Court File No.: CR-15-90000612-0000 Date: 2017-01-06

Ontario Superior Court of Justice

Between:

Her Majesty the Queen Arielle Elbaz, for the Crown Respondent

• and -

Shamar Cole David Quayat, for the Defendant Defendant/Applicant

Heard: November 29-December 1, 2016, at Toronto, Ontario

Michael G. Quigley J.

Reasons for Sentence

Introduction

[1] On December 14, 2016, a jury convicted Shamar Cole of possession of 275.33g of crack cocaine for the purposes of trafficking. He is a twenty-two-year-old first-time offender although other members of his family have an extensive history of criminal involvement.

[2] During the course of the trial, Shamar Cole was caught on video violating the terms of his bail, although he has not yet been charged with that alleged offence. Then, the discovery by police of a certain Facebook post evidently made after the jury had returned with its verdict, had caused the Crown to request that Shamar Cole’s bail be revoked pending sentence. I granted that request on December 16, 2016 based on concerns of flight risk and risk of reoffending, on both the primary and the secondary grounds.

[3] The issue on this sentencing hearing is what the fit sentence is for this youthful first-time offender convicted of possession of a very substantial quantity of crack cocaine for the purposes of trafficking.

Circumstances of the Offence

[4] The illegal drugs that the jury found to have been in the possession of Shamar Cole were found on July 21, 2014 when members of the Toronto Police Service drug squad executed three judicially-authorized search warrants: one to search premises at Unit 215, 40 Tuxedo Court in Toronto associated with Shamar Cole, a second to search a 2008 blue Mercedes-Benz sedan, and a third to search a 2004 white Nissan Maxima sedan, both of which were registered to Shamar Cole as the owner.

[5] Shamar Cole was apprehended on Markham Road while driving the Nissan Maxima vehicle, as the Tuxedo Court warrant was being executed. A search of that residence yielded 2.45g of crack cocaine in plain view on top of a refrigerator in a bedroom at that address, as well as $4,467 in the same room. In addition, crack cocaine cooking utensils with crack cocaine residue was located under the sink of the kitchen in that apartment. The police also found and seized a number of cell phones and found identification documentation for Shamar Cole in the bedroom located close by the small quantity of crack cocaine that was found in plain view, steps away from the baby’s crib where his newborn baby daughter was intended to sleep and from the bed where his daughter’s mother was sleeping when the police executed the warrant.

[6] Nothing was located in the white Nissan Maxima that Mr. Cole was driving at the time of his arrest, but in their search of the blue Mercedes parked underneath the condo or apartment building at 40 Tuxedo Court, police found a further 272.88g of crack cocaine in the trunk of that vehicle, located under the flap where the spare tire would be stored. There was a baby stroller located on top of that spare tire cover in the trunk.

[7] Shamar Cole testified that he knew nothing about the drugs located in either the apartment or the trunk of that Mercedes-Benz vehicle. Although he was the registered owner of both vehicles, he claimed the Mercedes actually belonged to his brother, and that he had purchased it for his brother using his brother’s money, and registered it in his own name, because the brother was facing robbery and other charges at the time and his driver’s licence was allegedly under suspension. The claim was that the brother asked the offender to register the car in his name because the brother thought he could not purchase the car himself while suspended. It is plain in the jury’s verdict and finding that Shamar Cole possessed both quantities of crack cocaine that they rejected the defendant’s evidence in its entirety.

[8] The evidence of Officer Paul Korac, who was accepted as an expert in matters relating to the manufacture, packaging and sale and distribution of crack cocaine and matters relating to the drug subculture, established a number of important facts that were unrefuted in the evidence. The first was that a person in possession of this quantity of crack cocaine would have been a mid-level dealer in the illicit drug business hierarchy. Secondly, the 275.33 grams, or just shy of 10 ounces, of crack cocaine found to be in Mr. Cole’s possession, had a street value of between $11,603 and $27,288 depending on the size of components sold and the manner of distribution.

