CITATION: R. v. Manoharan, 2017 ONSC 480
COURT FILE NO.: 1-642634
DATE: 2017/01/23
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
LINDSY MANOHARAN
H. Amarshi, for the Crown
M. Webster, for the Offender
HEARD: November 22, 2016
reasons for sentence
GARTON J.:
[1] On November 22, 2016, Lindsy Manoharan, age 36, pleaded not guilty to one count of trafficking in crack cocaine (Count 4 in the indictment) and one count of simple possession of crack cocaine (Count 5). Based on an agreed statement of facts filed as an exhibit, defence counsel invited the court to find Ms. Manoharan guilty on both counts. After the convictions were entered, counsel proceeded with their sentencing submissions.
[2] The agreed facts are as follows:
• On June 3, 2013, an undercover officer, Detective Constable Sylvain Lapensee, parked his vehicle in front of an address on Midholm Drive in Toronto.
• The co-accused, Deepu Sawh, approached the vehicle. Mr. Sawh and the undercover officer had exchanged crack cocaine for money on three prior occasions. Mr. Sawh told the officer that the drug deal would still take place but that he had to wait for his supplier to arrive.
• A few minutes later, Officer Lapensee observed a grey Honda pull up behind him. Surveillance officers had observed this same vehicle during the three previous drug deals between the undercover officer and Mr. Sawh – specifically on January 6, February 14, and March 11, 2013.
• At this point, Officer Lapensee gave Mr. Sawh $250 in police marked buy-money. Mr. Sawh walked over to the Honda and entered it on the passenger side. Less than two minutes later, he exited the Honda, returned to the officer’s vehicle, and gave him 2.8 grams of crack cocaine contained in a torn piece of white plastic.
• Mr. Sawh then exited the officer’s vehicle and entered his home at 51 Midholm Drive. The Honda drove away. Minutes later, surveillance officers stopped the vehicle and arrested its driver and sole occupant, Ms. Manoharan, for trafficking in cocaine. Ms. Manoharan was the registered owner of the Honda. An insurance slip in her name was located in the glove compartment.
• Detective Constable Victoria Morse (“Morse”), who was at the scene of the arrest, searched the Honda and located a small amount of crack cocaine and $240 of the police buy-money. The amount of crack cocaine in the car was 3.12 grams.
• Police located the balance of the buy-money – $10 – in a pants pocket during the execution of a search warrant at Mr. Sawh’s residence.
[3] Both counsel agree that my earlier finding that Ms. Manoharan’s s. 10(b) Charter rights were breached is a relevant consideration on sentence. In R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at para. 63, the Supreme Court of Canada held that a sentence can be reduced in light of state misconduct even when the incidents complained of do not rise to the level of a Charter breach. The same principle applies when, as in the present case, Charter breaches have been found but the evidence is not excluded.
[4] The Crown and defence counsel also agreed that a redacted pre-sentence report (the “PSR”) should be marked as an exhibit.
[5] A brief review of the chronology of these proceedings with respect to Ms. Manoharan’s Charter applications and how the PSR came to be redacted is appropriate.
[6] Ms. Manoharan and her co-accused, Mr. Sawh, were both charged with trafficking in crack cocaine to the undercover officer on June 3, 2013 (Count 4 in the original indictment). Ms. Manoharan was also charged with possession of cocaine for the purpose of trafficking on that same date, based on the 3.12 grams of crack cocaine found in her vehicle following her arrest (Count 5 in the original indictment). Counts 1, 2 and 3 in the indictment charged Mr. Sawh with trafficking in cocaine to the same undercover officer on January 6, February 14, and March 11, 2013, respectively.
[7] At the outset of their trial, Ms. Manoharan brought an application pursuant to s. 24(2) of the Charter to exclude as evidence a number of items located by the police in her vehicle shortly after her arrest, including the 3.12 grams of crack cocaine and the $240 in police buy-money. Ms. Manoharan alleged that the search of her vehicle violated her s. 8 Charter rights. She also alleged that her s. 10(b) rights were infringed. The trial proceeded on consent with a blended hearing related to the Charter issues and the merits of the case.
[8] I found that there was no violation of Ms. Manoharan’s s. 8 Charter rights, as the police had obtained a valid warrant to search her vehicle prior to her arrest. Although her s. 10(b) rights were breached, I concluded that the evidence ought not to be excluded under s. 24(2), as it had not been established that its admission would bring the administration of justice into disrepute.
[9] Following my ruling, Ms. Manoharan indicated that she wished to plead guilty to Count 4. Following her plea, a presentence report was ordered, and the case was remanded to August 25, 2016, for submissions on sentence.
