ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 13319/13
DATE: 2015-11-23
BETWEEN:
HER MAJESTY THE QUEEN
– and –
CHRISTOPHER STEWART
Defendant
J. Frost and K. Lederri, for the Crown
J. Scheenweiss, for the Defendant
HEARD: November 17, 2015
REASONS FOR SENTENCE
J. R. McCARTHY J.
[1] Christopher Stewart (the Defendant) appears before me for sentencing. He was found guilty of possession of 90.7 grams of cocaine for the purpose of trafficking after inviting a finding of guilt on an agreed set of facts. Sentencing submissions took place on November 17, 2015. At that time, the Defendant was afforded an opportunity to address the court.
[2] The Crown seeks a custodial sentence of two years in line with various authorities including R. v. Woolcock, [2002] O.J. No. 4927 (C.A.); R. v. McIntosh, [1996] O.J. No. 2173 (C.A.); and R. v. Kenyon, [2008] O.J. No. 2486 (S.C.). The sheer quantity of the amount seized should serve to attract a sentence in the higher end of the range for first time trafficking offences.
[3] The Defendant seeks a conditional sentence of 18 months to two years to be served in the community. The Defendant points to the remarkable rehabilitation and reformation accomplished by the Defendant since his arrest on the crime in question more than three years ago.
[4] The Crown retorts that, while rehabilitation is a mitigating factor in sentencing, it cannot displace the overall goals of sentencing on drug trafficking crimes which are to denounce the offence and deter both the Defendant and other members of the community from committing similar offences: see R. v. Ward, [1980] O.J. No. 1439 (C.A.), https://www.canlii.org/en/on/onca/doc/1980/1980canlii2882/1980canlii2882.html.
[5] In the absence of what I find to be both remarkable and laudable initiatives and accomplishments by the Defendant in the three years since his arrest, I would tend towards the sentence suggested by the Crown. Nevertheless, the following is noteworthy:
• The Defendant has gone ahead to obtain a post-secondary diploma while at the same time achieving an impressive grade point average and securing a prestigious academic award;
• His program of study (Child and Youth Care Program) is one that the court acknowledges lead him into a career of assisting troubled youth;
• He has immersed himself in community based programs working with young people (Play it Smart and Reach for the Rim) that have as part of their objectives to offer meaningful examples and lifestyle advice for young people;
• He has won the acclaim of various college professors, instructors and community service coordinators. Most recently, he has been recognized for leadership with distinction at his college;
• He has served as a student leader with the Centennial College Student Association;
• He has completed three field placements as part of his academic program;
• He has now secured two employment positions through the college: Varsity Program Assistant and Assistant Coach for the men’s Varsity basketball team; and
• He has seemingly cut ties with those individuals who were having a negative impact on his life.
[6] These would be impressive achievements for any person over a three year span. Viewed from a sentencing perspective, they represent a commitment to self-advancement, rehabilitation and establishing oneself as a contributing member of society. To this I would add the fact that the Defendant has not breached any of his bail conditions, has not reoffended and continues to enjoy the support of his family.
[7] I am mindful that the principles of deterrence and denunciation must guide the court when faced with drug trafficking offences. I am equally mindful that a person who has established a record of community involvement, career advancement, willingness to work and to steer clear of trouble since a conviction should enjoy some measure of leniency.
[8] I have concluded that the Defendant is no longer a danger to the community and is not a risk to reoffend. I have concluded that proper exercise of restraint favours a non-custodial sentence. I have also concluded that a period of incarceration might serve to nullify or reduce the very real gains made by the Defendant during his rehabilitation. A conditional sentence, carrying as it does a record, a stigma and a restriction on a person’s freedom, can meet the sentencing requirements of deterrence and denunciation.
[9] Mr. Stewart, please stand. I impose a sentence of two years less a day, to be served in the community on the following conditions:
The mandatory statutory conditions set out in https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html#sec742.3subsec1_smooth of the Criminal Code, R.S.C. 1985, c. C-46;
In addition to the mandatory conditions, it is ordered that you comply with the following additional conditions:
a) For the first 12 months of this order, you shall reside at 107 Golden Avenue, Markham and remain there under house arrest 24 hours a day, seven days a week and not leave your home except for the following reasons:
(i) To report to your supervisor and attend court;
(ii) To attend at your place of employment with Centennial College and in any and all locations made necessary by that employment;
(iii) To attend at and participate in community volunteer activities of Beyond the Rim or as may be approved in advance by your supervisor;
(iv) To attend to personal matters such as banking and household errands during a four hour period weekly, the precise time to be agreed upon by your supervisor;
(v) To attend for weekly visits with your daughter Cheyenne at a location to be approved by your supervisor;
(vi) To travel directly to and from any of these activities; and
(vii) 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 p.m. and 6 a.m. except for the purposes of directly discharging your employment duties which would include travelling to and from your place of employment. In this regard, you are to advise your supervisor in advance of your employment schedule and have that supervisor approve in writing that employment schedule;
c) You are to abstain from the purchase, possession or consumption of non-medically prescribed drugs; and
d) You are not to be in the company of anybody known to be involved with illegal drug use or possession.
[10] At the conclusion of your conditional sentence, you are subject to a probation order of 12 months on the same terms that govern your conditional sentence, except that the conditions of house arrest and curfew shall terminate. You shall report to the probation officer within three days of the end of your conditional sentence and that officer shall replace the supervisor assigned to you.
[11] I wish to warn you that a breach of any of these conditions may result in a term of incarceration as part of your sentence. I also wish to convey a blunt warning to you that should you ever be before this court again on drug related offences, you face a very severe sentence which could include a lengthy period of incarceration. I am urging you today to heed that warning.
[12] In addition, and on consent there will be a mandatory weapons prohibition for life pursuant to https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html#sec109subsec1_smooth and https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html#sec109subsec2_smooth of the Criminal Code, an order authorizing a DNA sample pursuant to s. 487.051(1)(a) as well as an order pursuant to https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html#sec491subsec1_smooth of the Criminal Code forfeiting the seized currency, weigh scales and vehicle.
J.R. McCARTHY J.
Released: November 23, 2015
NOTE: As noted in court, on the record, this written ruling is to be considered the official version and takes precedent over the oral reasons read into the record. Any discrepancies between the oral and written versions, it is the official written ruling that is to be relied upon.