ONTARIO

SUPERIOR COURT OF JUSTICE

DATE: 20131112

BETWEEN:

HER MAJESTY THE QUEEN

– and –

Marlon Carelse-Brown

Sam Siew, for the Crown
Laura Girodano, for Mr. Carelse-Brown

r. f. goldstein j.

reasons for sentence

1. Overview

[1] The Toronto Police arrested Marlon Carelse-Brown on February 6, 2012. The police searched him on scene. They found a small amount of marijuana in his jeans. They also found $255 in cash in one of his pockets, and $1455 in another pocket. The police took him back to a police station and conducted a strip search, during which they found 25.3 grams of crack cocaine in his undershorts.

[2] Mr. Carelse-Brown applied for an order under the Canadian Charter of Rights and Freedoms to exclude the evidence of the crack cocaine from the trial. I dismissed the application. Mr. Carelse-Brown then elected to have a trial before a jury. He testified that he had the crack cocaine for his personal use, and did not intend to traffic. The jury convicted him of possession of cocaine for the purpose of trafficking. They clearly did not believe him. Neither did I. I find that Mr. Carelse-Brown is a commercial drug trafficker. For the reasons that follow, a conditional sentence is not appropriate. Mr. Carelse-Brown is sentenced to 21 months, with credit for five months of incarceration at a ratio of 1:1 and some enhanced credit amounting to a month to reflect the term of house arrest. His sentence will therefore be 15 months. Mr. Carelse-Brown will also be placed on probation for three years. I am satisfied that the $1700 is proceeds of crime and will be forfeited.

2. The Facts

(a) Circumstances of the offence

[3] On February 6, 2012 the Toronto Police received a 911 call. The circumstances of the call are irrelevant here. Mr. Carelse-Brown was a passenger in a car that was subject to what is known as a high-risk takedown. The police conduct a high-risk takedown where they believe that the person to be arrested is potentially dangerous. I hasten to add that the fact of the high-risk takedown, and the perception of danger play no role in this sentencing process.

[4] Mr. Carelse-Brown was ordered to exit the car and lie on the ground. He did so. A search was conducted for officer safety purposes. No weapons were found, but police officers found 0.82 grams of marijuana in a pocket. The police also found $255 in Canadian cash in one pocket and $1445 in Canadian cash in another pocket. The $1445 was organized into bundles of $100. The Crown’s expert, Constable Brammall, testified that the money was organized in a manner consistent with trafficking crack cocaine. I accept his evidence.

[5] The police arrested Mr. Carelse-Brown for possession of marijuana for the purposes of trafficking and transported him to a police station. He was strip-searched. During the course of the strip search the police found 25.3 grams of crack cocaine in his undershorts. The crack was packaged in one plastic bag. Within the plastic bag were two large chunks of crack cocaine and some smaller crumbs. The bag also held two separately packaged chunks of 1.81 grams and 1.75 grams. Detective Constable Brammall testified that a person carrying 25.3 grams of cocaine indicated to him that he had purchased an ounce (28 grams) and that the cash was consistent with sales totalling 3 grams. He further testified that the smaller chunks of 1.81 grams and 1.75 grams were consistent with a “streetball” which is close to an eighth of an ounce of crack cocaine. I accept his evidence. I find as a fact that Mr. Carelse-Brown had been out selling crack cocaine and was intending to sell more.

[6] Although defence counsel pointed to the fact that the police did not find scales either on Mr. Carelse-Brown or in the car, Constable Brammall testified that an experienced drug dealer is able to chip small pieces of crack from a larger rock of crack cocaine and estimate the amount with reasonable accuracy for the purposes of street sales.

[7] Mr. Carelse-Brown testified that he began smoking crack four to six months prior to his arrest. He testified that he realizes now that he had an addiction problem. He stated in his evidence that he purchased the crack cocaine in bulk from his friend Polly because it was less expensive than buying small amounts from time to time.

[8] Unfortunately, it was basic math that did him in. He testified that he earned $1048 per month as a disability payment and that the payment was his sole source of income. He further testified that he gave his mother $550 per month for groceries and rent and spent $35 per month on a cell phone and about $150 per month on leisure activities. He said that his habit meant that he smoked about $50-$60 worth of crack cocaine four days per week, which meant that on a weekly basis he smoked $240 to $300 of crack cocaine. That was obviously considerably more than the total of his monthly income left over after expenses. At the same time, Mr. Carlese-Brown testified that the $1455 was for the first and last months rent for an apartment that he planned to rent with his girlfriend. He was unable to explain how he could save $1455 while paying three times more than he earned for crack.

