CITATION: R. v. Feeney, 2015 ONSC 3218
COURT FILE NO.: 1-623296
DATE: 2015/05/21
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
JOHNNY FEENEY
J. Francis & K. Yeh, for the Crown
P. Genua, for the Offender
Heard: April 24, 2015
REASONS ON SENTENCE
garton j.
[1] The accused, Johnny Feeney, age 39, was found guilty by a jury of conspiracy to traffic in cocaine with Argirios Smirnis (“Smirnis”), Bayan Mirian (“Mirian”), and with a person or persons unknown, between October 1 and November 22, 2011 (Count 1). He was also found guilty of two counts of possession of cocaine for the purpose of trafficking, one count of possession of the proceeds of crime in an amount exceeding $5000, and one count of possession of the proceeds of crime in an amount not exceeding $5000.
[2] The charges were the result of a large-scale drug investigation, Project Gladiator, by the Durham Regional Police Force. Wiretap authorizations, granted on July 29 and September 23, 2011, initially focused on two other individuals – Alireza Kharizfar (“Kharizfar”) and Mirian. Kharizfar was a named target in both authorizations; Mirian was a named target in the second authorization. Their intercepted communications revealed that Mirian was supplying Kharizfar and others with cocaine on a regular basis. Kharizfar testified at the trial that he purchased about an ounce of cocaine per week from Mirian. During the course of the second authorization, when communications between Mirian and Mr. Feeney were intercepted, it became clear that Mr. Feeney was Mirian’s cocaine supplier and was therefore a level above him on the drug hierarchy.
[3] On November 22, 2011, which was the take-down day, Mr. Feeney was observed entering Mirian’s condominium while carrying a backpack. Three or four minutes later, and before there was time for any drug transaction to transpire, the police entered the residence and arrested Mr. Feeney. They located in the backpack just over nine ounces of cocaine (Count 2), and $39,100 in cash (Count 4).
[4] The expert witness, P.C. Tony Canepa, testified that a distributor in Canada, in 2011, would typically pay someone in Mexico just over $20,000 for a kilogram of cocaine. The distributor would then resell the kilogram in Canada for anywhere from $36,000 to $44,000, depending on a number of factors. The $39,100 found in the backpack was consistent with the price that a purchaser would pay a distributor for a kilogram of the drug.
[5] Counsel for Mr. Feeney submits that Mirian could have been the source of the $39,100, which may have represented payment for any number of drug deals between them. Mr. Genua noted that in a conversation on November 21, 2011, Mirian told Mr. Feeney that he would have a “big chunk” (of money) for him. However, the circumstances are such that it is highly unlikely that Mirian was the source of these funds. As already stated, there was insufficient time for any transaction to have taken place before the police burst into the condominium. Mirian’s statement that he had a “big chunk” no doubt referred to the money he had stashed in various places in his apartment, including $10,000 in the bottom of a suit bag in a closet, and several thousand dollars in an ottoman.
[6] The police located more cocaine and money in Mr. Feeney’s apartment. They seized 385 grams, or about 13 ½ ounces, of cocaine from a knapsack, and a further 7 grams, or about a quarter of an ounce, from a gym bag (Count 3). The gym bag also contained $1500 in cash, and there was $370 on the floor under a laptop computer (Count 5). All of the drugs and money were in Mr. Feeney’s bedroom. A debt list was located on an ottoman in the living room.
[7] The position of the Crown is that the appropriate global sentence in this case is 12 years.
[8] Counsel for Mr. Feeney submits that the appropriate range of sentence is four to six years, and that a four-year sentence would be fit and proper in the circumstances.
[9] Both the Crown and defence counsel agree that the sentence should be reduced for the time that Mr. Feeney has spent in pre-trial custody.
[10] Defence counsel also submits that credit should be given for the time that Mr. Feeney has been subject to restrictive bail conditions. The position of the Crown is that no such credit should be granted.
Circumstances of the Offences
[11] Crown counsel submits that Mr. Feeney, in addition to being in possession of approximately 23 ounces of cocaine and almost $41,000, also sold at least 5.5 kilograms of the drug to Mirian during the relatively short time frame in which their communications were intercepted. This estimate is based on the following conversations, which are set out in Appendix A of the Crown’s factum:
On October 5, 2011, Mr. Feeney called Mirian and told him that he had gotten a “full one,” meaning one kilogram, for that night. Mirian told him to take out a “zip” or an ounce, which was to be provided to the purchasers as a sample or tester.
On October 9, 2011, Mirian told Mr. Feeney that he “got some flow now” and asked him to “reload” him. He indicated that he intended to give Mr. Feeney $14,000 and “another three-and-a-half on top.” Mirian spoke of having received “the ten-five” (referring to nine ounces of cocaine, which was worth about $10,500) from Mr. Feeney the day before.
On October 10, 2011, Mirian told Mr. Feeney that he had gotten an order for “seven COD right now.” He referred to having received the “ten-five” from Mr. Feeney the last time, and that he would give him “fourteen,” meaning $14,000. Mirian said that he had “nine” (referring to 9 ounces of cocaine) on him. He told Mr. Feeney to bring him “nine” and that six or seven of it was gone right away. He would “load up” Mr. Feeney “with over 25 G’s.”
