COURT FILE NO.: CR-13-50000281-0000
DATE: 20131114
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
SHELDON EVANS, SHANE EVANS, ORRETT FRANCIS and RASHARD GREEN
Counsel:
G. Lennox and P. Tsui, for the Crown
S. Freeman, for Sheldon Evans
C. Rippell, for Shane Evans
G. Leslie, for Orrett Francis
H. Cedro, for Rashard Green
HEARD: August 29, September 5, 6, 9, 17, October 9, 17, and 25, 2013
REASONS FOR SENTENCE
M. Dambrot J.:
[1] The four offenders were each members of the Five Point Generals (the “5PG”), a street gang that operated in north Toronto. They have been found guilty by a jury, in various configurations, of the following offences contrary to the Criminal Code of Canada, R.S.C. 1985, c. C-46, (“CCC”) and the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (“CDSA”) and, where indicated, pleaded guilty to the following additional counts:
Sheldon Evans:
Count 1 – trafficking controlled substances for criminal organization (s. 467.12 CCC)
Count 4 – trafficking marihuana for criminal organization (s. 467.12 CCC)
Count 6 – conspiracy to traffic cocaine (s. 465(1)(c) CCC)
Count 7 – conspiracy to traffic cocaine (s. 465(1)(c) CCC)
Count 15 – conspiracy to traffic cocaine (s. 465(1)(c) CCC)
Count 16 – conspiracy to traffic cocaine (s. 465(1)(c) CCC)
Count 18 – traffic cocaine (s. 5(1) CDSA)
Count 20 – possession of cocaine for the purpose of trafficking (s. 5(2) CDSA)
Count 21 – transfer ammunition (s. 99(1) CCC)
Count 23 – conspiracy to commit aggravated assault (s. 465(1)(c) CCC)
Count 26 – possession of firearm knowing unauthorized (s. 91(2) CCC)
Shane Evans:
Count 1 – trafficking controlled substances for criminal organization (s. 467.12 CCC)
Count 7 – trafficking marihuana for criminal organization (s. 465(1)(c) CCC)
Count 9 – conspiracy to traffic cocaine (s. 465(1)(c) CCC)
Count 14 – conspiracy to traffic cocaine (s. 465(1)(c) CCC)
Count 19 – conspiracy to traffic cocaine (s. 465(1)(c) CCC)
Additional charges:
Count 3 – fail to comply probation (s. 733.1(1)(a))
Orrett Francis:
Count 1 – trafficking controlled substances for criminal organization (s. 467.12 CCC)
Count 6 – conspiracy to traffic cocaine (s. 465(1)(c) CCC)
Count 8 – conspiracy to traffic cocaine (s. 465(1)(c) CCC)
Count 11 – conspiracy to traffic marijuana (s. 465(1)(c) CCC)
Count 12 – conspiracy to traffic cocaine (s. 465(1)(c) CCC)
Count 17 – conspiracy to traffic cocaine (s. 465(1)(c) CCC)
Rashard Green:
Count 1 – trafficking controlled substances for criminal organization (s. 467.12 CCC)
Count 4 – trafficking marihuana for criminal organization (s. 467.12 CCC)
Count 10 – conspiracy to traffic cocaine (s. 465(1)(c) CCC)
Count 13 – conspiracy to traffic cocaine (s. 465(1)(c) CCC)
Count 28 – possession of loaded prohibited firearm (s. 95(1) CCC)
Additional charges:
Count 1 – possession of firearm while prohibited (s. 117.01(1) CCC)
Count 2 – possession of firearm while prohibited (s. 117.01(1) CCC)
[2] It now falls to me to impose sentence. I will begin by describing the offences that were committed by these offenders, making my own factual findings where necessary. I will then discuss the circumstances of the offenders, the possible application of the rule in Kienapple, the positions of the parties, the applicable sentencing principles, the ranges of sentence appropriate for the various offences and my discussion of the appropriate sentences, including consideration of pre-sentence custody.
THE OFFENCES
The Indictment before the Jury
Count 1 – Sheldon and Shane Evans, Francis and Green – trafficking for benefit of 5PG
[3] Count 1 is the centrepiece of this indictment. It reflects the essence of the Crown’s case. In it, the Crown alleged that Sheldon and Shane Evans, Orrett Francis, Rashard Green and others trafficked in controlled substances for the benefit of or in association with a criminal organization between January 28, 2010 and May 4, 2010. All four offenders were found guilty of this offence.
[4] Needless to say, it is implicit in the verdict of the jury that the four offenders trafficked in controlled substances in association with or for the benefit of the 5PG, which is a criminal organization. Beyond that, it is left to me to find the facts for the purpose of sentencing. Based on all of the evidence I find, most importantly, that the controlled substance that the offenders each trafficked in was predominantly cocaine, and that they also trafficked in marihuana to a significantly lesser degree. In addition, I make the following findings of fact.
[5] All of the offenders were members of the street gang, the 5PG. This gang was a criminal organization. The members made their livelihood by trafficking in illegal drugs. They trafficked persistently and in association with one another and the criminal organization.
[6] Although it was not a highly sophisticated organization that fits the conventional model of organized crime, the 5PG operated with the degree of organization necessary so as to fall within the legal definition of a criminal organization. It was a drug trafficking entity that used violence to protect its territory, and as a result it posed an enhanced threat to the community in which it functioned.
[7] The members of the 5PG included the four offenders as well as Joseph Dawkins and others. The members had a defined territory in the area surrounding Weston Road and Lawrence Avenue; had street names used only inside the gang; had gang-specific hand signs; participated in the making of the King of the City videos, which confirm the existence of the gang, its territory and its involvement in drug trafficking; wore distinctive tattoos connecting them to the 5PG; sometimes used graffiti to mark their territory; used an associate’s apartment, known as the Fort, as a private hangout; frequented certain bars and restaurants in their territory; and used coded language. I note, however, that Sheldon Evans’ 5PG tattoo had been covered with dollar signs, and Orrett Francis did not participate in the King of the City videos.
[8] In addition, I find as fact that members of the 5PG attempted to maintain control over its territory through intimidation and violence, as evidenced, for example, by the beating of the “church youths” on February 26, 2010 at the Pizza Pizza at 1937 Weston Road.
[9] The main activity of the 5PG was drug trafficking, mostly in cocaine and sometimes in marihuana. This drug trafficking business provided the following benefits to the members of the criminal organization: access to a drug supply and a distribution network, profit, the ability to deal drugs safely within a defined territory, a monopoly on drug trafficking in their neighbourhood, a steady and shared customer base, joint protection from outsiders and the police (which included warning each other of police presence), and access to a safe house (the Fort). All of these benefits resulted in the members of the organization making money from the sale of cocaine and marihuana.
[10] With respect to the trafficking, I find that between January 28, 2010 and May 4, 2010, the four offenders were involved in distributing cocaine and marihuana for profit on a persistent, virtually full-time basis, primarily within the territory of the 5PG for the benefit of and in association with the 5PG. Indeed, each of them made his living from this trafficking. The trafficking was generally what is referred to as street-level trafficking. It is plain from the desperation for crack cocaine and the insistence on immediate delivery on the part of their purchasers that the cocaine was being sold largely to crack addicts. On occasion, the trafficking was at a wholesale level, a level or two above street level. The most obvious examples of this are the instances where one of the offenders supplied drugs to another or others of the offenders for resale. Orrett Francis in particular clearly played the role of a wholesaler to his fellow members at times. In March 2010, he purchased nine ounces of cocaine for $11,250 from an unknown drug supplier, and immediately divided it and sold it to Sheldon and Shane Evans and others at the Fort. On April 2, 2010, Orrett Francis agreed to purchase a further nine ounces for the same price from the same supplier for resale.
[11] It is important to note that while the evidence led to prove the drug-related offences in Counts 6 to 20 falls within the trafficking alleged in Count 1, it does not begin to provide a picture of the full extent of the trafficking. This evidence forms but a small fraction of the totality of the cocaine and marihuana trafficking proved to have been committed by the four offenders. A better indication of the extent of their trafficking can be gleaned from the charts filed by the Crown on sentencing. Specifically, trafficking on the part of Sheldon Evans is summarized in Exhibit 5; trafficking on the part of Shane Evans is summarized in Exhibit 13; trafficking on the part of Orrett Francis is summarized in Exhibit 28; and trafficking on the part of Rashard Green is summarized in Exhibit 3.
Count 4 – Sheldon Evans and Green – trafficking marihuana for benefit of 5PG
[12] Count 4 was one of three counts in the indictment (Counts 3, 4 and 5) concerning an allegation that between December 24, 2009 and February 18, 2010, three 5PG members, Joseph Dawkins, Sheldon Evans and Rashard Green, made an effort to smuggle 3.5 ounces of marihuana into the jail where Dawkins was incarcerated. Although all three men were alleged to have been involved in this incident, each of them was charged in only two of the three counts. In Count 3, Dawkins was charged with instructing others to traffic marihuana into the jail. In Count 4, Sheldon Evans and Green were charged with trafficking in marihuana for the benefit of a criminal organization. In Count 5, all three men were charged with conspiracy to traffic in marihuana. The Crown limited Count 3 to an instruction to traffic into the jail, and Count 5 to a conspiracy to traffic marihuana into the jail. No such limitation was placed on Count 4.
[13] The jury acquitted Dawkins of the offence in Count 3, and all three accused of the offence in Count 5, but convicted Sheldon Evans and Green of the offence in Count 4. One of the issues in relation to these counts at trial, and a hotly contested issue at that, was whether the evidence established that the trafficking allegedly instructed by Dawkins and carried out by Evans, Green and others, was in fact into the jail. The evidence left open the possibility that the marihuana was to be delivered to an associate of Dawkins outside of the jail. If the jury had a reasonable doubt on the issue, having regard to the position taken by the Crown and my charge, they would have had to acquit on Counts 3 and 5, but could convict on Count 4. I interpret the verdict in exactly that way.
[14] As a result, I conclude that on Count 4, Sheldon Evans and Green at the very least obtained 3.5 ounces of marihuana for delivery to someone at the request of Dawkins and packaged it for delivery at the Fort, and that the marihuana was then transported or delivered by them or by associate of theirs to that person at some location outside of the jail, for the benefit of the 5PG.
Count 6 – Sheldon Evans and Francis – conspiracy to traffic cocaine – March 18-22, 2010
[15] In this count, the Crown alleged that Orrett Francis, Sheldon Evans, and Shane Evans agreed to traffic cocaine. The Crown relied on 47 intercepted communications to prove this allegation. These calls disclose that Francis negotiated a purchase of nine ounces of cocaine for $11,250 from an unknown drug supplier and, while waiting for delivery, entered into an agreement with Sheldon Evans and others to sell this cocaine to them for resale. When Francis received the cocaine, he brought it to the Fort and delivered it to Sheldon Evans and others. The Crown alleged that Shane Evans was also one of the conspirators, but the evidence that he had entered into the agreement was weak, and he was acquitted.
[16] A distinctive feature of this offence was the use of the transparent code “Vanna White Debout” by Francis, in several texts, which let his co-conspirators know that he had acquired the cocaine. In this count, Francis was acting as a mid-level supplier to street-level traffickers who were seeking to acquire a supply of cocaine to further traffic.
Count 7 – Sheldon and Shane Evans – conspiracy to traffic cocaine – February 9-25, 2010
[17] In this count, The Crown alleged that Sheldon and Shane Evans agreed to traffic in cocaine during a 16 day period. The Crown relied on twenty-seven intercepted communications to prove this allegation. These calls disclose that during this period, the two offenders sold small amounts of crack cocaine together in furtherance of this agreement on six discrete occasions, as follows.
[18] On February 9, 2010, Sheldon Evans told Shane Evans to sell a customer “a half” (one-half of an eight ball, or 1.2 grams of cocaine) for $100 at the Fort.
[19] On February 15, 2010, Shane Evans directed Sheldon Evans to traffic $20 worth of cocaine to a customer on the tenth floor at 5 Bellevue Crescent.
[20] On February 19, 2010, Shane Evans told Sheldon Evans to traffic $50 of cocaine to a customer at 5 Bellevue Crescent.
[21] On February 20, 2010, Shane Evans told Sheldon Evans to traffic $60 worth of cocaine to “Angelo” at the Central Bar and Grill.
[22] On February 23, 2010, Sheldon Evans told Shane Evans to sell $40 worth of cocaine to a customer on the eighth floor of 5 Bellevue Crescent.
[23] On February 25, 2010, Sheldon Evans directed Shane Evans to sell $50 worth of cocaine to “Misty” on the tenth floor of 5 Bellevue Crescent.
Count 8 – Francis – conspiracy to traffic cocaine – February 11, 2010
[24] In this count, the Crown alleged that Francis and Carl Brammall-Hives agreed to sell two ounces of cocaine on February 11, 2010. In a telephone call that day, Francis asked Brammall-Hives to convert two ounces of powder cocaine to crack cocaine, obviously for the purpose of sale, and keep one-eighth of an ounce for himself. Brammall-Hives agreed.
