Court File and Parties

CITATION: R v Bowyer, 2016 ONSC 6460

COURT FILE NO.: CR-15-900000450

DATE: 20161018

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Derrick Bowyer

BEFORE: E.M. Morgan J.

COUNSEL: Hafeez Amarshi, for the Crown

Robert Tomovski, for the Defendant

HEARD: September 12 and 27, 2016

SENTENCING JUDGMENT

[1] On the eve of trial on September 12, 2016, defense counsel advised the court that the accused, Derrick Bowyer, was pleading guilty to trafficking a small amount – 0.77 grams – of crack cocaine. After going through a guilty plea inquiry with Mr. Bowyer and satisfying myself as to his responses, I accepted the plea.

[2] The Crown seeks a custodial sentence of 12 to 13 months, plus 2 years’ probation. The defense submits that a 5 month custodial sentence is more appropriate to this level of offense.

[3] Counsel for the Crown has drawn my attention to the judgment of my brother Goldstein J. in R v Carlese-Brown, 2013 ONSC 7042. There, the learned jurist observed, at para 36, that, “a short term of incarceration should not be seen as merely the cost of doing drug business… A sentence at the higher end of the range is certainly not crushing, and is appropriate given the amount of the drugs, the possession of the proceeds of crime, and the need for deterrence.”

[4] Justice Goldstein’s judgments are always of the highest calibre, and one is naturally drawn to cite him. Nevertheless, he was dealing with a fulltime commercial drug dealer convicted of an offence involving over 25 grams of cocaine. Mr. Bowyer was convicted of the one-time sale of a fraction of a gram.

[5] As the Court of Appeal stated in R v Woolcock, [2002] OJ No 4927, at para 8, “There is no dispute that crack cocaine is an extremely dangerous and insidious drug with potential to cause a great deal of harm to individuals and to society.” Furthermore, crack cocaine has been described as “a hard and highly addictive drug commonly associated with consequential criminality within our community”: R v Williams, 2010 CarswellOnt 4998, at para 11.

[6] That said, small time dealing in crack cocaine is also associated with a level of social and economic despair, and has been identified by social scientists as “a consequence of the rising social distress in the inner city” and other poor neighbourhoods: Eloise Dunlap and Bruce D. Johnson, “The Setting for the Crack Era: Macro Forces, Micro Consequences” (1992), 24(2) Journal of Psychoactive Drugs 307. Persons engaged in activity such as that leading to Mr. Bowyer’s conviction are often buffeted by socio-economic forces beyond their control as much as they are perpetrators of offending conduct.

[7] Mr. Bowyer is a 32 year old father of 3 children (ages 3, 9, and 10). I am advised by defense counsel that he has a good relationship with them and has tried to support them as much as he can in accordance with an agreement with the children’s mother. He has a grade 11 education and has recently gone back to community college to acquire a certificate in maintenance and repair. That self-improvement has increased his prospect for gainful employment in the future.

[8] While Mr. Bowyer has a supportive mother and sisters, his upbringing was not an easy one. He was raised by his mother in the Lawrence Heights community housing project, and has had very little contact with his father. His mother has suffered a stroke and now has physical difficulties. Mr. Bowyer himself has one prior criminal conviction, also for a drug-related offense some 9 years ago. Unfortunately, during his time in prison he was attacked and as a consequence lost one eye. He has been dealing with that disability ever since.

[9] The guilty plea is a mitigating factor in this case, as it saved the court and the Crown the time and expense of a trial. Mr. Bowyer is demonstrating remorse and responsibility for his actions. He is in a committed relationship with someone now (not the mother of the children), and she is supportive as well.

[10] As a corollary, there are no aggravating factors such as breach of probation or failure to adhere to bail conditions. The lack of aggravating factors and the presence of a number of mitigating factors place this offense at the low end of the sentencing spectrum: R v Malcolm, [2000] OJ No 4309 (Ont CA).

[11] Mr. Bowyer, please rise.

[12] I hereby sentence you to a custodial sentence of 5 months, less 3 days credit for the 2 days you spent in pre-trial custody.

[13] I understand that you have concerns about the animosity of another inmate currently in custody, which is understandable given your history of injury while incarcerated. At your counsel’s request, you will serve your custodial sentence somewhere other than the Toronto South Detention Centre.

[14] In addition, I sentence you to 2 years’ probation following your release from jail, on the following conditions:

• that you will keep the peace and be of good behaviour;

• that upon completion of your custodial sentence you will report to a probation officer as required;

• that you will seek employment or attend school and will keep your probation officer apprised of your progress as required; and

• that you will refrain from possession or consumption of any illicit drugs.

[15] In addition, the Crown seeks a section 109 firearms prohibition Order for life, which is hereby granted.

[16] Mr. Bowyer, I take you at your word that you have learned a great deal from this experience. I hope that you will continue to reflect on it, and that you will remain committed to improving yourself and supporting your family. Your prospects for rehabilitation are good. I am hopeful that this is your last encounter with the criminal justice system.

Morgan J.

Date: October 18, 2016