On November 8, 2011, Mirian called an unknown party. While on the phone, he was heard discussing money. When Smirnis entered the room, he asked Mirian, “Hey buddy, what’s going on today?” While still on the phone, Mirian spoke about the price of “ten-five” and getting “four nine-packs,” or a total of one kilogram of cocaine. [The evidence establishes that Smirnis acted on behalf of Mr. Feeney while Mr. Feeney was away on vacation from November 5 to November 12, 2011.]
On November 9, 2011, Mirian called Smirnis and told him, “It’s 239 here.” Smirnis asked, “Are you sure? Double check it.” Mirian replied, “He’s sure and he’s dividing it between four guys.” [Two hundred and thirty nine grams of cocaine is just short of 9 ounces.]
On Saturday, November 12, 2011, Mirian told Mr. Feeney that the “price is too high,” that everyone is getting it for “thirty-eight, thirty-nine,” and that “it’s hard to compete.” He was going to charge the guy “twelve twenty-five” but he did not buy it. Mr. Feeney stated that he would “make some phone calls.” Mirian then told him that he “showed” the guy today, “twelve twenty-five” and the guy did not buy “seven” of them, referring to seven ounces of cocaine. Mirian went on to complain about the fact that Mr. Feeney’s “guy,” referring to Smirnis, is “always sleeping.” Mr. Feeney stated that he would “go see him tomorrow on Monday.” He also promised Mirian that “we’ll get back on track on Monday and we’ll straighten everything out.”
Mirian told Mr. Feeney that he would probably have “a little bit of chunk,” like “four or something.” By tomorrow night, he would have at least “fifteen, twenty.” Mr. Feeney then asked Mirian, “What’s your total at right now?” Mirian stated, “eighty-three.” They then discussed the money balance between them and Smirnis, whom Mirian referred to as “your boy.” He told Mr. Feeney that “[Smirnis] doesn’t want to do it again. He’s lazy and he’s waiting for you to come back.” Mr. Feeney stated that he would talk to him and “figure it out.”
On November 14, 2011, Mirian called Mr. Feeney and asked him to bring him “four, four-and-a-half,” referring to four to four-and-a-half ounces of cocaine, or approximately 1/8 of a kilogram.
In another conversation on November 14, Mr. Feeney told Mirian that he had “three-quarters of the hearts left,” which, based on the expert’s testimony, was a reference to 3/4 of a kilogram of cocaine in brick form that was stamped with a heart logo. Mr. Feeney also told Mirian that he could get “the other newer one tomorrow.” He asked Mirian what he wanted. Mirian stated that he had “a half, three guys right now COD.” He also stated that “K’s coming by to clear me out right now and …I have to reload him.” He continued, “I probably take seven, eight, nine, whatever you want to give me, I don’t care.”
On November 17, Mr. Feeney asked Mirian, “Do you think this is going to happen today?” Mirian replied, “yeah” and that he needed “a few.” Mr. Feeney asked, “Yeah, but for me to crack open a whole one?” Mirian responded, “Why not? … What’s the difference? … That’s all you do.” Based on the expert’s testimony, a “whole one” refers to a kilogram of cocaine.
[12] Defence counsel, Mr. Genua, submits that it has not been established beyond a reasonable doubt that Mr. Feeney and Mirian were speaking on October 5, 2011, about a kilogram of cocaine, as opposed to a kilogram of Ecstasy. In this regard, Mr. Genua relies on Kharizfar’s evidence that he purchased Ecstasy from Mr. Feeney on that day.
[13] Both the reliability and credibility of Mr. Kharizfar’s testimony were somewhat problematic. He acknowledged that he had a very bad memory. In addition, the expert witness testified that, in his view, the drug being discussed in the relevant intercepted conversations was cocaine and not Ecstasy. In any event, even assuming that the subject matter of discussion between Mirian and Mr. Feeney on October 5 was Ecstasy, their other conversations, as outlined above, demonstrate that Mr. Feeney trafficked in a substantial amount of cocaine – at least 4.5 kilograms – over a relatively short time frame. That he trafficked in excess of that amount may be inferred from the intercepted communications in which large amounts of money were discussed. For example, on November 11, 2011, a room probe intercepted Mirian and Smirnis as they were counting money. When Mirian asked Smirnis “What are our stacks in?” Smirnis responded, “Thousands.”
[14] The wiretap evidence and the expert’s testimony with respect to the cocaine “chain of distribution” establish that Mr. Feeney was fairly high up in the drug hierarchy. He was not an importer but he was close to the source. He clearly had the power to negotiate the price of cocaine: when Mirian complained about the price being too high, Mr. Feeney responded by saying that he would make some phone calls. It is evident that Mr. Feeney exercised some control over the cocaine business, telling Mirian that when he returned from vacation, “we’ll get back on track on Monday and we’ll straighten everything out.” Mr. Feeney was far removed from being a mere courier, or even an upper-level trusted courier.
Circumstances of the Offender
[15] Mr. Feeney is now 39 years old. He was born and raised in Toronto and is the only child of Irene and Robert Feeney. Although his parents separated when he was thirteen years old, they maintained an amicable relationship, attended family events together and were very supportive of their son. They continue to support him today, as does Mr. Feeney’s girlfriend, Noelle Younes, and his step-mother, Janice Paquette.
