CITATION: R. v. Brown, 2015 ONSC 2976

COURT FILE NO.: 13-90000456-0000

DATE: 20150513

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

RICARDO BROWN

Defendant

Maryse Nassar, for the Crown

Lisa Bristow, for the Defendant

Date of Sentencing Hearing: 1 May 2015

REASONS FOR SENTENCING

mew j.

[1] On 2 March 2015, Ricardo Brown was convicted by a jury of trafficking in crack cocaine, possession of crack cocaine for the purposes of trafficking and possession of the proceeds of crime, namely the sum of $40.

[2] The defendant admits being a drug addict. He denied the sale of crack cocaine to the undercover officer but acknowledged possession of crack cocaine for personal use.

The Offence

[3] The facts, as presented to the jury, and reflected in their findings of guilt on the three charges, can be stated succinctly.

[4] The defendant was arrested by officers of the Toronto Police Service in a bar in the Dundas Street and Spadina Avenue area of Toronto shortly after he had sold .33 grams of crack cocaine to an undercover Toronto police officer for $40.

[5] The arrest took place during a concerted undercover effort to address community concerns about drug activity in the vicinity. The objective of the operation was to make an opportunity purchase of drugs. The defendant was not a specific target of the operation.

[6] After being arrested, the defendant was searched. The “buy money” of $40 was retrieved and a plastic sandwich bag with 35 pea sized foil wrapped pieces of crack cocaine was also found on him and retrieved. The crack cocaine weighed 7.9 grams.

[7] No other drug-related paraphernalia was found on the defendant. He claimed to have smoked some crack cocaine shortly before his arrest using an empty Coke can.

[8] The defendant was co-operative during his arrest.

The Offender

[9] The defendant gave evidence at trial. He was also interviewed for the purposes of a pre-sentence report provided to the court.

[10] The defendant is a 49 year old Jamaican national. He immigrated to Canada in 1987 and is a permanent resident. He had a sister, who he did not grow up with, who died in 1997. His mother was reportedly strangled and murdered in Montreal in 2007.

[11] The defendant has a 16 year old son who lives with him. They are reported to have an extremely close relationship. The defendant was in a relationship with his son’s mother for approximately 10 years. Although his son has only been living with him since 2013, the defendant claims to have been always involved with his son’s life.

[12] It was noteworthy that the defendant’s son was in court during the sentencing hearing and indicated a willingness to address the court.

[13] The defendant completed schooling in Jamaica until Grade 9 and learned the electrical trade. From 1987 until 2001 he worked at a variety of jobs that included factory work and restaurant work. He also worked part-time as a DJ in clubs in the evening. From 2001 to 2009 he worked part-time as work was slow. He then obtained full time work at a restaurant from 2009 to 2012. He lost that job in 2012 and has not worked since. He is currently in receipt of Ontario Works. He has looked for work but has been unsuccessful.

[14] Since 1998 the defendant has used crack cocaine. After his mother’s death in 2007, the defendant’s dependence on crack cocaine increased. He inherited some money as a result of his mother’s passing and, in his own words, “smoked it away”.

[15] After the incident giving rise to his conviction, he started to attend Narcotics Anonymous meetings as directed by his bail supervisor. He has conscientiously attended sessions at Narcotics Anonymous. However, he relapsed in 2013. On 10 November 2013 he was arrested and on 26 February 2014 he pleaded guilty to possession of 6.69 grams of cocaine which had been seized when a warrant was executed at his residence. He was sentenced to 45 days imprisonment for that offence.

[16] Aside from his recent convictions, the defendant’s record includes a fail to comply with recognizance conviction in June 1998 for which he received seven days in addition to time served (three days), two fail to comply with recognizance charges in October 1998 for which he received ten days on each charge, running concurrently and five days pre-sentence custody, and a simple possession conviction in July 1999 for which he received a nine month conditional sentence order.

[17] The defendant’s son indicates that his father provides for him, looks out for him and sends him to school. The son has previously experienced his father not being around for periods of time and is aware that his father has been in custody before. Nevertheless, he would be “sad” if his father ended up going away to jail again.

[18] All of the indications are that the defendant is a positive influence on his son.

[19] There is no suggestion that any of his drug-related activities have involved the sale of drugs to minors or other vulnerable individuals. However, his drug use has negatively affected his ability to obtain and sustain employment.

Position of the Parties

The Crown’s Position

[20] The offences occurred eight days after the coming into force of Bill C-10, the Safe Streets and Communities Act, S.C. 2012, c.1. Two of the offences committed by the defendant – trafficking, and possession for the purposes of trafficking – carry a maximum sentence of life imprisonment. Accordingly, a conditional sentence order is foreclosed.

[21] The Crown submits that cases with comparable circumstances have resulted in sentences of incarceration of between six months and two years less a day.