[10] The PSR was prepared by Shirley Danquah-Agyekum. The contents of that report raised some concerns regarding the validity of Ms. Manoharan’s guilty plea. Ms. Manoharan’s lawyer at that time applied to be removed as counsel of record. That application was granted and the matter was adjourned in order to allow Ms. Manoharan the opportunity to retain new counsel, Mr. Webster.
[11] A judicial pre-trial was subsequently held before me. On November 22, 2016, Ms. Manoharan’s application to strike her guilty plea was allowed. The Crown consented to the application and placed a new indictment before the court. Count 4 remains unchanged from the original indictment. However, Count 5, which relates to the crack cocaine found in Ms. Manoharan’s vehicle, now charges her with simple possession of cocaine as opposed to possession of cocaine for the purpose of trafficking. As outlined above, Ms. Manoharan was arraigned on both counts, entered her pleas of not guilty, and then, through her counsel, conceded that the agreed statement of facts established her guilt beyond a reasonable doubt. Defence counsel, with the consent of the Crown, then entered a redacted version of the original PSR as an exhibit on sentencing. Mr. Webster explained that he excised certain statements attributed to Ms. Manoharan on pages 5 and 10 of the report as they do not reflect her position in this matter.
[12] As a result of the Safe Streets and Communities Act, S.C. 2012, c. 1, which came into force on November 20, 2012, Ms. Manoharan is not eligible to receive a conditional sentence for the offence of trafficking in cocaine. However, a conditional sentence is available with respect to the offence of simple possession of cocaine.
Circumstances of the Offender
[13] Ms. Manoharan, age 36, was 32 years old at the time that she committed these offences. She has no prior criminal record.
[14] Ms. Manoharan was born in Sri Lanka and lived with her parents in Dubai until the age of three, when the family immigrated to Canada. They lived in Montreal for one year and in Ottawa for three years before settling in Toronto. Ms. Manoharan is an only child.
[15] Ms. Manoharan advised the probation officer that she had a normal and happy childhood, and that she and her mother travelled to Europe and Asia almost every summer. Ms. Manoharan attended high school at Riverdale Collegiate Institute, where she was in the enriched program and was a member of the volleyball team. She also enlisted with the Royal Scottish Regiment. Ms. Manoharan stated that she enjoyed school, and particularly her courses in history and English.
[16] After graduating from high school, Ms. Manoharan attended the University of Toronto for two years, but left in order to take a job because of family financial pressures. She is currently enrolled at the University of Toronto on a part time basis.
[17] On Ms. Manoharan’s 23rd birthday – December 27, 2003 – her father died suddenly from a heart attack. This was the same day that the family was scheduled to move to a condominium in Scarborough. She and her mother ended up moving there in January 2004.
[18] Ms. Manoharan reported that she and her mother were devastated by her father’s death, and that they both received counselling from their church pastor at that time. Her mother was unable to return to her job as a teacher’s assistant for about one year following her husband’s death. Ms. Manoharan put her university education on hold and took a job in order to help out with the household bills.
[19] The PSR indicates that Ms. Manoharan initially worked full-time for a bank, but quit that job due to stress and health problems that she was experiencing. She worked part-time at a restaurant, followed by a part-time position at a real estate company for two years. A real estate sales representative from that company used the following adjectives to describe Ms. Manoharan: assertive, determined, respectful, diligent, dedicated, meticulous, patient, and professional.
[20] Ms. Manoharan also worked part-time at a friend’s mortgage brokerage firm. That individual, who has known Ms. Manoharan for six years, described her as “a decent person at core and with good moral character.” He also stated that Ms. Manoharan had expressed remorse with respect to her involvement in the present offences.
[21] Ms. Manoharan is currently employed as a “lead” baggage agent at an airline company. This is a full-time position. One of Ms. Manoharan’s supervisors described her as well-organized and a team player who is devoted to her work. Another supervisor described Ms. Manoharan as intelligent, innovative, efficient, and dependable. A co-worker, who has known Ms. Manoharan for three years, described her as hard-working and someone who puts other people’s needs ahead of her own. Although holding down a full-time job as well as a part-time-position with a government agency, Ms. Manoharan managed to organize a toy/food and clothing drive for the Fort York Food Bank on behalf of her employer. The co-worker described the offences committed by Ms. Manoharan as out-of-character.
[22] Ms. Manoharan recently lost a job with the Air Canada Centre as a result of the present offences. She expressed concern that she might also lose her other two jobs if her employers found out about these criminal charges. She indicated that she needs the income in order to help support her mother, with whom she lives. Her mother’s sole source of income is the Canada Pension Plan. She and her mother sold their condominium to help pay for Ms. Manoharan’s legal expenses.
