R. v. James and Dawson, 2017 ONSC 473

CITATION: R. v. James and Dawson, 2017 ONSC 473

COURT FILE NO.: CR-15-10000288-0000

DATE: 20170119

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

ALEX JAMES and JESSE DAWSON

Emile Carrington, for the Crown

David Burke, for Alex James

Mary Cremer, for Jesse Dawson

Sentencing Hearing at Toronto:

16 December 2016

SENTENCING DECISION

mew j.

[1] Alex James and Jesse Dawson have each been convicted of possession of loaded FN Browning handguns which were seized following their arrest on 13 March 2014. They were both also convicted of simple possession of marijuana and possession of $875 in Canadian currency, being the proceeds of criminal activity. Mr. Dawson was, in addition, convicted of possessing 23.47 g of cocaine for the purposes of trafficking.

[2] My reasons for decision are reported at 2016 ONSC 5601)

Background

[3] Messrs. James and Dawson were two of five individuals arrested at a ground floor apartment located at 4001 Steeles Avenue West, Toronto. Mr. James lived in the apartment, along with his mother and sister. The other four individuals, including Mr. Dawson, were acquaintances of Mr. James.

[4] The apartment had been under surveillance because the police believed that Kemon Edwards, who was wanted by the police in connection with a shooting incident, might be in the apartment. Mr. James had stood as a surety for Mr. Edwards in relation to earlier, but then still pending, charges.

[5] While the apartment was under surveillance, Mr. Dawson came out of the apartment and walked in the direction of the door to a stairwell, behind which police officers were observing. I found that when Mr. Dawson realised that the individuals behind the door were police officers, he turned round and went back into the apartment, pursued by the police.

[6] Mr. James was arrested in his bedroom. He surrendered to police when called upon to do so.

[7] Mr. Dawson attempted to evade arrest by passing through the apartment and exiting the through a window in Mr. James' bedroom. He was apprehended as he ran away from the building. I found that after coming through the window, but before he began to run, Mr. Dawson dropped or placed the gun and the cocaine outside on the snow covered ground.

[8] A subsequent search of Mr. James’ bedroom resulted in the police seizing the marijuana, which was in two bags containing a total of 12.84 g of dried marijuana, and locating another handgun, which was in a snowboard bag belonging to Mr. James.

[9] The possession of a prohibited or restricted firearm with ammunition is punishable by up to ten years' imprisonment: section 95(2) of the Criminal Code. Section 95(2)(a)(i) also provided for a mandatory minimum term of imprisonment for a first offence of three years, however in R v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773, it was held that the three-year minimum term of imprisonment in s.95(2)(a)(i), would result in grossly disproportionate sentences in reasonably foreseeable cases, and, hence, the provision breached section 12 of the Canadian Charter of Rights and Freedoms.

[10] Possession of a firearm knowing its possession is unauthorised also renders an individual liable to up to ten years' imprisonment for a first offence; section 92(3).

[11] Possession of marijuana carries a penalty, following conviction as an indictable offence, of up to five years' imprisonment: section 4(4)(a) of the Controlled Drugs and Substances Act.

[12] Possession of cocaine for the purposes of trafficking is subject to up to a maximum term of imprisonment for life: section 5(3)(a) of the Controlled Drugs and Substances Act.

Position of the Parties

[13] The Crown seeks terms of imprisonment of five to five-and-a-half years, less credit for pretrial custody, in the case of Mr. Dawson and four to four-and-a-half years for Mr. James.

[14] On behalf of Mr. Dawson, it is submitted that a reformatory term of 15 to 18 months would be appropriate, discounted by six months to reflect the breach of Mr. Dawson's Charter rights which I found occurred when the police failed to have Mr. Dawson taken before a justice without reasonable delay, and in any event within 24 hours of arrest, as required by section 503(1) of the Criminal Code (reasons reported at 2016 ONSC 3461.

[15] Mr. James, as a landed immigrant, potentially faces immigration issues in addition to any sentence that is imposed by the court. He, too, seeks a discount based on a similar violation of section 503(1). On his behalf, it is submitted that he should be sentenced to a term of six months imprisonment.