Count 9 – Shane Evans – conspiracy to traffic cocaine – February 12-19, 2010
[25] In this count, the Crown alleged that Shane Evans and an unidentified woman agreed to sell cocaine to Shain Henry between February 12, 2010 and February 19, 2010. The woman would sell cocaine to Evans’ customers on his behalf when required. On February 12, 2010, Shane Evans and the woman agreed to sell an eight ball or 3.5 grams of cocaine to Shain Henry for $190. The woman’s role was to give the cocaine to Henry and receive the payment for Evans. On February 19, 2010, Shane Evans agreed with the same woman to sell a half an eight ball, or 1.7 grams of cocaine to Shain Henry.
Count 10 – Green – conspiracy to traffic cocaine – February 22, 2010
[26] In this count, the Crown alleged that Green and an unknown man agreed to traffic a twenty piece of cocaine to another unknown man. On February 22, 2010, in an intercepted communication, Green and the first unknown man agreed to sell a twenty piece of crack cocaine to the second unknown male.
Count 11 – Francis – conspiracy to traffic marijuana – February 22, 2010
[27] In this count, the Crown alleged that Francis agreed with another person to traffic in marihuana. On February 22, 2010, Francis agreed to sell the other person seven ounces of marihuana for resale for $1,490.
Count 12 – Francis – conspiracy to traffic cocaine – February 25, 2010
[28] In this count, the Crown alleged that Francis agreed with Arma Tsegai to traffic in cocaine. On February 25, 2010, in an intercepted communication, Francis and Tsegai agreed to sell a sixty piece or $60 worth of crack cocaine to a man named Jose on the tenth floor of 5 Bellevue Crescent. In a subsequent communication, Jose confirmed that Francis “did him well.”
Count 13 – Green – conspiracy to traffic cocaine – February 26, 2010
[29] In this count, the Crown alleged that Green and Rakeem Henry agreed to traffic in cocaine. On February 26, 2010, Green and Henry agreed to sell a thirty piece or $30 worth of crack cocaine to a female customer. Green instructed Henry to deliver the cocaine to the customer at Jane Street and Weston Road.
Count 14 – Shane Evans – conspiracy to traffic cocaine – March 3, 2010
[30] In this count, the Crown alleged that Shane Evans and an unknown man agreed to traffic in cocaine. On March 3, 2010, Evans and the unknown male agreed to sell a forty piece of crack cocaine to an unknown male named Al and a twenty piece of crack cocaine to unknown male named Norm, in both cases on the eighth floor at 5 Bellevue Crescent.
Count 15 – Sheldon Evans – conspiracy to traffic cocaine – March 3, 2010
[31] In this count, the Crown alleged that Sheldon Evans and a person named Jimale agreed to traffic in cocaine. On March 3, 2010, Evans and Jimale agreed that Jimale would supply Evans with seven grams of cocaine for resale immediately, with another seven grams to follow.
Count 16 – Sheldon Evans – conspiracy to traffic cocaine – April 1-30, 2010
[32] In this count, the Crown alleged that Evans and Tetomar Brown agreed to traffic in cocaine. Brown was a supplier of cocaine to the 5PG. During the month of April 2010, Brown agreed to supply seven ounces of cocaine and an additional eight ball of cocaine to Evans for resale for $8,550. Evans intended to sell six ounces to another individual, and keep one ounce for himself, presumably to break down and sell in smaller quantities.
Count 17 – Francis – conspiracy to traffic cocaine – April 2, 2010
[33] In this count, the Crown alleged that Francis negotiated another purchase of nine ounces of cocaine with the same supplier as in Count 6 for $11,250 and, after receiving it, entered into an agreement with Shain Henry and Sheldon Evans to begin the process of distributing it.
Count 18 – Sheldon Evans – traffic cocaine – April 22, 2010
[34] In this count, the Crown alleged that Sheldon Evans trafficked in cocaine to an undercover police officer. On April 22, 2010, P.C. Tony Canepa called Evans and, posing as a cocaine purchaser, negotiated the sale of a “Cuban”, or seven grams of crack cocaine, from Evans for $450. Ultimately, cocaine was delivered to Canepa by associates of Evans in the stairwell of the apartment building at 5 Bellevue wrapped in a knotted piece of plastic. Canepa later opened the plastic and discovered that he had been given three pieces of crack that weighed about 3.5 grams, instead of the seven grams he had bargained for.
Count 19 – Shane Evans – conspiracy to traffic cocaine – April 22, 2010
[35] In this count, the Crown alleged that Shane Evans and Tetomar Brown agreed to traffic in cocaine. As in Count 16, Brown agreed to supply cocaine for resale. Over the three-day period from April 22, 2010 to April 24, 2010, Evans agreed with Brown that Brown would sell seven ounces of cocaine. On April 22, 2010, Evans agreed to purchase four-and-a-half ounces of cocaine for $6,000 from Brown for resale to Shain Henry for $6,400. On April 24, 2010, Evans agreed to purchase four ounces of cocaine from Brown for $5,400 for resale to Shain Henry for $5,500.
Count 20 – Sheldon Evans – possession of cocaine for trafficking – May 4, 2010
[36] On May 4, 2010, Sheldon Evans was arrested in the basement apartment at 7311 Redfox Road and a search warrant was executed. The police located 36.8 grams of cocaine on a wooden shelf unit between the kitchen and living room. The jury found that this cocaine was in the possession of Evans for the purpose of trafficking. The police also located two cell phones, a black digital Equal scale and a Fusion digital scale in the premises.
Count 21 – Sheldon Evans – transfer ammunition – February 19, 2010
[37] In this count, Sheldon Evans is charged with transferring ammunition knowing that he was not authorized to do so on February 19, 2010. No ammunition was seized from Evans. The actus reus of the offence had to be inferred from a series of intercepted communications and the expert evidence of Sgt. Press, an expert in the characteristics of firearms, the pricing of legal and illegal firearms, the sale and distribution of legal and illegal firearms, the interpretation of street and coded language related to firearms, and the characteristics of an armed person.
[38] In the first call, on February 19, 2010, Shane Evans asked Sheldon Evans for food for his nine-year-old son. Sergeant Press interpreted the combination of “food” and “nine-year-old son” to mean ammunition for a nine-millimetre firearm. Sheldon Evans replied that food was scarce, and he only had enough to fill his belly that night. Sergeant Press testified that ammunition was in fact scarce at that time, and that “belly” means a detachable magazine.
[39] In the second call, a few hours later, an unknown male referred to as AJ informed Sheldon Evans that the ammunition was ready for him. Over the next two calls, Evans and AJ arranged to meet at 5 Bellevue.
[40] In the fifth call, the following night of February 20, 2010, Sheldon Evans asked AJ to “bring those things” for him the next day. This call was interpreted to mean that Sheldon Evans had lent the ammunition as requested, and was now expecting to get ammunition back from the unknown male. The unknown male said that he was going to call his “little nigger right now, cause” he left it with him last night.
[41] In the sixth call, on February 23, 2010, the unknown male told Sheldon Evans that “that thing you lend me I’m gonna return it tomorrow.” Four days later, in the seventh call, AJ reported that he had the things Evans lent him, and would call him later that day and hook up.
[42] Based on these conversations, the jury no doubt concluded that Sheldon Evans supplied ammunition to AJ, who later returned ammunition to him. From the nature of the conversations, it is obvious that the unknown man did not have a firearms licence, and so could not lawfully obtain ammunition. Evans knew that AJ did not have a firearms licence, or at least was reckless about whether or not AJ had a firearms licence. As a result, Evans was not authorized to transfer ammunition to him.
Count 23 – Sheldon Evans – conspiracy to commit aggravated assault – March 23, 2010
[43] In this count, the Crown alleged that Sheldon Evans, Green and others conspired to commit aggravated assault. Evans was convicted. Green was acquitted.
[44] The evidence disclosed that on March 23, 2010, Sheldon Evans and other members of the 5PG were in Chez La Belle Africaine, a bar on Weston Road north of Eglinton Avenue where they often hung out. At about 5:00 p.m. Evans left the bar and phoned Shain Henry, who was inside, telling him to get out right away and bring the girls, because “the man just drop something out of a sock.” “The man” was Ian Chambers, who was sitting at the bar. Sergeant Press testified that a “sock” is a makeshift holster used to conceal a firearm.
[45] At 4:55 p.m., in another call, Evans said to Henry, “You guys didn’t see the fucking thing drop from over the fucking man … Man just pulled something out of a sock … I’m going home for my things right now. I’m coming back right now.” Press interpreted the word “thing” in each case, considered in context, to mean a gun. Evans went on to say that he was going to get a cab and was “going for [his] shit right now man.”
[46] At 4:59 p.m. Evans said to Henry, “You guys watch him. I want that guy yow. I’m coming…” Henry said, “All right.” Evans replied, “…back right now.” At 5:02 p.m., Henry told Green that he was at Coffee Time at Weston Road and Eglinton, and that Fuge (Sheldon Evans) told him to keep six and see if he saw “him walking and leave it anywhere.” Sergeant Press testified that keeping six means to watch a person at a heightened level of awareness. A few seconds later, Evans asked Henry if he was still there. Henry replied that he was walking past the bar right then. Evans told him to be careful, and not to walk past by himself. At 5:05 p.m., Henry told Evans that “he” was still in there. Evans said that he was coming now.
[47] At 5:12 p.m., Chambers was observed standing with another man in an alcove at the doorway of Nancy’s Bar, on Weston Road, one block south of Chez La Belle Africaine (“Chez la Belle”). Both men appeared to be armed, and appeared to be keeping watch. At 5:14 p.m., Chambers and the second man left the alcove and walked north towards Chez La Belle. The second man entered Chez La Belle, and Chambers took up his position outside the door. At the same time, another young man arrived coming southbound, and joined Chambers. Chambers and this third man then followed the second man into the bar.
[48] At 5:16 p.m., Sheldon Evans told Shane Evans that he had been to Eglinton, and observed that “the nigger look like he was trying to make a move in the bar.” Sheldon Evans said that he, Shorty Lo and the others were there, and he saw the man drop a sock from underneath his coat. He said that when he saw that, he told the “niggers to get the fuck out of there.” He said that the man had one sleeve tucked in his coat the whole time.
[49] At 5:17 p.m., Henry and Alex Felix were in front of the Coffee Time donut shop north of Chez La Belle on Weston Road, lined up behind a post. At the same time, Chambers was outside Chez La Belle looking north in their direction, while Henry and Felix were peeping out from behind the pole looking south towards Chambers. A marked police cruiser drove by and Henry and Felix disappeared. Once the cruiser had passed Chambers he walked north to where Henry and Felix had been and crossed Ray Avenue. Henry and Felix then walked westbound on the south side of Ray towards Weston Road. Henry and Felix made hand gestures, pointed and seemed to hold back. Chambers continued north. As Henry and Felix reached Weston Road, they walked towards a man named Chisholm who had appeared from an alleyway. Green then approached from the north. The four men met. All of them appeared to be clutching something that was concealed.
[50] At 5:27 p.m. Henry spoke to Evans who was in a taxi. Henry told Evans that the police were positioning themselves “at front” so “he” left, and Henry’s boys left. Evans immediately told his taxi driver to make a U-turn.
[51] Shortly after 5:30 p.m., two 12 Division uniformed officers who had been dispatched to look for an armed person observed Chambers walking on Bartonville Avenue near Weston Road a couple of blocks north of Ray Avenue. As the officers approached Chambers, he began to run. He ran into a backyard and tripped over a fence. He was observed to have a black handgun in his hand. He resisted arrest but was ultimately subdued and arrested, and the gun was seized by a third officer who had arrived on the scene. It was a revolver style Smith and Wesson handgun and was loaded with three rounds of .38 calibre bullets.
[52] At 5:38 p.m. Evans told Green the story of what had happened. He said that “the man was about to bump one of us dog. Fucking “acting” hot bro’. … I don’t go out ‘gainst vibes. I’m telling you what happened … The man slid the sock from under his coat. What else do you keep under your coat bro’? It’s common sense, right … and then … the man gets into a chase bro’. You see wha’ I’m saying? … I was just on my way back … I had to make a U-turn at Black Creek” and go home.
[53] On the basis of all of this evidence it is clear that the jury concluded, and in any event I am satisfied beyond a reasonable doubt that there was an agreement amongst Evans, Henry and others to respond to the showing of a gun by Chambers in a bar where they and other 5PG members and associates were present by arming themselves and returning to the bar ready to do battle with the enemy, shoot Ian Chambers, and by this means commit an aggravated assault on him. I am also satisfied the agreement was thwarted only by the arrival of the police and the arrest of Chambers.
