Court File and Parties

Court File No.: 2192/12 Date: 20160831 Ontario Superior Court of Justice

Between: Her Majesty the Queen – and – Colin Kingston, Accused

Counsel: W. Dorsey, for the Crown M. Chernovsky, for the Accused

Heard: May 30, 2016

Reasons as to Sentence

Daley RSJ.

Introduction

[1] Following a trial before a judge and jury the offender was found guilty of possession of cocaine for the purpose of trafficking.

[2] At the time of the offence, he was 37 years of age.

[3] The drugs in question were made up of 6.5 g of cocaine and approximately 17.6 g of crack cocaine with a combined street value in the order of approximately $2200. At the time of his arrest the offender was in possession of $1900 in cash.

[4] Mr. Kingston has no prior criminal record.

Positions of the Parties

[5] The Crown seeks a custodial sentence of 21 months less time spent in presentence custody and under terms of house arrest bail.

[6] Counsel for the offender proposed a conditional sentence, which it was submitted was still open for consideration given the date of the offence, in the a range of between 18 months to two years less a day, with house arrest restrictions similar to those imposed in his bail terms, for the first half of this conditional sentence.

The Offender

[7] Mr. Kingston, who is currently 41 years old, as noted is a first-time offender.

[8] The author of the Presentence Report (PSR) presented an overall favorable view of the offender.

[9] It is reported that he left his parents’ home when he was approximately 18 years of age, however he returned home at about age 20 to assist in the care of his siblings.

[10] After completion of high school, he enrolled at Humber College and then York University, where he completed two years of study in commerce. He withdrew from the course to care for his daughter.

[11] As of July 2014, he obtained a position in the logistics department of a retail store where he eventually became a fulltime employee as of October 2014. He has continued in that employment up to the date of his sentencing hearing.

[12] Although it is reported that the offender has smoked marijuana, he denies using any other drugs.

[13] Several sources were interviewed by the author the PSR as to the offender’s character.

[14] His current girlfriend described him to be of good character and his previous partner, who is the mother of their daughter, described him as a good father.

[15] Notably, Police Constable Derick Davis, the officer in charge in this case, described the offender as “extremely cooperative – definitely different from most”.

[16] There is no evidence that the offender was involved in the sale of drugs for the purpose of supporting his own addiction and further there is no evidence that the offender at any time suffered from any form of addiction.

The Principles of Sentencing

[17] Guided by the principles of sentencing as set out in ss. 718, 718.1 and 718.2 of the Criminal Code and specifically recognizing the fundamental principle of proportionality as set out in s. 718.1, the sentence to be imposed must be in keeping with the gravity of the offence and the degree of the offender’s culpability. In addition to the guiding principles set out in the Criminal Code, a sentencing court must also take into consideration the factors outlined in s. 10 of the Controlled Drugs and Substances Act, S. C. 1996, c. 19.

[18] In cases involving offences that are particularly serious, in that they cause or threaten to cause significant harm to an individual or a segment of the community, the objectives of denunciation and general deterrence will usually dominate the other objectives identified in s. 718.

[19] The principles of parity and proportionality of sentences must guide the courts in establishing a just and appropriate sentence. Rehabilitation of offenders also remains one of the fundamental moral values that must be considered when setting a proper sentence: see R. v. Lacasse, 2015 SCC 64.

[20] The conduct and circumstances surrounding the offender’s pretrial custody and house arrest bail conditions also must be examined in determining whether a conditional sentence would be appropriate, if available.

[21] Section 742.1 of the Criminal Code permits the imposition of a conditional sentence for the offence of possession of cocaine for the purpose of trafficking provided that the following three conditions are met: (1) the sentence of imprisonment imposed must be less than two years; (2) service of the sentence in the community would not endanger the safety of the community; (3) permitting the offender to serve the sentence in the community would be consistent with the fundamental purposes and principles of sentencing set out in section 718 – 718.2 of the Criminal Code.

[22] As there is no minimum term of imprisonment related to this offence, at the material time, and as an appropriate sentence of imprisonment would be for a period of less than two years, it is open to this court to consider the offender as eligible for a conditional sentence, so long as serving the sentence of imprisonment in the community would not endanger the safety of the community and such a sentence would be consistent with the fundamental purposes and principles of sentencing: R. v. Proulx (2000), 2000 SCC 5, 140 C.C.C. (3d) 449 (SCC).

Mitigating & Aggravating Factors As to Sentence

[23] As to mitigating factors for consideration, as indicated, Mr. Kingston is a first-time offender. He complied with all of his terms and conditions during his pretrial release and while on house arrest bail.

[24] He has maintained gainful employment and has a supportive family.

[25] Additionally, a very positive presentence report was filed in respect of this offender.

[26] As to aggravating factors, he has been convicted of a serious offence involving a very harmful drug which gives rise to widespread harm in the community at large.

[27] His possession and trafficking in cocaine was purely for commercial reasons and not to generate funds to support a drug addiction.