[9] Finally, while the utensils found in the apartment had cocaine residue on them, Officer Korac was unable to say when those tools had last been used to turn powdered cocaine into crack cocaine, but the fact remains they were located in that apartment which is associated with Shamar Cole, as well as other members of his family.

Circumstances of the Offender

[10] Shamar Cole is now twenty-three years of age. He was twenty-one at the time of the offence. He has no prior criminal record. Those facts require that he be treated as a youthful first-time offender on his sentencing for this offence.

[11] Shamar Cole has two daughters who he sees regularly, and he is evidently involved in their care and upbringing, and sees them often, though the daughters live with Ms. Jane Ottey, their mother.

[12] Mr. Cole has never completed high school, though he has completed grade 11 and is within striking distance of completing his high school education with one more year of education. At the time of this offence, Mr. Cole claimed that he was unable to work and was collecting ODSP payments due to an injury he sustained to his left hand when he was in grade 11.

[13] There was no pre-sentence report prepared in this matter, and there was no specific evidence of Mr. Cole’s rehabilitation prospects. However, as Crown counsel observed, the foolishly-posted Instagram and Facebook picture showing a “selfie” of Mr. Cole holding bundles of $100 bills, at a time when he had just claimed to be receiving only ODSP payments, not only served as an after-the-fact affirmation of Officer Korac’s and the jury’s obvious conclusion that Mr. Cole is a mid-level drug dealer, and that it is that activity that would have generated those bundles of cash, rather than legal employment pursuits or ODSP payments.

Positions of the Parties

[14] The Crown seeks a sentence of four years’ imprisonment together with ancillary orders. Those include an order that Mr. Cole provide a DNA sample to the national DNA bank, that he be ordered under s. 109 not to possess weapons for life, and that forfeiture orders be made for the $4,467 seized at the apartment and the 2008 Mercedes Benz vehicle.

[15] Crown counsel provided a helpful chart of sentences in cases she claimed are comparable and that in her submissions provided the foundation for her claim that the fit sentence in this case is four years’ imprisonment. The case referenced were R. v. Bryan, 2011 ONCA 273, R. v. Bajada, R. v. Peltier, 2013 ONCA 141, R. v. Ceballos, 2015 ONSC 720, R. v. Ovid, 2016 ONSC 2974, R. v. Colquhoun, [2002] O.J. No. 5412, R. v. LeCompte, 2012 ONSC 2170, R. v. Young, 2016 ONSC 3615 and R. v. Pearson, [1992] 3 S.C.R. 665.

[16] There was some overlap in the cases advanced by defence counsel in his submissions. He also included the Ceballos case in his materials, but also referenced R. v. Bertrand, [2012] O.J. No. 6301 (S.C.J.), R. v. Thomas, [2008] O.J. No. 3650 (S.C.J.) and R. v. Brewster, [2003] O.J. No. 2305 (S.C.J.). In his submission, however, these cases stand for the proposition that in the case of a youthful first-time offender, such as this offender, and having regard to the actual quantity of drugs recovered, the appropriate range of sentence is two to two-and-a-half years of imprisonment. He seeks a sentence of two years less 197 days of credit for pre-trial custody to today’s date, based on 131 days at 1.5:1 credit.

[17] Defence counsel makes no submissions with respect to the forfeiture orders sought by the Crown, but claims the s. 109 order need only be for ten years having regard to the terms of the provision. Further, since there is no indication here of violence in the commission of the offence, defence counsel encourages me not to require that Mr. Cole give a DNA sample.

Analysis

[18] The factors that must be taken into account on the sentencing are stipulated in section 718 of the Code. The principal considerations in a case such as this are denunciation and general and specific deterrence of this offender, and the public at large, from engaging in the highly-destructive and pervasive hard drug trade in this country, given the extent to which illicit drugs are associated with so much of the other crime perpetrated in this city and province and across the nation.

