CITATION: R. v. Bogle, 2016 ONSC 746

COURT FILE NO.: 544/13 and 568/13

DATE: 2016-01-29

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Carol Ann Letman, Counsel for the Director of Public Prosecutions Service of Canada

• and -

DONOVAN BOGLE

H. John Kalina & S. Tejpal, Counsel for the Defendant

HEARD: December 18, 2015

S E N T E N C I N G

Tzimas, J.

INTRODUCTION

OVERVIEW

1Donovan Bogle was found guilty of trafficking cocaine, possessing cocaine for the purposes of trafficking and possession of cocaine on October 8, 2015.

2Crown and defence counsel agree that Mr. Bogle must receive a jail sentence but they disagree on its length. Crown counsel seeks one year for the trafficking offence and three to four years for the two possession convictions. She notes that the trafficking is separate from possession and accordingly the sentences should be consecutive. Defence counsel seeks a global sentence in the range of two to two and a half years.

Circumstances of the offences

3The events that were the subject of this trial and that resulted in Mr. Bogle’s convictions occurred between March 8 and 10, 2012. Officers with the Peel Regional Police were conducting surveillance on Mr. Bogle. They described how they followed Mr. Bogle as he attended at various meeting points. The court heard from one individual who described how he and a friend of his attended at one of these meeting points and purchased some cocaine.

4The officers formed the belief that drug transactions were taking place at these various locations. They eventually obtained a search warrant of the residence where Mr. Bogle was living. There, the police found and seized 118.7 grams of cocaine that was said to have a value of $11,870. The cocaine was packaged in four separate packages and then in a green container. The police also found and seized more than one cell phone, digital scales and large quantities of money hidden in various parts of the home. The cocaine was found in the basement.

5The home where Mr. Bogle was arrested belonged to Ms. Grant. She lived there with her son. Mr. Bogle paid rent to Ms. Grant. He also shared the master bedroom with her. Ms. Grant testified that some of the money that was seized belonged to her. She estimated that to be at total of between $4,000 and $5,000. She explained that she kept money at home because of difficulties she was having with respect to the bank and debts of her ex-husband. She said that she kept $3,000 in a pink sheet. She also indicated that she had $1,000 in a drawer, which she was keeping for a co-worker. The monies were also connected to fundraising for the church she attended. Ms. Grant told the court that she did not say anything to the police about the funds in the drawer. She also said that although she had originally thought that there was $1,000 in the drawers, on further reflection, she thought that the sum was actually $1,900.

6The total funds that were seized from the premises came to the sum of $11,525.00.

Circumstances of the offender

7Mr. Bogle was 49 years of age at the time of his arrest. He was 51 at the time of the trial. He was living at Ms. Grant’s home and was paying rent in the sum of $400 per month. He operated a car repair business out of the home.

8Mr. Bogle had a very hard and rough childhood. At five months, his paternal grandmother assumed a parental role as his father was unable to care for the family. His mother was absent from his entire childhood and upbringing. His education was limited to a grade five equivalent from Jamaica. This limited his ability to gain full employment or to write the exams required to obtain an auto mechanic’s license. When Mr. Bogle first came to Canada in 1988 he worked under the “Seasonal Program Worker” on a farm. He also did apple-picking.

9In the period between 1991 to about 2009 Mr. Bogle worked intermittently as an unlicensed auto mechanic. He also worked as a general labourer in a local aluminum company.

10Since 2009, Mr. Bogle reported to the author of the pre-sentencing report that he collected scrap metal and did “odd jobs for cash”. He has also been receiving social assistance from Ontario Works. Since October 2014 Mr. Bogle was attending English and math classes to upgrade his education. He hoped to obtain his General Education Diploma. His further long-term goal was to write the auto mechanic license exam.

11Mr. Bogle married his first wife in 1991 and he has two sons from that union who are aged 30 and 28 years old. In 1994 Mr. Bogle married again and had two children out of that union. The couple separated in 1999. In the period between 2000 and 2002, Mr. Bogle was involved in a common law relationship and out of that union he has a young daughter who is 13 years old.

12In the Pre-Sentencing Report, the author noted that Mr. Bogle enjoys a good relationship with all his children. He also has three grandchildren. In the past two and half years, Mr. Bogle has been involved in a relationship with Ms. Jackie Titus. The relationship is described as serious.