[54] It was the Crown’s position that this was an example of the 5PG defending their territory when it was threatened. However the jury did not convict Evans of Count 22, which alleged the same offence, but for the benefit of or in association with the 5PG. I infer that while the jury was satisfied that this conspiracy existed, they were not satisfied that the agreement was the 5PG defending their territory. As a result, I will sentence Evans on this count on the basis that this was simply an agreement to commit an aggravated assault by a group of friends who happened to be 5PG members or associates in response to a physical threat.
Count 26 – Sheldon Evans – possession of firearm knowing unauthorized – March 23, 2010
[55] This count arises out of the same circumstances as Count 23. In this count the jury found that when Sheldon Evans was in the taxi returning to Weston Road and Eglinton Avenue in response to Chambers showing his gun in the bar, he had a firearm in his possession knowing that he was not the holder of a licence to possess it and a registration certificate. The jury’s acquittal of Evans on Count 24 demonstrates that the jurors were not satisfied beyond a reasonable doubt that the firearm was loaded. However I am satisfied beyond a reasonable doubt that Evans had, or had immediate access to, ammunition and if his firearm was not already loaded, he intended to load it once he got to the Weston Road and Eglinton Avenue area.
Count 28 – Green – possession of loaded prohibited firearm – May 4, 2010
[56] On May 4, 2010, the police executed a search warrant at 1570 Jane Street, apartment 502. The police intended to arrest Green at the same time, but he observed them arrive in the lobby of the building, and left the area before the police entered the apartment.
[57] After the police officers had cleared the apartment, they found Nicole Jenkins, Green’s girlfriend, in bed in a bedroom with her infant. After they were removed from the bedroom, one of the officers observed that the metal cover on the baseboard heater appeared to have been moved, because the paint over the hinge was not intact. He gave the cover a shake, and it fell loose. When he pulled it off, he observed a chrome plated Davis Industries P 380 calibre semi-automatic firearm on top of the coils of the heater. It was racked and ready to shoot with a pull of the trigger, with a bullet in the chamber. It also had a magazine seated in the bottom of the handle. Green was in possession of this firearm, which was prohibited, was not a holder of an authorization or licence to possess the firearm in that place and was not a holder of a registration certificate for it. In fact, there was overwhelming evidence that the gun belonged to Green.
Additional Charges
[58] After the jury delivered its verdict, Shane Evans and Green pleaded guilty to additional charges outstanding against them, as follows.
Shane Evans:
[59] On September 6, 2013, Shane Evans pleaded guilty to Count 3 in a separate indictment, which alleged that he failed to comply with the terms of a probation order that was binding on him throughout the period of the commission of these offences.
Rashard Green:
[60] On September 6, 2013, Green pleaded guilty to Counts 1 and 2 in the separate indictment alleging that he was in possession of a firearm while prohibited from doing so. These offences relate to the loaded prohibited firearm found in Green’s possession in Count 28. At the time of that offence, he was the subject of two orders prohibiting him from possessing a firearm, one imposed on December 8, 2005, and the other imposed on August 22, 2008.
THE OFFENDERS
Sheldon Evans
[61] Sheldon Evans is 29 years of age. His mother was a teenager when he was born, and his father was deported in the early 1990’s when Sheldon Evans was eight-years-old. He has lived primarily with his grandmother. He dropped out of school in grade 11, but the last grade he actually passed was grade 8. He has worked for only a few very short periods of time since leaving school. He has the support of his mother and her partner as well as his former partner and his present partner, and filed letters of support from a number of his family members. These letters attest to Sheldon Evans’ good qualities, including having understanding, compassion for, and pride in his children; his purported rehabilitation; and how much he is missed by his family, particularly by his children and his elderly and ill grandmother. He has been actively involved with four biological children and one child of his present partner.
[62] Sheldon Evans has amassed the following criminal record:
Sheldon Gladstone Evans (November 10, 1984) Criminal Record
October 13, 2000
Toronto
Youth Court
(1) Break & Enter & Theft
2 years probation
January 27, 2004
Toronto
Youth Court
(1) Traffic Cocaine
(2) Possession of Cocaine for the Purpose of Trafficking
(1-2) 1 day + 121 days pre-sentence custody
- s. 109 order on each Concurrent
February 13, 2004
Toronto
(1) Fail to Comply Recognizance
(2) Fail to Comply Recognizance
(1-2) 75 days pre-sentence custody
January 16, 2006
Toronto
(1) Traffic in Sched. 1 Substance
(2) Possession of Sched. 1 Substance for the Purpose of Trafficking s. 5(2) CDSA
(1-2) 14 days jail on each concurrent
105 days pre-sentence custody
1 year probation
September 11, 2007
Toronto
(1) Mischief Under
$100 fine
12 months probation
$200 restitution
September 24, 2007
Toronto
(1) Fail to Comply Recognizance
8 months custody
- 122 days pre-sentence custody
November 3, 2009
Toronto
(1) Traffic Cocaine
(2) Traffic Cocaine
(3) Possession of Cocaine
(4) Fail to Comply Recognizance
(5) Fail to Comply Recognizance
(1-2) 1 day jail intermittent + 3 months pre-sentence custody
Concurrent
(3) 29 days jail intermittent
Consecutive
(4-5) 30 days jail intermittent
Consecutive
- Lifetime s. 109 order
[63] Evans was also subject to the following orders at the time of the commission of these offences:
Section 109 – November 3, 2009 for life
Section 109 – January 27, 2004 for life
[64] Evans read his own letter in which he expressed to his family and to society how sorry he was for being lazy, selfish and self-centred, and making his family put their lives on hold for him. He acknowledged the destruction he has caused to his family, and expressed a commitment to becoming a productive member of society. He explained that he has not participated in programs while incarcerated because it was hard for him to focus, but says that he now is committed to learning a trade or going to school, and working. He asked for a chance.
[65] I was moved by this letter. It gives me some hope for the future rehabilitation of Evans. But it reflects remorse and insight that are late in coming, and a commitment to change in words without deeds. It does merit some consideration in the imposition of sentence.
[66] Evans has spent approximately 42 months in pre-sentence custody.
Shane Evans
[67] Shane Evans is 30 years of age. As with his brother Sheldon, his mother was a teenager when he was born, and his father was deported in the early 1990’s when Shane Evans was about nine-years-old. He has lived primarily with his grandmother. He has a grade 10 education. He has worked for only a few very short periods of time since leaving school, although he now has expressed the desire to continue his education and seek full-time employment. He has played a strong father role with the children of his girlfriend. He has the support of members of his family and friends, and filed letters of support from several of them. They attest to his remorse; the fact that he is a loving, caring son, grandson, friend and father; his steps towards rehabilitation; and how much he is missed by his family, particularly his ill grandmother. His counsel argued that his illegal activity for small return shows that he is not afraid of hard work and bodes well for rehabilitation. I confess I am slow to adopt this argument. It is hard to see active criminality in so positive a light.
[68] Shane Evans has amassed the following criminal record:
Shane Evans (March 4, 1983) Criminal Record
June 8, 1999
Brampton
(Youth Court)
Possession of property obtained by crime
2 years probation
April 18, 2000
Toronto
(Youth Court)
Fail to Comply Recognizance
Time served (18 days)
August 17, 2000 Toronto
(Youth Court)
Fail to Comply Recognizance
3 months secure custody
January 19, 2005
Toronto
Uttering threats
Time served (3 months)
January 21, 2005
Toronto
Fail to Comply Recognizance
1 day jail + 90 days pre-sentence custody
December 13, 2005
Toronto
(1) Careless storage of firearm, weapon, prohibited device or ammunition s. 86(1)
(2) Possession of a loaded prohibited or restricted firearm s. 95(1)
(1) 4 months conditional sentence order
(2) Suspended sentence
18 months probation
10 months pre-sentence custody
Mandatory s. 109 order
August 18, 2006
Toronto
Fail to Comply Recognizance
45 days + 2 days pre-sentence custody
October 14, 2009
Toronto
Traffic Cocaine
90 days jail intermittent
- 135 days pre-sentence custody
October 14, 2009
Toronto
Traffic Cocaine
Suspended sentence + 1 year probation
October 20, 2009
Toronto
Over .80 mgs Operation
$1,000 fine + 1 year driving prohibition
[69] Evans was also subject to the following order at the time of the commission of these offences:
- Section 109 – December 13, 2005 for life
[70] I was provided with a letter dated July 31, 2013, from an operational manager at Maplehurst Correctional Complex, where Evans has been incarcerated. He indicated that Evans had received no misconduct reports in the institution in the prior fourteen months (although I note that there had been a few earlier); has been a “Range Server” for nine months, a trustee position requiring him to assist in the fair and equitable distribution of meals and clothing to his peers and to assist some of the younger and more immature inmates to acclimatize to the institution; completes tasks on time; diffuses issues amongst his peers; and is courteous when dealing with staff and supervisors.
[71] Evans also had a job offer as a plumbing apprentice or labourer as of August 29, 2013.
[72] Evans has served approximately forty-two months in pre-sentence custody.
Orrett Francis
[73] Orrett Francis is 34 years of age. He came to Canada in 1990 with his family. He went to Weston Collegiate, where he befriended the Evans brothers. He is three credits short of his high school diploma. He is the only member of his family with a criminal record. His siblings, who have responsible employment or are attending school, support him despite his difficulties, as do other family members and friends.
[74] Francis has four children, and has been a good father to them. Sadly his girlfriend at the time of his arrest was diagnosed with cancer and has now passed away, leaving him as a single father of his seven-year-old son. His son is currently in the care of his mother.
[75] Francis has been employed by Purolator, and has had a job available to him.
[76] He prepared a letter to the court that was filed on his behalf. In it, he acknowledged the seriousness of his offences, expressed his remorse and his determination to change and be a better father and member of society. He candidly stated that “selling drugs makes you ignore the harm it causes to others” and apologized for his conduct.
[77] Francis has amassed the following criminal record:
Orrett Francis (November 4, 1979) Criminal Record
December 12, 2000
Toronto
Obstruct Peace Officer
Conditional discharge
- 6 months probation
December 3, 2001
Toronto
Fail to Attend Court
Conditional discharge
- 12 months probation
July 8, 2003
Toronto
Possession of a Sched. I substance
$200 fine
February 7, 2006
Toronto
Possession of a Sched. I substance
$400 fine + 1 day pre-sentence custody +12 months probation
[78] Francis was arrested in May of 2010, as were the other offenders, but unlike the others he was released on judicial interim release, subject to house arrest. He was on bail for three years, and has not violated the terms of his release. He was ordered detained by me after he was found guilty. He was in custody for three weeks before his interim release, and an additional four-and-a-half months after the verdict.
Rashard Green
[79] Rashard Green is 26 years of age. He is a Canadian citizen. He has a grade 9 education and left school in grade 10. He was placed in an alternative learning programme as a result of behavioural issues, which had also led to a number of youth offences. He has two children with two mothers, both of whom continue to support him, as does his family. He has a spotty work record, but aspires to upgrade his education and start a business.
[80] Rashard Green has amassed the following criminal record:
Rashard Green (August 17, 1987) Criminal Record
August 29, 2003
Youth Court
Toronto
Assault with a Weapon
18 months probation
April 21, 2004
Youth Court
Toronto
(1) Assault with a Weapon
(2) Obstruct P.O.
(3) Fail to Comply Recognizance
(4) Theft Under
(5) Fail to Comply Recognizance
(1) Time served (27 days) + 18 months probation
- s. 51 Youth Criminal Justice Act, S.C. 2002, c. 1 (“YCJA”), weapons prohibition
(2)-(3) Time served (27 days)
+18 months probation
(4)-(5) 18 months probation
Concurrent
April 21, 2004
Youth Court
Toronto
Obstruct Peace Officer
Fail to Comply Recognizance
Time served (27 days)
- 18 months probation concurrent on each charge
February 8, 2005
Youth Court
Toronto
Theft Under
Assault with Intent to Resist Arrest
Time served (21 days)
- 18 months probation
March 24, 2005
Youth Court
Toronto
Uttering Threats
Fail to Comply Recognizance
$1 fine
June 7, 2005
Youth Court
Toronto
Fail to Comply Recognizance
Fail to Comply Disposition YCJA
Time served (7 days)
- 6 months probation
December 8, 2005
Youth Court
Toronto
Assault Bodily Harm
Fail to Comply Disposition YCJA
Time served (160 days)
June 17, 2008
Toronto
Fail to Comply Recognizance
30 days jail in addition to 1 day of pre-sentence custody
August 22, 2008
Toronto
Traffic in Cocaine
12 month conditional sentence order + Forfeiture order + 10 year firearms prohibition
February 4, 2009
Toronto
Conditional Sentence Order Breach
Ordered on house arrest for 3 months and curfew for 4 months
July 29, 2009
Toronto
Possession of Cocaine
30 days jail
2 months pre-sentence custody
Forfeiture order
[81] Green was also subject to the following orders at the time of the commission of these offences:
Section 109 – December 8, 2005 for 10 years
Section 109 – August 22, 2008 for 10 years
[82] Green has served a bit less than 42 months in pre-sentence custody.