[9] Mr. Carelse-Brown’s evidence was so completely unbelievable that it bordered on the ludicrous. That was no doubt reflected in the alacrity with which the jury came to a guilty verdict.

[10] The Crown’s theory was that Mr. Carelse-Brown is not an addict or a user of crack cocaine, and, in the alternative, that even if he is a user he still intended to sell in order to pay for his habit. It was open to the jury to convict him on either basis. Although I am bound by the express and implied factual implications of the jury’s verdict, in this case the factual implications are ambiguous. Where the factual implications of the jury’s verdict are ambiguous, I am required to make an independent determination of the relevant facts: R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96.

[11] The only evidence upon which a reasonable jury could find that Mr. Carelse-Brown was a user or addict is his own testimony. There is no other evidence. There are no medical reports, or evidence of friends or family. The police did not seize any paraphernalia of drug use, such as a crack pipe. Mr. Carelse-Brown described a crack habit that was financially impossible, although I acknowledge the possibility that it could have been financed by drug sales.

[12] Not only is there no evidence to support Mr. Carelse-Brown’s assertion that he is a drug addict, his own evidence lacked credibility and particularity. I found him to be utterly unbelievable and I do not believe him. Although it is always dangerous to rely on demeanour evidence, I found that he testified in a manner that was diffident. He testified like a man who did not expect to be believed.

[13] I was informed that Mr. Carelse-Brown was the subject of a gunshot wound, and that he was shot in the spine. Ms. Giordano indicated in submissions that he began to use crack to cope with his injury. I have difficulty accepting that assertion in the absence of evidence. There is no evidence that he attempted to obtain legal drugs for his injuries, or evidence that he is not eligible for free or reduced-cost legal drugs as a result of his disability pension. Accordingly, I reject the assertion that Mr. Carelse-Brown is an addict trafficker or user. I find that he possessed crack cocaine purely for commercial purposes.

(b) Circumstances of the offender

[14] I know little about Mr. Carelse-Brown. He is 24 years old, and was living with his mother at the time of the offence. He is currently living with his aunt as a result of bail conditions from another set of charges that he faces. He was not employed or going to school at the time of the offences or subsequently. I do not know how far he got in school, or whether he has an employment history. It is unfortunate that I have so little information. As far as I am aware, drug dealing is the only job that Mr. Carelse-Brown has ever had. I will assume for the purposes of sentencing, however, that given his relative youth he is not without prospects for the future.

3. Legal Parameters

[15] As a Schedule 1 substance under the Controlled Drugs and Substances Act, possession of cocaine for the purpose of trafficking is punishable by life imprisonment.

[16] Pursuant to s. 742.1(c), possession of cocaine for the purpose of trafficking is no longer one of those offences for which a conditional sentence is available. Section 742.1(c) of the Criminal Code was amended by way of s. 34 of the Safe Streets and Communities Act, S.C. 2012, c. 1. That legislation received royal assent on March 13, 2012. It was proclaimed in force on November 20, 2012.

[17] There is no question that the legislation does not operate retrospectively since it affects substantive rights: R. v. Dineley, 2012 SCC 58, [2012] 3 S.C.R. 272. Thus, although a conditional sentence is available (given the date of the offence, which pre-dates the legislative changes) I decline to impose one in the circumstances of this case, as I will explain below.

4. Positions of the Crown and Defense

[18] Mr. Siew, for the Crown, argues that Mr. Carelse-Brown should receive a sentence of two years less a day, given that he is at the higher end of the street-level commercial trafficking spectrum.

[19] Ms. Giordano argues that Mr. Carelse-Brown should receive a conditional sentence in the range of six months.

[20] Mr. Carelse-Brown was arrested on these charges on February 6, 2012 and released on February 7, 2012. On April 24, 2012 he was arrested on other charges. Those charges were subsequently withdrawn, but his bail on this charge was revoked. He was released prior to the preliminary inquiry on September 24, 2012. Accordingly, five months of pre-trial custody are attributable to this charge.

[21] Mr. Carelse-Brown was subsequently arrested on June 18, 2013 on charges related to possession of a firearm. His bail on this charge was not revoked. He was released on a bail review on October 29, 2013, shortly before this trial began. Ms. Girodano argues that the 4 ½ months in custody on those charges should be attributed to this offence. She argues that he may not have been detained on the firearms charge if he were not facing this drug charge. Notwithstanding that Ms. Giordano may well be correct, the proximate cause of the detention was obviously the other charge, not this charge. I do not agree and decline to give Mr. Carelse-Brown credit for that time in custody on this charge.