13Finally, Mr. Bogle has a criminal record. On March 18, 2013, Mr. Bogle pleaded guilty to trafficking of a substance and received a six-month conditional sentence. The offence occurred in 2010. The Order commenced on March 18, 2013 and expired on September 17, 2013. The current offences pre-dated this conviction but they occurred while Mr. Bogle was on bail for the 2010 offence.

14On December 7, 2015, Mr. Bogle pleaded guilty to a charge of impaired driving and to a charge of possession of a controlled substance. He received 54 days for the possession charge which was reduced to 36 days on account of pre-sentencing custody plus one day custody. For the impaired driving, he received 11 days plus a fine of $10.00.

15The surety in this matter revoked bail as a result of the subsequent charges. As of December 8, 2015, Mr. Bogle had satisfied the penalties regarding the other convictions. He has since remained in custody on account of the convictions in this matter.

16Just before the sentencing submissions, defence counsel brought to the court’s attention Mr. Bogle’s breach of recognizance not to possess a narcotic. Mr. Bogle pleaded guilty to the breach in light of the convictions in this case. He continues to deny any wrongdoing in relation to the convictions.

Position of the Parties

i. Crown Counsel

17On behalf of the Crown, Crown counsel submitted that Mr. Bogle should be sentenced to one year in custody for the trafficking offence and three-to four years for the possession charges, for a total sentence in the range of four to five years. Counsel asked that the court treat the convictions separately even though the charges resulted from the police’s surveillance of Mr. Bogle.

18Regarding the trafficking, counsel explained that Mr. Bogle was on release for a trafficking charge at the time of this particular offence. The trafficking in this case was separate from the possession charges, and should be dealt with separately. Counsel also noted that the trafficking conviction in this instance was a second offence.

19Regarding the quantity seized, counsel described it as not large but nonetheless substantial. The evidence that the cocaine was for the purposes of trafficking was largely uncontested. Counsel noted that in addition to the cocaine, the police seized the digital scales, a sizeable cash quantity, and multiple cell phones.

20From the Crown’s perspective, the primary aggravating circumstance was that Mr. Bogle was on bail for trafficking at the time of these offences. Counsel acknowledged that Mr. Bogle had a positive pre-sentencing report. She also noted the significant family support from Mr. Bogle’s family members and she noted Mr. Bogle’s efforts to enhance his education. The letters suggested that Mr. Bogle is a very caring father and has been trying to do his best. However, that did not diminish the fact that Mr. Bogle was engaging in illegal activity to support himself and possibly his family. The prospects of rehabilitation were diminished by two serious concerns. First, Mr. Bogle engaged in drug activities before and after his convictions in this case. Counsel suggested that the charges of impaired driving and possession, just two weeks after the jury found him guilty of the offences that were the subject of this trial ought to be especially troubling. Second, the substance involved was cocaine, and that has been found by courts to be a very serious substance.

21Counsel relied on R v. Bajada, [2003] O.J. No. 721 (ONCA) for the proposition that a sentence of five to five and a half years was not uncommon for possession of a substantial amount of cocaine for the purposes of trafficking following an accused’s guilty plea, or where there is no prior record. Using that as a benchmark, counsel submitted that in the circumstances of this case, a time period of three to four years for the possession of cocaine for the purposes of trafficking was appropriate. Counsel also put before the court R v. Lecompte, [2012] ONSC 2170, (SCJ), R v. Peltier, [2013] ONCA 1414 (OCA), R v. Marino, [2014] ONCJ 648 (OCJ), and R v. Hopkinson, [2014], ONCA 836 to compare and contrast the ranges for an appropriate sentence. The offenders in these cases were first time offenders. Using the jail terms in those cases as a bench mark, counsel concluded that Mr. Bogle’s jail term should be higher given his circumstances.

22Finally, Crown counsel asked for corollary relief - weapons prohibition, a DNA order, and order for forfeiture for all items seized.

Defence counsel

ii. Position of the Defence

23Defence counsel disagreed with the incarceration term proposed by Crown counsel. In his view, the extensive range of sentence options is reflective of the court’s broad discretion to fix a sentence that is fact-specific. Counsel relied on the Supreme Court of Canada’s latest pronouncement on sentencing, in R v. Lacasse, [2015] SCC 64 for that proposition. Released on December 17, 2015, Justice Wagner observed that “sentencing remains one of the most delicate stages of the criminal justice process in Canada”, see para.1. He also observed that sentencing, by definition involved “the exercise of a broad discretion by the courts in balancing all the relevant factors in order to meet the objectives being pursued in sentencing.”