[16] Mr. Feeney is described by his family and friends as very personable. He was well-liked at school and excelled at sports. He played junior hockey competitively.
[17] After graduating from high school, Mr. Feeney completed a two-year Correctional Worker Program. In 1997, he was hired by the Toronto Police Service as a court officer. In this sense, he followed in his father’s footsteps: Mr. Feeney Sr. was a court officer, correctional officer, and traffic enforcement trainer. The accused’s uncle is a retired correctional officer. His cousin is also a court officer.
[18] Mr. Feeney was employed by the Toronto Police Service until June 2007, when he was discharged after being convicted of assaulting a prisoner while on duty at the Old City Hall. The offence date was September 2004. He received a 90-day conditional sentence and probation for six months, and was ordered to perform 50 hours of community service. On November 10, 2008, a Crown appeal was allowed and an additional 60 days in jail was imposed.
[19] Mr. Feeney told the author of the pre-sentence report, Lindsay Peachey, that his dismissal from the Toronto Police Service and his conviction for assault had a profound effect on him. He was unable to obtain work in a similar field and could no longer associate with his former colleagues or his cousin. As court officers, they were prohibited from having contact with anyone who had a criminal record. Mr. Feeney found himself isolated from the social network that had been an integral part of his life for ten years. I note that at the time that he was arrested on the present charges, Mr. Feeney was living with his friend, Martin Convery, who was employed as a court officer. Mr. Convery ultimately lost his job as a result of his association with Mr. Feeney.
[20] In an emotional statement to this court, Mr. Feeney described as devastating both the loss of his job in 2007 and being sent to jail. These events sent his life into a tailspin. He had been dealing with a gambling addiction since his early twenties, but that addiction now consumed him. By 2009, he was betting every day. He claims to have lost $150,000 in one week during that year. This was the beginning of a downward spiral, which led to his owing large amounts of money to associates. At one point, he claims to have owed nearly $500,000.
[21] Irene Feeney told Ms. Peachey that she gave her son $30,000 to pay his gambling debts. She also accompanied him to one counselling session at a gambling addiction agency. It appears that this was Mr. Feeney’s one and only attempt to get professional help for his addiction. Mr. Feeney stated that he felt that he had the situation under control at the time and that he could stop himself from gambling.
[22] Mr. Feeney Sr. advised Ms. Peachey that from 2007 to 2011, he was aware that his son had a serious gambling problem. Mr. Feeney Sr. and his common-law partner ended up giving the accused in excess of $300,000 over a period of years in order to pay his gambling debts.
[23] Mr. Feeney’s parents felt obliged to give him money because he told them that he was in serious danger of being hurt if he did not repay the debts in a timely way.
[24] Mr. Feeney stated that in 2010 he was so overwhelmed by his situation, and the money that he owed, that he went to Australia with the hope of starting a new life there. However, after three months, he changed his mind and returned to Toronto.
[25] Mr. Feeney identified his gambling addiction and lack of maturity as factors that played a role in his commission of the present offences. He advised Ms. Peachey that he was willing to attend counselling for his gambling addiction if the court recommended it.
[26] Ms. Peachey noted that although Mr. Feeney expressed a desire to get help for his addiction, he has not sought any counselling and has admitted to gambling on-line while on bail. Ms. Peachey was left with the impression that Mr. Feeney was not overly concerned about his addiction, and expressed the view that if he continued to gamble, he could well find himself caught up in the criminal justice system in the future.
[27] While on bail, Mr. Feeney obtained a job with Paragon Securities, where he was employed from October 2012 until his bail was revoked on February 18, 2015. Three months after he started work, he was promoted to Security Supervisor and was paid $19.50 per hour (40 hours per week). His manager, Johan Gonzalez, spoke to Ms. Peachey and also wrote a letter of support for Mr. Feeney. Mr. Gonzalez describes Mr. Feeney as reliable, honest, and hardworking. Other Paragon employees used similar language in their letters of support: see Exhibit 2.
[28] There is no question that Mr. Feeney is highly regarded by his colleagues and considered to be a natural leader and positive role model. Others who have encountered him speak of his kindness and compassion; for example, Merhan Bernah, who owns and operates a hot dog stand at 483 Bay Street, described how Mr. Feeney would buy lunches from him for homeless people in the area. Mr. Feeney’s barber, Mark Robin, described an incident in which Mr. Feeney was having his hair cut when a bicyclist was hit by a car outside of his shop. Mr. Feeney immediately jumped up, attended to her, and brought her inside while they waited for an ambulance. Maria Machado, who is a supervisor at 483 Bay Street for UNICCO housekeeping, describes an incident in which one of her cleaners, after being trapped in an elevator, suffered a severe panic attack. Mr. Feeney stayed on the phone with him throughout the ordeal and managed to keep him calm until the elevator was fixed.
[29] Mr. Feeney’s girlfriend, Ms. Younes, is an Australian citizen who arrived in Canada on a work visa in September 2013. She and Mr. Feeney first met in October of that year. From the outset, Mr. Feeney was straightforward with Ms. Younes about the fact that he was facing criminal charges and was on bail. In her letter of support, Ms. Younes states that, by January 2014, their relationship had developed into a “devoted and faithful partnership.” Mr. Feeney told the court that he wants to marry Ms. Younes and start a family with her.
