ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-15-9/28
DATE: 20151119
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
MARK ANTHONY BARREIRAS
Ian Bell, for the Crown
Benjamin Goldman, for the Accused
HEARD: September 18, October 29, 2015
K.L.Campbell J.:
Reasons for Sentence
A. Overview
[1] On September 18, 2015, the accused pled not guilty to a single count of possession of cocaine for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19, (CDSA). The offence was allegedly committed in Toronto on or about February 15, 2014.
[2] The trial was brief and proceeded entirely upon an agreed statement of facts. Essentially, the parties agreed that a search warrant was executed at the accused’s apartment on Victoria Park Avenue in Toronto on February 15, 2014, and the police discovered and seized a total of 145.06 grams of crack cocaine and 1,180.06 grams of powdered cocaine from a number of locations in the apartment. The police also discovered two pyrex cups consistent with having been used to cook crack cocaine, two cell phones, four digital scales, and $8,090 in cash. Other evidence seized by the police revealed that the accused shared the apartment with his daughter.
[3] As part of the agreed statement of facts, the accused expressly conceded: (1) that a trier of fact could reasonably infer from this evidence that he was in possession of the cocaine, the money and the drug trafficking paraphernalia at his apartment; (2) that the quantity of the cocaine, the amount of the currency and the drug trafficking paraphernalia support the inference that the cocaine in the apartment was possessed for the purposes of trafficking; and (3) that he did not propose any other alternative inference from these admitted facts. In the result, I concluded that the accused was guilty of the alleged offence. Based upon the agreed statement of facts, I was satisfied of his guilt beyond a reasonable doubt.
[4] The accused has now been in custody following his arrest in mid-February of 2014, for a period of just over 21 months. The parties agree that, in all of the circumstances, including the relatively harsh custodial conditions the accused has experienced during his time in pre-sentence custody, the accused should be accorded the maximum enhanced credit available. According to s. 719(3.1) of the Criminal Code, R.S.C. 1985, c. C-46, the maximum enhanced credit is 1.5 days credit for each day of pre-sentence custody. Giving the accused this maximum enhanced credit, which I agree he deserves, means that the accused should be credited with having already effectively served approximately 32 months. I accord him that credit. See R. v Summers, 2014 SCC 26, [2014] 1 S.C.R. 575, at paras. 7, 34, 68-80, affirming, 2013 ONCA 147, 114 O.R. (3d) 641.
[5] The Crown argues that given the gravity of the offence committed by the accused and the personal circumstances of the accused, the sentence that should be imposed upon the accused is five-and-a-half years imprisonment (less his credit for pre-sentence custody). Defence counsel contends, however, that the accused should be sentenced to a four-year term of imprisonment (less his credit for pre-sentence custody). The parties agree that certain ancillary sentencing orders should also be made.
B. The Agreed Facts of the Offence
[6] On February 15, 2014, at approximately 11:40 p.m., members of the Toronto Police Service “Guns and Gangs Task Force” executed a Criminal Code search warrant at 2743 Victoria Park Avenue, unit 1008, in the City of Toronto. This target address is an apartment in a Toronto Community Housing building.
[7] Earlier in the evening, at 10:15 p.m., surveillance officers had observed the accused leave the rear door of the apartment building at 2743 Victoria Park Avenue and enter a vehicle with a female. The female, later identified as Josephine Johnson, entered the driver’s seat of the vehicle and the accused entered the passenger seat. The vehicle was followed a short distance away and the accused was arrested in the vehicle at approximately 11:05 p.m. The accused was found in possession of a key to the target address and the target address building when he was searched incident to his arrest. Ms. Johnson was subsequently released without charges after providing a statement.
[8] The accused had earlier been observed attending the target address building on the evenings of February 5 and February 13, 2014. He was never observed attending the specific target address apartment (or any other apartment) in the target address building.
[9] When the search warrant was executed, significant quantities of cocaine were located within the target address.
[10] Cst. Todd Storey searched a chest of drawers in the living room and located 55.46 grams of crack cocaine and 136.74 grams of powder cocaine in one of the drawers.
[11] Cst. Brian Small searched the kitchen cabinets of the apartment. He located 77.5 grams of powder cocaine and 77.52 grams of crack cocaine on the middle shelf of one of the kitchen cabinets. He further located a “kilo” package containing 835.17 grams of powder cocaine on the bottom shelf of a kitchen cabinet. Also on that shelf were 130.65 grams of powder cocaine in two sandwich bags and 12.08 grams of crack cocaine in chunks.