THE KIENAPPLE ISSUE
[83] In R. v. Kienapple, 1974 14 (SCC), [1975] 1 S.C.R. 729, the court applied the well-known principle that there should not be multiple convictions for the same delict. Much judicial ink has subsequently been spilled attempting to spell out the reach of this rule. It is not always easy to reconcile these decisions. However the principles that inform the application of the Kienapple rule were discussed in detail by Dickson C.J.C. in R. v. Prince, 1986 40 (SCC), [1986] 2 S.C.R. 480. The essence of the question is found at 495 of that decision, where the court stated:
There must be a relationship of sufficient proximity firstly as between the facts, and secondly as between the offences, which form the basis of two or more charges for which it is sought to invoke the rule against multiple convictions.
[84] In this case, counsel for Shane Evans, supported by counsel for the other offenders, argued that the rule applies as between Count 1 (trafficking in a controlled substance for the benefit of or in association with a criminal organization between January 28, 2010 and May 4, 2010), and the discrete drug offences found in Counts 6 to 20 of the indictment. Twelve of these counts allege a conspiracy to traffic in cocaine on a particular day or during a period of several days, one alleges a conspiracy to traffic in marihuana on a particular day (Count 11), one alleges trafficking in cocaine on a particular day (Count 18) and one alleges possession of cocaine for the purpose of trafficking (Count 20).
[85] Mr. Rippell approached the matter simplistically. He stated:
And given that everything for the conspiracy counts could be taken into account for trafficking, because it’s with a criminal organization and they were convicted of both then, in my submission, the answer to that is the answer that gets you to Kienapple.
[86] In essence, Mr. Rippell says that since everything done by Evans in the conspiracy counts is factually “captured” in the criminal organization count, the Kienapple rule applies.
[87] I begin my analysis of this issue with this simple point: binding authority precludes the application of the Kienapple rule to the thirteen conspiracy counts. In his brief judgment for the court in R. v. Sheppe, 1980 190 (SCC), [1980] 2 S.C.R. 22, at 23-24, the Chief Justice stated the issue succinctly:
The issue in this appeal is whether the principle in Kienapple v. The Queen applies to preclude a conviction of an accused for trafficking in a narcotic when he has also been convicted of conspiracy so to traffic and where the substantive offence, charged as a second count to the conspiracy, took place within the conspiracy period and involved the accused’s co-conspirator who was joined in the conspiracy count. [Footnotes omitted].
[88] Here the issue concerning the conspiracy counts is, in a sense, the reverse. Here the question raised is whether the principle in Kienapple applies to preclude convictions of accused persons for conspiracies to traffic in controlled substances where they have also been convicted of a continuing offence of trafficking, and where the conspiracies, charged in the same indictment as the trafficking offence, are narrower than the trafficking offence and took place within the trafficking period. I note that unlike Sheppe, the co-conspirators in the conspiracy counts were generally not parties to the trafficking offence.
[89] In Sheppe, the answer to the question was no. The court stated, at p. 28:
The present case is not one where the two convictions were for the same cause or matter or involved the same or substantially the same elements to establish criminality. The trafficking transaction had no element of culpability that was in any way common with the charge of conspiracy which depended on proof of a prior illegal agreement and, as I pointed out earlier, transcended any dependence on the trafficking transactions.
[90] This principle was reiterated most recently in the Supreme Court in Lake v. Canada, 2008 SCC 23, [2008] 1 S.C.R. 761, at para. 44, where LeBel J. stated, for the court:
The appellant was not charged with the substantive offence of trafficking in relation to the transaction of September 22, 1997. Although it is true that he was charged with conspiracy to traffic in narcotics on dates that included September 22, 1997, a charge of conspiracy does not subsume the substantive offence. An individual may be convicted both of conspiracy and of the substantive offence that was the object of that conspiracy: Sheppe v. The Queen, 1980 190 (SCC), [1980] 2 S.C.R. 22.
[91] Counsel for the offenders sought to distinguish Sheppe and Lake on the basis that here, the trafficking charge was not a charge of trafficking simpliciter, but was a charge of committing an indictable offence for the benefit or in association with a criminal organization contrary to s. 467.12 of the CCC. Subsection 467.1(1) of the CCC defines a criminal organization as: a group, however organized, that is composed of three or more persons, and that has as one of its main purposes or main activities the facilitation or commission of one or more serious offences. Further, the persons belonging to the group, or at least three of them, must collectively have the facilitation or commission of serious offences as one of their main purposes or activities. As a result, the offenders argue that the trafficking offence is more akin to a conspiracy offence, and accordingly the Kienapple rule applies.
[92] While there is a superficial appeal to this argument, upon rigorous analysis it fails. First, collectively having the commission of serious offences as a general common purpose falls short of an agreement to commit any particular offence. Second, and more importantly, the actus reus of the offence of trafficking for the benefit of a criminal organization need not involve more than one person, far less any agreement by more than one person to commit an offence. Common purpose is a prerequisite to membership in a criminal organization, not to an offence committed for the benefit of that organization.
[93] Returning to the rule in Kienapple, there must be a relationship of sufficient proximity firstly as between the facts, and secondly as between the offences that form the basis of two or more charges for which it is sought to invoke the rule against multiple convictions. In relation to trafficking and conspiracy to traffic counts, whatever might be said about factual proximity, there is not a sufficient proximity as between the offences to invoke the rule.
[94] This still leaves for consideration two counts upon which Sheldon Evans alone stands convicted: Count 18 charging him with trafficking in cocaine, and Count 20 charging him with possession of cocaine for the purpose of trafficking.
[95] I have little difficulty rejecting the application of the Kienapple rule to the possession for the purpose of trafficking count. Here, both the legal and factual proximity are missing. In relation to legal proximity, the essential elements of the two offences are almost entirely different. In relation to factual proximity, Evans could not have been convicted of trafficking in relation to the particular quantity of cocaine seized from his possession that is the subject matter of Count 20. While he had the intention to traffic in that cocaine in the future, he did not have the opportunity to do so. In no sense can the findings of guilt on Count 1 and Count 20 be seen as being found guilty twice for the same offence.
[96] I turn finally to the offence of trafficking in Count 18. I begin by saying that with respect to the offences of trafficking and trafficking for the benefit of a criminal organization there is a relationship of sufficient proximity as between the offences to raise the possibility that the Kienapple rule applies. Factual proximity is more problematic.
[97] I note, first of all, that if the trafficking in Count 18 was not in relation to the criminal organization, but rather was Evans embarking on a frolic of his own, then factual proximity would be absent. Count 18 would be, factually, a wholly separate offence. However when I instructed the jury on the issue of whether or not an accused’s trafficking was committed for the benefit of or in association with the criminal organization, I told them that they could consider all of the acts of trafficking established against an accused. I went on to say:
[I]t is not necessary that you find that every time an accused trafficked he did so for the benefit of or in association with a criminal organization. The Crown alleges that the accused were very active traffickers, and that they each trafficked on many occasions during the period of the indictment. You may conclude that on some occasions, or even many occasions, an accused trafficked on his own, or purely for his own benefit. Or, in relation to some of the instances of trafficking, you may simply not be sure that an accused trafficked for the benefit of or in association with a criminal organization. Or on some occasions, you may simply be unable to determine what was going on at all. None of this means that you cannot find that the particular accused trafficked for the benefit of or in association with a criminal organization. This question is not like a jig saw puzzle that requires you figure out where every piece fits in order to succeed. You do not need to solve every piece of the puzzle in order to make this finding. It is sufficient if you find that a particular accused often trafficked for the benefit of or in association with a criminal organization during this period, or that he trafficked on a continuing or regular basis for the benefit of or in association with a criminal organization during this period.
[98] As a result, I do not know whether or not the jury found that the trafficking in Count 18 was for the benefit of or in association with a criminal organization. To be safe, I will treat it as if it was for the benefit of the 5PG.
[99] However that is far from the end of the matter. To return to first principles, the court’s concerns in Kienapple should be remembered. The question upon which leave had been granted in that case was set out at 742 of that judgment:
Whether the accused, having been convicted of rape, should in respect of the same simple act have also been convicted of sexual intercourse with a female under the age of fourteen, not being his wife.
[100] In Kienapple, the court precluded convictions for rape and for sexual intercourse with a female under the age of 14, as a result of the “same simple act.” The court characterized the two charges as “alternative.” Laskin J., as he then was, put it this way, at 744-45:
The rationale of my conclusion that the charges must be treated as alternative if there is a verdict of guilty of rape on the first count, that there should not be multiple convictions for the same delict against the same girl, has a long history in the common law.
[101] I find it hard to see how Counts 1 and 18 could be considered to be based on the same simple act, or are in any sense alternative. The essence of Count 1 is continuous trafficking by members of a criminal organization. The essence of Count 18 is a single act of trafficking by Evans.
[102] I test it this way. The Kienapple rule is unquestionably reciprocal, by which I mean a conviction for either alternative offence precludes a conviction for the other. So an earlier conviction for the relatively minor trafficking offence in Count 18 would preclude a later conviction for the major offence in Count 1. In this case, that could easily have happened.
[103] Count 1 is the culmination of a major joint criminal organization investigation carried out by the Integrated Gun & Gang Task Force of the Toronto Police Service. Count 18 was an opportunity drug purchase made by a member of the Toronto Drug Squad. Neither agency was aware of the involvement of the other. The connection was made only because Evans spoke to P.C. Tony Canepa, the undercover officer, on his cell phone, and the call was intercepted by the Gun & Gang Task Force. Had this connection not been made, Evans could easily have been charged and convicted of a trafficking offence arising out of the undercover sale before the Task Force project was completed and charges laid. I cannot imagine that the conviction for the trafficking offence could have precluded a conviction for trafficking for the benefit of or in association with a criminal organization.
[104] Even if I am wrong in this part of my analysis, there is still a further basis to preclude the operation of the Kienapple rule as between Count 1 and Count 18. Here I rely on an argument put to me by Mr. Tsui for the Crown. He made the compelling submission that by enacting s. 467.14 of the CCC, Parliament has departed from the rule in Kienapple that precludes being punished twice for the same matter. In making this submission, he placed reliance on the treatment by the courts of the offence of certain firearms and terrorist offences.
[105] I begin with the firearms offences.
[106] Section 85(1) of the CCC creates the offence of using a firearm while committing an indictable offence. Section 85(4) provides that:
A sentence imposed on a person for an offence under subsection (1) or (2) shall be served consecutively to any other punishment imposed on the person for an offence arising out of the same event or series of events and to any other sentence to which the person is subject at the time the sentence is imposed on the person for an offence under subsection (1) or (2).
[107] Next I refer to the terrorist offences.
[108] Section 83.2 of the CCC creates the offence of committing an indictable offence for the benefit of, at the direction of or in association with a terrorist group.
[109] Section 83.26 provides:
A sentence, other than one of life imprisonment, imposed on a person for an offence under any of sections 83.02 to 83.04 and 83.18 to 83.23 shall be served consecutively to
(a) any other punishment imposed on the person, other than a sentence of life imprisonment, for an offence arising out of the same event or series of events; and
(b) any other sentence, other than one of life imprisonment, to which the person is subject at the time the sentence is imposed on the person for an offence under any of those sections.
[110] Finally, the criminal organization offences.
[111] Section 467.12 creates the offence of committing an indictable offence for the benefit of, at the direction of, or in association with, a criminal organization. That is the offence charged on Count 1.
[112] Section 467.14 provides:
A sentence imposed on a person for an offence under section 467.11, 467.12 or 467.13 shall be served consecutively to any other punishment imposed on the person for an offence arising out of the same event or series of events and to any other sentence to which the person is subject at the time the sentence is imposed on the person for an offence under any of those sections.
[113] As is apparent, the three sets of provisions closely mirror each other. In each case it is an offence to commit an indictable offence in conjunction with a special aggravating circumstance, for example: while using a firearm, for the benefit of a terrorist group, or for the benefit of a criminal organization. And in each case the sentence imposed for the offence must be served consecutively to any other punishment imposed for an offence arising out of the same event or series of events.
[114] The meaning of this sort of sentencing provision was considered in the firearm context in R. v. McGuigan, 1982 41 (SCC), [1982] 1 S.C.R. 284. Dickson J., as he then was, stated for the majority, at 318-19:
In my view Parliament has in the enactment of s. 83 [now s. 85] departed from the fundamental common law principle of the criminal law that nemo debet bis puniri pro uno delicto, elaborated in Kienapple, and has shown that the use of a firearm in the commission of the offence of robbery shall also constitute a separate and distinct offence under s. 83 for which a separate and additional (increased in the case of second or subsequent offence) punishment shall be imposed.
It seems clear that what was intended in the enactment of s. 83 was to impose an additional penalty for what is, in effect, an aggravated form of robbery … Parliament clearly contemplated that when in the course of a robbery a firearm is used, multiple prosecutions and multiple convictions would follow and would supplant the common law principle expressed in Kienapple and in Cox and Paton v. The Queen, 1963 78 (SCC), [1963] S.C.R. 500.