[30] Ms. Younes has visited Mr. Feeney in custody. She describes him as more emotional than she has ever seen him, which she attributes to his remorse for having committed these offences. Mr. Feeney also expressed remorse in his statement to the court, which I accept as sincere.
[31] Mr. Feeney pointed to various aspects of his behaviour while on bail that are positive indicators of his rehabilitation. He described himself as humbled. He took a job that initially paid him only the minimum wage but worked very hard and gained a promotion. He has dissociated himself from anyone who could be a bad influence on him. He has been conscientious about complying with all the conditions of his bail, which included house arrest and then a curfew. He has also worked hard to get into better physical shape by attending a gym, doing yoga, and losing weight.
Case Law
Authorities cited by the defence
[32] In support of his position that the appropriate range of sentence in this case is four to six years, counsel for Mr. Feeney relied on the following cases: R. v. Williams, 2015 ONSC 322; R. v. Rafilovich, 2013 ONSC 7293; R. v. Goncalves, 2011 ONSC 2577; R. v. Bertrand, 2012 ONSC 7519; R. v. Toorie, 2012 MBQB 135; and R. v. Okash, 2010 ONCJ 93.
[33] In all of these cases, the accused were charged with possession of cocaine for the purpose of trafficking, as opposed to the offence of conspiracy to traffick in cocaine, for which Mr. Feeney has been convicted. With the exception of Goncalves and Okash, all of the accused pleaded guilty, thereby demonstrating remorse. In Okash, the accused conceded the Crown’s case after his Charter application was dismissed.
[34] In Williams, the accused pleaded guilty to possession of 510 grams of crack cocaine for the purpose of trafficking. The drug was found under the passenger seat of the car that Mr. Williams was in. In imposing a sentence of three years, Kelly J. noted that there was no historical evidence that Mr. Williams was a drug trafficker, as opposed to a courier. She also distinguished Mr. William’s case from the accused in R. v. Bajada (2003), 2003 CanLII 15687 (ON CA), 173 C.C.C. (3d) 255 (Ont. C.A.). Mr. Bajada was found guilty after trial of possession of half a kilogram of cocaine for the purpose of trafficking. He had fled from police and was arrested at gunpoint. He had a serious criminal record, including a conviction for robbery and drug-related offences for trafficking. In reducing the sentence from eight to six years, the Court of Appeal stated 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.
[35] I note that subsequently, in R. v. Nero, 2008 ONCA 622, the court distinguished Bajada, and held that it would be an error in principle to consider a five-year sentence adequate where trafficking and possession charges relate to significant quantities of cocaine over a three-month period, indicative of extensive involvement at a high level in the drug hierarchy. Mr. Nero pleaded guilty to two counts of trafficking, each of which involved one kilogram of cocaine, one month apart. These offences were committed while he was on bail and probation. He was in possession of a further kilogram at the time of his arrest. The court held that, in these circumstances, his culpability was considerably higher than that of Mr. Bajada, and that the appropriate sentence was one of eight years. Mr. Nero, age 31, pleaded guilty at an early stage in the proceedings. He had a prior record for assault.
[36] In Rafilovich, the offender pleaded guilty to two sets of charges arising from two occurrences. The total amount of cocaine in his possession was slightly over half a kilogram. During the first occurrence, Mr. Rafilovich was in a car and appeared to be involved in several hand to hand drug transactions. He was on bail for the first occurrence when he was found in possession of another 27 grams of cocaine. Croll J. found that the quantity of drugs and the amount of cash seized – $40,000 – together with scales, a vacuum sealer, and a money counter, suggested a relatively sophisticated operation of drug dealing. In imposing a global sentence of three years, Croll J. distinguished Mr. Rafilovich’s case from that of Mr. Bajada. Mr. Rafilovich had a dated and unrelated criminal record. He had achieved considerable academic success. In addition, Mr. Rafilovich demonstrated selflessness and strength of character when, as part of his plea negotiations, he strove to ensure that his mother would not forfeit her interest in the condominium that they jointly owned, and that his co-accused would not face any jeopardy.
[37] In Goncalves, the accused was found guilty of one count of possession of cocaine for the purpose of trafficking and one count of possession of heroin for the purpose of trafficking. The drugs were found in his home. The total cocaine seized was about 900 grams. The total heroin seized was 40 grams. Kitely J. imposed a sentence of two years less a day, plus probation for three years, to be served concurrently on each charge. A major mitigating factor in Goncalves was the fact that Mr. Goncalves was a street level dealer who was an addict. He had sought treatment and was on methadone at the time of sentencing. In upholding the sentence, the Court of Appeal deferred to the trial judge’s finding of fact regarding the offender’s addiction and his position at the lowest level of the chain of distribution: see R. v. Goncalves, 2012 ONCA 139.