[12] Also located in the apartment were two pyrex cups consistent with being used to cook crack cocaine, two cell phones, and four digital scales.
[13] A total of $8,090 in Canadian currency was also located in the apartment.
[14] Numerous documents in the accused’s name were located in the apartment.
[15] Cst. Storey located various correspondence addressed to the accused at the target address in the chest of drawers. This correspondence included letters from the City of Toronto, Toronto Community Housing, Service Ontario, Ontario Works, TD Bank, and a paralegal firm. Cst. Storey also located a probation order in the accused’s name and Toronto Community Housing paperwork to add Channelle Russell as an additional tenant for the target address apartment. The paperwork indicates that Ms. Russell is the accused’s daughter.
[16] Cst. Mark Tan also located various personal documents in the bedroom of the apartment in the name of the accused. These documents included correspondence from the Canada Revenue Agency, TD Bank, the Ontario Ministry of Community and Social Services, the “Brick” store, and a paralegal firm. Also found in the bedroom was a Canadian passport in the name of Ms. Russell.
[17] Both male and female clothing and personal effects were found in the apartment.
[18] The accused concedes that the trier of fact could reasonably draw the inference that he was in possession of the controlled substances, Canadian currency, and drug trafficking paraphernalia located in the target address and does not propose any alternative inference as a reasonable inference arising from these facts.
[19] The accused further concedes that the quantity of cocaine found, and the presence of over $8,000 in Canadian currency and drug trafficking paraphernalia, support the inference that the cocaine in the apartment was possessed for the purpose of trafficking and does not propose any alternative other inference as being consistent with these facts.
[20] The quantity of cocaine (crack and powder) unlawfully possessed by the accused totals 1.325 kilograms (or 2.921 pounds). The parties agree that the monetary value of the cocaine unlawfully possessed by the accused is between $49,000 and $55,000, if it were sold “wholesale” at the kilogram level, and between $128,000 and $154,000, if it were sold “retail” at the gram level.
[21] Needless to say, the accused was discovered in possession of a substantial quantity of cocaine, which had a substantial value, for the purposes of trafficking. No explanation has been advanced as to why the accused was in possession of this quantity of cocaine, apart from the obvious one, that he was going to sell the drugs for economic profit.
C. The Personal Circumstances of the Accused
[22] The accused is now 35 years old. He is a Canadian citizen. He is involved in a common law relationship, and has two daughters, aged 20 and 13 years. He continues to enjoy a good relationship with both of his daughters, and is involved in their lives, emotionally and financially. According to the letters that were filed attesting to his good character as a “changed person,” the accused is, indeed, a “devoted and loving father,” who has been trying to grow his strong relationships with his daughters. The accused also provides helpful assistance to his elderly mother. The accused enjoys the continuing support of his spouse.
[23] The accused and his sister were raised largely by their mother, as their father left the family home when the accused was in the first grade. The accused’s father was physically abusive to his mother, and their marital relationship ultimately ended. The accused had no further contact with his father thereafter, and the family home became more stable once his father left.
[24] The accused first became a father himself when he was but 15 years of age, and had to wrestle with the challenges and responsibilities of parenthood at that young age, which complicated his teenaged life.
[25] The accused eventually graduated from high school, and received his Ontario Secondary School Diploma in 2005. He attended high school for four years, from 1996 through 1999, but was expelled for reasons of truancy and disruption. Subsequently, while incarcerated, the accused obtained the final necessary credits for his diploma in 2005.
[26] In the five years prior to his arrest, the accused was working, through an employment agency, at temporary and irregular jobs, for days or weeks at a time, as a general labourer and in construction. The accused has also worked periodically as a barber, renting a chair in a barbershop.
[27] The accused has a significant criminal record. He was first convicted as a young offender in 1996, when he was not yet 16 years old. Indeed, the accused committed four offences before becoming an adult, including dangerous driving causing bodily harm, theft under $5,000, and failing to comply with court orders. He was first convicted as an adult offender in 1999, when he was not yet 19 years old. Since that time, the accused has continued to commit a variety of different offences, including various narcotics offences (i.e. possession, possession for the purpose of trafficking, and trafficking), firearms offences (i.e. possession of a prohibited or restricted firearm with ammunition, carrying a concealed weapon, and carrying a firearm carelessly), assault, and multiple offences of failing to comply with a recognizance. The accused has 20 previous adult convictions, relatively evenly distributed over a period of 12 years between 1999 and 2011 (not including the offence before the court). His longest previous sentence is a global sentence of four years imprisonment, in 2004, for firearms offences, when the accused was given a sentence of 21 months imprisonment following 27 months of pre-sentence custody.