Analysis

[28] Having considered the gravity of the offence and the aggravating and mitigating factors referenced, I have concluded that a maximum reformatory sentence of two years less one day is a fit sentence. I am satisfied that this sentence sufficiently reflects the principles of denunciation and deterrence and as well takes into account the offender’s prospects for rehabilitation, which given his conduct following his arrest, appear promising.

[29] Counsel provided various decisions as to the appropriate range of sentence for this offence, which I have considered. While I have concluded that the fit sentence is in excess of the custodial sentence proposed by counsel for the Crown, I have reached this conclusion that this represents a truly fit sentence, in the context of a conditional sentence that may be imposed: R. v. Fice, 2005 SCC 32, [2005] 1 SCR 742.

[30] As to whether or not a conditional sentence should be imposed in this case, I have concluded that the offender is eligible for such a sentence for the reasons outlined, and it must be then determined whether such a type of sentence is appropriate.

[31] It was urged by counsel for the Crown that a conditional sentence was not appropriate in the circumstances and that such a sentence would simply constitute “the cost of doing business” for anyone involved in the sale of drugs and as such it would not represent an adequate deterrence to this offender or others from trafficking in drugs.

[32] Given the offender’s conduct after his arrest and his compliance with his terms and conditions over several years, I have concluded that there is a low level of risk of Mr. Kingston reoffending and similarly that the gravity of the damage that could ensue in the event he did reoffend is also low.

[33] While “imprisonment remains the most formidable denunciatory weapon in the sentencing arsenal”, as stated by Doherty JA. in R. v. Killam, [1999] O.J. No. 4289, McLachlan CJ. noted in Proulx at paragraphs 102 and 107 that conditional sentences can provide a significant degree of deterrence and denunciation when onerous conditions are imposed and she further noted at paragraph 103 that house arrest should be the norm in conditional sentences rather than the exception.

The Sentence Imposed

[34] Mr. Kingston, by the imposition of a conditional sentence you are by no means receiving leniency for the most serious offence for which you were convicted. Your overall conduct and compliance with the terms of your release pending the trial have demonstrated that you are a responsible individual and as such I have come to the conclusion that the imposition of a conditional sentence is appropriate in your case in lieu of a custodial one.

[35] In keeping with the comments of Chief Justice McLachlan in the Proulx decision, I have concluded that strict house arrest terms can provide suitable deterrence and denunciation for this offence and as well meet the sentencing requirements of deterrence and denunciation.

[36] As to time spent in presentence custody and under terms of house arrest bail, the offender was in custody in June 2011, following that he was released on house arrest bail with no ability to attend employment. On October 17, 2011, his house arrest bail terms and conditions were varied to allow him to attend work and ultimately the house arrest bail terms were vacated from his terms of release on May 19, 2015.

[37] In recognition of credit for presentence custody and house arrest bail, I have concluded that the sentence of two years less a day should be reduced to a conditional sentence of 20 months subject to certain terms and conditions: R. v. Downes (2006), 79 O.R. (3d) 321 (C. A.); R. v. Summers, 2014 SCC 26, [2014] 1 SCR 575.

[38] I therefore sentence you to 20 months, to be served in the community on the following conditions:

a. you are to keep the peace and be of good behavior; b. you must appear before the court when you are required to do so; c. you will report to your supervisor within two business days from today and thereafter when required and in the manner directed by your supervisor; d. you will remain within the jurisdiction of the court unless you obtain written permission to go outside the jurisdiction from the court or your supervisor; e. you will reside at an address approved by your supervisor, and notify the court or your supervisor in advance of any change your address; f. you will seek to maintain full-time employment unless you have permission from your supervisor to do otherwise; g. you will notify the court or your supervisor promptly of any change in your employment; h. you shall abstain from possession and consumption of drugs except in accordance with a medical prescription; i. you shall not be in the company of anyone known to have a criminal record or who is facing criminal charges, except members of your family; and j. for the entirety of the sentence you shall be confined to your residence under house arrest for 24 hours per day, seven days per week, except for the following: i. being at work, including the time necessary to travel directly to and from work; ii. attending counseling or treatment directed by your supervisor, including the time necessary to travel directly to and from the appointments; iii. reporting to your supervisor, including the time necessary to travel directly to and from the appointments; iv. attending medical appointments approved in advance by your supervisor, including the time necessary to travel directly to and from such appointments; v. dealing with a medical emergency for you or your children; and vi. once a week, for a period not exceeding four hours including travel time, for personal or household errands, provided that the period is agreed upon in advance with your supervisor.

[39] Orders are to issue pursuant to section 487.051(2) requiring you to provide a DNA sample and pursuant to section 109 providing a weapons prohibition order for a period of 10 years.

[40] After completion of the 20 months under the conditional sentence, Mr. Kingston is placed on probation for a further period of 12 months. The terms of this probation also include mandatory terms that shall be reviewed with you.

[41] All of the terms and conditions of the conditional sentence as outlined, other than those related to house arrest, shall apply equally to the period of probation.

Daley RSJ. Released: August 31, 2016