[38] In Bertrand, the 25-year-old accused, who suffered from Attention Deficit Disorder, pleaded guilty to possession of cocaine for the purpose of trafficking. The police, who had information that Mr. Bertrand was involved in the drug trade, stopped his car when he went through a red light. They ultimately found 253 grams of cocaine in the trunk of the car. Mr. Bertrand told the police that he agreed to transport the cocaine for a friend in exchange for $500, and that he had no job and did it for the money. The car belonged to his aunt. He had no criminal record. Fuerst J. imposed a sentence of 14 months, plus probation for two years. Mr. Bertrand’s case is clearly distinguished from Mr. Feeney’s on the basis of Mr. Bertrand’s youth; lack of criminal record; guilty plea; lack of sophistication; lesser role as a courier, which placed him at a lower level in the drug hierarchy; and the amount of cocaine in his possession.
[39] In Toorie, the 26-year-old accused pleaded guilty to the possession of 30 individually-wrapped one-ounce packages of cocaine for the purpose of trafficking. The drugs were in the back seat of his car when the police pulled him over. Mr. Toorie was described as a trusted mid-level courier. Unlike in the present case, there was no evidence that Mr. Toorie was a drug trafficker. He received a sentence of three years, which was at the lower end of the three to six year range referred to by the Manitoba Court of Appeal in R. v. Rocha, 2009 MBCA 26, for mid-level drug couriers. As stated earlier, Mr. Feeney’s role in the drug-trafficking conspiracy was much higher in the hierarchy than that of a courier.
[40] In Okash, the offender, who was barely out of his teens at the time of his arrest, conceded the Crown’s case following the dismissal of his s. 8 Charter application. He was convicted of possession of 250 grams of powder cocaine for the purpose of trafficking, possession of 109 grams of crack cocaine for the purpose of trafficking, possession of crime proceeds in the amount of $2,045, failing to comply with a probation order, and failing to comply with a recognizance. Green J., in imposing a global sentence of 30 months, determined that Mr. Okash was a supplier of street-level traffickers and that he generally operated, at highest, at the ounce dealing level. This placed him at level (2) on the following five levels of trafficking set out in R. v. Barkow, 2008 ONCJ 84, starting at the bottom of the hierarchy:
(1) Street level seller – small hand-to-hand transactions, often an addict-trafficker;
(2) Street level supplier – transactions up to an “Eight-Ball” [eighth of an ounce] or one ounce;
(3) Supplier to street-level supplier – multi-ounce transactions;
(4) Distributor to supplier – one-half kilo to multi-kilo transactions;
(5) Importer to distributor.
[41] Using the above levels as a point of reference in the present case, Kharizfar would be at Level (2) and Mirian at level (3).
[42] Kharizfar was arrested in relation to Project Gladiator on November 30, 2011. About one year later, he pleaded guilty to possession of cocaine for the purpose of trafficking, possession of heroin for the purpose of trafficking, and possession of methamphetamine for the purpose of trafficking. He received a global sentence of four years.
[43] Mirian absconded before his trial. His whereabouts are unknown. Smirnis, whom I am satisfied was acting under Mr. Feeney as his “guy” or his “boy,” pleaded guilty to one count of conspiring to traffic in cocaine. He entered his guilty plea prior to the preliminary hearing and received a sentence of three years on a joint submission. Crown counsel pointed out that no drugs were found at Smirnis’ residence or in his possession.
Authorities cited by the Crown
[44] In support of their position that a sentence of 12 years is appropriate, Crown counsel relied on cases filed and summarized in a chart under the heading, “The Range of Sentence for Multi-Kilos of Cocaine.” The sentences imposed in these cases, most of which are from the Ontario Court of Appeal, range from 5 to 12 years. They include: R. v. Bryan, 2011 ONCA 273; R. v. Lajeunesse, Paris and Normand (2006), 2006 CanLII 11655 (ON CA), 208 O.A.C. 385 (C.A.); R. v. Isaza, (1990) 1990 CanLII 11024 (ON CA), 55 C.C.C. (3d) 436 (C.A.); R. v. Nero, supra; R. v. Kum, 2012 ONSC 1314; R. v. Majnoon, 2009 ONCA 876; leave to appeal dismissed at [2010] S.C.C.A. No. 288; R. v. Cavuoti, [1990] O.J. No. 17 (CA); R. v. Muise, [2007] O.J. No. 5553 (Ont. C.J.), upheld at 2008 ONCA 665; and R. v. McIntyre, unreported, Ont. S.C.J., November 10, 2014.
[45] In Bryan, the court stated that “normally, in cases of this nature, sentences of 5 to 8 years would reflect the proper range for someone, without a record, convicted of possession for the purpose of trafficking in slightly more than a pound of cocaine.” Bryan involved a guilty plea in which there were “fairness concerns” arising from the way in which the accused was persuaded to plead.
[46] In Lajeunesse, Paris, and Normand, a jury found the appellants Paris and Normand guilty of possession of and conspiracy to traffic in cocaine. They received sentences of seven-and-a-half years and 12 years respectively. In dismissing their appeals, the court held that while the sentences were high, they were within the range for those trafficking in multi-kilos of cocaine. The evidence was “overwhelming” that the appellants were involved in trafficking at the multi-kilo level.
[47] Counsel for Mr. Feeney distinguished the present case from the facts in Lajeunesse, Paris and Normand. He pointed out that Mr. Feeney may have, over the course of the investigation, trafficked in excess of four or five kilograms of cocaine to Mirian. However, there is no evidence that he was selling multi-kilos at a time.