[22] Ms. Giordano also argues that Mr. Carelse-Brown should be given credit at the rate of 1.5:1, rather than the 1:1 that is set out in the Criminal Code. Although an offender need not show exceptional circumstances to obtain the 1.5:1 credit, something more than a mere assertion that he deserves it is required: R. v. Summers, 2013 ONCA 147, [2013] O.J. No. 1068. Accordingly, I decline to give enhanced credit in this case. I agree that Mr. Carelse-Brown should receive some credit for house arrest

5. Case Law

[23] The Crown primarily relies on R. v. Woolcock, [2002] O.J. No. 4927, 2002 CarswellOnt 7683 (C.A.) for the proposition that the range of sentence for this type of offence is six months to two years less a day. See also: R. v. Grant, 1997 1727 (ON CA), [1997] O.J. No. 3173, 102 O.A.C. 220 (C.A.)

[24] In R. v. Mangal, [2009] O.J. No. 1373 (Sup.Ct.) Conway J. imposed a sentence of 12 months incarceration for possession for the purpose of 9.16 grams of crack cocaine and $1255 in cash. Notwithstanding several mitigating factors, Conway J. found that the risk of re-offending was not sufficiently low to impose a conditional sentence.

[25] In R. v. Kenyon, [2008] O.J. No. 2486 (Sup.Ct.) D.M. Brown J. imposed a sentence of 19 months (and gave credit for pre-trial custody) for a commercial trafficker of crack cocaine with a previous record who had 26 grams in his possession.

[26] Ms. Giordano did not take particular issue with the range sought by the Crown, but focussed her submissions on the application of the pre-trial custody and the availability of a conditional sentence. In R. v. Velkovic, [2006] O.J. No. 1327 (C.A.), the Court of Appeal overturned a $5000 fine imposed by a judge of the Ontario Court of Justice on a guilty plea for possession for the purpose of trafficking of 89.3 grams of crack cocaine. The trial judge rejected a joint submission for a conditional sentence of two years less a day. The Court of Appeal found that the sentence was manifestly unfit and imposed a conditional sentence of 18 months. I note that the plea was obviously an early one. Ms. Giordano also referred me to other cases where conditional sentences had been imposed for commercial trafficking in crack cocaine, including R. v. Bustos, [2009] O.J. No. 4927 (Ont.C.J.); and recently R. v. Burnett, 2013 ONSC 5536, [2013] O.J. No. 4052 (Sup.Ct.).

6. Mitigating and Aggravating Factors

[27] The key aggravating factor in this case is the large amount of crack cocaine. Mr. Carelse-Brown had almost an ounce of crack cocaine, which is worth some $1400 at wholesale and in the range of over $5000 at the retail level. As a commercial drug trafficker, Mr. Carelse-Brown had the potential to earn a significant profit. The enterprise showed some sophistication, with Mr. Carelse-Brown employing a rental car. He testified that his aunt rented the car and that she permitted him to use it. Mr. Carelse-Brown was the passenger, not the driver. Constable Brammall testified that commercial dealers use rental cars in order to make detection by the police more difficult. I draw the inference that Mr. Carelse-Brown used the rental car for that purpose, and that he used his aunt to rent the car to further obscure his purpose. While this was certainly not the most sophisticated criminal enterprise, it was clearly more sophisticated than street-level addict trafficking.

[28] The mitigating factors that I find in Mr. Carelse-Brown’s favour are his relative youth and lack of criminal record. Other than that, there is no evidence that Mr. Carelse-Brown has ever had a lawful job or progressed very far in his education. Other than a vague plan to take business courses at Centennial College at some point in the future, it is difficult to discern how Mr. Carelse-Brown intends to right himself and become a productive member of society. I can appreciate that he has spent much of the past twenty months either in jail or under house arrest, but there is no evidence that he was doing anything useful or lawful prior to February 6, 2012. No doubt Mr. Carelse-Brown is capable of changing his life, given his youth, and I accept that as a mitigating factor.

[29] I note that Mr. Carelse-Brown chose to exercise his right to a jury trial. In no way is this an aggravating factor, but he obviously can not avail himself of the mitigation that would arise from a plea of guilty and remorse.

7. Principles of Sentencing

[30] The purposes sentencing are set out in s. 718 of the Criminal Code:

718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, 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.

