CITATION: R. v. Thomas, 2016 ONSC 7792

COURT FILE NO.: CR-14-90000800-0000

DATE: 20161212

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

RONNIQUE THOMAS

Counsel:

Hafeez Amarshi, for the Crown

Stephanie Heyens, for Mr. Thomas

HEARD: October 28, 2016

R.F. GOLDSTEIN J.

REASONS FOR sentence

1. Overview

[1] In March 2013 the Toronto Police targeted Mr. Thomas as a result of information from a confidential informant. They conducted surveillance on his apartment. They obtained a search warrant. On March 11, 2013 they executed the warrant at Mr. Thomas’s apartment and seized a great deal of powder and crack cocaine. Mr. Thomas was charged with possession of cocaine for the purposes of trafficking.

[2] At trial, Mr. Thomas sought to exclude the seized cocaine. He brought a “Garofoli” application. The Crown engaged in a “Garofoli Step Six” procedure: R. v. Garofoli, 1990 52 (SCC), [1990] 2 S.C.R. 1421. I dismissed the application: R. v. Thomas, 2016 ONSC 640. Mr. Thomas did not contest the Crown’s case. He was convicted. The following are my reasons for sentence.

2. The Facts

(a) Circumstances of the offence

[3] In March 2013 a confidential informant provided information to the police regarding a crack cocaine dealer operating at 201 Sherbourne Street in Toronto. That is a large residential apartment building. The confidential informant provided information about this dealer, including a physical description, a nickname, and a location. The confidential informant had purchased drugs from this dealer. The police eventually narrowed their investigation to Mr. Thomas. A police officer showed the confidential informant a photograph of Mr. Thomas. The confidential informant identified him as the crack dealer.

[4] The Crown drafted a judicial summary for defence counsel, pursuant to the Garofoli Step Six procedure. I approved it. The judicial summary summarized more details provided by the confidential informant, as well as details about the confidential informant. Two police officers testified for the Crown. Those officers testified about surveillance that they conducted on Mr. Thomas in order to corroborate the information provided by the confidential informant. They testified that at 9:50 pm on March 10, 2013 they concluded that Mr. Thomas had seen them and determined that they were police officers observing him. They saw him leaving the building to get into a taxi. They detained him. They were aware that another officer was in the process of obtaining a search warrant.

[5] The warrant was executed on March 11, 2013. The police seized 188.72 grams of powder cocaine or just over 6 ½ ounces. An expert witness called by the Crown testified that that amount of powder cocaine sold in bulk would be valued at about $8,000.00 to $10,000.00. If sold at street level, the value would be between $15,000.00 and just under $19,000.00.

[6] The police also seized 20.75 grams of crack cocaine. The expert testified that the value of the crack would be between $900.00 and $2,000.00 if sold at street level.

(b) Circumstances of the offender

[7] Mr. Thomas is a single young man of 25 with no dependents. He reported to the probation officer that his mother had a series of abusive relationships when he was younger. He experienced violence as well. He has little family support, regrettably. He reportedly left home at age 15 when his mother and her partner found his marijuana under his bed. He dropped out of school at the age of 18 without finishing high school. He collected some credits toward a business degree at George Brown College but has not finished. He is now 25, and has little work experience beyond the fast food restaurant job that he has had since February 2015. He intends to go back to George Brown to finish his diploma.

[8] It appears that the Mr. Thomas has attended some counselling sessions at the Centre for Addiction and Medical Health. He reports anxiety issues. He has been prescribed anti-anxiety medication. Mr. Thomas indicated that he has used marijuana since he was 15 years old.

[9] The probation officer who completed the pre-sentence report indicated that Mr. Thomas was polite and cooperative and took responsibility for the offence. He also noted that Mr. Thomas’s CAMH therapist was concerned that he may have some undiagnosed mental health issues. Although Mr. Thomas did not plead guilty, his recognition of responsibility is consistent with the manner in which the defence conducted the trial. The probation officer’s opinion is that Mr. Thomas could benefit from mental health, healthy relationship, and addiction services supports in the community.