[28] While he has been in custody pending these proceedings, the accused has taken advantage of, and successfully completed, a wide variety of educational programs offered by the correctional services, including programs in anger management, understanding feelings, managing stress, changing habits, use of leisure time, problem solving, goal setting, looking for work, maintaining employment, budgeting, supportive relationships, being an effective father, and planning for discharge. Some 18 Certificates of Completion were filed on the sentencing hearing evidencing the accused’s completion of these programs.
D. The Governing Sentencing Principles
[29] According to s. 718 of the Criminal Code, the “fundamental purpose” of sentencing is to contribute to “respect for the law and the maintenance of a just, peaceful and safe society” by imposing “just sanctions” that have one or more of the following objectives: (a) to denounce unlawful conduct; (b) to deter the offender and others 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 the community; and (f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and the community.
[30] Further, according to s. 718.1 of the Code, the “fundamental principle” of sentencing is that a sentence “must be proportionate to the gravity of the offence and the degree of responsibility of the offender.”
[31] Section 718.2 of the Code also dictates that, in imposing sentence, the court must also take into account a number of principles, including the following:
• A sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender;
• A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;
• Where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;
• An offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and,
• 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.
[32] Without restricting the generality of these Criminal Code provisions, s. 10(1) of the CDSA states that the “fundamental purpose” of any sentence for an offence under Part I of the act is to “contribute to the respect for the law and the maintenance of a just, peaceful and safe society” while “encouraging rehabilitation, and treatment” of offenders and “acknowledging the harm done to victims and to the community.”
E. Analysis
[33] The aggravating circumstances of this offence are clear. First, there is the sheer gravity of the offence. The accused was in possession of a very large quantity of cocaine (1.325 kilograms or 2.921 pounds) for purposes of trafficking. This quantity of cocaine had a very significant street value of between $49,000 and $154,000, depending on how it was packaged and sold. The accused was in possession of this large quantity of cocaine for precisely that reason – to profit economically on its sale.
[34] Second, the accused has a lengthy criminal record. This is his 21st adult criminal conviction, over the span of 16 years. Significantly, the accused has prior convictions for drug-related offences, including trafficking and possession for the purpose of trafficking. Even after being effectively sentenced to a four-year term of imprisonment in 2004 in relation to firearms offences, the accused continued to commit criminal offences, including further drug-related offences.
[35] In this regard, I note that, according to s. 10(2)(b) of the CDSA, if a person is convicted of a designated substance offence, for which the court is not required to impose a minimum punishment, the court imposing sentence shall consider any relevant aggravating factors including that the person was previously convicted of a designated substance offence. In the present case, the accused has been previously convicted of a designated substance offence, so that is a statutory aggravating circumstance in this case.
[36] On the other hand, there are also a number of mitigating circumstances in the present case. First, the accused moved to efficiently resolve this case at a relatively early opportunity, following the conclusion of a four-day pre-trial motion concerning the admissibility of the evidence obtained as a result of the execution of the search warrant. The Crown fairly conceded that the accused should be given considerable credit for adopting this responsible approach to the necessary litigation in this case, explaining that this was why the Crown was seeking a sentence at the lower end of the appropriate range of sentence.
[37] Second, notwithstanding the problems he experienced in his formative years, the accused has periodically sought to improve himself, working to gain his secondary school graduation diploma and taking most if not all of the available correctional services programs to prepare himself for his ultimate release from custody. In addition, the accused has indicated that he wants to pursue a college education in business/marketing and wants to become an “event planner.” Defence counsel suggests that the accused has finally realized that he cannot continue as he has in the past, and promises no more criminal behaviour.
[38] Ultimately, I agree with the Crown that, in all of the circumstances of this case, the effective global sentence that should be imposed upon the accused is five-and-a-half years imprisonment. Indeed, this is arguably a somewhat lenient sentence given the quantity of cocaine possessed by the accused for the purpose of trafficking and his lengthy criminal record.
[39] As the Court of Appeal for Ontario observed in R. v. Woolcock, [2002] O.J. No. 4927, at para. 8, cocaine is an “extremely dangerous and insidious drug with potential to cause a great deal of harm to individuals and to society.” See also R. v. Daya, 2007 ONCA 693, 227 C.C.C. (3d) 367, at para. 18; R. v. Harris, [2008] O.J. No. 1976 (S.C.J.), at paras. 21-22. Lengthy penitentiary terms of imprisonment are regularly imposed upon offenders that possess substantial amounts of cocaine for the purposes of trafficking.