[22] The Crown’s submissions did not highlight any specific aggravating or mitigating factors. It was acknowledged, however, that the defendant does have a substance abuse problem and that he has been attending Narcotics Anonymous and, with the exception of his “relapse”, has been compliant with the conditions of his bail.

[23] The Crown argues that an appropriate sentence would be 18 months incarceration less time served (the Crown and defence agree that in the circumstances the ratio of 1.5 days of credit for time served should be given with respect to each day of pre-sentence custody: R. v. Summers 2014 SCC 26). The Crown also seeks a DNA order.

Defence Position

[24] The defendant was not part of any well-organized drug trafficking schemes. He is an addict. Since his arrest he has taken steps to address his addiction. He acknowledges, however, that there has already been one relapse.

[25] The defendant’s son lives with him. They have a positive relationship. Although the son survived a previous period when the defendant was in custody for a total of 107 days, it did result in some hardship.

[26] The defendant has been applying for work at temporary agencies. There are some literacy issues and he does not know how to use the internet or a computer. He is trying to get out of a rut but he is discouraged.

[27] The focus should be more on the defendant’s potential for rehabilitation and less on deterrence and denunciation given the circumstances. The defendant would be a good candidate for community service and would like to be able to do something meaningful in that regard.

[28] If it was determined that, after giving credit for pre-sentencing custody, the defendant would serve 90 days or less, consideration should be given to an intermittent sentence which would permit the defendant to better look after his son, to look for work and to attend Narcotics Anonymous.

[29] It is likely that the defendant will face deportation proceedings.

[30] Mr. Brown, who took the opportunity to address the court himself, claims to have now learned his lesson.

Analysis

[31] The defendant is addicted to cocaine. This addiction has led to him squandering the inheritance he received from his mother. It has contributed significantly to his current unemployed status. His use of drugs has set a very poor example to his 16 year old son.

[32] The defendant had, by all accounts, a tough childhood. Nevertheless, he has been a good father. His friends and family members speak positively about him. Until recently he has had a record of continuous employment. He has been compliant with his Narcotics Anonymous programme and had a positive pre-sentence report.

[33] On the negative side, the defendant has already suffered one relapse since the incident giving rise to these charges and was sentenced to a term of imprisonment as a result. Aside from that, he has past convictions from the late 1990s which are also related to his addiction.

[34] The principles of sentencing set out in s. 718 of the Criminal Code require the imposition of a just sanction that has one or more of the following objectives:

(a) Denunciation of unlawful conduct;

(b) Deterrence;

(c) The protection of society;

(d) Rehabilitation;

(e) Reparation for harm done; and

(f) Promotion of a sense of responsibility in offenders and acknowledgment of the harm done to victims and the community.

[35] Primary consideration is to be given to the objectives of denunciation and deterrence (s. 718.01).

[36] In R. v. Malcolm, [2000] O.J. No. 4309 (C.A.) the Court of Appeal upheld a six month prison sentence for possession of .90 grams of cocaine for the purpose of trafficking. The appellant had been observed by police officers selling narcotics, likely crack cocaine in a public park. The trial judge had found that the appellant was part of a well-organised scheme of drug trafficking in a public park.

[37] In R. v. Woolcock [2002] O.J. No. 4927 (C.A.), the appellant was convicted on one count of possession of cocaine for purposes of trafficking, one count of possession of the proceeds from crime and one count of possession of marijuana. He was selling crack cocaine in a residential community. The appellant, who was not an addict, and who had relatively recent prior convictions for drug-related offences, was initially sentenced to two years less a day, On appeal the conviction for possession of marijuana was set aside and the sentence on the other convictions was reduced to 15 months on the basis that the trial judge had given insufficient weight to the prospect of rehabilitation.

[38] The appellant in R. v. Barham, 2014 ONCA 797 was a “habitual offender” who had received a global custodial sentence of 14 months and 28 days (less 165 days of pretrial custody) for six discrete offences including possession of hydromorphone for the purpose of trafficking (in respect of which he received 12 months’ imprisonment). His criminal record began in 1989 and included convictions for violent offences and drug offences. He was a cocaine addict and a schizophrenic. In rejecting the appeal, the Court of Appeal held that in order for the appellant’s cocaine addiction and his schizophrenia to be considered as mitigating factors, there must be some connection between those matters and the criminal conduct in issue (see para 8 of the Court of Appeal’s endorsement).

[39] In R. v. Daley, 2012 ONSC 5300, an undercover officer persuaded an addict to contact her supplier to assist him in purchasing 1.7 grams of crack cocaine. $100 of the police buy money was found on the defendant when he was later searched. Additional cocaine was found on the defendant. The evidence supported a finding that he was a street-level dealer in cocaine. He acknowledged that his cocaine use was “problematic”. The defendant was, however, a first time offender. He was sentenced to four months’ imprisonment followed by eighteen months’ probation.