He concluded:
For the foregoing reasons, and for the reasons given by Mr. Justice Martin in the Langevin case, I conclude that the conviction on the charge of attempted armed robbery did not preclude a conviction on the charge under s. 83 of the Code. I would dismiss the appeal.
[115] The issue was revisited in R. v. Krug, 1985 2 (SCC), [1985] 2 S.C.R. 255, this time on the basis that abrogating the rule in Kienapple in this way violated s. 7 of the Canadian Charter of Rights and Freedoms. Speaking for the court, LaForest J. stated, at 267-68:
The question, then, is not so much whether Parliament can displace the Kienapple principle, but whether “fundamental justice” within the meaning of s. 7 is breached by convicting an accused who has already committed a robbery of a second offence punishable by mandatory imprisonment for using, as opposed to being armed with, a firearm in committing that robbery.
That brings us squarely to what Parliament has done and why it has done it; not how it has done it. Now what Parliament has done in this case, we saw, is in substance to create an aggravated form of robbery, to punish more severely an accused who uses a firearm in perpetrating that offence by imposing an additional penalty including a mandatory period of imprisonment. Parliament’s reason for so acting was its grave concern with the proliferation of firearm-related crime.
That this aggravated form of robbery exposes the victim to serious injury or death and that there has been a proliferation of such firearm-related offences in recent years scarcely needs demonstration. Under these circumstances, the creation of such an offence does not, in my view, constitute a departure from fundamental justice.
[116] I turn next to the terrorism context. In R. v. Ahmad (2009), 2009 84779 (ON SC), 257 C.C.C. (3d) 247 (Ont. S.C.), the accused was charged in June of 2006 with a number of terrorism offences, one of which was importing firearms into Canada contrary to s. 103 of the CCC for the benefit of, at the direction of or in association with a terrorist group, contrary to s. 83.2 of the CCC. On October 25, 2005 he pleaded guilty to six offences, one of which was importing a firearm into Canada contrary to s. 103 of the CCC, and was sentenced to two years imprisonment. He was still serving his sentence when the 2006 charges were laid. The new charge of importing firearms related to the same events that formed the subject matter of the earlier firearms charge. The accused made an application to stay the proceedings, in part on the basis that a conviction on the new firearms charge would violate the Kienapple principle.
[117] Dawson J. dismissed the application. In relation to the Kienapple issue, he held that Parliament intended that convictions should be entered for both the predicate offence and the s. 83.2 offence. He stated, at para. 35:
Support for this conclusion is found in McGuigan v. The Queen (1982), 1982 41 (SCC), 66 C.C.C. (2d) 97 (S.C.C.). There the court was dealing with whether the Kienapple principle prevented a conviction for the use of a firearm in the commission of an indictable offence contrary to then s. 83 of the Criminal Code. The underlying offence was attempted robbery while armed with a shotgun. Dickson C.J.C. quoted the sentencing provision in relation to the use of a firearm offence, and concluded Parliament had ousted the Kienapple principle. It will be seen that the language used in what was then s. 83(2) is very similar to that found in s. 83.26 of the Criminal Code. The following appears at [317]:
83(2) A sentence imposed on a person for an offence under subsection (1) shall be served consecutively to any other punishment imposed on him for an offence arising out of the same event or series of events and to any other sentence to which he is subject at the time the sentence is imposed on him for an offence under subsection (1).
The subsection contemplates that the sentence imposed upon a person who uses a firearm while committing or attempting to commit an indictable offence shall be served consecutively to any other punishment imposed on him for an offence arising out of the same event. I do not know what clearer language could be used to negate the so-called Kienapple principle.
I conclude that this reasoning applies with equal force to s. 83.2 of the CCC.
[118] I see no reason to interpret s. 467.14 of the CCC concerning criminal organizations differently from the parallel provisions of the CCC concerning firearms and terrorism. The concerns are equally pressing, and the intention of Parliament equally clear. Nor, apparently, have most of those judges who have come to consider the issue before me reached a different conclusion.
[119] I begin with the decision of Beaulieu J. in R. c. Carrier, 2001 25110 (QC CS), [2001] R.J.Q. 628 (C.S.). This very issue was raised before him. After reviewing the decisions in Kienapple and Prince,he stated, at 641-42:
Certes, le Parlement conserve le pouvoir de créer, au moyen d’une loi appropriée, deux infractions différentes à propos de la même chose, dérogeant ainsi au principe énoncé dans Kienapple. Dans un tel cas, l’accusé ne pourra faire valoir une défense de res judicata (défense fondée sur l’interdiction des condamnations multiples).
Ceci dit, voyons l’application de l’arrêt Kienapple en regard de l’article 467.1 C.Cr. Ici, les requérants sont accusés d’avoir participé aux activités d’un gang en commettant divers actes criminels au profit ou sous la direction d’un gang ou encore, en association avec lui. De plus, ils sont également accusés de divers autres actes criminels énumérés à la page 631 de cette décision.
Selon la jurisprudence, il convient généralement de suivre l’arrêt Kienapple à moins d’indication claire que le législateur avait en vue des poursuites et des condamnations multiples, ce qui est apparent à la lecture même de l’article 467.1 C.Cr.
Dans le cas en l’espèce, comment appliquer l’arrêt Kienapple en regard des conditions imposées par les arrêts Prince et Krug et autres (même comportement – existence juridique entre les dispositions légales)? Il est manifeste que l’existence de plusieurs éléments supplémentaires, énumérés à la page 638 de cette décision, autres que la preuve de l’acte substantif précédemment mentionnée, ne permet pas de retenir la prétention des requérants. [Footnotes omitted].
[120] This decision was followed by Sansfaçon J. in R. v. Leclerc, 2001 16729 (QC CQ), [2001] R.J.Q. 747 (C.Q. crim. & pén.), at 787-88.
[121] In Ontario, judges have routinely imposed sentence for both offences contrary to s. 467.12 and the predicate offences underlying them. See for example, R. v. Lindsay, [2005] O.T.C. 583, 2005 24240 (S.C.), aff’d 2009 ONCA 532, 97 O.R. (3d) 567, leave to appeal to SCC refused, [2009] S.C.C.A. No. 540 and [2009] S.C.C.A. No. 541; R. v. Jeffrey, (unreported, Ont. S.C., Jan. 27, 2009); and R. v. Wagner, [2008] O.J. No. 5490 (S.C.). But compare R. v. Beauchamp, [2009] O.J. No. 4872 (S.C.). However I am unaware of any Ontario judgment that embarks on an analysis of the application of Kienapple in these circumstances.
[122] I am convinced that Carrier was correctly decided, and is consistent with Ahmad as well as McGuigan and Krug, which are, of course, binding authority. In the result, I conclude that none of the counts in the indictment with respect to which any of the accused stand convicted should be stayed in the basis of the rule in Kienapple.
THE POSITIONS OF THE PARTIES
The Position of the Crown
[123] Crown counsel conveniently set out the Crown’s position in writing for the assistance of the accused and the court, as follows:
Sheldon Evans:
Count 1
Commit Crime in Association with Criminal Organization: Trafficking Controlled Substances s. 467.12
4 years custody
Consecutive
Count 4
Commit Crime for Criminal Organization: Trafficking Marijuana s. 467.12
1 year custody
Consecutive
Count 6
Conspiracy to Traffic Cocaine s. 465(1)(c)
4 years custody
Concurrent to each other but consecutive to the other counts
Count 7
Conspiracy to Traffic Cocaine s. 465(1)(c)
Count 15
Conspiracy to Traffic Cocaine s. 465(1)(c)
Count 16
Conspiracy to Traffic Cocaine s. 465(1)(c)
Count 18
Traffic Cocaine CDSA s. 5(1)
Count 20
Possession of Cocaine for the Purpose of Trafficking CDSA s. 5(2)
Count 21
Transfer Ammunition s. 99(1)
3 years custody
Consecutive
Count 23
Conspiracy to Commit Aggravated Assault
s. 465(1)(c)
3 years custody
Concurrent to each other but consecutive to the other counts
Count 26
Possession of Firearm Knowing Unauthorized
s. 91(2)
TOTAL
15 years custody
Forfeiture and Ancillary orders:
Lifetime s. 109 firearm prohibition
DNA order pursuant to s. 487.04(13)
Forfeiture of seized items listed in draft filed by Crown counsel
Shane Evans:
Count 1
Commit Crime in Association with Criminal Organization: Trafficking Controlled Substances s. 467.12
4 years custody
Consecutive
Count 7
Conspiracy to Traffic Cocaine s. 465(1)(c)
5 years custody
Concurrent to each other but consecutive to Count 1 and Fail to Comply Probation
Count 9
Conspiracy to Traffic Cocaine s. 465(1)(c)
Count 14
Conspiracy to Traffic Cocaine s. 465(1)(c)
Count 19
Conspiracy to Traffic Cocaine s. 465(1)(c)
Count 3
Fail to Comply Probation
1 year custody
Consecutive
TOTAL
10 years custody
Forfeiture and Ancillary Orders:
Lifetime s. 109 order firearm prohibition
DNA order pursuant to s. 487.04(13)
Forfeiture of seized items listed in draft filed by Crown counsel
Orrett Francis:
Count 1
Commit Crime in Association with Criminal Organization: Trafficking Controlled Substances s. 467.12
4 years custody
Consecutive
Count 6
Conspiracy to Traffic Cocaine s. 465(1)(c)
5 years custody, concurrent to Counts 8, 11, 12, and 17 but consecutive to Count 1
Count 8
Conspiracy to Traffic Cocaine s. 465(1)(c)
1 year custody
Concurrent to Counts 6, 11, 12, and 17 but consecutive to Count 1
Count 11
Conspiracy to Traffic Marijuana s. 465(1)(c)
1 year custody
Concurrent to Counts 6, 8, 12, and 17 but consecutive to Count 1
Count 12
Conspiracy to Traffic Cocaine s. 465(1)(c)
1 year custody
Concurrent to Counts 6, 8, 11, and 17 but consecutive to Count 1
Count 17
Conspiracy to Traffic Cocaine s. 465(1)(c)
5 years custody
Concurrent to Counts 6, 8, 11, and 12 but consecutive to Count 1
TOTAL
9 years custody
Forfeiture and Ancillary Orders:
Lifetime s. 109 firearm prohibition
DNA order pursuant to s. 487.04(13)
Forfeiture of seized items listed in draft filed by Crown counsel
Rashard Green:
Count 1
Commit Crime in Association with Criminal Organization: Trafficking Controlled Substances s. 467.12
2 years custody
Consecutive
Count 4
Commit Crime for Criminal Organization: Trafficking Marijuana s. 467.12
1 year custody
Consecutive
Count 10
Conspiracy to Traffic Cocaine s. 465(1)(c)
2 years custody on each count
Concurrent to each other but consecutive to others
Count 13
Conspiracy to Traffic Cocaine s. 465(1)(c)
Count 28
Possession of Loaded Prohibited Firearm s. 95(1)
4 years custody
Count 1
Possession of Firearm While Prohibited s. 117.01(1)
1 year custody on each count
Concurrent to each other but consecutive to others
Count 2
Possession of Firearm While Prohibited s. 117.01(1)
TOTAL
10 years custody
Forfeiture and Ancillary Orders:
Lifetime s. 109 firearm prohibition
DNA order pursuant to s. 487.04(13)
Forfeiture of seized items listed in draft filed by Crown counsel
The Position of Sheldon Evans:
[124] Counsel for Sheldon Evans submitted that a two year sentence is appropriate for Count 1; a six-month sentence is appropriate for Count 4; a one-year sentence is appropriate for each of Counts 6, 7, 15 and 16, and an eighteen-month sentence for Count 20, all concurrent to each other but consecutive to Count 1; a three-year consecutive sentence is appropriate for Count 21; and a three-year sentence for Count 23 and a two-year sentence for Count 26, concurrent to each other but consecutive to the other sentences. All of this adds up to a ten-year sentence, which should be reduced to eight years on the basis of totality, less credit for time served prior to sentencing.
The Position of Shane Evans:
[125] Counsel for Shane Evans argued that whatever sentence I impose, it should be less than the time that the offender has already served. He also submitted that a two-and-a-half year total sentence, and certainly no more than three years would be appropriate for all of Evans’ drug offences.
The Position of Orrett Francis:
[126] Counsel for Francis submitted that a one to one-and-a-half year sentence would be appropriate for Count 1, and a total sentence of approximately three years would be appropriate for the remaining drug trafficking counts, less credit for time served prior to sentencing.
The Position of Rashard Green:
[127] Counsel for Green submitted that a sentence of approximately seven-and-a-half to eight-and-a-half years in total would be appropriate, less credit for time served prior to sentencing. He agreed that two years is appropriate for Count 1; six to twelve months is appropriate for Count 4; eighteen months is appropriate for Counts 10 and 13; three to three-and-a-half years is appropriate for Count 28; and three months is appropriate for Counts 1 and 2 in the second indictment.