[40] For example, in R. v. Bajada (2003), 2003 15687 (ON CA), 169 O.A.C. 226, 173 C.C.C. (3d) 255 (C.A.), Weiler J.A., delivering the judgment of the court, observed, at paras. 12-14, 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” even where the accused has entered “a plea of guilty or where the accused has no prior record.” Further, in R. v. Bryan, 2011 ONCA 273, [2011] O.J. No. 1581, the court noted, at paras. 1-2, that “normally” sentences ranging from five to eight years imprisonment “would reflect the proper range” of sentence “for someone, without a record, convicted of possession for the purpose of trafficking in slightly more than a pound of cocaine.” See also R. v. Muise, 2008 ONCA 665; R. v. Peltier, 2013 ONCA 141; R. v. Italiano, 2015 ONSC 2216; R. v. Feeney, 2015 ONSC 3218.
[41] As I have mentioned, the accused in this case was in possession of cocaine so that he could sell the drug to others. In short, the accused was motivated by financial gain. Accordingly, the sentencing principles of denunciation and deterrence are of primary application. To paraphrase the sentiments expressed by Lamer J., as he then was, in a different context in R. v. Smith, 1987 64 (SCC), [1987] 1 S.C.R. 1045, at p. 1053, those who market such hard drugs for monetary reward “are responsible for the gradual but inexorable degeneration of many of their fellow human beings as a result of their becoming drug addicts.” As they are the “direct cause of the hardship cast upon their victims and their families,” drug traffickers must, through the sentencing process, be “made to bear their fair share of the guilt for the innumerable serious crimes of all sorts committed by addicts in order to feed their demand for drugs.” Such drug traffickers should, generally speaking, be sentenced to “long periods of penal servitude.”
[42] In my view, the four-year sentence proposed by the accused would be an inadequate and unfit sentence. Such a sentence would not properly reflect the gravity of the offence, would not sufficiently denounce and generally deter the commission of such offences, and would not provide the necessary element of specific deterrence to the accused personally. The accused has, in the past, received an effective global sentence of four years imprisonment, and yet has continued to commit criminal offences with some regularity. The accused must be made to understand that if he continues to commit serious criminal offences, he is going to receive increasingly lengthy sentences of imprisonment.
[43] In the result, after giving the accused credit for having already served the equivalent of approximately 32 months, I now impose a sentence of 34 months of penitentiary imprisonment upon the accused. This results in an effective total sentence of 66 months imprisonment, or five-and-a-half years.
F. Ancillary Sentencing Orders
[44] In addition, I make all of the following ancillary sentencing orders.
[45] First, pursuant to s. 16(1)(b)(ii) of the CDSA, I order that all of the drugs seized and detained in this case, as well as the drug paraphernalia (i.e. the two pyrex cups, two cell phones, and four digital scales), be forfeited to Her Majesty in right of Canada and thereafter disposed of in accordance with the law.
[46] Second, pursuant to s. 462.37 of the Criminal Code, I order that the proceeds of crime, namely, the $8,090 in Canadian funds, which I find as a fact to be drug money, be forfeited to her Majesty in right of Canada to be disposed of as directed by the Attorney General or otherwise dealt with according to the law.
[47] Third, pursuant to ss. 109(1)(c) and 109(3) of the Criminal Code, I order that the accused be prohibited from the possession of any firearm, cross-bow, restricted weapon, ammunition and explosive substance for life.
[48] Fourth, given that the accused has been found guilty of a “secondary designated offence,” namely, possession of cocaine for the purposes of trafficking, pursuant to s. 487.051(3) of the Criminal Code, I will make an order in Form 5.04 authorizing the taking of samples of bodily substances from the accused for forensic DNA analysis. I am satisfied that such an order is in the best interests of the administration of justice. In reaching this conclusion I have considered the accused’s lengthy criminal record, the serious nature of the drug offence committed by the accused, all of the various circumstances surrounding its commission, and the relatively minimal impact that such an order would have on the accused’s privacy and the security of his person.
G. Conclusion
[49] In summary, the accused is sentenced to a 34 month penitentiary term of imprisonment, and is subject to all of the other ancillary sentencing orders.
Kenneth L. Campbell J.
Released: November 19, 2015
COURT FILE NO.: CR-15-9/28
DATE: 20151119
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
MARK ANTHONY BARREIRAS
REASONS FOR SENTENCE
K.L. Campbell J.
Released: November 19, 2015