions to the author of the pre-sentence report, to Dr. Pilowsky and to the court. In his remarks to the court, Mr. Longshaw apologized to the officers for his conduct on July 11, 2009, and turning to face Officer Stojic directly in the body of the court, apologized to him. I accept his remorse as genuine.

4. Mr. Longshaw has employment opportunities available to him as indicated in the letter written by Mr. Delic.

5. It appears from both the pre-sentence report and psychological report that Mr. Longshaw has gained significant insight into the lifestyle choices he has made and has determined that he wishes to leave that lifestyle behind him now. He has also recognized that he must learn to cope with his feelings of anger and guilt arising from his abandonment by his parents.

6. Mr. Longshaw has not had any conflict with the law since being released on bail in July 2009, more than four years ago.

[26] I have also considered as a mitigating factor the finding that I made following the trial that Officer Stojic kicked Mr. Longshaw after he had been handcuffed and placed in a seated position against a wall. I found that this behaviour was improper. As the Supreme Court of Canada held in R. v. Nasogaluak, 2010 SCC 6, [2010] 1 SCR 206 at para. 55, "a sentencing judge may take into account police violence or other state misconduct while crafting a fit and proportionate sentence."

Analysis

[27] In considering all of these factors and the submissions of counsel, I conclude that an upper reformatory sentence in the range of eighteen months to two years less one day is a fit disposition. That leaves the central issue of whether the sentence should be served in prison or in the community under strict terms.

[28] I must first determine whether permitting Mr. Longshaw to serve his sentence in the community would endanger the safety of the community. To assess this, I am required to consider two factors: (1) the risk of Mr. Longshaw re-offending; and (2) the gravity of the damage that could ensue in the event that he re-offends: R. v. Proulx, [2002] 1 SCR 61 at para. 69. In this regard, Mr. Mitschele points out that Mr. Longshaw has been convicted of breaching court orders. He was convicted in 2003 of two counts of failing to comply with a recognizance and, in 2004, of breach of probation. The age of these offences must be weighed against the fact that he has been law-abiding and living in the community on bail for more than 51 months. If Mr. Longshaw were to reoffend, the gravity of the harm to the community would be serious given the dangerous nature of the drug, cocaine, and the violence associated with its distribution.

[29] Although one can never rule out the possibility of re-offending, I am satisfied that permitting Mr. Longshaw to serve his sentence in the community would not endanger the safety of the community given the lengthy period of time he has been on bail without further criminal behaviour.

[30] The remaining question then is whether a conditional sentence would be consistent with the fundamental purpose and principles of sentencing. As I have said, the paramount sentencing objectives in this case are to denounce unlawful behaviour and to deter Mr. Longshaw and others from committing crimes. There is no doubt, to quote the words of Doherty, J. A. in R. v. Killam, [1999] OJ 4829 that, "imprisonment remains the most formidable denunciatory weapon in the sentencing arsenal." However, it is not the only means by which deterrence and denunciation can be achieved. Indeed Chief Justice McLachlin made it clear in R. v. Proulx that conditional sentences can provide a significant degree of deterrence and denunciation when onerous conditions are imposed: see paras. 102 and 107. The Chief Justice further stated that conditions such as house arrest should be the norm in conditional sentences, rather than the exception: see para. 103.

[31] This is, as Mr. Loccisano said, a borderline case. Mr. Mitschele's submission that many of the factors relied upon by Mr. Loccisano to support the imposition of a conditional sentence were present at the time Mr. Longshaw committed these offences has merit. Mr. Longshaw has been with his current spouse for ten years, he has known Mr. Delic for fifteen years, both his son and daughter had been born when he committed the offences. These circumstances, in 2009, however, were not sufficient to deter Mr. Longshaw from criminal activity.

[32] On the other hand, the authors of the pre-sentence report and the psychological report, filed as Exhibit #4, both report that Mr. Longshaw has gained strong insights into the devastation to individuals, families and communities caused by the drug trade. Similarly, both authors report that Mr. Longshaw presents as more focused on building a future for himself and his family. Dr. Pilowsky, the author of the psychological report, noted that Mr. Longshaw's "maturity level has soared since 2009."

[33] Although the language used by Mr. Cole, the author of pre-sentence report, betrays a certain amount of scepticism about Mr. Longshaw's ability to extricate himself from the Pelham Park community and the lure of its negative influence, it cannot be overlooked that this is where he grew up for better or for worse, and more importantly, that he has not been in conflict with the law for more than four years.

[34] Mr. Longshaw has reported to Dr. Pilowsky and Mr. Cole that he has turned the page in his life. He does not want his children to endure what he has. He wants to help youth in the Pelham Park community avoid the kind of lifestyle he chose.