24Defence counsel described Mr. Bogle’s prior and post-conviction charges and convictions to amount to an unfortunate series of situations. Especially with respect to the activities that post-dated his conviction in this case, counsel explained that Mr. Bogle was with five or six other friends on the evening of October 23, 2015. Together they had gone to console another friend who recently lost his wife to cancer. Mr. Bogle was upset and depressed over his recent convictions. One thing led to another and ultimately he exercised bad judgment. He consumed alcohol, he had narcotics on him and he went ahead and drove. A third party observed him driving. At some point, he pulled into a McDonald’s parking area, and fell asleep in the car. The police found him in those circumstances.

25Defence counsel noted that Mr. Bogle understood that his conduct was an exercise of poor judgment and with the revocation of his bail, he has been in custody and has had plenty of time to reflect on his situation and his choices. In other words, he has already come to realize the magnitude of his wrongful conduct and the serious consequences.

26Defence counsel relied on the Pre-Sentence Report for the contention that it contained a number of significant mitigating factors. He described the report to be very positive. He highlighted Mr. Bogle’s family support through his five children and three grandchildren. Counsel also noted that Mr. Bogle has been handicapped by his poor literacy skills. He highlighted that as recently as a few years ago, Mr. Bogle could not read and write. Since that time, he has improved significantly with a significant effort to upgrade his education. He also came to appreciate that he had to upgrade himself to be able to be employed, and he remains committed to that objective.

27Counsel then focused on the current relationship between Mr. Bogle and Ms. Titus. He noted in particular Ms. Titus’ support and how she helped him come closer to his own family. Ms. Titus was in court during the trial and she remains very supportive of him.

28Based on the above, counsel submitted that this is a case where Mr. Bogle should be sentenced to a global sentence in the range between two and two and a half years. This range would reflect the gravity of the offence and Mr. Bogle’s criminal history. Counsel suggested that the criminal history was not extensive, though he admitted that the offences were related.

THE CASE LAW

a) Governing Principles

29The governing principles of sentencing are outlined in section 718 of the Criminal Code. They engage the common law objectives of sentencing that are: the denunciation of unlawful conduct, deterrence, both general and specific, the separation of the offender from society where necessary, rehabilitation, reparation from harm done to victims or the community, and the promotion of a sense of responsibility in offenders an acknowledgment of the harm done. Section 718.1 provides that a sentence must be proportionate to the gravity of the offence and degree of responsibility of the offender. Section 718.2 requires that a sentence be increased or decreased depending on the aggravating and mitigating circumstances of a particular case. That section also requires that a sentence be similar to those imposed on similar offenders in similar circumstances, that the combined duration of consecutive sentences not be unduly long, and that the offender not be deprived of liberty if less restrictive sanctions may be appropriate.

30I also note that in the context of drug offences, section 10(1) of the Controlled Drugs and Substances Act, provides that the fundamental purpose of a drug offence sentence is to contribute to the respect for the law and the maintenance of a just, peaceful and safe society while also encouraging rehabilitation and drug treatment in the appropriate circumstances. Section 10(2) requires the sentencing judge to take into account any relevant aggravating factors.

31It is instructive to note the individualized process that is engaged in the context of sentencing. The Supreme Court of Canada re-affirmed this principle in its most recent decision in Lacasse, supra. In doing so it echoed its pronouncement in R v. Proulx [2000] 2 S.C.R. 61 where it was recognized that there is no one sentence for a particular crime.

b) Analysis

32Turning to this case, I find that the aggravating factors in this case are: a) the nature of the narcotic, i.e. cocaine; b) the quantity of cocaine of approximately 118 grams hidden in Mr. Bogle’s place of residence; c) the previous trafficking offence that pre-dated the offences of this case; and d) the further convictions that post-dated the convictions of this case. Although I accept that the circumstances leading to the charges of October 23, 2015 were unfortunate and that Mr. Bogle demonstrated poor judgment that evening, I cannot discount its occurrence.

33Mr. Bogle has a number of mitigating factors. They consist of the following:

a) A positive Pre-sentencing Report;

b) A very supportive family;

c) Support within his social community as reflected by his pastor;

d) A personality described unanimously to be one of good-hearted kindness to a fault and very caring; and

e) A willingness to upgrade his education and employable skills.

