CITATION: R. v. Carter, 2016 ONSC 4389
COURT FILE NO.: CR-13-90000708-0000
DATE: 20160805
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
CONRAD CARTER
Defendant
S. Siew, for the Crown
S. Agbakwa, for the Defendant
HEARD: June 3, 2016
REASONS FOR SENTENCE
B. p. O’marra j.
[1] On February 19, 2011, Conrad Carter was arrested and charged with two counts of trafficking in cocaine and two counts of possession of the proceeds of crime. The trial proceeded for five days in June of 2015. On September 17, 2015 I released reasons reported at 2015 ONSC 5273 and found that the four offences had been proven beyond a reasonable doubt. I withheld entry of the findings of guilt pending an application to stay the proceedings or in the alternative, for a reduced sentence.
[2] On April 14 and 15, 2016 I received submissions on the application for a stay or for a reduced sentence. On May 2, 2016 in reasons reported at 2016 ONSC 2832 the application for a stay was dismissed. However, I also ruled that there would be a significant reduction of sentence based on s. 9 and 24(1) of the Canadian Charter of Rights and Freedoms.
[3] Submissions on sentence were completed on June 3, 2016.
THE FACTS
[4] On January 31 and February 3, 2011 Conrad Carter sold crack cocaine to an undercover police officer. He received $40 for each sale. The quantity of cocaine was 0.47 grams and 0.48 grams respectively. Conrad Carter did not testify and no evidence was called for the defence.
[5] The trial proceeded on consent with a blended hearing related to applications to exclude evidence and stay proceedings based on Charter issues as well as the merits of the case. There were legitimate issues related to lost evidence as reflected in my reasons for judgment dated September 17, 2015.
POSITION OF THE PARTIES
[6] The long passage of time between the offence dates in 2011 and the date of sentence in 2016 has more than one important impact on the range of potential sentence. Counsel for Conrad Carter seeks a conditional sentence. The crown opposes that disposition but agrees that it is not statute barred since these events occurred before amendments to s. 742.1 of the Criminal Code, R.S.C., 1985, c. C-46.
[7] The crown submits that the range for these offences would be approximately six months in jail. In light of my ruling on May 2, 2016 that there should be a remedy of a significant reduction in sentence the crown now submits that a sentence of 90 days, to be served intermittently, plus 12 months’ probation would be appropriate.
[8] Mr. Agbakwa submits that a 6 month conditional sentence would be appropriate.
BACKGROUND OF CONRAD CARTER
[9] Conrad Carter was born in Jamaica on July 11, 1992. He came to Canada in 2003 and is now a citizen. He does not have a criminal record. He lives with his mother and sister in Whitby. His father remained in Jamaica. His mother and sister remain very supportive of him.
[10] Conrad Carter has a son born on September 11, 2012. That child lives with his mother. Conrad Carter sees them both regularly and supports them. He has a good relationship with both.
[11] Conrad Carter has been subject to stringent bail conditions for over five years. Some of the terms were relaxed over time. There is no indication that he has ever breached his bail or committed other criminal offences.
ANCILLARY ORDERS
[12] There will be the following ancillary orders:
(1) Pursuant to s. 109(1) and (2) the accused is prohibited from possessing any firearm, other than a prohibited firearm or restricted firearm, any crossbow, restricted weapon, ammunition or explosive substance for a period of 10 years;
He is also prohibited from possessing any prohibited firearm, restricted firearm, prohibited weapon, prohibited device or prohibited ammunition for life.
(2) Counts one and three, trafficking in cocaine, are “secondary designated offences” as defined in s. 487.04 of the Criminal Code. Pursuant to s. 487.051 (3) I am satisfied that the accused should be ordered to provide a sample of his DNA for the purpose of forensic analysis.
(3) Pursuant to s. 16(1) and (2) of the CDSA, I order that the cocaine and proceeds of crime seized by the police in this case be forfeited to Her Majesty in right of Canada to be disposed of by the Minister as the Minister sees fit.
(4) Pursuant to s. 737(1) and (2)(b)(ii) the accused is ordered to pay the victim surcharge of $200 for each count for a total of $800.
ANALYSIS
[13] Cocaine is a dangerous and destructive drug. Those who traffic in such drugs endanger the health and lives of themselves, the public and the police. Denunciation is a significant factor in sentencing for this crime. Prospects for rehabilitation are a factor but less so. I agree with the crown that these offences would normally call for a custodial sentence of six months and beyond.
[14] The offence dates in 2011 precede the amendments to the Criminal Code and leave a conditional sentence as an option. The passage of these years also shows that Conrad Carter is not the same person who was charged as a teenager. He is a father and supporter of his spouse and child. There are very positive prospects for rehabilitation.
[15] I am persuaded that in the particular circumstances of this case a conditional sentence is fair and appropriate. This includes consideration of a significant reduction in sentence related to breaches of the Charter as set out in my ruling of May 2, 2016. I am satisfied that service of the sentence in the community would not endanger the safety of the community.
[16] There will be a six month conditional sentence to be apportioned as follows:
(i) 4 months on count one;
(ii) 2 months consecutive on count two;
(iii) 4 months on count three, concurrent to the 4 months on count one;
(iv) 2 months on count four, concurrent to the 2 months on count two.
[17] I do not see a need for probation on top of the conditional sentence.
[18] The terms of the conditional sentence are as follows:
• Six months’ imprisonment to be served in the community.
For the entire six months, the accused will be bound by the following terms:
• Keep the peace and be of good behaviour.
• Appear before the court when required to do so by the court.
• Report to a supervisor today and thereafter when required by the supervisor and in the manner directed by the supervisor.
• Remain within Ontario unless written permission to go outside Ontario is obtained in advance from the court or the supervisor.
• Notify the court or supervisor in advance of any change of name or address and promptly notify the court or supervisor of any change of employment or occupation.
• Reside at an address approved by your supervisor.
• Abstain from owning, possessing or carrying any weapon as defined by the Criminal Code.
• Abstain absolutely from the purchase, possession or consumption of alcoholic beverages and illegal drugs.
• For the first two months of this conditional sentence order you must remain in your place of residence at all times with the following exceptions:
(a) Travel directly to and from your employment;
(b) Travel directly to and from any educational or religious events as approved in advance by your supervisor;
(c) Medical emergencies;
(d) Scheduled medical or dental appointments;
(e) Six hours on Saturdays from 10:00 a.m. – 4:00 p.m. to attend to personal errands; and
(f) As necessary to comply with this order, including reporting to your supervisor.
[19] These exceptions must be incorporated into a letter of permission from your supervisor. You must carry that letter of permission and a copy of this Conditional Sentence Order with you at all times when you are not in your residence. The letter of permission must also include your scheduled hours of and place of employment.
[20] For the remaining four months of this conditional sentence order you must abide by a curfew and remain in your residence from 10:00 p.m. to 6:00 a.m., except for medical emergencies or to travel to and from employment.
[21] I will consider further submissions from counsel as to any further qualifications to the house arrest or curfew terms of this sentence.
[22] I am grateful to both counsel for their assistance in this matter.
B. P. O’Marra J.
Released: August 5, 2016
CITATION: R. v. Carter, 2016 ONSC 4389
COURT FILE NO.: CR-13-90000708-0000
DATE: 20160805
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
CONRAD CARTER
Defendant
REASONS FOR SENTENCE
B. P. O’Marra J.
Released: August 5, 2016