[19] In this case, Crown counsel claims that there are four aggravating factors but no mitigating factors. The aggravating factors are claimed to be the following:

(i) That possession for the purposes of trafficking of the quantity of drugs present in this case is not the conduct of an addict but of a commercial dealer, a mid-level commercial dealer in possession of a significant amount of crack cocaine having a value ranging roughly between $11,000 and $27,000;

(ii) The Facebook posting which the Crown claims demonstrates an entire lack of remorse and a strong suggestion that the offender would continue to be involved in the drug trade once he is released from serving his sentence. Crown counsel also notes that that Facebook posting demonstrates an absence of rehabilitation prospects, and demonstrates that the accused lied in his testimony before the jury when he said that his only source of revenue was from ODSP payments;

(iii) The presence of cocaine cooking equipment in the kitchen and a quantity of crack cocaine out in plain view in an apartment where it is acknowledged that others were living in that young children were present. In that regard, it is claimed that the presence of the baby stroller inside the trunk of the Mercedes-Benz is also aggravating; and finally,

(iv) The presence of a large amount of money seized in the apartment together with multiple cell phones is indicative of an organized drug trading operation.

[20] I accept that the first, second and fourth factors enumerated by the Crown are aggravating, but there is no basis upon which it can be concluded that the third factor is aggravating since it cannot be known what findings the jury reached relative to the presence of children relative to the accused. The fact is that the car in which the drugs were found was at least claimed to be used by his brother. His brother also had an infant child who would have been of an age where a stroller would have been used for mobility. We do not know whether the jury found the accused to be guilty on the basis that the Mercedes-Benz was actually his and that he actually used it, or on the basis that the drugs that were found in the trunk of that vehicle registered to him may actually have been used as a storage place by him with the knowledge and consent of his brother, to whom the stroller may have belonged. These uncertainties leave me unable to conclude that this particular aspect of the offences is aggravating as claimed by the Crown.

[21] In R. v. Bajada, above, the Court of Appeal observed at paragraph 13 that sentences of five to five-and-a-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.

[22] In R. v. Pearson, above, albeit a case focused on bail, the Supreme Court of Canada, quoting from the 1990 Québec Rapport du groupe de travail sur la lutte contre la drogue (Report of the working group on the fight against drugs) speaks eloquently at paragraph 60 of the scourge of the illicit drug trade and it’s spinoff effects:

…Unlike robbery, sexual assault and murder, drug trafficking is often wrongly regarded as a nonviolent crime: there is accordingly a certain tolerance of traffickers who give the illusion of being anonymous businessmen, hidden among those who were engaged in lawful business. Such an impression is far from the reality, however, when one considers the fierce battles for control of territory and violent action to obtain the money needed to purchase drugs; equally when one thinks of the personal brutality and social dramas that result.

Drugs are responsible for 70 to 80% of prison terms: crimes resulting from the application of narcotics legislation (possession and trafficking); crimes committed under the influence of alcohol or other drugs (rape, violence and homicide); crimes committed to obtain drugs (theft and prostitution).

[23] And at paragraph 61 the Court continued:

… most offences are not committed systematically. By contrast, trafficking in narcotics occurs systematically, usually within a highly sophisticated commercial setting. It is often a business and a way of life. It is highly lucrative, creating huge incentives for an offender to continue criminal behavior even after arrest and release on bail.

[24] However, even in the face of very serious crimes such as these, the sentencing judge must take proper account of the youthfulness of an offender as a potential indicator of his potential for rehabilitation. In R. v. Borde (2003), 63 O.R. (3d) 417 at para. 36, Rosenberg J.A. stated that:

The length of a first penitentiary sentence for a youthful offender should rarely be determined solely by the objectives of denunciation and general deterrence. Where, as here, the offender has not previously been to penitentiary or served a long adult sentence, the courts ought to proceed on the basis that the shortest possible sentence will achieve the relevant objectives.