3. Positions of the Crown and Defense

[10] The Crown’s position is that Mr. Thomas should be sentenced to 3 to 3 ½ years in the penitentiary. Mr. Thomas had a very large amount of drugs in his apartment. He was not dealing at the street level and he was not an addict trafficker. There are no exceptional circumstances justifying a departure from the range set out by the Court of Appeal.

[11] Ms. Heyens argues that Mr. Thomas should receive a non-custodial sentence. There are exceptional circumstances here, she argues. Mr. Thomas had a difficult childhood, has had no real support since he was 16, and self-medicates for his anxiety problems with marijuana and anti-anxiety medications. Jail, she argues, would do him no good at all and would not serve the objectives of denunciation and deterrence. She points to a series of cases in similar circumstances where offenders have received significantly reduced jail sentences or no jail at all. I will deal with those cases next.

4. Case Law

[12] Ms. Heyens relies on a series of cases from the Ontario Court of Justice involving large amounts of cocaine where judges have found that exceptional circumstances exist.

[13] In R. v. Duncan, 2016 ONCJ 498 the offender pleaded guilty to one count of trafficking cocaine. She sold 1.69 grams of crack cocaine to an undercover officer for $160.00. She also sold similar amounts of crack cocaine to an undercover officer on subsequent occasions. Although she did not plead guilty to those two subsequent offences the facts were accepted as aggravating factors. She had suffered a difficult childhood in St. Vincent (like Mr. Thomas) and in this country was left, in essence, to fend for herself. She had been granted refugee status and at the time of sentencing and had registered at a community college. She was also working at a restaurant. Justice Hogan of the Ontario Court of Justice found that exceptional circumstances existed. The offender was 19. She had no criminal record. She had had a difficult life with no support system and few financial resources. She had been physically and sexually assaulted and then placed in foster care. She had been able to move forward since the offences and to start a more productive life. Justice Hogan sentenced her to a suspended sentence and two years probation.

[14] In R. v. Azeez, 2014 ONCJ 311 the offender pleaded guilty to four counts of trafficking in heroin. He conducted four hand-to-hand heroin transactions with an undercover police officer. He conducted sales of 0.55 grams, 1.56 grams, 0.41 grams, and 13.86 grams of heroin. Two other sales were read in as aggravating factors. Justice Melvyn Green described him as a relatively low-level middleman. Justice Green found that he was essentially an addict trafficker. He described the offender’s addiction as “tenacious” after reviewing his medical and counselling records. He had spent a significant amount of time while on bail attempting rehabilitation. Justice Green noted that the first set of trafficking offences were committed while the Criminal Code still permitted conditional sentences for drugs like heroin and cocaine. Amendments to the Criminal Code came into force for the later set of trafficking offences, including the sale of 13.86 grams of heroin. Thus, a conditional sentence was not available for the most serious of the trafficking offences. Justice Green noted ironically that a suspended sentence and probation was, however, still available as a disposition. In his analysis he pointed to the appellate authorities, which generally prescribed penitentiary sentences for trafficking in heroin absent exceptional circumstances: for example, see R. v. Sidhu (2009), 2009 ONCA 81, 94 O.R. (3d) 609 (C.A.).

[15] Justice Green then spent a considerable amount of his judgment analyzing the meaning of “exceptional circumstances”. He placed reliance on a line of cases from British Columbia commencing with R. v. Preston (1990), 1990 576 (BC CA), 79 C.R. (3d) 61 (B.C.C.A). In that case, the British Columbia Court of Appeal advanced this view:

What then is the proper approach for the court to take when sentencing in a case such as this? When the benefit to be derived to society as a whole, as a result of the successful rehabilitation of a heroin addict, is balanced against the ultimate futility of the short-term protection which the community enjoys from a sentence of incarceration, I believe it is right to conclude that the principle of deterrence should yield to any reasonable chance of rehabilitation which may show itself to the court imposing sentence…

A court would only be justified in giving more weight to the possibility of rehabilitation, rather than deterrence, where there is a reasonable basis for believing that the motivation for such change is genuine and there is a reasonable possibility that it will succeed.

