Court File and Parties

CITATION: R. v. Woodbine, 2016 ONSC 3882

COURT FILE NO.: Court File No. CR-14-90000389-0000

DATE: 20160617

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Regina v. Carlton Woodbine

BEFORE: E.M. Morgan J.

COUNSEL: Arielle Elbaz, for the Crown David Zbarsky, for the Defense

HEARD: Trial March 7, 2016; Sentencing submissions June 2, 2016

SENTENCING JUDGMENT

[1] The Defendant is a 56-year old man who was born in Jamaica and moved to Canada in 1971. He lives alone in a transient lifestyle, and suffers from schizophrenia. He reported to the author of his pre-sentence report that he has had no contact with family or friends for the past two years.

[2] In the evening of June 10, 2013, the Defendant was arrested in the Kensington Market area of Toronto after selling to an undercover officer a substance held out to be crack cocaine. It turns out that the substance was the Defendant’s schizophrenia medication. At the outset of the trial, the Defendant seemed to have little recollection of the events leading to his arrest. However, after the officer testified in the morning of the first day of trial, the Defendant’s recollection returned and he advised the court, through his counsel, that he wished to plead guilty.

[3] The Defendant pleaded guilty to one count of trafficking in a substance held out to be cocaine. After conducting a guilty plea inquiry and satisfying myself that the Defendant fully understood the case and the consequences of his guilty plea, and that he was entering the guilty plea voluntarily and with full appreciation of it, I accepted his plea.

[4] At the sentencing hearing, counsel for the Crown pointed out that the Defendant has a rather lengthy criminal record. She requested a sentence of 90 days, served intermittently. It is the Crown’s view that some deterrence is called for given the fact that the Defendant is a repeat offender.

[5] Counsel for the defense points out that in pleading guilty mid-way through the first day of trial, the Defendant spared the court the necessity of a full-length trial. He also submits that given the Defendant’s medical condition, he is unemployed and has no realistic prospect of employment, which makes it an inappropriate case for an intermittent sentence. That type of sentence is generally utilized in order to facilitate a work schedule.

[6] Rather, defense counsel submits that this is an appropriate case for a period of probation instead of a period of incarceration. He relies on R v Peters, 2000 NFCA 55, at para 18, where the court noted that, “Deterrence and punishment assume less importance in cases of mentally ill offenders.” In fact, where a person convicted of a crime suffers from serious mental health issues, punishment may serve no purpose at all. As the court stated in Peters, at para 19, “Thus, the mental illness of an offender will often be considered a mitigating factor in sentencing…”

[7] The fact that the Defendant suffers from mental health problems is not questioned by the Crown. The offense itself turned out to be the sale of prescription medication held out to be cocaine. Moreover, the undercover officer’s testimony described some antics of the Defendant on the day of the arrest that suggested he was slightly out of touch with reality. He did not have the substance that he held out to be illegal drugs packaged in any way, but rather took it loose out of his backpack. It appeared as if he had not planned the offense, and that he approached the officer and offered the sale on the spur of the moment and without having thought very long or hard about it.

[8] The defense asks for a probationary sentence of two years so that the Defendant can get help for his mental health problems. Defense counsel points out that since his arrest the Defendant has reported steadily to the Toronto Bail Program, without breach. The pre-sentence report states that the Defendant has been hospitalized at least once before, roughly 10 years ago, and that he responded favorably at the time and appears to be a suitable candidate for medical intervention. It concludes, understatedly, that the Defendant “would benefit from psychiatric counselling to address his schizophrenia diagnosis and further intervention. Furthermore, the subject may benefit from community supervision guidance to assist in finding suitable Mental Health Worker to accommodate his mental health concerns.”

[9] It is apparent that the only form of deterrence that will be effective for this Defendant is medical intervention and rehabilitative treatment. No period of incarceration will make a difference if his mental health problems are not addressed.

[10] Under the circumstances, I suspend the passing of sentence and place the Defendant on probation for two years. Pursuant to section 732.1(3) of the Criminal Code, the terms of probation will be as follows, in addition to the statutory terms:

• The Defendant will meet with a probation officer within three (3) days of today’s date and thereafter as his probation officer requires;

• The Defendant is to have no contact, directly or indirectly, with anyone known to him to have a criminal record, except for members of his immediate family;

• The Defendant is not to be in the presence of anyone known to him to have in his or her possession any non-medically prescribed drugs;

• The Defendant is to carry a copy of his probation order on him at all times when outside his residence;

• The Defendant will reside at an address approved of by his probation officer;

• The Defendant is to abstain from possession or consumption of non-prescription drugs and from consumption of alcohol;

• The Defendant is to attend and actively participate in all medical appointments, assessment, psychiatric counselling or rehabilitative programs as directed by his physician and/or the probation officer and complete those programs to the satisfaction of the probation officer;

• The Defendant shall sign any release forms as will enable the probation officer or supervisor to monitor his attendance and completion of any assessments, counselling or rehabilitative programs as directed.

[11] There shall be a DNA order pursuant to section 487.051 of the Code, to be implemented sometime during the two-year probationary period when recommended by a physician or counsellor attending to the Defendant.

[12] There shall also be a firearms prohibition order under section 109 of the Code.

Morgan J.

Date: June 17, 2016