Sentencing Principles

[16] Section 10 of the Controlled Drugs and Substances Act provides as follows:

Purpose of sentencing

(1) Without restricting the generality of the Criminal Code, the fundamental purpose of any sentence for an offence under this Part is to contribute to the respect for the law and the maintenance of a just, peaceful and safe society while encouraging rehabilitation, and treatment in appropriate circumstances, of offenders and acknowledging the harm done to victims and to the community.

[17] The general principles of sentencing are set out in section 718 of the Criminal Code. Judges passing sentence are required by law to impose a just sanction that has one or more of the following six objectives:

a. To denounce unlawful conduct;

b. To deter the offender and others from committing offences;

c. To separate offenders from society when necessary;

d. To assist in the rehabilitation of offenders;

e. To provide reparation for harm done to victims or to the community;

f. To promote a sense of responsibility in offenders and acknowledge harm done to victims and to the community.

[18] As well, the sentence should be proportionate to the gravity to the offence and the degree of responsibility of the offender. An offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances. And the sentence should be similar those imposed on similar offenders, for similar offences, committed in similar circumstances.

[19] While the immigration consequences of a sentence should be taken into consideration as part of the assessment of the proportionality of a sentence, immigration concerns should not distort sentencing to the point that it is not proportionate to the gravity of the offence and the degree of responsibility of the offender: R. v. Pham, 2013 SCC 15. In the present case, no specific information was provided concerning the possible immigration consequences for Mr. James.

[20] I am also required to consider, as a mitigating factor, time spent under stringent bail terms as a result of these charges: R. v. Downes (2006), 2006 3957 (ON CA), 79 O.R. (3d) 321 (C.A.); R. v. Daley, 2016 ONSC 3513.

Alex James

[21] Mr. James has no criminal record. He is a 25 year old landed immigrant. He was born in St. Lucia. His father died when he was five. When he was six, his mother moved to Canada. For the next four years Mr. James was raised primarily by his grandmother and his half-brother, who was eight years older than him. He moved to Canada when he was 10. He continues to live with his mother. He has had the same girlfriend since 2014.

[22] Mr. James got his first job when he was 12 and has been in full-time employment for the past eight years working for a drywalling company. He sought and obtained a variance of the terms of his bail so he could continue to work. He is described by his employer as a very reliable worker.

[23] He is an occasional user of alcohol and, until he was charged with the offences now before the court, had become a regular user of marijuana, smoking twice a day for one and a half years prior to his arrest.

[24] According to his mother, Mr. James has associated with negative, pro-criminal influences. Mr. James has also confirmed that he was surrounding himself with negative peer associates. The presentence report, however, is positive. There is no suggestion of gang association.

Jesse Dawson

[25] Mr. Dawson recently turned 26. Subsequent to his arrest, he received a conditional discharge for violating a term of his bail by attending a friend's graveside. He spent a month in custody as a result. For the purposes of the sentencing process I have attached no weight to that violation.

[26] Mr. Dawson is the father of a six-year-old daughter. He has post-secondary education, having attended the University of Windsor for one year and subsequently taken business courses at George Brown College. He has aspirations to continue his education and obtain a business degree.

[27] He has a history of having volunteered with a number of different community initiatives in the Jane and Finch community.

[28] A family friend describes him as being a caring son and father and a reliable, dedicated and hard-working individual. Mr. Dawson’s own father passed away in 2012.

[29] The same family friend expresses surprise that Mr. Dawson has been charged and convicted of serious criminal offences but expresses confidence that Mr. Dawson will have learned his lesson and will move forward and do greater things in life to compensate for this lapse.

[30] Kevin Klayman, a civil litigation lawyer who first met Mr. Dawson nine years ago when he was an active member in a leadership training programme that Mr. Klayman ran, with others, provided a letter of support in which he said that Mr. Dawson is determined to move his life forward in a positive manner, whether through school or employment, and to stay out of trouble.

[31] The pre-sentence report which was prepared in relation to Mr. Dawson was obviously, and seriously, flawed. Both defence and Crown counsel agreed that it should not be relied upon. There is no suggestion that Mr. Dawson is associated with any gangs.