[48] In Isaza, the three respondents, Isaza, Giraldo-Garcia, and Ospina-Lopez, pleaded guilty to conspiracy to traffic cocaine. Isaza, age 21, and Giraldo-Garcia, age 23, each received a sentence of four years. Ospina-Lopez, who was to have married Isaza on the day he was arrested, was sentenced to seven years. On appeal, the court held that a ten-year sentence was appropriate for Ospina-Lopez, and that a term of seven years for Isaza and Giraldo-Garcia reflected their lesser participation. Each of these sentences was reduced by one year as a result of credit being given for time spent in pre-trial custody.
[49] The respondents in Isaza were illegal Colombian immigrants who became involved in a sophisticated cocaine operation within months of their arrival in Canada. Over a 25-day period, they made at least four one-kilo sales of cocaine to a co-accused. The cocaine was almost 100 per cent pure. Ospina-Lopez was in charge of the operation and must have been dealing with a major importer, given the quantities of cocaine and its purity. A debt list found in his pocket upon his arrest reflected the purchase of 15 kilos of cocaine at $17,500 per kilo, or a total of $262,500. Another debt list related to ten kilos of cocaine, costing $178,100 U.S. The same sheet included calculations for transportation expenses and for conversion from American to Canadian dollars. It reflected an outstanding cocaine debt of $221,600 U.S. Although Isaza and Giraldo-Garcia played lesser roles in the conspiracy, their roles were still significant. The conspiracy would not have been effective without their participation.
[50] In Kum, the 57-year-old accused had no relevant prior criminal record, was a hardworking citizen of previous good character, had been consistently employed, and supported his family. He was convicted after trial of trafficking in three kilograms of cocaine and possession of crime proceeds in the amount of $54,040. The wiretap evidence showed that this particular transaction was part of an ongoing relationship between Mr. Kum and the purchaser. The evidence also suggested that the transactions normally involved multiple kilograms. The purchaser wanted to buy up to five kilograms at a time. The accused was endeavouring to get larger shipments and succeeded on this occasion in obtaining three kilograms.
[51] Wein J. found that Mr. Kum had a frequent and “high level of involvement in this group.” He had a significant degree of control, and had the authority to negotiate price, quantity, and location. He was far removed from being a mere courier or even an upper level trusted courier. Wein J. found that the appropriate range of sentence was eight to ten years. She imposed a sentence of eight years.
[52] In Majnoon, the accused pleaded guilty to conspiracy to traffic in cocaine. The trial judge imposed a sentence of two years less one day, to be followed by 30 months’ probation. Twelve months’ credit was given for six months spent in pre-trial custody. The jail portion of the sentence was therefore the equivalent of three years less one day. The Crown appealed.
[53] Mr. Majnoon was part of a highly commercialized and organized group that brought cocaine into Ottawa by the kilogram and distributed it within the city at the multi-ounce level. The agreed statement of fact, which was reproduced in the Crown’s factum on the appeal, indicates that Mr. Majnoon travelled to Montreal and returned to Ottawa with kilogram-level shipments of cocaine on at least two occasions. On one trip, he picked up 1.2 kilograms of cocaine. Upon his arrest, he was in possession of a further 1.2 kilograms of cocaine. On a number of occasions, he negotiated the price and quantity of cocaine with suppliers within the distribution arm of the operation. The Court of Appeal held that in these circumstances, the trial judge erred in characterizing Mr. Majnoon’s role as simply that of a courier. He was not at or near the top of the hierarchy of the drug operation. He did, however, have an interest in the operation that went beyond whatever compensation he received for transporting the drugs from one place to another, and was involved in the distribution of the drug at that level. The court found that the appropriate sentencing range was five to seven years, and imposed a sentence of five years.
[54] In Cavuoti, the 38-year-old appellant was convicted after trial of conspiracy to traffic in cocaine and possession of five pounds or about 2.3 kilograms of cocaine for the purpose of trafficking. The value of the drug, which was found in the trunk of a vehicle, was about $300,000. The appellant had no drug-related criminal record and there was no evidence of what benefit he would have received personally from the conspiracy. The court held that the six-year sentence imposed by the trial judge was fit, having regard to: the nature, quantity, and value of the cocaine seized; the obvious commercial nature of the transaction; the need for individual and general deterrence; and the sentences in similar cases even for minor role players.
[55] In Muise, the accused, age 47, pleaded guilty at a relatively early opportunity to two counts of trafficking in cocaine. He was involved in the delivery of one kilogram of cocaine on three separate occasions. Mr. Muise’s criminal activities came to light during an investigation that targeted members of the Hell’s Angel’s Motorcycle Club, although Mr. Muise was not himself a member of the club. He was married with stepchildren, supported his family, and had been employed in the Navy, from which he received a pension. He ran a car business with one of his co-accused. He had the support of his family and his prospects for rehabilitation were good. He had a prior conviction for cultivating marijuana plants, for which he received a fine.
[56] Mr. Muise was relatively high in the hierarchy of the drug-trafficking enterprise. He directed a co-accused as to where to deliver the drugs. He linked himself directly and indirectly to at least one, if not more processing or stash houses. He was prepared to take over the responsibility of delivering the drugs when he could not locate his courier. He reported to an apparently higher-up individual when one of the deals was concluded. He was entrusted with the delivery of large amounts of very pure cocaine, which indicated a position of trust and responsibility in the organization. An aggravating factor was that the offences were committed for the benefit of a criminal organization – a factor that is not present in Mr. Feeney’s case.