[35] This is a very close case. Mr. Mitschele's submission is not unreasonable. Two things tip the balance in favour of a conditional sentence in this case. The first is the principle of restraint, which underlies s. 742.1. The second is the compelling evidence that Mr. Longshaw has demonstrated that he has started on the path to rehabilitation by remaining law abiding for the past 51 months. Fifty-one months crime free may not seem significant to those who have been law-abiding throughout their lives. However, given the unfortunate circumstances of Mr. Longshaw's early life, the negative environmental influences he was exposed to, and his past criminal record, fifty-one months crime free is evidence that he is making genuine efforts to change.

[36] The use of conditional sentences to achieve the restorative objectives of rehabilitation, reparations, and the promotion of a sense of responsibility in the offender was recognized by the Chief Justice in the case of Proulx at paragraph 113, where she wrote, "where a combination of both punitive and restorative objectives may be achieved, a conditional sentence will likely be more appropriate than incarceration." It is to be remembered that the ultimate interests of the community and Mr. Longshaw are best served by a sentence that reduces the risk of recidivism and facilitates Mr. Longshaw's rehabilitation.

Disposition

[37] Mr. Longshaw, I believe that you are at a crossroads in your life. I have decided that you have demonstrated over the past four years that you are worthy of being given an opportunity to choose the road that will lead you to being a productive member of society and a positive role model for your children. This is your chance to break the cycle. I believe that sending you to prison will interfere with the efforts you have made to rehabilitate yourself, and would not ultimately be in society's best interest. For those reasons, I am going to permit you to serve your sentence in the community.

[38] Do not make the mistake of thinking that a conditional sentence is a lenient sentence. You will be required to comply with strict conditions. Any violation of those conditions will have serious consequences for you. You can expect to serve the balance of your sentence in prison.

[39] I recognize the difficult circumstances of your early life and the negative environment in which you grew up. It appears from the pre-sentence report and Dr. Pilowsky's report that you too have recognized the emotional scars you have as a result. However, it is now time for you to deal with them so you can move ahead. Whether you continue on your current path is entirely within your control.

[40] On each count, I sentence you to two years less a day, to be served in the community, on the following conditions:

(a) you are to keep the peace and be of good behaviour;

(b) you must appear before the court when you are required to do so;

(c) you will report to your supervisor within two business days from today and thereafter when required and in the manner directed by your supervisor;

(d) you will remain within the jurisdiction of the court unless you obtain written permission to go outside that jurisdiction from the court or your supervisor;

(e) you will reside at an address approved by your supervisor, and notify the court or your supervisor in advance of any change of name or address;

(f) you will notify the court or your supervisor promptly of any change in employment or occupation;

(g) you will seek and maintain full-time employment or attend a full-time educational program, unless you have permission from your supervisor to do otherwise;

(h) you shall abstain from the possession and consumption of drugs except in accordance with a medical prescription;

(i) you shall not be in the company of anyone known to have a criminal record or who is facing criminal charges, except members of your family;

(j) you will participate in counselling or treatment to address anger and other emotional issues identified in the pre-sentence report and psychological report, as directed by your supervisor; and

(k) for the entirety of this sentence you shall be confined to your residence under house arrest twenty-four hours per day, seven days per week except for the following:

(i) being at school or work, including the time necessary to travel directly to and from school or work;

(ii) attending counselling or treatment directed by your supervisor, including the time necessary to travel directly to and from the appointments;

(iii) reporting to your supervisor, including the time necessary to travel directly to and from the appointments;

(iv) attending medical appointments for you, your spouse, your children and your grandmother approved in advance by your supervisor, including the time necessary to travel directly to and from such appointments;

(v) dealing with a medical emergency for you, your spouse, your children or your grandmother; and

(vi) once a week for a period including travel time, not exceeding five hours for personal or household errands, provided that the period is agreed upon in advance with your supervisor.

[41] At the completion of your conditional sentence, you will be placed on probation for a period of two years on the same terms that govern your conditional sentence, except for the substitution of a probation officer for your supervisor, to whom you must report within two business days of the end of your conditional sentence. In addition, you will no longer be under house arrest. You will however be subject to a curfew. You will not be away from your place of residence each night between the hours of 11:00 p.m. and 6:00 a.m. subject to any exceptions with permission in advance from your probation officer. You will also be required to perform 100 hours of community service during the first eighteen months of probation.

[42] In addition, I make a DNA order pursuant to section 487.051(2) and a weapons prohibition order for life.

[43] That is my disposition. I wish to thank counsel for their helpful submissions.

Corrick J.

Released: October 28, 2013

COURT FILE NO.: xxxx

DATE: 20131028

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

JASON LONGSHAW

REASONS FOR SENTENCE

Corrick J.

Released: October 28, 2013