[32] Mr. Dawson was in custody from the time of his arrest until 6 June 2014, when he was released on bail. The terms of his bail involved house arrest. He was only able to leave in the presence of one of his three sureties. As already noted, there was one violation, which resulted in him being in custody for approximately a month. Because of his bail terms, he has been unable to resume his further education, although the Crown suggests that he could have applied for, and would likely have obtained, a variation of those terms to permit him to attend college.

Aggravating Factors

[33] Although Mr. James has no criminal record and no pending charges, at the time of his arrest he was facing other charges which were serious enough for him to be required to wear a monitor. Notwithstanding this, he allowed his bedroom to be used for drug trafficking purposes. According to the Crown, the activities carried on in that bedroom that afternoon appear to have included packaging drugs as well as smoking marijuana. Proceeds associated with this enterprise, in the form of cash, was openly displayed. Drug paraphernalia was present.

[34] Mr. James also allowed the use of his car by one of the individuals who was in his apartment at the time of his arrest.

[35] And, of course, there was a loaded handgun left in Mr. James’ snowboard bag.

[36] Mr. Dawson, who earlier in the day had spent time with Kemon Edwards at another residence, left the apartment with a loaded handgun and 23.47 g (or $2000 worth) of cocaine. The Crown submits that this is an amount of drugs consistent with a mid-level dealer.

[37] When he first saw the police, Mr. Dawson ignored their instructions to stop and fled through the apartment and then out of the back through a window and headed into the community, still with a loaded firearm.

[38] Prior to that, he had congregated with Mr. James and his friends in what the Crown suggests was a group trafficking and packaging operation.

Discussion

[39] In deciding how to apply the various factors which a sentencing court must take into account, it would be helpful to know what was really going on.

[40] Unfortunately, I am quite confident that I do not have a full and complete picture of how Messrs. James and Dawson came to be in that apartment that afternoon with three others, at least one of whom was known to the police, with cash, marijuana, cocaine, drug paraphernalia and two loaded guns.

[41] A strong clue as to what might have happened comes from the indications that both Mr. Dawson and Mr. James did not keep the best of company. Having observed these two individuals and heard their testimony, I suspect, although it is no more than a hunch on my part, that possession of firearms and the conduct of drug business, are not things that Mr. Dawson or Mr. James routinely engaged in or had a great deal of experience of.

[42] Both of these individuals have very positive attributes. They have good family support. Both of them were apologetic at the sentencing hearing. Mr. James said that he wanted to be a productive member of society. Mr. Dawson said that he has learned a lot from what has happened and asked for another opportunity to make a contribution to society.

[43] The Crown acknowledges that both Mr. James and Mr. Dawson are good candidates for rehabilitation.

[44] Although, as I have noted, the immigration consequences of a sentence imposed on an individual who is not a Canadian citizen can be a relevant factor when assessing the proportionality of a sentence, in the absence of further information about the possible immigration consequences faced by Mr. James, there will be no adjustment to the sentence to be imposed to reflect such concerns.

[45] Despite the positives, the fact remains that Mr. James and Mr. Dawson were apprehended with guns and drugs. The charges against them are serious and must inevitably involve a period of incarceration in order to satisfy the need to denounce their unlawful conduct, to deter them and others from similar offences and as a measurable expression of their responsibility for their actions and an acknowledgement of the harm done to victims and the community by guns and drugs.

[46] Indeed, in cases involving possession of cocaine for the purpose of trafficking, emphasis on the principles of deterrence and denunciation is warranted to reflect the dangerous and insidious nature of this drug and its potential to cause significant harm to individuals and to society: R v. Woolcock, [2002] O.J. No. 4927 (C.A.).

[47] And both defendants acknowledge that possession of a loaded firearm is a serious offence.

[48] In R v. Nur, one of the accused individuals was a 19-year-old with no prior criminal record, who pleaded guilty to one charge of possession of a loaded firearm. He did not admit any facts relevant to the allegations against him beyond those essential to his plea. He came from a supportive, law-abiding family and was described as an exceptional student and athlete. The trial judge, while noting that, prior to the enactment of the three-year mandatory minimum, the sentencing range for a first offence under s. 95 was a term of imprisonment of between two years less a day and three years, held that a sentence of 40 months was appropriate. Although the Court of Appeal and the Supreme Court of Canada subsequently determined that the mandatory minimum sentence provision in section 95(2)(a) was unconstitutional, the appellate courts declined to interfere with that sentence.