[16] Justice Green then agreed with the following conclusion reached by Justice Cole of the Ontario Court of Justice in R. v. Dzienis, 2012 ONCJ 442

I infer from this decision that the Ontario Court of Appeal has now said that an addict trafficker need not be incarcerated where (a) there is evidence that they are making "genuine" efforts to deal with their substance addiction, and (b) there is evidence that there is a "reasonable possibility" that those efforts will be successful.

[17] The appeal decision that Justice Cole was referring to was R. v. Greene, [2002] O.J. No. 5976. It was his view that the Court of Appeal had expressly adopted the British Columbia Court of Appeal’s decision in Preston. With great respect, I disagree with this reading of Greene. Greene was convicted of breaking and entering. He had, as the Court put it, an “appalling” criminal record largely as a result of his serious drug addiction. He had tried and failed at several drug rehabilitation programs. The Court of Appeal found that the trial judge had put undue emphasis on Greene’s failure to complete a rehabilitation program. The Court of Appeal at para. 5 made the following comment in relation to Preston:

It is unrealistic to expect that he will succeed at overcoming that addiction either on the first or second attempt or even after many attempts. As Wood J.A. said for a five-person court in R. v. Preston (1990), 1990 576 (BC CA), 79 C.R. (3d) 61 (B.C.C.A.) at 74 in relation to a heroin addict:

Indeed, to expect a perfect result would be unrealistic, for it seems unlikely that a pattern of conduct and a lifestyle that has persisted for over 20 years can be changed overnight. There are bound to be relapses on the long road to recovery from any substance addiction.

The courts must not be overly critical of an offender in the position of this appellant. What is important is that he has made and continues to make efforts at curbing his addiction.

[18] I do not read the Court of Appeal as saying anything other than this: an addict’s failure to complete a rehabilitation program should not be judged too harshly. The Court of Appeal was merely commenting on the obvious difficulty that heavily addicted persons have in “going clean” and staying that way. Greene was not convicted of or punished for drug trafficking. With great respect to the experienced and knowledgeable criminal law jurists who have taken the opposite view, I disagree that Greene can be read for the proposition advanced in Dzienis by Justice Cole and adopted by Justice Green in Azeez.

[19] Justice Green in Azeez also relied on the Court of Appeal’s decision in Lazo, where he stated:

And more recently, in R. v. Lazo, 2012 ONCA 389, in addressing the appropriate sentence for an addict trafficker who had successfully completed a drug treatment program, the Court, at paras. 7-8, once again reaffirmed the key take-away from Preston:

Successful treatment of addiction is the best means of addressing drug crime. The public interest is served by diverting individuals in the appellant's situation into drug treatment programs that address the addictions which fuel their criminal activity

[20] Again, and with respect, I do not think that Lazo can be read so broadly. Lazo was an addict trafficker. He sold a small amount of crack cocaine to an undercover police officer. It was his first offence. He successfully completed a drug treatment program. The program was aimed at addicted offenders. The Crown had approved his participation in the program. Upon completion he pleaded guilty. Crown and defence counsel proposed a joint submission to the sentencing judge that the offender be sentenced to a conditional sentence and probation. The trial judge rejected the joint submission on the basis that Lazo was a middleman. That was a misapprehension of the evidence. The Court of Appeal also found that the sentencing judge had erred in rejecting the joint submission as it was not contrary to the public interest. It should also be noted that the Crown conceded the appeal.