THE APPLICABLE PRINCIPLES OF SENTENCING
[128] Parliament has done much to codify the purpose and principles of sentencing. I will begin this part of my reasons by listing the most pertinent of these principles.
[129] Pursuant to s. 718, 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:
(a) to denounce unlawful conduct;
(b) to deter the offender and other persons 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 to the community; and
(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.
[130] There is no dispute that in sentencing offenders for trafficking, conspiracy to traffic, possession for the purpose of trafficking and trafficking for the benefit of or in association with a criminal organization, the paramount considerations are denunciation and deterrence. See, for example, R. v. Mohamed, 2009 ONCA 424 and R. v. Woolcock, [2002] O.J. No. 4927 (C.A.). While rehabilitation must not be lost sight of, it is relegated to a secondary position. Similarly, denunciation and deterrence predominate in the sentencing of firearms offences.
[131] Section 718.1 provides that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
[132] Section 718.2 provides that a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and that, pursuant to paragraph (iv), evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization is an aggravating circumstance.
[133] Section 178.2 also codifies the following pertinent principles:
• a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances (s. 178.2(b)); and
• where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh (s.178.2(c)).
[134] Section 467.14 provides that a sentence imposed on a person for an offence under s. 467.12 shall be served consecutively to any other punishment imposed on that person for an offence arising out of the same events or series of events and to any other sentence to which the person is subject at the time the sentence is imposed for an offence under s. 467.11, s. 467.12 or 467.13.
[135] Section 743.6(1.2) provides where an offender is sentenced to imprisonment for two years or more for an offence under s. 467.12, the court shall order that the portion of the sentence that must be served before the offender may be released on full parole is one-half of the sentence or ten years, whichever is less, unless the court is satisfied, having regard to the circumstances of the commission of the offence and the character and circumstances of the offender, that the expression of society’s denunciation of the offence and the objectives of specific and general deterrence would be adequately served by a period of parole ineligibility determined in accordance with the Corrections and Conditional Release Act, S.C. 1992, c. 20.
[136] Pursuant to s. 743.6(2), in considering the exercise of the discretion in s. 743.6(1.2), the paramount principles which are to guide the court are denunciation and specific or general deterrence, with rehabilitation of the offender in all cases subordinate to these paramount principles.
[137] Having these principles in mind, I will go on to consider the appropriate ranges of sentence for the various offences for which the offenders are being sentenced.
THE APPLICABLE RANGES OF SENTENCE
[138] In determining the appropriate range of sentence for these offences, I take into account the seriousness of offences involving cocaine trafficking, the seriousness of firearms offences, the toxic mix of drug and gun offences, and the particular seriousness of the adding gangs to the mix. The harm to the community, particularly the small community in which this gang held sway cannot be gainsaid.
[139] With respect to the harm done as a result of cocaine trafficking, particularly when mixed with firearms, I see no need to add to the language now found in many trial and appellate decisions. I rely on a brief quotation from the joint decision of Moldaver J.A., as he then was, and LaForme J.A. in R. v. Daya, 2007 ONCA 693, 227 C.C.C. (3d) 367, at para. 18:
This court and the Supreme Court of Canada have time and again elaborated on the perils of cocaine and the immeasurable harm it causes to society. (See for example, R. v. Cunningham (1996), 1996 1311 (ON CA), 104 C.C.C. (3d) 542 (Ont. C.A.) at 547; R. v. Hamilton (2004), 2004 5549 (ON CA), 186 C.C.C. (3d) 129 (Ont. C.A.), at para. 104; Smith v. The Queen (1987), 1987 64 (SCC), 34 C.C.C. (3d) 97 (S.C.C.) at 123 and more generally, Pushpanathan v. Canada (Minister of Citizenship and Immigration), 1998 778 (SCC), [1998] 1 S.C.R. 982, at paras. 89-91 per Cory J. in dissent on another issue.) In combination with a loaded gun, the situation here represented one of extreme danger.
[140] The increased harm occasioned by adding a dangerous street gang to the mix needs no authority. These considerations compel the emphasis of sentencing to be on the protection of the public, denunciation, and deterrence, as I have already stated, and impact significantly on the appropriate ranges of sentence.
[141] Having all of this in mind, I will next identify what I consider to be the appropriate ranges of sentence for the various offences of which the offenders have been found guilty.
The Drug Offences
- Criminal organization drug offences
Count 1 – trafficking in cocaine and marihuana for the benefit of a criminal organization
[142] I begin with Count 1, the offence of trafficking in a controlled substance for the benefit of or in association with a criminal organization between January 28, 2010 and May 4, 2010.
[143] I have already mentioned that I find that the controlled substance that the offenders each trafficked in was predominantly cocaine and that they also trafficked in marihuana, to a significantly lesser degree. As members of the 5PG street gang, the offenders made their livelihood by trafficking in illegal drugs. Most commonly they trafficked at the street level, generally to addicts, but at times they trafficked at the wholesale level, one or two levels above the street. They trafficked persistently, on a virtually full-time basis for profit. While the 5PG was not a highly sophisticated organization, it was a drug trafficking entity that used violence and intimidation to protect its territory, and as a result it posed an enhanced threat to the community in which it functioned.
[144] The drug trafficking business of the 5PG provided the members with access to a drug supply and a distribution network, the ability to deal drugs safely within a defined territory, a monopoly on drug trafficking in their neighbourhood, a steady and shared customer base, joint protection from outsiders and the police, and access to a safe house, resulting in enhanced financial benefit for them all.
[145] On occasion, the members of the gang came into possession of as much as nine ounces of cocaine, which was then resold in smaller quantities to individual members, who then sold it on the street. In effect, they provided each other with their own internal distribution network.
[146] In approaching sentencing on Count 1, I make a few initial observations. Pursuant to s. 467.12(1), the maximum punishment for an offence contrary to s. 467.12 is 14 years. But the maximum punishment for trafficking in cocaine, a Schedule 1 substance, by virtue of s. 5(2) of the CDSA, is imprisonment for life. This creates an oddity. The offence in Count 1 requires proof of the conduct prohibited by s. 5(1) of CDSA, as well as proof that the activity is for a criminal organization, which, by virtue of s. 718.2(iv), is an aggravating circumstance calling for an increased sentence. Yet the maximum sentence is less than the maximum sentence for the underlying offence of trafficking. What does this mean for the range of sentence?
[147] In my view, this anomaly may prove to be of significance in a case calling for something approaching the maximum. This is not such a case. Here, despite the somewhat lower maximum, the appropriate sentence would be something that falls within the range of sentences imposed in similar trafficking cases, and then increased having regard to the criminal organization component.
[148] My second observation is that in some cases, a criminal organization charge is tried together with the underlying predicate offence, and convictions entered on both. In those cases, some judges impose a longer sentence on the count alleging the predicate offence, and a shorter, consecutive premium on the criminal organization offence. This is entirely logical, and gives effect to the lower maximum for the criminal organization offence. That was the approach taken in R. v. Lindsay (unreported, Ont. S.C., Sept. 9, 2005), where Fuerst J. imposed a sentence on Lindsay of four years imprisonment for extortion, less twenty months credit for pre-trial custody, and two years imprisonment consecutive for committing extortion in association with a criminal organization. On Lindsay’s co-accused, Bonner, Fuerst J. imposed two years imprisonment for extortion, less twenty months credit for pre-trial custody, one year imprisonment consecutive for committing extortion in association with a criminal organization, and four months imprisonment concurrent for the offence of breach of recognizance. Lindsay’s sentence appeal was dismissed: R. v. Lindsay (2009), 2009 ONCA 532, 97 O.R. (3d) 567 (C.A.), leave to appeal to SCC refused, [2009] S.C.C.A. No. 540. But this approach is not uniform.
[149] The issue was discussed by McMahon J. in Wagner. In Wagner, the accused pleaded guilty to two offences: trafficking in cocaine and possession of stolen property, and was found guilty of directing others to traffic in cocaine and transfer a firearm for the benefit of a criminal organization, the Hells Angels Motorcycle Club. McMahon J. noted, at para. 60:
It is the position of the defence, Mr. Schreck, that the lengthiest sentence should be for the cocaine trafficking and that the criminal organization count should simply be a lesser amount consecutive to.
[150] He then stated, at para. 61:
I have been provided with sentencing cases from across Canada. I am mindful in this jurisdiction of Ontario of the decision of Her Majesty the Queen v. Lindsay and Bonner, 2005 24240 (ON SC), [2005] O.J. No. 2870, Justice Fuerst followed the position articulated by the defence. I am also mindful there are several cases, particularly in Quebec, that go the other way.
[151] McMahon J. then imposed a sentence of four years for the criminal organization offence on top of four years and four months of pre-sentence custody, and two years and eight months on the predicate trafficking offence. He appears to have favoured the Quebec approach.
[152] Whatever the appropriate approach might be to sentencing for a count charging a criminal organization offence together with a count charging the predicate offence, clearly here the full force of the sentence for the underlying trafficking activity must be meted out in the criminal organization offence, since there is no other count alleging the underlying trafficking activity. While some of the underlying trafficking activity may be encompassed in the individual conspiracy and trafficking counts, the vast majority of that activity is not the subject matter of any other count and is encompassed only in the broad criminal organization count.
[153] This brings me to a consideration of the range of sentence for persistent trafficking of cocaine over a three-month period largely at the street level without consideration of the criminal organization component present here.
[154] In R. v. Dehaney, 2012 ONSC 3014, [2012] O.J. No. 2597, I had occasion to sentence an offender for a somewhat similar offence. Dehaney was convicted of trafficking in cocaine, attempting to possess a firearm without a licence, possession of a loaded prohibited or restricted firearm without a licence, possession of cocaine for the purpose of trafficking and possession of property obtained by crime. The offender, who was 23, negotiated the purchase of crack cocaine on seven occasions. The quantity of drugs being purchased by the offender were wholesale quantities for the purpose of reselling at the retail level. The offender was exposed to negative influences in his neighbourhood during his adolescence and was expelled from high school. He had no significant employment history. The offender had been on house arrest for two years and eight months. He was closely associated with a criminal organization that had a well-entrenched drug trafficking network. He had a minor prior record.
[155] With respect to the trafficking offences, I noted, at paras. 17-18:
It is difficult to draw any range of sentence from the cases, given the unique circumstances of this offence, but some guidance can be obtained.
In R. v. [Woolcock], [2002] O.J. No. 4927 (C.A.), the Court of Appeal emphasized the harm done to individuals and society by the selling of crack cocaine, warranting emphasis on denunciation and deterrence, without losing sight of the other considerations in s. 718 of the Criminal Code, including rehabilitation (para. 8), and identified the range of sentence for trafficking in small quantities of crack cocaine as six months to two years less a day (para. 15).
[156] In the end, I sentenced Dehaney to a total of seven years imprisonment, but on the cocaine counts, I sentenced him to two years concurrent to each other, but consecutive to the other sentences I imposed. However I stated at para. 22:
I note that given the nature and extent of the drug trafficking in this case the sentence could have been longer. In addition, consecutive sentences could have been imposed in relation to the two firearms offences. However I was constrained from imposing such sentences by the principle of totality.
[157] It was my view then, and it remains my view now, that while the range of sentence for trafficking in small quantities of crack cocaine is six months to two years less a day, the range is higher when the offence involves long-term, persistent trafficking, particularly where that is the sole or primary source of the offender’s livelihood. One of the reasons for this is the fact that unlike most street dealers, who obtain a few grams of cocaine and then sell ¼ or ½ gram amounts, a persistent seller needs to obtain much larger quantities of cocaine, sometimes even ounces of cocaine, and as a result must have access to vendors at a higher level in the chain of distribution. In such circumstances, I believe the range to be two years less a day to four years. Where a street-level trafficker also occasionally traffics at a wholesale level, the top of the range or higher is appropriate.
[158] Of course in this case, as I have noted, the offence in Count 1 is aggravated by the fact that the trafficking is for the benefit of or in association with a criminal organization. The criminal organization here is unsophisticated and not highly organized. Nonetheless, as I have also noted, it used violence and intimidation to protect its territory, and as a result it posed an enhanced threat to the community in which it functioned. In my view, in this case, this should result in an increase in sentence in the neighbourhood of two years. As a result, it is my view that the appropriate range of sentence for this offence is four to six years.
Count 4 – trafficking in marihuana for the benefit of a criminal organization
[159] It will be recalled that this offence involved the obtaining, packaging and delivery of 3.5 ounces of marihuana to someone at the request of Dawkins, who was in jail, to a location outside of the jail. Ordinarily, trafficking in 3.5 ounces of marihuana would attract a sentence of no greater than 3 months. But having regard to the fact that the transaction involved a person in jail, and that the offence was committed for the benefit of or in association with a criminal organization, I agree with Crown counsel that it warrants a sentence of one year imprisonment.