[49] In R v. Marshall, 2015 ONCA 692, the accused was 23, with no prior convictions, when he was charged with possession of a loaded prohibited firearm. While on bail pending trial on the firearm charge, he was arrested for and eventually pleaded guilty to possession of cocaine for the purpose of trafficking and breach of his recognizance of bail. He was sentenced to 3 ½ years’ imprisonment for the firearm offence and one year, to be served consecutively, for possession of cocaine for the purposes of trafficking. In upholding the sentence given on the firearm offence, the Court of Appeal found that the accused’s commission of a serious drug-related offence while on bail for his weapon offence, coupled with a negative presentence report, strongly undercut any claim that the sentence imposed would crush the appellant’s prospects for rehabilitation.

[50] In both Nur and Marshall, the offences were described as being at the “crime end” of the spectrum of conduct.

[51] In R. v. Filian-Jimenez, 2014 ONCA 601, an 18 month sentence had been imposed on conviction for unlawful possession of a loaded restricted firearm. The accused had entered an early guilty plea, had repudiated his membership in a gang, was engaged in full-time employment and had fundamentally changed his lifestyle. There was some acknowledgement that his possession of a gun was for protective purposes. The Court of Appeal, while acknowledging that the sentence was clearly a very low one, found that the trial judge had given carefully considered reasons that were entitled to deference.

[52] Although the exercise of my discretion is no longer constrained by a mandatory minimum sentence, the fact remains that the circumstances of the firearm charges against Mr. James and Mr. Dawson fall towards the crime end of the spectrum. Their possession of guns is associated with drug-related activity. Unlike the accuseds in Nur and Marshall, they cannot point to having pleaded guilty as a mitigating consideration.

[53] As I have already indicated, however, I believe that the rehabilitation prospects for both men is very positive. A careful balance therefore needs to be struck between an appropriate level of deterrence and denunciation on the one hand, and, on the other hand, a recognition that there is a good prospect that both of the defendants before the court will have learned their lesson and will lead productive lives going forward.

[54] I regard Mr. Dawson’s offences as more serious, not only because of the possession for the purposes of trafficking conviction but, also, because he went out into a common area of an apartment building carrying a loaded gun.

[55] That said, the stringent terms of Mr. Dawson’s house arrest can properly be regarded as a mitigating factor: Downes, at para. 29.

[56] There is no doubt that the nature and circumstances of these offences would justify substantial terms of imprisonment.

[57] However, in my reasons for decision on Mr. Dawson’s application relating to the failure to have them brought before a justice within the time prescribed by section 503(1) of the Criminal Code, I indicated that there should be a “meaningful reduction” in sentence in the event that Mr. Dawson was convicted on some or all of the charges against him.

[58] Mr. James is entitled to similar consideration.

[59] In R. v. S.B. (2014), 2014 ONCA 527, 121 O.R. (3d) 145 (C.A.), a case involving a young offender convicted for numerous firearm and ammunition offences, the Court of Appeal declined to interfere with a reduction by six months of the sentence that might otherwise have been imposed in view of a violation of the accused’s Charter rights. The report does not give an indication of the sentence that was imposed. I was also referred to the sentencing decision of B.P. O’Marra J. in R. v. Carter, 2016 ONSC 4389 where what would otherwise have been a six month term of incarceration was modified to a six month conditional sentence.

[60] I have elected to treat the reduction of sentence for the Charter breaches in much the same way I would other mitigating factors. This has enabled me to tailor sentences that I believe will better serve the overall interests of justice.

[61] I have decided to impose custodial sentences of two years less a day for each of Mr. James and Mr. Dawson. However, custody alone is not in my view sufficient to satisfy the objectives articulated in section 718. There should, in addition, be terms of probation to be fulfilled after the custodial sentences have been served which will include supervision, community service and a prohibition against the use or possession of unlawful drugs.