[21] Justice Green reached a similar conclusion in R. v. McGill, 2016 ONCJ 138, a case heavily relied on by Ms. Heyens. The offender pleaded guilty to possession of 300 grams of cocaine for the purpose of trafficking. He was an aboriginal man who had a dated criminal record. The Court was required to apply the principles in R. v. Gladue, 1999 679 (SCC), [1999] 1 S.C.R. 688 and R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433. While acknowledging that the Crown’s position of two years less a day was within the range, Justice Green determined that a different sentence was mandated. He conducted an extensive and learned analysis of the principles of sentencing addicted aboriginal offenders in drug trafficking cases. He ultimately determined that a non-custodial sentence was required. He imposed a suspended sentence and probation.

[22] Obviously drug addiction is a factor that must be taken into account for the purposes of sentencing. Addict trafficking usually requires that more emphasis be placed on the principle of rehabilitation than in cases of commercial drug trafficking. Some of addict trafficking cases may well result in non-custodial sentences: after all, sentencing is an individualized process. As Chief Justice McLachlin observed in Attorney General of Canada v. PHS Community Services Society, 2011 SCC 44, [2011] 3 S.C.R. 134 at para. 105, drug use is a complex problem with a wide variety of potentially reasonable policy responses.

[23] That said, there are serious conceptual problems in lumping together all cases of addict trafficking. One major problem in the analysis is that the line between addict trafficking and commercial trafficking is often blurred. As any experienced criminal court judge knows, addicts sometimes deal drugs commercially and commercial dealers sometimes use drugs. The sale of almost a half-ounce of heroin in the Azeez case is a good illustration of that point.

[24] Ultimately, I am respectfully unable to agree that addict trafficking alone constitutes exceptional circumstances for the purposes of sentencing. Much of the drug trafficking before the courts takes place in the context of low-level petty drug trafficking by addicts. It is difficult to see how something so widespread could be called exceptional. Moreover, I simply cannot agree that the Court of Appeal has taken the position addict traffickers need not be incarcerated where there is evidence that addicts are making “genuine efforts” to deal with substance addiction and that there is a reasonable possibility of success.

[25] Rather, I think the Court of Appeal has simply reaffirmed the position that sentencing is an individualized process while continuing to maintain that general deterrence is the critical principle of sentencing in cases of drug trafficking.

[26] The Court of Appeal set the sentencing range for possession of small amounts of crack cocaine for the purpose of trafficking in R. v. Woolcock, [2002] O.J. No. 4927 (C.A.). In that case the accused was convicted of possessing 5.3 grams of crack cocaine. At para. 8 the Court noted that deterrence continued to be a key principle of sentencing, although not to the exclusion of the other principles:

There is no disputing that crack cocaine is an extremely dangerous and insidious drug with potential to cause a great deal of harm to individuals and to society. Likewise, possession of crack cocaine for the purpose of trafficking is a serious offence warranting emphasis on the principles of deterrence and denunciation. However, when sentencing an offender convicted of such an offence, it is incumbent on the trial judge to consider all of the principles of sentencing - including the accused's prospects for rehabilitation. Section 718 of the Criminal Code directs a sentencing judge to consider the full panoply of sentencing objectives, including, but not limited to, assisting in the rehabilitation of offenders.

[27] The Court went on to indicate that the range of sentence for that type of offence is 6 months to two years less a day. The Court has consistently hewed to that position: see R. v. Giroux (2006), 2006 10736 (ON CA), 207 C.C.C. (3d) 512 (C.A.) at para. 70; R. v. Speziale, 2011 ONCA 580. The Court re-affirmed the position taken in Woolcock very recently: R. v. Ahmed, 2016 ONCA 831.

[28] In R. v. Bajada (2003), 2003 15687 (ON CA), 173 C.C.C. (3d) 255 (C.A.) the offender was convicted of possession of a half kilogram of cocaine worth about $62,500.00 for the purpose of trafficking. Bajada had a significant criminal record, including two convictions for trafficking narcotics, a conviction for conspiracy to traffic narcotics, and extortion. He was sentenced to 8 years imprisonment. The Court of Appeal lowered the sentence to six years. In doing so, Weiler J.A., for the Court, stated the following at para. 13:

It would appear that sentences of five to five and one half years are not uncommon for possession of a substantial amount of cocaine for the purposes of trafficking following an accused's plea of guilty or where the accused has no prior record.