[31] The principles of sentencing that I have to apply are set out in s. 718.1 and 718.2 of the Criminal Code:

718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

718.2 A court that imposes a sentence shall also take into consideration the following principles:

(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,

(i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or any other similar factor,

(ii) evidence that the offender, in committing the offence, abused the offender’s spouse or common-law partner,

(ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years,

(iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim,

(iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation,

(iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization, or

(v) evidence that the offence was a terrorism offence

shall be deemed to be aggravating circumstances;

(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

(c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;

(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and

(e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.

8. Ancillary Orders

[32] There will be a 10-year weapons prohibition pursuant to s. 109(2) of the Criminal Code. I am satisfied on a balance of probabilities that the $1700 seized from Mr. Carelse-Brown is the proceeds of a designated offence pursuant to s. 462.37 of the Criminal Code. In other words, the cash was derived from drug trafficking. That finding is supported by the obvious circumstances of the offence. I also accept the evidence of Constable Brammall on this point. The cash is forfeited.

8. Is a conditional sentence appropriate?

[33] In R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, 140 C.C.C. (3d) 449 (S.C.C.) the Supreme Court set out the basic framework for determining whether a conditional sentence is appropriate. A sentencing judge must first determine that a sentence of less than two years is appropriate; and must then determine whether a conditional sentence should be imposed.

[34] I am satisfied that the sentence imposed should be less than two years and that the statutory conditions for a conditional sentence have been met (no minimum term of imprisonment, and the offence is one for which a conditional sentence may be imposed). Thus, there are two critical issues that must be canvassed:

1. Whether a conditional sentence will endanger the safety of the community; and,
2. Whether the sentence is consistent with the fundamental purpose and principles of sentencing.

[35] Ms. Giordano’s submission in support of a conditional sentence was not unreasonable. In my view, however, there is a sufficient risk that Mr. Carlese-Brown will commit further offences such that a conditional sentence is inappropriate. I appreciate that he has no criminal record. That said, there is no evidence before me of any attempts at productive employment or education and an obvious temptation for him to return to the ways of commercial drug trafficking. I am also satisfied that a conditional sentence would be inconsistent with the fundamental purposes and principles of sentencing, in particular general and specific deterrence. Accordingly, I reject a conditional sentence as appropriate in these circumstances.

9. Final Decision

[36] In my view, the most important principles of sentencing in the context of this case are general and specific deterrence. The need to deter like-minded individuals in the face of the significant profits that can be made from drug trafficking is obvious. The need to deter Mr. Carelse-Brown in the future is equally obvious, which is why a short term of incarceration should not be seen as merely the cost of doing drug business. Of course, it is also important to give weight to the principle of rehabilitation. Mr. Carelse-Brown is a young man and the Court must be mindful not to crush him or destroy his prospects. A sentence at the higher end of the range is certainly not crushing, and is appropriate given the amount of the drugs, the possession of the proceeds of crime, and the need for deterrence.

[37] With great respect to Ms. Giordano’s able submissions, the ultimate result that she urges the Court impose, which amounts to a 6-month conditional sentence, is disproportionate to the gravity of the offence and the degree of responsibility of the offender. At the same time, I disagree with the Crown’s position that Mr. Carelse-Brown should be sentenced at the highest end of the range. I take into account his age and lack of criminal record.

[38] When considering rehabilitation, courts sometimes shave off some time from what would otherwise be an appropriate sentence. In this case, I am satisfied that the goal of rehabilitation is better met with a lengthy term of probation. Some form of community supervision is required in order to incentivize Mr. Carelse-Brown to find lawful work or pursue an education. Crediting Mr. Carelse-Brown with an extra couple of months out of custody simply because he is young does not address rehabilitation in any meaningful way. The custodial sentence is intended to satisfy the imperatives of general and specific deterrence given the commercial nature of Mr. Carelse-Brown’s drug trafficking. The term of probation is intended to satisfy the imperative of rehabilitation by recognizing that he is a young man in need of direction and supervision.

[39] The sentence imposed therefore consists of the following terms:

• Mr. Carelse-Brown is sentenced to 15 months incarceration. This reflects a term of 21 months, with credit for 5 months of pre-trial custody and credit of 1 month for house arrest.

• Mr. Carelse-Brown is placed on probation for 3 years. In addition to the usual statutory terms and conditions, Mr. Carelse-Brown will be required to seek and maintain employment, or to attend at an accredited educational institution.

• The proceeds of crime of $1700 is forfeited.

• There will be a s. 109 order for 10 years.

Goldstein J.

Released: November 12, 2013

DATE: 20131112

ONTARIO
SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

Marlon Carelse-Brown

REASONS FOR SENTENCE

Goldstein J.