ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-12-90000-633

DATE: 20140325

BETWEEN:

HER MAJESTY THE QUEEN

– and –

BARRINGTON THOMPSON

Maryse Nassar, for the Crown

Mark C. Halfyard, for the Accused

HEARD: March 25, 2014

DUNNET J.: (Orally)

REASONS FOR SENTENCE

[1] Barrington Thompson has been found guilty of possession of 45 grams of cocaine for the purpose of trafficking on March 28, 2011.

[2] The cocaine was found in Mr. Thompson’s family owned restaurant at Queen and Lansdowne pursuant to a search warrant obtained by the police. The warrant was based upon information that an individual was arrested coming from the restaurant and found to be in possession of cocaine, which the police used to corroborate a tip from a confidential informant that there was cocaine for sale behind the restaurant’s counter.

[3] Mr. Thompson is 49 years of age and a Canadian citizen. He has been married for eighteen years. He and his wife have two children.

[4] While on bail, Mr. Thompson has continued to be involved the restaurant business where his wife works full time and his children work part-time while they attend school.

[5] Under the terms of his bail, he was not permitted to be in the restaurant. He undertook the role of shopping for groceries and supplies and delivering them to a family member 150 metres from the restaurant.

[6] Mr. Thompson has a dated criminal record for obstructing a peace officer, escape lawful custody and two counts of possession of a narcotic in 1989. In 2010, he pleaded guilty to possession of cocaine and was sentenced to a fine of $250.

[7] The Crown seeks a penitentiary sentence of two years. The defence seeks a conditional sentence of two years less a day.

[8] Crack cocaine is a dangerous, insidious and addictive drug that is detrimental to individuals and society. There is no issue between the parties that possession of crack cocaine for the purpose of trafficking is a serious offence for which the paramount considerations are denunciation and deterrence.

[9] The aggravating factors in this case are the quantity of cocaine and Mr. Thompson’s criminal record. Although this is not a situation of a commercial enterprise, or wholesaler, it appears to be street level dealing at the higher end. With the exception of the 2010 charge of possession of a narcotic, his prior record is for offences that happened twenty-five years ago.

[10] The mitigating factors include the fact that Mr. Thompson has the support of his family and is gainfully employed. He has been on bail for three years without any incidents. During eight of those years, he was on strict house arrest and he has been subject to a curfew for nearly twenty-eight months. He is working in the family restaurant business, albeit in the limited role of procuring and delivering groceries, which does not involve his presence inside the restaurant.

[11] I am of the view that the appropriate sentence is in the upper reformatory range.

[12] The Crown submits that a conditional sentence would endanger the safety of the community and would not adequately address the applicable principles of sentencing.

[13] Under s. 718.2 of the Criminal Code, Mr. Thompson should not be deprived of his liberty if less restrictive sanctions are appropriate. All available sanctions other than imprisonment that are reasonable in the circumstances should be considered.

[14] Letters of support from his family that were filed with the court demonstrate that Mr. Thompson is a loyal and dedicated family member. He not only plays a vital role in the family business, but also contributes to the community by coaching basketball.

[15] While denunciation and deterrence are important, this would be Mr. Thompson’s first custodial sentence. In the unique circumstances of the case, I am of the opinion that a conditional sentence on strict terms, predominantly house arrest, can satisfy the principles of denunciation and deterrence and not undermine Mr. Thompson’s ongoing and demonstrated efforts toward rehabilitation and reintegration into a law-abiding life-style.

[16] I believe that permitting Mr. Thompson to serve his sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing. In my view, his conduct has demonstrated that he is at low risk to reoffend.

[17] Accordingly, Mr. Thompson, please stand.

For this offence, I impose a sentence of two years less one day, to be served in the community on the following conditions:

(1) The mandatory statutory conditions set out in s. 742.3(1) of the Criminal Code;

(2) In addition to the mandatory conditions, it is ordered that you comply with the following additional conditions:

(a) For the first 18 months of this order, you shall reside in your home and remain in your home under house arrest 24 hours a day, 7 days a week, and not leave your home at any time, except for the following reasons:

(i) to report to your supervisor and attend court;

(ii) to attend scheduled medical or dental appointments or deal with a medical emergency affecting you or a member of your immediate family;

(iii) to attend to personal matters such a banking and household errands during a four hour period weekly, the precise time to be agreed upon by your supervisor;

(iv) to travel directly to and from any of these activities; and

(v) at any other time, with the written permission of your supervisor.

(b) For the remainder of your conditional sentence, you are not to be away from your place of residence each and every night between the hours of 11:00 p.m. and 6:00 a.m. subject to a medical emergency affecting you or an immediate family member;

(c) You are to abstain from the purchase, possession or consumption of non-medically prescribed drugs;

(d) You are to abstain from owning, possessing or carrying a weapon as defined by the Criminal Code; and

(e) You are to seek and maintain employment, so long as you refrain from being within 150 metres of 1427 Queen Street West, Toronto.

[18] Following your conditional sentence, you will be subject to a probation order of twelve months on the same terms that govern your conditional sentence, save for the substitution of a probation officer for a supervisor, to whom you must report within two business days at the end of your conditional sentence order. You will no longer be under house arrest and you will have no curfew.

[19] I must advise you that a breach of any of the conditions of your conditional sentence order may result in a court order that you serve the rest of your sentence in custody.

[20] In addition, there will be a mandatory weapons prohibition order pursuant to s. 109(1(c) of the Criminal Code for ten years.

[21] There will be an order pursuant to s. 487.051(1) (a) of the Criminal Code authorizing the taking of a DNA sample.

[22] Finally, there will be an order pursuant to s. 491(1) of the Criminal Code forfeiting the monies seized at the time of your arrest.

DUNNET J.

Released: March 25, 2014