[29] I turn now to the mitigating and aggravating factors

5. Mitigating and Aggravating Factors

[30] The mitigating factors in this case beyond youth and disconnection from family are not obvious. Mr. Thomas took responsibility for the offence to his probation officer. Although he did not enter a plea of guilty, he did not insist upon a trial beyond the s. 8 Charter challenge. I accept that he has taken responsibility for the offence, although the mitigation is not complete given that he did not plead guilty. I am aware that Mr. Thomas has been working 15-20 hours per week at a fast food restaurant since February 2015. I am also aware that he has been on bail without incident for 3 ½ years.

[31] It is mitigating that Mr. Thomas has taken steps in his life towards rehabilitation. He has been working steadily now for almost two years. He has attempted to further his education. These are laudable goals. It is mitigating that he has cared for himself without support since he was fifteen.

[32] The main aggravating factor in this case is obviously the large amount of powder cocaine and the smaller, although not insignificant, amount of crack cocaine. The evidence does not establish in any way that Mr. Thomas has a problem with drug addiction. He may use marijuana to self-medicate his anxiety issues but the evidence does not come close to establishing that he traffics to support a marijuana habit. There is no evidence he uses crack or powder cocaine.

6. Principles of Sentencing

[33] I have mentioned the principles of sentencing while canvassing the case-law. I will simply reiterate that in cases of trafficking significant amounts of hard drugs the principles of general and specific deterrence remain paramount. The principle of rehabilitation must also play an important role, even where the offender is not an addict.

7. Ancillary Orders

[34] There will be a s. 109 order for ten years. Possession for the purpose is a secondary designated offence. Given the nature of this offence, I see no reason for a DNA order. Parliament has not mandated one. Mr. Thomas is a first offender. This case was not a “whodunit” where DNA would have made a difference. The balance does not favour law enforcement interests over privacy interests in this circumstance.

8. Final Decision

[35] Sentencing, as I have said, is an individual process. A sentencing judge must balance the need to deter like-minded individuals, denounce the crime, and punish the offender with the need to encourage and facilitate rehabilitation.

[36] Respectfully, there are no exceptional circumstances here. There is no evidence that Mr. Thomas is addicted to crack cocaine or powder cocaine. There is no evidence that he sold cocaine to support a drug habit. The evidence is unambiguous that Mr. Thomas engaged in trafficking at the commercial level.

[37] The crack cocaine on its own would most certainly merit a sentence in the range of 18 months to two years less a day. When combined with some six ounces of powder cocaine, the offence would ordinarily merit a significant penitentiary sentence. The Crown’s position of 3 to 3 ½ years is well within the range.

[38] Mr. Thomas, has, however, made some steps towards rehabilitation and those steps should be encouraged. I am mindful that it is always a very serious step to send a relatively young man who is a first offender to the penitentiary. In this case, I think more weight needs to be given to the principle of rehabilitation. I also take into account the fact that Mr. Thomas has spent five days in custody and over three years on bail without incident. Accordingly, Mr. Thomas is sentenced to two years less a day in the reformatory on Count 1 and 3 months concurrent on Count 3. He will also be on probation for two years. The terms of his probation will be as follows:

• Report as directed to his probation officer;
• Live at an address directed by his probation officer;
• Attend any assessments, treatment, or counselling as directed by his probation officer for mental health issues and substance abuse issues;
• Sign any releases necessary to allow his probation officer to monitor his assessment, treatment, and counselling;
• Provide proof of attendance at and completion of assessment, counselling, or treatment at the request of his probation officer:
• Possess no non-medically prescribed drugs or narcotics;
• Make efforts to seek and maintain employment or attend school and provide proof to his probation officer of either enrolment in an educational institution or efforts to seek employment, as the case may be.

[39] The proceeds of crime will be forfeited to the Crown.

R.F. Goldstein J.

Released: December 12, 2016