[57] After considering the aggravating and mitigating factors, Dobney J. determined that the appropriate range of sentence was eight to ten years, and imposed a sentence of eight years. At para. 80, she stated that the reason why Mr. Muise committed the offences played only a small role in reducing his sentence from what was appropriate, given the harm done to society from the distribution of cocaine. Without cocaine distributors, individuals would be hard pressed to access a substance that is not indigenously available in Canada. The eight-year sentence was upheld on appeal.
[58] In McIntyre, the offender, age 44, was convicted by a jury of trafficking in one kilogram of cocaine. Ramsay J. found that Mr. McIntyre was “neither a top-level importer nor a low-level distributor. He was in the middle of the chain.” Mr. McIntyre had his own business, a supportive family, and ailing parents. Ramsay J. found that evidence that the offender had purchased drugs from a co-accused on two earlier occasions during the investigation significantly lessened any mitigating effect from the fact that he had no prior criminal record. Ramsay J. also did not accept Mr. McIntyre’s apology to the court, finding that he “is only sorry about what the justice system has done to him.” He imposed a sentence of eight years. This case is currently under appeal.
Mitigating and Aggravating factors
[59] Mr. Feeney is obviously a bright and able individual who has the potential to succeed in life. The letters of support filed with the court describe him as a natural leader. While on bail, Mr. Feeney has demonstrated through his employment at Paragon Securities that he can be a contributing member of society. He has taken steps to dissociate himself from those who could influence him in a negative way. He has the unwavering support of his family, his girlfriend, and his colleagues. He has no prior convictions for drug offences. His criminal record, which consists of one conviction for assault, is now somewhat dated and is unrelated to the offences before the court.
[60] Mr. Feeney does not benefit from the mitigating factor of a plea of guilty. However, he acknowledged to Ms. Peachey that his actions were reckless and endangered the public. In his statement to the court, he acknowledged having made bad choices. He stated that he was sorry for having committed these offences and embarrassed by his actions. He underlined the fact that he has made good choices while on bail, which are positive signs in terms of his rehabilitation.
[61] Mr. Feeney has indicated that he has a serious gambling addiction and that his motivation to traffic in drugs was to make money in order to repay his gambling debts. Although that motivation may be viewed as a mitigating factor, it is diminished in significance by virtue of the fact that Mr. Feeney has taken no steps while on bail to deal with his addiction. In this regard, his case is in stark contrast to that of the accused in R. v. Kuenzler, 2010 ONSC 4016, who, two weeks following his arrest on six drug-related offences and two counts of possession of the proceeds of crime, commenced therapy at CAMH for a gambling addiction. Mr. Kuenzler self-excluded at casinos, saw a psychiatrist, and participated for over two years in treatment. The trial judge found that his motivation to engage in drug activity was his need to finance his gambling activity. She also found that this motivation was a key mitigating factor in light of the accused’s participation in treatment, his enormous effort to address his addiction, and the remarkable progress that he had made in that regard.
[62] In the present case, the author of the pre-sentence report noted that although Mr. Feeney indicated that he understands the gravity of the offences and expressed a willingness to attend counselling if the court recommended it, he provided no valid reason for not having engaged in any treatment thus far. He has admitted to gambling on-line while on bail. There is a concern that if Mr. Feeney continues to gamble he could once again find himself caught up in the criminal justice system.
[63] Aggravating factors include the quantity of cocaine seized, which was substantial: 9 ounces located in Mr. Feeney’s knapsack at Mirian’s condominium, 13½ ounces found in a knapsack at Mr. Feeney’s apartment, and a further 7 grams or ¼ of an ounce in a gym bag. In addition, as previously outlined, the wiretap evidence establishes that over the course of the second authorization, Mr. Feeney supplied Mirian with at least four-and-a-half kilograms of cocaine. Mr. Feeney was also in possession of a significant amount of money – almost $41,000 – which constitutes the proceeds of crime. The obvious commercial nature of the transactions Mr. Feeney was involved in with Mirian is an aggravating factor. The quantity and value of the cocaine makes this a very serious offence.
[64] Mr. Feeney operated at the higher echelons of the drug trafficking hierarchy. He was two levels above Kharizfar, who received a sentence of four years, and was one level above Mirian. Mr. Feeney was not an importer; however, the expert evidence indicates that he was fairly close to the source. His conversations with Mirian indicate that he had the power to negotiate the price, and he exercised a certain level of control over the operation. Mr. Feeney’s role and position in the chain of distribution requires a higher sentence than that imposed on a courier or even an upper-level trusted courier.
[65] Mr. Feeney was dealing in an addictive drug that has repeatedly been described by the courts as a scourge, an epidemic, and a cancer in our society. As Dobney J. stated in Muise at para. 47:
[T]he blight of drugs in our society is very serious. There are long-term effects far beyond just a person using drugs for their own recreation. Violence blossoms as turf wars erupt. Thefts proliferate as users seek more money to buy drugs. The devastating impact that individual drug users have on their families, jobs, and society’s social support network when addictions have negative consequences are far reaching. The ties of the drug dealing to criminal organizations that involve themselves in other antisocial activities, endangering lives and corrupting others, cause untold misery.