[23] Ms. Manoharan is the main caregiver for her mother, who suffers from chronic low back pain, knee pain, balance problems, and other physical ailments, and depends on a walker for mobility. Ms. Manoharan assists her mother in her daily activities, including bathing, laundry, shopping for groceries, cooking, banking, and getting to medical and physiotherapy appointments.
[24] In addition to the deterioration of her mother’s health, the PSR outlines several other negative life experiences that Ms. Manoharan has endured since her father’s death. She became involved in a relationship that ended very badly when her boyfriend’s new girlfriend began to harass and threaten her; she was struck by a drunk driver while driving home one night, which led to her leaving her job at that time to deal with issues that were troubling her; she became involved in an abusive relationship; and she suffered a brain aneurysm, which required brain surgery. Ms. Manoharan eventually made a full recovery from the surgery, and began working part-time at a restaurant. Later on, she obtained the full-time job with the airline company.
[25] Ms. Manoharan’s current pastor, Dr. Irwin Sikha, advised the probation officer that he has counselled Ms. Manoharan over the past two years, and that she has confided in him about the charges that she faces. Dr. Sikha stated that Ms. Manoharan has responded positively to counselling. He also noted her involvement as a volunteer at church and community activities. The former pastor of her church, David Kailson, also indicated that Ms. Manoharan participates in and assists at all the church functions.
[26] The PSR is a very positive report. Ms. Danquah-Agyekum described Ms. Manoharan as cooperative, open and polite during the interview process. She opined that Ms. Manoharan is a suitable candidate for community supervision in conjunction with any other sanctions that the court may impose. Ms. Manoharan is also amenable to community service work.
[27] When asked if she wished to say anything to the court following counsels’ submissions, Ms. Manoharan stated that she was “sorry for everything that has happened,” and that she has changed her life around since her arrest. She attends church on a regular basis, mentors young people, and assists them in obtaining part-time employment by helping them with their résumés. She herself was holding down three jobs until she lost one as a result of these charges. Ms. Manoharan asserted that she has been doing very well in terms of her other two jobs and has received two promotions. She is studying to obtain her Master’s degree and, to that end, attends night classes once a week at the University of Toronto.
[28] Ms. Manoharan was arrested around 9:45 p.m. on June 3, 2013, and released on a consent bail at 7:15 p.m. the following day. Based on a ratio of 1.5:1, her two days in pre-trial custody is the equivalent of a three-day sentence.
The Section 10(b) Charter Breach
[29] My ruling with respect to Ms. Manoharan’s ss. 8 and 10(b) Charter applications is reported at R. v. Manoharan, 2016 ONSC 2655. I dismissed the s. 8 application but found that the police breached both their informational and implementational duties with respect to s. 10 (b). My reasons regarding the s. 10(b) breaches are set out at paras. 209 to 285 of my ruling. I will not repeat those reasons here, but will briefly summarize my findings.
[30] Ms. Manoharan was arrested shortly after her vehicle was brought to a rolling stop by three unmarked police cars at 9:45 p.m. on June 3, 2013. Detective Constable Correia (“Correia”) was the first officer to reach the driver’s door. He told Ms. Manoharan that she was under arrest for trafficking in cocaine, ordered her out of the car, handcuffed her, and walked her to the sidewalk. He then gave her an “abbreviated” version of her rights to counsel, telling her:
You are under arrest for trafficking in cocaine. You will have an opportunity to speak to a lawyer or free duty counsel when you get to the station.
[31] When asked if she understood, Ms. Manoharan indicated “yes.”
[32] I found that Correia’s abbreviated version of the rights to counsel failed to satisfy the informational component of the duty imposed on him by s. 10(b) as it referred to an “opportunity”, as opposed to the “right”, to retain and instruct counsel. It also failed to advise her that she had the right to retain and instruct counsel “without delay.”
[33] Correia left the scene three minutes later in order to assist with the execution of the search warrant at Mr. Sawh’s residence. Before leaving, he turned Ms. Manoharan over to the custody of Morse and Detective Constable Aiello (“Aiello”).
[34] Correia explained that he gave Ms. Manoharan a shortened version of her s. 10(b) rights because he did not have his memo book containing the “full” version with him that day. He only had a loose leaf notebook, which he carries when acting in a plainclothes capacity. He anticipated, however, that the uniformed officers called to the scene to transport Ms. Manoharan to 41 Division would read her the “full” rights to counsel from the back of their memo book, which is standard police practice.
[35] Unfortunately, the transportation officers, Police Constable Brayman (“Brayman”) and his partner, did not arrive on scene until 11:58 p.m., or almost two-and-a-quarter hours after Ms. Manoharan’s arrest. At 12:05 a.m., after placing Ms. Manoharan in his scout car, Brayman read to her the rights to counsel, as well as the primary and secondary cautions. Ms. Manoharan indicated that she understood her s. 10(b) rights. I found that she did not request to exercise those rights at that time.
