Court File and Parties
Court File No.: CR-14-90000311-0000 Date: 2016-07-12 Superior Court of Justice - Ontario
Re: Regina v. Khary White
Before: E.M. Morgan J.
Counsel: Elizabeth Bellerose, for the Crown Ayderus Alawi, for the Defendant
Heard: Sentencing submissions heard June 16, 2016
Sentencing Judgment
[1] After a week-long trial, Mr. White was found guilty of two counts of trafficking cocaine, one count of obstruct justice, and one count of possession of the proceeds of crime.
[2] The Crown seeks a period of incarceration of 18 months to 2 years. The Defense submits that the appropriate sentence would be a custodial period of 90 days for trafficking and obstruct, followed by 12 months conditional sentence for the proceeds of crime (as that is the only offense here that qualifies for a conditional sentence).
[3] Counsel for the Crown points out that Mr. White has a prior criminal record, including a conviction for trafficking and possession of a prohibited firearm and another one for obstructing a peace officer. The date of the present offence is June 6, 2013, which was less than 3 years after his last conviction.
[4] The offenses here involved relatively small, street level sales of crack cocaine made to an undercover officer that called Mr. White and spoke with him in Jamaican patois. The accompanying offense of obstruct justice did not involve an attack on an officer or any act of violence or aggression, but rather resulted from Mr. White putting the drugs into his mouth when he realized he was being arrested. He had to spit them out before they could be seized from him.
[5] That said, there is little in the record to explain Mr. White’s behaviour. He does not appear to be a drug user himself, and other than a general desire for money there is nothing to explain his drug dealing. Defense counsel has indicated that Mr. White was in several car accidents over the years and has had a head injury, but there is nothing to actually relate that to the matter at hand. Defense counsel also points out that Mr. White may have suffered some discrimination as an African Canadian, although there is nothing in the record or otherwise to suggest that Mr. White has personally endured any particular social hardships.
[6] Crown counsel cites R v Bryan, [2003] OJ No 1960 (Ont CA) and R v Robinson, 2012 ONCA 50, as examples of cases involving the sale of similar quantities of cocaine as in issue here, and where the offenders had similar criminal records to that as Mr. White. Both received prison terms of 12 months. She also references R v Woolcock, [2002] OJ No 4927 (Ont CA), where the defendant was sentenced to 15 months, and R v Navarchi, [2010] OJ No 5053 (SCJ), where the defendant was sentenced to 14.5 months, as well as R v Vandyk, [2014] OJ No 1601 (OCJ), where the defendant got a jail term of 9 months.
[7] In R v M (C), [1996] 1 SCR 500, at 566, Lamer CJC articulated the objectives of sentencing:
The determination of a just and appropriate sentence is a delicate art which attempts to balance carefully the societal goals of sentencing against the moral blameworthiness of the offender and the circumstances of the offence, while at all times taking into account the needs and current conditions of the community.
[8] The cases cited by the Crown all impose sentences that are lower than what she seeks here, although some of them are not lower by much. I am not sure why Mr. White deserves anything higher than equivalent offenders. In fact, at para 13 of the Woolcock case cited by the Crown, the Court of Appeal went out of its way to stress the need for rehabilitation rather than severe punishment in cases such as this:
One of the dangers of imposing a lengthy term of imprisonment on facts such as these is that it could impair the rehabilitation and reintegration of this person as a responsible member of his community. This type of risk has been recognized by this court in R. v. Pearce (1974), 16 C.C.C. (2d) 369 (Ont. C.A.). At p. 371, Dubin J.A., dissenting, stated:
It ought not to be overlooked that it is important that persons in prisons who are to be released at some time will not return to a life of crime but will become self-supporting, capable of assuming new responsibilities and turn in the direction of becoming useful members of society. If a prison term is of such a length as to endanger the future rehabilitation of an accused, then the term of imprisonment imposed on him will not protect society in the future.
[9] Crown counsel does point out that there are other offenses here as well as trafficking – including the obstruct and the proceeds of crime convictions. However, those are all interrelated as coming out of the same single incident of trafficking; it would seem unfair to increase the sentence of a person convicted of drug trafficking just because when arrested a few minutes later they also had in their possession the money that changed hands during the drug transaction. It is all part and parcel of the trafficking.
[10] The record indicates that Mr. White has a fiancé who is quite supportive and was in court for his sentencing hearing. It also indicates that he has two children, a 9 year-old daughter and an 8 year-old son, and is an attentive and caring father.
[11] In addition, a number of family members, friends, and neighbours have written letters on Mr. White’s behalf. He appears to be a religious man, and a number of members of the Faith Chapel in Mississauga, including the pastor, have written letters that speak of his favourable qualities. He is described as “respectful, soft-spoken, and grateful” for the church community. The pastor writes that “He is actively involved in our maintenance department, and also makes significant impact in the church community through the giving of his time, talents and resources for the growth of the church.” This is an impressive show of community and family support, which speaks well for his future prospects and those of his children.
[12] With this personal background, Mr. White appears to have a good chance at rehabilitating himself through renewed commitment to work and support of his family. It would be a shame to incarcerate him for a lengthy period of time only to send him to “a finishing school for criminals”: R v Proulx, 2000 SCC 5, [2000] 1 SCR 61, at para 16. It seems to me that a combination of custodial sentence and conditional sentence, where authorized, is appropriate here.
[13] In respect of the trafficking and obstruct convictions, I hereby sentence Mr. White to 6 months in custody. He gets credit for 5 days of pre-trial custody, which at a rate of 1.5:1 comes to 8 days, for a total custodial period of 172 days.
[14] In respect of the proceeds of crime conviction, I hereby sentence Mr. White to 12 months to be served in the community commencing immediately upon his release from custody, on the following conditions:
a) that he keep the peace and be of good behaviour; b) that he appear before the court when and if required to do so; c) that he report to a supervisor within two working days, and thereafter as required by the supervisor in the manner as directed by him or her; d) that he remain within the jurisdiction of the Province of Ontario, unless written permission is obtained from the court or from his supervisor; e) that he notify the court or the supervisor of any change of address, change of employment or of occupation; f) that he attend school or actively seek and maintain full-time employment; g) that for the duration of the 12 months he is to be subject to house arrest, and is not to leave his place of residence except to attend work, school, or church, medical emergencies for himself or his immediate family, to meet with his lawyer or to attend legal proceedings as required, or as may be exempted by his supervisor, with the exception of Sundays from 12:00 p.m. to 4:00 p.m. when Mr. White may attend to personal matters; h) that he not associate with anyone known to have a criminal record, except as may be exempted by his supervisor; i) that he not associate with anyone known to be involved with illegal drugs, whether that person has a criminal record or not; j) that he abstain from having in his possession or consume any substances or drugs listed in the schedule to the Controlled Drugs and Substances Act, except as may be prescribed for medical purposes.
[15] In addition to all of the orders and conditions that I have just set out, there will be an order under section 109 of the Criminal Code for Mr. White not to have in his possession any firearm, ammunition or explosive material for a period of 10 years. There will also be a DNA order under section 487.051 of the Criminal Code.
[16] As well, there will be an order that any other property or money seized from Mr. White other than the police ‘buy money’ be returned to him.