Mitigating Factors

[40] There is no indication that the defendant was part of any organized crime scheme or that he was selling drugs to vulnerable people. Rather, there was evidence capable of supporting the conclusion that the drugs in his possession were, at least in part, for his personal consumption.

[41] In that regard, the expert called by the Crown to provide opinion evidence at the trial on whether the crack cocaine possessed by Mr. Brown was for purpose of trafficking or for personal use, did not rule out the possibility that he was an “addict trafficker”, although her opinion was that the amount of crack cocaine in the defendant’s possession and the fact that it was already divided into 35 separate packages would be highly suggestive of trafficking.

[42] The transaction which led to Mr. Brown’s arrest took place in a part of downtown Toronto well-known for its high level of illicit trading in illegal drugs.

[43] Mr. Brown is regarded as an attentive father, a factor underscored by the presence in court at the sentencing hearing of his 16 year old son.

[44] Mr. Brown has a well established addiction to crack cocaine. The evidence is capable of supporting the conclusion that there is a connection between his addiction and the offences he has now been convicted of.

[45] Mr. Brown has a good record of attendance at and commitment to the programme at Narcotics Anonymous as well as compliance with other terms of prior interim release.

Aggravating Factors

[46] “[C]rack cocaine is an extremely dangerous and invidious drug with potential to cause a great deal of harm to individuals and to society” (R. v. Woolcock, supra, at para 8).

[47] Although the defendant may have engaged in the transaction to feed his own drug habit, he was likely engaged in the transaction for profit.

[48] It follows that it is equally likely that amount of crack cocaine found on him was more than he required for his own personal use.

Discussion

[49] I am cautiously optimistic that Mr. Brown now realises that he has reached a watershed. Either he takes control of his future and maintains his rejection of drugs, or he gets sucked back into a spiral of addiction and criminality.

[50] In the past two to three years Mr. Brown has become an increasingly important person in his son’s life. Mr. Brown needs to think long and hard about the impact that his own lapses in self-discipline have hurt those closest to him and, in particular, his son.

[51] It is imperative that the defendant remains drug-free and that he takes responsibility for his own conduct and for the example that he sets for his son.

[52] Despite my belief that Mr. Brown now “gets it”, the risk of re-offending remains. Furthermore, although I give considerable weight to the prospect of rehabilitation, denunciation and deterrence must also have their due place in the sentencing equation.

Disposition

[53] For the foregoing reasons, I have concluded that a sentence of incarceration is warranted but that an appropriate period would be six months’ imprisonment less time served.

[54] I would not accede to the suggestion that the sentence should be served intermittently. The defendant has been unemployed for the last three years. Although there will be some hardship on the part of the defendant’s son, all concerned appear to have survived a previous term when the defendant was in custody.

[55] I would, however, impose a requirement of probation for a period of 18 months following the defendant’s release from custody which will include an element of community service. Probation should be subject to the following conditions. Mr. Brown will:

a. Keep the peace and be of good behaviour.

b. Appear before the court when required to do so by the court and notify the court or the probation officer in advance of any change of name or address and promptly notify the court or the probation officer of any change of employment or occupation.

c. Report within two working days from his release from jail, in person, to a probation officer or person authorised by a probation officer to assist in the supervision of the defendant.

d. Report at such times and in such places as may be required by a person in legal authority.

e. Not possess or consume or purchase any unlawful drugs or substances contrary to the Controlled Drugs and Substances Act, S.C. 1996, c. 19, except with a valid prescription in your own name.

f. Perform a total of 100 hours of community service at a rate of not less than 5 hours per month commencing within 30 days of his release from incarceration.

g. Attend any substance abuse counseling / assessment / rehabilitation programme in its entirety, as directed by a probation officer, and shall sign whatever consents or releases may be required by the probation officer in order to monitor and verify compliance with such counselling, assessment, or rehabilitation, and provide written proof of completion of such counselling, assessment, or rehabilitation to the probation officer.

[56] In addition there will be a mandatory weapons prohibition order made under s. 109 of the Criminal Code prohibiting the defendant for the next ten years from owning, possessing or carrying any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance.

[57] In the circumstances of the offences involved on this occasion and the defendant’s prior history, I decline to make a DNA order pursuant to section 487.05(1) as requested by the Crown.

[58] As the offences predate the coming into force of the mandatory victim fine surcharge, and given the defendant’s economic circumstances, I decline to impose the surcharge in this matter.

[59] Mr. Brown, this is make or break time for you. You can choose to draw a line at this point, serve your time and comply with the terms of your probation and do the things you have said you want to do – find work and be a good dad to your son. You know all too well what the alternative picture looks like.

Mew J.

Released: 13 May 2015

CITATION: R. v. Brown, 2015 ONSC 2976

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

RICARDO BROWN

Defendant

REASONS FOR SENTENCING

Mew J.

Released: 13 May 2015