34Mr. Bogle’s limited education and the systemic limitations that impacted on his ability to support himself go to a certain degree to my consideration of Mr. Bogle’s blameworthiness. His willingness to improve his situation, already demonstrated by his upgrading underway, combined with his personality reveal somebody who has very good prospects of being rehabilitated. His family’s support is most promising and would stand to reinforce Mr. Bogle’s rehabilitation. In light of these observations I am unable to agree with Crown counsel’s contention that Mr. Bogle’s mitigating factors are eclipsed by his pre-and post-convictions conduct.

35In my view, my reconciliation of Mr. Bogle’s aggravating and mitigating factors brings into focus the proportionality principal in sentencing. The aggravating factors point to a strong sentence, particularly when the convictions in this case seem to fall on a continuum of offences and convictions. On the other hand, Mr. Bogle’s mitigating circumstances point to the opposite end of the sentencing range. To reconcile this conflict it is useful to note the Supreme Court of Canada’s direction that a sentence “must be proportionate to the gravity of the offence and the degree of responsibility of the offender”, see R v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773 at para. 42,. In Lacasse, supra., writing for the minority, Justice Gascon expanded on proportionality and spoke about the two conflicting factors:

[128] The principle of proportionality has a long history as a guiding principle in sentencing, and it has a constitutional dimension: R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at para. 41; R. v. M. (C.A.), [1996] 1 S.C.R. 500, at p. 530. A person cannot be made to suffer a disproportionate punishment simply to send a message to discourage others from offending: Nur, at para. 45. As Rosenberg J.A. wrote in R. v. Priest (1996), 30 O.R. (3d) 538 (C.A.), at pp. 546‑47:

The principle of proportionality is rooted in notions of fairness and justice. For the sentencing court to do justice to the particular offender, the sentence imposed must reflect the seriousness of the offence, the degree of culpability of the offender, and the harm occasioned by the offence. The court must have regard to the aggravating and mitigating factors in the particular case. Careful adherence to the proportionality principle ensures that this offender is not unjustly dealt with for the sake of the common good. [Footnote omitted.]

Although a court can, in pursuit of the objective of general deterrence, impose a harsher sentence in order to send a message with a view to deterring others, the offender must still deserve that sentence: R. v. Paré, 2011 QCCA 2047; G. Renaud, The Sentencing Code of Canada: Principles and Objectives (2009), at para. 3.13. If a judge fails to individualize a sentence and to consider the relevant mitigating factors while placing undue emphasis on the circumstances of the offence and the objectives of denunciation and deterrence, all that is done is to punish the crime: R. v. R. (M.), 2010 QCCA 16, 73 C.R. (6th) 136. Proportionality requires that a sentence not exceed what is just and appropriate in light of the moral blameworthiness of the offender and the gravity of the offence. From this perspective, it serves as a limiting principle: Nasogaluak, at para. 42.

[129] My colleague states that the principle of proportionality means that the more serious the crime and its consequences, or the greater the offender’s degree of responsibility, the heavier the sentence will be (para. 12). I would qualify this statement somewhat. In my view, an offender’s degree of responsibility does not flow inevitably and solely from the gravity of the offence. The gravity of the offence and the moral blameworthiness of the offender are two separate factors, and the principle of proportionality requires that full consideration be given to each of them: Proulx, at para. 83. As s. 718.1 Cr. C. provides, “[a] sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.”

[130] Whereas the gravity of the offence concerns the harm caused by the offender to the victim as well as to society and its values, the other aspect of the principle of proportionality involves factors that relate to the offender’s moral culpability:

The “degree of responsibility of the offender” as used in s. 718.1 certainly includes the mens rea level of intent, recklessness or wilful blindness associated with the actus reus of the crime committed. For this assessment, courts are able to draw extensively on criminal justice principles. The greater the harm intended or the greater the degree of recklessness or wilful blindness, the greater the moral culpability. However, the reference in s. 718.1 is not simply to the “mens rea degree of responsibility of the offender” at the time of commission of the crime. Parliament evidently intended “degree of responsibility of the offender” to include other factors affecting culpability. These might relate, for example, to the offender’s personal circumstances, mental capacity or motive for committing the crime. Where else does the Code provide for an offender’s degree of responsibility generally to be taken into account? Here, too, the answer takes us to s. 718.2.

Section 718.2 directs the sentencing judge to take into consideration a number of principles. All are either components of the proportionality principle or properly influence its interpretation and application. Either way, all are relevant in determining a just sanction that satisfies the proportionality principle. [Citation omitted.]