[25] While this may be so, in R. v. Peltier, above, it did not cause the Court of Appeal to reduce a penitentiary sentence of six years imposed in that case simply on the basis that the youthful offender previously had only one sentence involving two months in custody. MacPherson J.A. stated at paras. 10 and 11 that:

10. I do not accept these submissions. The trial judge recognize that the sentence imposed had to take account of denunciation, deterrence and rehabilitation, and he found that these objectives would not be met by a shorter penitentiary sentence. In a case involving the production and sale of crack cocaine, he was entitled to emphasize, as he did, the need to “express the community’s denunciation of the sale of crack cocaine to its citizens.” He also stated the obvious on the issue of deterrence:

The sale of drugs is a for profit crime. The deterrence must be such that it would cause a potential drug seller to think seriously about the penalty.

11. The trial judge also specifically addressed rehabilitation and considered the principles described in Borde. The appellant was 25 years old when he committed the set of crimes, whereas the appellant in Borde was 18 when he committed his crimes. The appellant has a long-term (ten years stretching back to 1999), fairly extensive (13 other convictions), and related (two previous convictions for drug offences) criminal record. He was charged with and pled guilty to another drug-related crime while facing these charges. Taking these factors together, it is hard to quarrel with the trial judge’s observations that “[t]hese facts do not demonstrate that Mr. Peltier has changed his ways… Mr. Peltier’s prospects for rehabilitation are not good.”

[26] Nevertheless, this is a case that is also plainly distinguishable from an egregious background like that described by McPherson J.A. in the Peltier case. Moreover, given that the total quantity of crack cocaine present in this case was approximately 275 g or approximately 10 ounces, it seems to be based upon the comparative chart provided by the Crown herself, that the appropriate range of sentence is more likely in the vicinity of two to three years or three-and-a-half years, rather than a sentence of four years.

[27] In Ceballos, the accused was in possession of 326 g of cocaine, roughly 50 grams more than here, and was sentenced to two-and-a-half years of imprisonment where he pleaded guilty after a voir dire, the equivalent of pleading guilty partway through a trial, where he had no criminal record, and where he had strong rehabilitative prospects. His precise role within the drug hierarchy was unknown. There were no other indicia of trafficking present. As such, three-and-a-half years was within an appropriate range recognizing the paramountcy of the principles of general and specific deterrence and denunciation.

[28] In Ovid, above, the offender was in possession of 305g of cocaine and crack cocaine, only 30 grams more than here, and was sentenced to a penitentiary sentence of four-and-a-half years, but he had a long criminal record unlike Mr. Cole and the sentencing judge was incited towards that longer sentence by the commercial nature of the offence.

[29] In the two most relevant cases provided by the Crown where the quantum of drugs was less than that involved here, in Colquhoun and LeCompte, the sentences imposed were two-and-a-half years and three years, respectively, three years in the latter case even though the accused had no criminal record and was a first-time offender, but given he was an established crack cocaine supplier.

[30] The two cases provided by defence counsel, R. v. Thomas and R. v. Brewster, above, are also supportive of a lower range of sentence in a case comparable to this. In Thomas, Feurst J. imposed a sentence of twenty-four months on an individual who had no prior record but who was in possession of 431g of crack cocaine, one-and-a-half times as much as was present here. In Brewster, where the amount of crack cocaine was 11 ounces, very close to the amount present here, Croll J. imposed a sentence of two-and-a-half years on the forty-six-year-old offender.

[31] In my view, these cases demonstrate that the appropriate range applicable in the particular circumstances of this case must be between two and three years of imprisonment. In reaching that conclusion, as in the cases referenced above, I have taken account of the particular quantity of crack cocaine, the absence of a prior criminal record, and the fact that Shamar Cole is a youthful first-time offender.

[32] However, unlike defence counsel who submits that the appropriate sentence should be two years less pretrial custody credit, I am of the view that there are aggravating factors here, as noted by Crown counsel, which should otherwise cause the sentence to be at the higher end of the range.