- Street-level drug offences
Counts 7, 9, 10, 12, 13 and 14 – conspiracy to traffic in cocaine
[160] Each of these offences took place during the period of Count 1, and involved agreement to sell small, street-level quantities of cocaine. The volume of sales agreed to varies. Counts 12 and 13 involve a single sale; Counts 9, 10 and 14 involve two sales; Count 7 involves twelve sales.
The range of sentence for these offences is six months to two years. Subject to other considerations, the sentences for Counts 9, 10, 12, 13 and 14 fall towards or at the lower end of the range, while the sentence for Count 7 falls in the middle to the upper end of the range.
Count 15 – conspiracy to traffic in cocaine
[161] This offence involves an agreement to acquire seven grams of cocaine on two occasions for resale. The ultimate selling would appear to be at the street level, and the appropriate sentence would be at or near the top end of the six-month to two-year range.
Count 8 – conspiracy to traffic in cocaine
[162] This offence involves an agreement to sell two ounces of crack cocaine. Giving the offenders the benefit of the doubt, I assume the two ounces will be sold in small quantities at the street level. Nonetheless, two ounces will go a very long way at the street level. The quantity bespeaks a very active dealer, whose sentence more appropriately falls within the two to three-year range. I recognize that sentencing for this sort of offence is not entirely consistent, but I note, for example, that a three-year sentence was upheld by the Court of Appeal for possession of two ounces of cocaine in R. v. Goulet (1995), 1995 1198 (ON CA), 22 O.R. (3d) 118. Goulet was 21 and had only a very minor, unrelated criminal record.
Count 18 – trafficking in cocaine
[163] This offence involves the sale of 3.5 grams of cocaine to an undercover police officer, although a seven gram sale had been negotiated. The appropriate sentence for this offence is in the middle of the six-month to two-year range for trafficking in small quantities of crack cocaine.
Count 20 – possession of cocaine for the purpose of trafficking
[164] This offence involved the possession of 36.8 grams of cocaine for the purpose of trafficking. The offender’s intention was likely to divide the 36.8 grams into small quantities for sale. While the ultimate sales would be small, the volume of sales that would be generated from this quantity was large. The appropriate sentence is at the top or slightly above the six-month to two-year range.
Count 11 – conspiracy to traffic in marihuana
[165] This offence involves an agreement to purchase seven ounces of marihuana for $1,490 for resale. The appropriate sentence subject to other considerations is three months.
- Wholesale drug offences
Counts 6, 16, 17 and 19 – conspiracy to traffic in cocaine
[166] I have segregated these offences because in each case, the conspiracy involved an agreement to sell cocaine at a wholesale level and, more importantly, one or more of the offenders intended to act as a wholesaler.
Count 6
[167] Count 6 involved an agreement by Francis to acquire nine ounces of cocaine for $11,250 and to then sell it to Sheldon Evans and others for resale by them. I have characterized the role played by Francis as a mid-level supplier. However Evans’ involvement appears to be on the high-end of street-level dealing. It is impossible to say how much of the nine ounces was intended for him, but I will assume that only one or two ounces of it were. The range of sentence for Evans is at the top of or slightly above the six-month to two-year range I have already discussed. But what about Francis?
[168] In R. v. Bajada (2003), 2003 15687 (ON CA), 173 C.C.C. (3d) 255, [2003] O.J. No. 721, the Court of Appeal provided guidance for sentencing offenders convicted of possessing “substantial amounts” of cocaine for the purpose of trafficking, stating, at para. 13:
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’s plea of guilty or where the accused has no prior record. See e.g. R. v. Marton, [1980] O.J. No. 868 (QL) (C.A.); R. v. Molino (1987), 2 W.C.B. (2d) 391 (Ont. Dist. Ct.); R. v. Charles, [1997] O.J. No. 2247 (QL) (Gen. Div.) [summarized 35 W.C.B (2d) 91]; R. v. Cummings, [1990] O.J. No. 2747 (QL) (Dist. Ct.); R. v. Jones (1999), 1999 3700 (ON CA), 133 C.C.C. (3d) 1 (Ont. C.A.). In R. v. Finlay, [1985] O.J. No. 236 (QL) (C.A.), referred to above, this court imposed a sentence of six and a half years on an offender with one minor criminal offence fifteen years earlier, having regard to his position in the drug hierarchy which was close to the level of an importer. Longer sentences were upheld in R. v. Boughner, [1999] O.J. No. 5449 (QL) (Sup. Ct.) [summarized 45 W.C.B. (2d) 51], affirmed 2002 44975 (ON CA), [2002] O.J. No. 2181 (QL) (C.A.) [reported 159 O.A.C. 316] where, in addition to credit of 14 months for 5 months of pre-trial custody, the appellant was sentenced to five and a half years’ imprisonment for possession of 66 grams of 74% pure cocaine for the purpose of trafficking and possession of money derived from the commission of an offence. An aggravating factor was evidence that the appellant had been trafficking in cocaine over the preceding one and a half years. He also had three prior convictions for possession of a narcotic and one conviction for possession for the purpose of trafficking. In R. v. Gibson (1996), 1996 816 (ON CA), 87 O.A.C. 393 (C.A.), a sentence of eight years was upheld for trafficking in cocaine with respect to a repeat narcotics offender with a serious criminal record apart from drug convictions. More recently, in R. v. Bertucci, 2002 41779 (ON CA), [2002] O.J. No. 3870 (QL) (C.A.) [reported 169 C.C.C. (3d) 453], a sentence of seven years was considered by this court on an appeal from sentence respecting one count of conspiracy to traffic in cocaine following the appellant’s trial and conviction. Concurrent sentences respecting six counts of trafficking in cocaine during an overlapping period were also imposed. The court stated that a sentence of seven years was a fit sentence for the offence of conspiracy to traffic standing alone. However, having regard to the fact that one count of trafficking was set aside the court reduced the sentence to six years.
[169] I take from this that the range of sentence for what I will call mid-level cocaine trafficking offences is five to eight years, with the low-end reserved for offenders who plead guilty or have no prior records, and for when the quantity of cocaine is not so great. I recognize that the court referred to these cases as ones involving substantial quantities of cocaine. But what does the court mean by a “substantial amount of cocaine”? Clearly the court was not referring to pounds or kilos of cocaine, because sentences in those cases are often higher than eight years.
[170] I have taken the trouble to review the cases referred to by the court in Bajada. In most of them, the quantity of cocaine is disclosed. These quantities range from as little as a half a pound to as much as a pound-and-a-half, or ¾ of a kilogram. Indeed in R. v. Boughner, [1999] O.J. No. 5449 (S.C.) in the course of upholding a five-and-a-half year sentence in addition to fourteen months of pre-sentence custody for drug offences (effectively just short of an eight-year sentence), the Court of Appeal referred to the offender, who sold up to a quarter-pound of cocaine in a week to street-level dealers, as a mid-level cocaine supplier.
[171] In the end, I conclude that the appropriate sentence for Francis for this offence falls at the lower end of the five-and-a-half to eight-year range.
Count 16
[172] Count 16 involved an agreement by Sheldon Evans to purchase seven ounces of cocaine for $8,550, one ounce of which he intended to resell at the street level, and six ounces of which he intended to resell to another person. As a result, with respect to the six ounces, he was playing the role of a mid-level wholesale supplier. The range of sentence for this offence is at the lower end of the five-and-a-half to eight-year range.
Count 17
[173] Count 17 involved Francis purchasing nine ounces of cocaine for $11,250, intending to process and distribute it to street dealers. Once again, he was playing the role of a mid-level wholesale supplier. The range of sentence for this offence is at the lower end of the five-and-a-half year range.
Count 19
[174] Count 19 involves Shane Evans negotiating the purchase of 8.5 ounces of cocaine for $11,400 for resale to another wholesaler. His profit was to be about $500. Once again, he was playing the role of a mid-level wholesale supplier. The appropriate sentence for this offence is at the lower end of the five-and-a-half to eight-year range.
The firearms and firearms-related offences
Count 21 – transfer ammunition
[175] Count 21 involved the lending of ammunition for a nine-millimetre firearm by Sheldon Evans to AJ. There is no evidence of the use that AJ intended to make of the ammunition, but there can be no doubt that it was an unlawful use, since to Evans’ knowledge, AJ did not have a firearms licence.
[176] The minimum sentence for this offence pursuant to s. 99(2) of the CCC is three years imprisonment. This offence does not call for more than the minimum, at any rate, because of the application of the principle of totality.
Count 23 – conspiracy to commit aggravated assault
[177] This count involves an agreement by Sheldon Evans and others to arm themselves and wound, maim, disfigure or endanger the life of Ian Chambers or one or more of his colleagues. This rapidly orchestrated plot was brought in response to Chambers showing a gun in a bar in which several 5PG members were present. Evans in particular had left the area, gone home, obtained a firearm and was on the way back with his firearm when he learned that the police were present and turned away.
[178] There is no doubt in my mind that had the police not been intercepting the communications of the participants and intervened in an admirable and timely way by showing their presence and arresting Chambers, there would have been a gun fight with potentially fatal consequences.
[179] In view of the seriousness of this offence, I would not hesitate to impose a sentence of imprisonment for six years. As will be seen, I will impose a shorter sentence having regard to the principle of totality.
Count 26 – possession of firearm knowing unauthorized
[180] This count arises out of the same circumstances as Count 23, and relates to the gun Evans was bringing to the anticipated encounter with Chambers, and his intention to load and use it. In the circumstances, a three-year sentence concurrent to the sentence imposed for Count 23 is appropriate.
Count 28 – possession of loaded prohibited firearm
[181] This count relates to the chrome plated Davis Industries P 380 calibre semi-automatic firearm that was in the possession of Green at 1570 Jane Street, apartment 502. It was racked and ready to shoot with a pull of the trigger, with a bullet in the chamber. It was found in a bedroom occupied by Green’s girlfriend and her infant child.
[182] This offence bears a minimum punishment of imprisonment for three years. Given that the gun was cocked and loaded and ready to fire, and was found in a room occupied by an infant, the appropriate range of sentence for this offence is four to five years.
Offences involving violations of court orders
Indictment #2: Counts 1 and 2 – possession of a firearm while prohibited
[183] These two offences relate to the loaded prohibited firearm found in the possession of Green. At the time of that offence, he was the subject of two orders prohibiting him from possessing firearms, one imposed on December 8, 2005, and the other imposed on August 22, 2008. I agree with Crown counsel the appropriate sentence for each of these offences is one year concurrent to each other but consecutive to the other offences.
Indictment #2: Count 3 – failure to comply with a probation order
[184] This offence relates to the fact that Shane Evans was on probation throughout the period of the commission of these offences and breached the conditions of that order. The maximum punishment for this offence is two years. In my view, a one-year consecutive sentence is appropriate for this offence.
DISCUSSION OF THE APPROPRIATE SENTENCES FOR EACH OFFENDER
[185] I have already discussed the applicable sentencing principles, the appropriate ranges of sentence and the circumstances of the offences and offenders that disclose the aggravating and mitigating circumstances affecting each instance of sentencing that I am obliged to undertake. I have taken up enough space in these reasons without summarizing these matters once again. I will just note a few things.
[186] First, the four offenders were willing participants in serious offences that jeopardized the safety and security of the community. These circumstances compel stiff sentences. But when I impose those sentences, I underscore that I have comprehended that each of the offenders is a redeemable individual, who has attracted the love, affection and admiration of his family. I have not lost sight of this, and have given the consideration I can to it.
[187] Second, I am very alive to the principle of totality. Many of the sentences I will impose would have been greater if the particular offences stood alone.
[188] I turn to each offender individually.
Sheldon Evans
[189] Fashioning an appropriate sentence for Sheldon Evans is no simple task. I say this because the offences he committed are very serious, and if I were to impose the sentence that each of his crimes deserves individually, the total sentence I would impose would approach eighteen years, a sentence that would be crushing. Instead, I will impose a total sentence of thirteen years, less credit for the forty-two months he has spent in pre-sentence custody, which in my view is the lowest sentence available that remains somewhat commensurate with his crimes.
[190] With respect to pre-sentence custody, having regard to the information I have been given about the circumstances of his custody, I will give him credit for forty-eight months, or four years. This leaves a total sentence of nine years. I will accomplish this reduction by reducing the sentence on Count 1 by two years and reducing the sentence on Count 16 by two years.
[191] Accordingly, I impose the following sentences on Sheldon Evans.
[192] On Count 1, while I view the appropriate sentence to be one of six years, I impose a sentence of five years to give effect to the principle of totality, less two years as a result of pre-sentence custody, leaving an effective sentence of three years.
[193] On Count 4, I impose a sentence of one year consecutive to the sentence imposed on Count 1.
[194] On Count 6, I impose a sentence of two years consecutive to the sentences imposed on Counts 1 and 4.
[195] On Count 7, I impose a sentence of one year concurrent to the sentence imposed on Count 6, but consecutive to the sentences imposed on Counts 1 and 4.