(R. v. J.L.M.A., 2010 ABCA 363, 499 A.R. 1, at paras. 58‑59; see also Nasogaluak, at para. 42; M. (C.A.), at para. 40.)

[131] The application of the proportionality principle may therefore cause the two factors to conflict, particularly where the gravity of the offence points strongly to a sentence at one end of the range while the moral culpability of the offender points in the other direction: R. v. Hamilton (2004), 72 O.R. (3d) 1 (C.A.), at para. 93, quoted in C. Ruby et al., Sentencing (8th ed. 2012), at pp. 26‑27. In short, although it is true that the gravity of the crime is a relevant factor, it must nevertheless be considered in conjunction with the offender’s degree of responsibility, a factor that is unrelated to the gravity of the offence.

[132] I would also qualify my colleague’s statement that the courts have “very few options other than imprisonment” (para. 6) for meeting the objectives of general or specific deterrence and denunciation in cases in which they must be emphasized. In my view, the courts should not automatically assume that imprisonment is always the preferred sanction for the purpose of meeting these objectives. To do so would be contrary to other sentencing principles. Rather, a court must consider “all available sanctions, other than imprisonment,” that are reasonable in the circumstances: s. 718.2(e) Cr. C.; Gladue, at para. 36.

36Having regard for the above, I find that the gravity of Mr. Bogle’s offences cannot be ignored and requires a custodial sentence. He is neither a first time offender nor an unsophisticated young offender. At the same time, the mitigating factors support the conclusion that with the appropriate supports in place, Mr. Bogle can rehabilitate himself. His personal circumstances, his willingness to improve his circumstances, and his apology to the court, which I accepted as sincere, are all relevant considerations regarding the length of incarceration. These elements point to a sentence at the lower end of a custodial sentence combined with an extended period of probation. I go further to note that it is essential that Mr. Bogle be provided with all the available supports and counselling to allow for his success. An extended probation period with the appropriate supports and conditions in place will be crucial to Mr. Bogle’s ability to change his life course away from future temptations to support himself through drug trafficking but through gainful employment.

CONCLUSION AND DISPOSITION

37In light of my findings, I sentence Mr. Bogle to a global sentence of twenty-six and a half months in jail. That term is to be reduced to twenty-four months, or exactly two years, on account of fifty-three days of pre-sentencing custody, credited at 1.5 for a total credit of eighty days. As of today, the sentence is reduce to two years. To that, I add probation of two years following his release from prison with the following conditions:

a) Mr. Bogle is to report to the appropriate Probation Office associated with his place of residence;

b) Mr. Bogle shall not associate with any person known by him to have an adult or young offender criminal record, except for purposes of employment and family members;

c) Mr. Bogle shall not possess any non-prescription narcotics, and any drug paraphernalia or drug trafficking equipment including but not limited to crack pipes, syringes, push sticks, weighing devices, buffing agents or packaging material and not to be found in any place they may be present;

d) Mr. Bogle shall undertake reasonable efforts to attend school or other education programs that will enable him to continue his upgrading. He shall provide proof and show progress reports to the Probation Officer as required;

e) Mr. Bogle shall make reasonable efforts to find and maintain gainful employment and provide proof of job search and employment as directed by the Probation Officer; and

f) Mr. Bogle shall undertake any career counseling as might be available and recommended by the Probation Officer to support efforts to find appropriate employment.

38While in prison, Mr. Bogle is encouraged to pursue training and counselling sessions that may be offered that would enable him to continue with his efforts to upgrade his reading and writing skills. I wish to underscore my conclusion that with the appropriate supports, in addition to Mr. Bogle’s personal disposition and family support he presents as somebody who is most promising to succeed in leaving behind his criminal activities of the past.

39In addition, I make a weapons prohibition order pursuant to subsections 109(1)(a) and 109(2) of the Criminal Code for a period of ten years and a DNA order pursuant to section 587.051(3) authorizing the taking of a DNA sample.

40Regarding the Crown’s request for a forfeiture order for the items seized, with the exception of the cash, an order is to issue as requested. Regarding the cash, I will require fulsome submissions. Notice of the proposed forfeiture is to be given to anyone who might have an interest in the monies and in particular Ms. Una Grant, given her testimony at trial. The Crown is to schedule a hearing before me for the determination of this issue.

Tzimas, J.