[33] While I accept that Mr. Cole is not being sentenced for his stupidity in taking a “selfie” of himself holding wads of $100 bills right after being found guilty of this crime, and while I accept that I am not sentencing him for the stupidity of publicly breaching his bail terms in the middle of the Eaton Centre that took place during the course of his trial, with him riding up an escalator talking on a cell phone in contravention of his bail terms while he had the bad luck of having the Officer in Charge riding down the opposite escalator, those are factors which do not suggest that a new respect for the law will arise in Mr. Cole’s mind and heart at the conclusion of these proceedings, nor do they suggest that the prospects of rehabilitation in this case are high.

[34] No evidence is provided that there are any meaningful prospects of rehabilitation, apart from completing his high school education, and the offender himself, when invited to speak to the Court, had nothing to say. He has demonstrated neither remorse nor willingness to take responsibility for the offence that the jury has convicted him of committing. These are not positive factors.

[35] As such, taking all of these factors into account, I have concluded that the appropriate sentence in this case is two years and eight months of imprisonment, that is, thirty-two months. In lowering the sentence I intend to impose from the top of the range which I find to be thirty-six months, down to thirty-two months, I am taking account of the possibility, and expressing my hope that Mr. Cole will complete his high school education while serving his sentence in the penitentiary, and that he may take advantage of the better facilities that will be available to him there and that may teach him a trade, that is, a legal way of earning an income in the future, if he chooses to accept and take advantage of those opportunities.

[36] As for the ancillary orders, they will all go, except that the section 109 weapons prohibition order will be for ten years. As for the DNA order, while Mr. Cole has not to this date been engaged in any violence that is known to the authorities in relation to his commercial activities as a drug dealer, the prevalence of violence involving the drug trade, and the need to be able to identify those involved in that trade who may become inclined towards violence is the higher public good here than the alleged indignity of requiring Mr. Cole to provide a simple sample of his DNA to permit him to be readily identified in future should he be involved in further criminality. The two forfeiture orders will issue.

Conclusion

[37] Shamar Cole, will you please stand up.

[38] After taking account of 197 days of pretrial custody credit to which you are entitled up to today’s date, I sentence you to serve the remaining sentence of two years and one-and-a-half months in the penitentiary. The other ancillary orders as I have indicated will go and you will provide a sample of your DNA to the authorities to permit you to be identified in the future more easily should you choose to continue in a life of criminality.

[39] Before you go, sir, I wish to speak to you personally, strongly, and in the most direct terms I can. This is your first offence. This will be your first trip to the penitentiary. I sincerely hope it will be your last. I sincerely hope that you will recognize that you are today at a turning point, a divide in the road, and that you must choose which of two paths you will pursue.

[40] Should you choose to take full advantage of the facilities that will be available to you during your incarceration, you may well be able to complete your high school education and earn a diploma, an accomplishment in which you will be able to take pride. You may be able to learn a trade that will provide you with the wherewithal to earn an income in a lawful manner once you have served your sentence and are released. Notwithstanding the pressures that may be on you, and the influences from others with whom you are associated, or in your family, the choice whether or not to pursue a lawful or unlawful life is yours, and yours alone. Only you can decide whether you have the courage to choose a lawful life and to leave a life of criminality behind you.

[41] On the other hand, as seems to be suggested by the very unfortunate selfie photograph, perhaps you will simply choose, upon your release from the penitentiary, to get back into the unlawful and highly-destructive commercial business of manufacturing and selling illegal drugs that are a scourge to our society. That is a road that will not have a happy ending. It is a road that ultimately ensures that you will not be part of your daughters’ lives, because you will either be dead, given the close association between violence and the drug trade, or you will be spending most of your life behind bars.

[42] So as I said Sir, the choice is entirely yours. While your conviction and sentence on this offence demonstrates that you have made poor choices in the past, the question of whether you will change the direction of your life at this time, for your own benefit, and for that of your children and their mother, is one that only you can answer. The time that you will spend incarcerated should give you lots of opportunity to think carefully on that question. I sincerely hope that you will do so, and that you will come to the right answer, turn your life around when you are released, and abandon your criminal past. As I said, however, the choice is entirely yours.

Michael G. Quigley J.

Released: January 6, 2017