[196] On Count 15, I impose a sentence of one year concurrent to the sentence imposed on Count 6, but consecutive to the sentences imposed on Counts 1 and 4.
[197] On Count 16, were it not for the principle of totality, I would have imposed a sentence of at least five-and-a-half years. To give effect to the principle of totality, I impose a sentence of four years, less two years as a result of pre-sentence custody, leaving an effective sentence of two years concurrent to the sentence imposed on Count 6, but consecutive to the sentences imposed on Counts 1 and 4.
[198] On Count 18, I impose a sentence of one year concurrent to the sentence imposed on Count 6, but consecutive to the sentences imposed on Counts 1 and 4.
[199] On Count 20, I impose a sentence of two years concurrent to the sentence imposed on Count 6, but consecutive to the sentences imposed on Counts 1 and 4.
[200] On Count 21, I impose a sentence of three years consecutive to the sentences imposed on Counts 1, 4, 6, 7, 15, 16, 18 and 20.
[201] On Count 23, I impose a sentence of three years concurrent to the sentence imposed on Count 21, but consecutive to the sentences imposed on Counts 1, 4, 6, 7, 15, 16, 18 and 20. I note that but for the principle of totality, I would have made this sentence consecutive to the sentence imposed on Count 21.
[202] On Count 26, I impose a sentence of three years concurrent to the sentences imposed on Counts 21 and 23, but consecutive to the sentences imposed on Counts 1, 4, 6, 7, 15, 16, 18 and 20.
Shane Evans
[203] I begin my discussion of the appropriate sentence for Shane Evans with a reference to an argument that his counsel made about disparity. Mr. Rippell invoked the sentence imposed on Carl Brammall (referred to in this trial as Brammall-Hives) in R. v. Brammall (unreported, Ont. C.J., April 29, 2011), as somehow controlling the sentence I impose on Evans. In my view, this argument is without merit.
[204] Brammall pleaded guilty before Bigelow J., to:
(1) participating in the activities of a criminal organization to enhance its ability to traffic in controlled substances between January 28 and May 3, 2010;
(2) conspiring to traffic in cocaine on January 28, 2010;
(3) possessing cocaine for the purpose of trafficking on February 9, 2010; and
(4) possessing $1,640 which was the proceeds of crime on February 9, 2010.
[205] With respect to the first offence, the facts admitted by Brammall on the plea disclosed he was associated with the 5PG, and was at the lower level of the gang. He was involved in preparing or converting powder cocaine into crack cocaine for the gang, driving gang members to various locations to conduct criminal activity and trafficking to street-level addicts.
[206] With respect to the second offence, intercepted communications showed that Brammall was a street-level cocaine dealer. Over a short period of time, he arranged sales of crack cocaine from a fraction of an ounce to as much as half an ounce.
[207] With respect to the third and fourth offences, search warrants were executed in relation to Brammall. Two ounces of cocaine were seized from his motor vehicle, and $1,640 from his residence.
[208] Brammall was 26 years old, had no prior record at the time of these offences and had two children with his common-law spouse. Unlike any of the offenders being sentenced by me, Brammall had a work history. He was employed by a fire and water damage restoration company for several months, as a machine operator for a two-year period and otherwise by a temporary agency. Bigelow J. accepted the joint recommendation of counsel and imposed a total sentence of thirty-three months less credit for pre-sentence custody.
[209] Mr. Rippell argued that Shane Evans was on the same level as Brammall, and should get no greater sentence than he did. Indeed, he tried to rely on evidence neither before Bigelow J. nor even before the jury in this case to suggest that he had an important role in the 5PG. I discount this evidence entirely.
[210] Mr. Rippell’s argument is an appeal to the disparity principle codified in s. 718.2(b) of the CCC: a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. However in my view, in this instance, neither the offences nor the offenders are similar, and s. 718.2(b) has no application.
[211] With respect to the offences, Brammall and Evans were not convicted of similar offences within the meaning of the section. Participating in the activities of a criminal organization, the first offence that Brammall pleaded guilty to, carries a maximum punishment of only five years, while committing an offence for the benefit of, at the direction of or in association with a criminal organization, the primary offence of which Evans was convicted, carries a maximum punishment of fourteen years. But even assuming that Brammall and Evans committed similar offences, they are clearly not similar offenders. Unlike Evans, Brammall is not a man who has supported himself entirely on criminal activity. He took his education more seriously than any of the offenders before me, and has a significant work history. In addition, he took responsibility for his actions and demonstrated remorse by entering a plea of guilty without the need for a lengthy trial. In addition, the sentence imposed on him was the product of a joint submission.
[212] Even if Brammall’s circumstances were not different from those of Shane Evans, I would reject the idea that the sentence imposed on Brammall should be a determining factor in the sentences I impose on the offenders in this trial. I have sat through a lengthy trial, and understand this case in a manner that the judge who sentenced Brammall could not have understood it. I have heard a significant body of evidence. I have listened to hours and hours of private communications of the offenders and others. I have an insight into the offences and the offenders that was not available to Bigelow J. It is a strange proposition that I should ignore what I saw and heard, and instead defer to the sentence imposed by a judge who was entitled to rely only on a brief agreed statement of fact.
[213] I turn next to the sentences I will impose on Shane Evans. As with Sheldon Evans, the offences he committed are very serious and if I were to impose the sentence that each of his crimes deserves individually, the total sentence would be too long. That sentence would approach thirteen years. Instead, I will impose a total sentence of nine-and-a-half years, less credit for the forty-two months he has spent in pre-sentence custody, which in my view is the lowest sentence available that remains somewhat commensurate with his crimes.
[214] With respect to pre-sentence custody, having regard to the information I have been given about the circumstances of his custody, which in more recent times has been exemplary, I will give him credit for fifty-four months, or four-and-a-half years. This leaves a total sentence of five years. I will accomplish this reduction by reducing the sentence on Count 1 by two-and-a-half years and reducing the sentence on Count 19 by two years.
[215] Accordingly, I impose the following sentences on Shane Evans.
[216] On Count 1, while I view the appropriate sentence to be one of six years, I impose a sentence of five years to give effect to the principle of totality, less two-and-a-half years as a result of pre-sentence custody, leaving an effective sentence of two-and-a-half years.
[217] On Count 7, I impose a sentence of one year consecutive to the sentence imposed on Count 1.
[218] On Count 9, I impose a sentence of six months consecutive to the sentences imposed on Counts 1 and 7.
[219] On Count 14, I impose a sentence of six months, concurrent to the sentence imposed on Count 9 but consecutive to the sentences imposed on Counts 1 and 7.
[220] On Count 19, taking into account the small profit Evans would have made on this large transaction, were it not for the principle of totality, I would have imposed a sentence of five-and-a-half years. To give effect to the principle of totality, I impose a sentence of two-and-a-half years, less two years as a result of pre-sentence custody, leaving him with an effective sentence of six months concurrent to the sentences imposed on Counts 9 and 14, but consecutive to the sentences imposed on Counts 1 and 7.
[221] On Count 3 of the second indictment, I impose a sentence of one year consecutive to the sentences imposed on Counts 1, 7, 9, 14 and 19.
Orrett Francis
[222] Fashioning an appropriate sentence for Orrett Francis raises two significant differences from the other sentencings in this case. First, unlike the others, Francis plays the role of a key wholesale supplier to the gang. He may have less involvement in gang activity, but he is a much more serious cocaine trafficker. Second, he has been on judicial interim release virtually from his arrest until the findings of guilt made by the jury – a period of three years – albeit subject to house arrest. He has been in custody since the finding of guilt.
[223] As with Sheldon and Shane Evans, the offences Francis committed are very serious, and lead me to impose a total sentence of nine years, less credit for pre-sentence custody and stringent terms of release. I am prepared to give him one year of credit for his pre-sentence custody and stringent bail conditions, resulting in a total sentence of eight years. I will accomplish this by reducing his sentence on Count 1 by one year.
[224] On Count 1, while I view the appropriate sentence to be one of six years, I impose a sentence of four years to give effect to the principle of totality, less one year as a result of pre-sentence custody, leaving an effective sentence of three years.
[225] On Count 6, while I view the appropriate sentence as being five-and-a-half to six years, I impose a sentence of five years consecutive to the sentence imposed on Count 1 to give effect to the principle of totality.
[226] On Count 8, I impose a sentence of two years concurrent to the sentence imposed on Count 6, but consecutive to the sentence imposed on Count 1.
[227] On Count 11, I impose a sentence of three months concurrent to the sentences imposed on Counts 6, but consecutive to the sentence imposed on Count 1.
[228] On Count 12, I impose a sentence of one year concurrent to the sentence imposed on Counts 6, but consecutive to the sentence imposed on Count 1.
[229] On Count 17, while I view the appropriate sentence as being five-and-a-half to six years, I impose a sentence of five years to give effect to the principle of totality concurrent to the sentences imposed on Count 6, but consecutive to Count 1.
Rashard Green
[230] As with the other offenders, the offences Rashard Green committed are very serious, and lead me to imposing a total sentence of nine-and-a-half years, less credit for pre-sentence custody. With respect to pre-sentence custody, having regard to the information I have been given about the circumstances of his custody, I will give him credit for forty-eight months, or four years. This leaves a total sentence of five-and-a-half years. I will accomplish this reduction by reducing his sentence on Count 1 by three years and reducing his sentence on Count 28 by one year.
[231] The sentence I impose on Count 1 is less than the sentence I imposed on the other offenders for this count to reflect the fact that Green was less active than the others in selling cocaine. On this count, I impose a sentence of four years, less three years as a result of pre-sentence custody, leaving an effective sentence of one year.
[232] On Count 4, I impose a sentence of one year consecutive to the sentence imposed on Count 1.
[233] On Count 10, I impose a sentence of six months consecutive to the sentences imposed on Counts 1 and 4.
[234] On Count 13, I impose a sentence of six months concurrent to the sentence imposed on Count 10, but consecutive to the sentences imposed on Counts 1 and 4.
[235] On Count 28, I impose a sentence of four years, less one year as a result of pre-sentence custody, leaving an effective sentence of three years consecutive to the sentences imposed on Counts 1, 4, 10 and 13. I note that these reasons were written before the decision of the Court of Appeal in R. v. Nur, 2013 ONCA 677 was released, but are being released after that decision was released. The offence in Count 28 clearly falls at what Doherty J.A. describes at paragraph 206 of Nur as “the true crime end of the s. 95 spectrum.” As a result, the decision in Nur has had no impact on my determination of the appropriate sentence.
[236] On Count 1 of the second indictment, I impose a sentence of one year concurrent to the sentence imposed on Count 28 but consecutive to the sentences imposed on Counts 1, 4, 10 and 13. While I would ordinarily make this sentence consecutive to the sentence on Count 28, I make it concurrent on the basis of totality.
[237] On Count 2 of the second indictment, I impose a sentence of one year concurrent to the sentence imposed on Count 28 and Count 1 of the second indictment but consecutive to the sentences imposed on Counts 1, 4, 10 and 13.
ADDITIONAL ORDERS
[238] With respect to the sentences of two years or more that I am imposing on Sheldon Evans, Shane Evans and Orrett Francis for offences under s. 467.12 of the CCC, I order that the portion of the sentence that must be served before that offender may be released on full parole is one-half of the sentence. I am not satisfied, having regard to the circumstances of the commission of the offence and the character and circumstances of the offender that the expression of society’s denunciation of the offence and the objectives of specific and general deterrence would be adequately served by a period of parole ineligibility determined in accordance with the Corrections and Conditional Release Act.
[239] In addition, I make the various orders sought by the Crown, namely:
Sheldon Evans:
Lifetime s. 109 firearm prohibition
DNA order pursuant to s. 487.04(13)
Forfeiture of seized items listed in draft filed by Crown counsel
Shane Evans:
Lifetime s. 109 firearms prohibition
DNA order pursuant to s. 487.04(13)
Forfeiture of seized items listed in draft filed by Crown counsel
Orrett Francis:
Lifetime s. 109 firearm prohibition
DNA order pursuant to s. 487.04(13)
Forfeiture of seized items listed in draft filed by Crown counsel
Rashard Green:
Lifetime s. 109 firearm prohibition
DNA order pursuant to s. 487.04(13)
Forfeiture of seized items listed in draft filed by Crown counsel
M. Dambrot J.
Released: November 14, 2013
COURT FILE NO.: CR-13-50000281-0000
DATE: 20131114
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N :
HER MAJESTY THE QUEEN
– and –
SHELDON EVANS, SHANE EVANS, ORRETT FRANCIS and RASHARD GREEN
REASONS FOR SENTENCE
DAMBROT J.
RELEASED: November 14, 2013
COURT FILE NO.: CR-13-50000281-0000
DATE: 20131114
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N :
HER MAJESTY THE QUEEN
– and –
SHELDON EVANS, SHANE EVANS, ORRETT FRANCIS and RASHARD GREEN
REASONS FOR SENTENCE
DAMBROT J.
RELEASED: November 14, 2013