Disposition

[62] Mr. James, on each of the firearms charges that you were convicted of (counts 1 and 2), I sentence you to concurrent terms of imprisonment of two years less a day. On the possession of marijuana offence (count 12) I sentence you to 60 days imprisonment, again to be served concurrently. On the proceeds of crime charge (count 7), I sentence you to one day of imprisonment, to be served concurrently, and order the forfeiture of the money seized.

[63] There will be a lifetime firearms prohibition order under section 109 of the Criminal Code and a DNA order pursuant to section 487.04 of the Criminal Code.

[64] You will be on probation for a period of two years following your release from prison, the terms of which are as follows. You will:

a. Keep the peace and be of good behaviour.

b. Appear before the court when required to do so by the court and notify the court or the probation officer in advance of any change of name or address and promptly notify the court or the probation officer of any change of employment or occupation.

c. Report in person to a probation officer within two working days of your release from custody and after that, at all times and places as directed by the probation officer or any person authorised by a probation officer to assist in your supervision.

d. Not possess or consume or purchase any unlawful drugs or substances contrary to the Controlled Drugs and Substances Act, S.C. 1996, c. 19, except with a valid prescription in your own name.

e. Perform a total of 100 hours of community service work on a rate and schedule to be directed by the probation officer but must be completed within 18 months of the start date to this order.

f. Cooperate with your probation officer. You must sign any releases necessary to permit the probation officer to monitor your compliance and you must provide proof of compliance with any condition of this order to your probation officer on request.

[65] You will receive credit for 11 days of pre-trial custody at a rate of 1.5 days for each day served, a total credit of 18 days.

[66] Mr. Dawson, on each of the firearms charges that you were convicted of (counts 4 and 5), I sentence you to concurrent terms of imprisonment of two years less a day. On the charge of possession of cocaine for the purposes of trafficking (count 13), I sentence you to a term of imprisonment of 18 months, to be served concurrently. On the possession of marijuana offence (count 12) I sentence you to 60 days imprisonment, again to be served concurrently. On the proceeds of crime charge (count 7), I sentence you to one day of imprisonment, to be served concurrently, and order the forfeiture of the money seized.

[67] There will be a lifetime firearms prohibition order under section 109 of the Criminal Code and a DNA order pursuant to section 487.04 of the Criminal Code.

[68] You will be on probation for a period of three years following your release from prison, the terms of which are as follows. You will:

a. Keep the peace and be of good behaviour.

b. Appear before the court when required to do so by the court and notify the court or the probation officer in advance of any change of name or address and promptly notify the court or the probation officer of any change of employment or occupation.

c. Report in person to a probation officer within two working days of your release from custody and after that, at all times and places as directed by the probation officer or any person authorised by a probation officer to assist in your supervision.

d. Not possess or consume or purchase any unlawful drugs or substances contrary to the Controlled Drugs and Substances Act, S.C. 1996, c. 19, except with a valid prescription in your own name.

e. Perform a total of 200 hours of community service work on a rate and schedule to be directed by the probation officer but must be completed within 18 months of the start date to this order.

f. Cooperate with your probation officer. You must sign any releases necessary to permit the probation officer to monitor your compliance and you must provide proof of compliance with any condition of this order to your probation officer on request.

[69] You will receive credit for 85 days of pre-trial custody at a rate of 1.5 days for each day served, a total credit of 128 days. You are not entitled to, and I have not included, any credit (in respect of the present charges) for the time you spent in custody between 5 June 2015 and 7 July 2015 as a result of violating the conditions of your bail.

Concluding Remarks

[70] I hope that you will both appreciate that it was open to me to impose far more severe sentences than I have. I cannot over-emphasise the community’s intolerance of unlawful possession of lethal firearms and the insidious nature of the trade in prohibited drugs, which have destroyed the lives of so many and in which you participated.

[71] I sincerely hope that you will take full advantage of the opportunity that has been provided to you to return in due course to being productive members of society and that you will avoid further encounters with the criminal justice system.

Graeme Mew J.

Handed down: 19 January 2017

CITATION: R. v. James and Dawson, 2017 ONSC 473

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

ALEX JAMES and JESSE DAWSON

SENTENCING DECISION

Mew J.

Handed down: 19 January 2017