[66] Mr. Feeney, having served as a court officer for ten years, was no doubt aware of the harmful consequences that cocaine can wreak on not only the addict but also society as a whole, when he commenced trafficking in the drug.
[67] The case law makes it clear that society’s interest can only be served by the court making it abundantly clear that drug-traffickers will bear significant consequences if convicted. As pointed out by Dobney J. at para. 50 in Muise, the need for a strong message to like-minded individuals is such that even a prior good background will unlikely save an offender from going to prison for a significant period of time.
[68] The more recent authorities from the Ontario Court of Appeal, including Nero, indicate that multiple trafficking offences at the kilogram level call for a sentence in a higher range than that suggested by defence counsel, and certainly higher than the five to five-and-one-half years referred to by that court in Bajada. The culpability of Mr. Feeney, like that of Mr. Nero, is higher than the culpability of Mr. Bajada, who received a sentence of six years.
[69] In my view, the appropriate range in this case is seven to ten years.
[70] Although the primary considerations in sentencing Mr. Feeney must be denunciation and deterrence, the principle of rehabilitation cannot be ignored. Having considered and weighed the principles of sentencing set out in ss. 718 to 718.2 of the Criminal Code, as well as the submissions of counsel, I find that the appropriate global sentence, prior to calculating the credit to be given for pre-trial custody and time spent on restrictive bail conditions, is eight years imprisonment.
[71] The sentence on each count in the indictment is as follows:
Count 1: Conspiracy to traffic in cocaine – 8 years;
Count 2: Possession of cocaine for the purpose of trafficking – 5 years concurrent;
Count 3: Possession of cocaine for the purpose of trafficking – 5 years concurrent;
Count 4: Possession of the proceeds of crime exceeding $5000 – 3 years concurrent; and
Count 5: Possession of the proceeds of crime not exceeding $5000 – 1 year concurrent.
Credit for time served in pre-trial custody
[72] Mr. Feeney was arrested on November 22, 2011, and was released on bail eight days later on November 29, 2011. His bail was cancelled on February 18, 2015, after the jury found him guilty on all five counts. This has resulted in his having served an additional 103 days. The total time in pre-trial custody is therefore 111 days, which, when credited on a 1.5:1 basis, is the equivalent of a sentence of 167 days or about 5 ½ months. Because Mr. Feeney was a former court officer, he has been held in protective custody, or what amounts to segregation.
Restrictive Bail Conditions
[73] Mr. Feeney was initially released on a restrictive bail that required him to be in his house at all times except for the purposes of employment or if he was in the company of his surety, who was his mother. These conditions were in place until July 2013, when the house arrest condition was converted to a curfew of 11:00 p.m. The curfew was subject to the same exceptions as the house arrest condition, that is, for the purposes of employment, or if he were in the company of his surety.
[74] Mr. Feeney has therefore been subject to either house arrest or a curfew for a total of about 38½ months. He has never breached any of the terms of his recognizance. His family members and friends, in their letters of reference, speak of Mr. Feeney being extremely conscientious in complying with his bail conditions.
[75] In the circumstances, and in accordance with the principles set out in R. v. Downes (2006), 2006 CanLII 3957 (ON CA), 79 O.R. (3d) 321 (CA), I find that Mr. Feeney should be credited with 6 ½ months for the time that he has spent on strict terms of release.
Final Decision
[76] The time credited for pre-trial custody (5 ½ months), plus time credited with respect to strict terms of release (6 ½ months) equals one year. The record will therefore be endorsed as follows:
Count 1: Conspiracy to traffic in cocaine – eight years less 5 ½ months for 167 days of pre-trial custody on a 1.5:1 basis, and less 6 ½ months for 38 ½ months spent on strict terms of release, for a net effective sentence commencing today of seven years in the penitentiary;
Count 2: Possession of cocaine for the purpose of trafficking – 5 years concurrent;
Count 3: Possession of cocaine for the purpose of trafficking – 5 years concurrent;
Count 4: Possession of the proceeds of crime exceeding $5000 – 3 years concurrent; and
Count 5: Possession of the proceeds of crime not exceeding $5000 – 1 year concurrent.
Ancillary Orders
[77] There will be a weapons prohibition order with respect to the items listed in subsection 109(2)(a) of the Criminal Code for ten years, and an order for life with respect to the items referred to in subsection 109(2)(b).
[78] There will also be an order pursuant of s. 487.051(3)(b) of the Code, requiring Mr. Feeney to provide the number of samples of bodily substances that is reasonably required for the purpose of forensic DNA analysis. In making this order, I have considered the serious nature of the offences, which involved ongoing criminality, and the fact that this is not his first criminal conviction. The impact of such an order would have minimal impact on Mr. Feeney’s privacy and security of his person. I am satisfied that the order is in the best interests of the administration of justice.
GARTON J.
Released: May 21, 2015
CITATION: R. v. Feeney, 2015 ONSC 3218
COURT FILE NO.: 1-623296
DATE: 2015/05/21
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
– and –
JOHNNY FEENEY
Reasons on sentence
GARTON J.
Released: May 21, 2015