[36] Morse testified that, in her experience, the average wait time for a scout car to arrive on scene is 5 to 30 minutes. She was concerned about the delay in this case, and made at least four calls to 41 Division in an attempt to speed up the process. Detective Constable Zamparo (“Zamparo”), who re-attended at the scene at 11:15 p.m. in order to relieve Aiello, was also concerned about the delay and made two calls to the station. Morse, Aiello, and Zamparo could not escort Ms. Manoharan to the station themselves because their vehicles were not equipped to transport prisoners. In addition, Morse could not leave the Honda unattended because it contained potential evidence and she had been assigned to seize it as offence-related property.
[37] As a result of the delay, Ms. Manoharan was not given her “full” rights to counsel until two-and-a-quarter hours after her arrest. I found that during that period, no officer questioned her or attempted to elicit any incriminating statements from her. In fact, I found that no officer at any time questioned Ms. Manoharan about the offences, and Ms. Manoharan did not make any inculpatory statements.
[38] I found that Ms. Manoharan did not ask any officer at the scene to speak to counsel. Even if she had made that request, she would not have been permitted to do so. As Aiello explained, the police decided to suspend Ms. Manoharan’s rights to counsel and not allow her to make any phone calls until the search warrants for her boyfriend’s residence on St. Clair Avenue East, and her own residence on Prudential Drive, where she lived with her mother, had been executed. Aiello explained that there was a concern that if Ms. Manoharan were permitted to use the phone, she could tip off a party or parties at the targeted addresses. This could lead to the destruction of evidence. It could also jeopardize officer safety as the police rely on the element of surprise in order to gain quick control of a residence. That said, Aiello also testified that a request by Ms. Manoharan to speak to counsel could not have been facilitated at the curbside in any event as it was not a secure environment. She had not been searched at that point, other than a pat-down search. If Ms. Manoharan was allowed to use a cell phone to call a lawyer, Aiello would have had to stand right beside her and would have overheard her conversation. Since she was in his custody, he could not have moved 15 or 20 feet away in order to give her privacy as she spoke to counsel.
[39] Brayman testified that the delay in his arrival was due to an unusually high volume of priority calls coming into 41 Division that night. The trip from the scene to the station took only two minutes, but he had to wait another ten minutes to enter the sally port, and another 50 minutes before Ms. Manoharan was paraded before the booking sergeant, which was at 1:08 a.m. on June 4. At 1:55 a.m., following the booking procedure, Brayman and his partner escorted Ms. Manoharan to the youth bureau and placed her in a room. I found that at that point, Ms. Manoharan asked Brayman’s partner if she could speak to a lawyer, but the partner either did not hear or did not respond to her request, and closed the door.
[40] In anticipation of the take-down on June 3, Aiello had applied for and obtained search warrants for Ms. Manoharan’s Honda and 51 Midholm Drive. He also applied for warrants to search the residences on Prudential Drive and St. Clair Avenue East. However, the Justice of the Peace found that there were insufficient grounds to issue those warrants. Aiello re-applied for warrants to search those residences following Mr. Sawh’s and Ms. Manoharan’s arrest. The warrants were granted by telewarrant at 3:53 a.m. on June 4. Aiello testified that he was aware of the urgency in executing the warrants, given the suspension of Ms. Manoharan’s s. 10(b) rights. The warrant for St. Clair Avenue East was executed half an hour later, or at 4:25 a.m., and was completed by 5:17 a.m. Although there was no direct evidence as to when Ms. Manoharan’s residence was searched, it may be inferred that it was conducted during the same general time frame. Zamparo, who assisted in the search of the boyfriend’s address, was back at the station prior to 5:35 a.m., and attended a debriefing at 5:50 a.m. Certainly by that time the search of Ms. Manoharan’s address would have been completed.
[41] At some point during the execution of the warrant on Prudential Drive, the police allowed Ms. Manoharan’s mother to call Ms. Manoharan at 41 Division. Ms. Manoharan was therefore able to advise her mother as to where she was and that she had been arrested on drug charges. Her mother attended in court the next day and signed as her surety. The fact that the police facilitated a phone call between Ms. Manoharan and her mother while searching their home indicates that the police had no concerns about safety or the destruction of evidence at that time.
[42] I found that in addition to her request of Brayman’s partner at 2:00 a.m., Ms. Manoharan asked a number of other officers at 41 Division if she could speak to counsel, including the officer who facilitated the call with her mother, the officers who fingerprinted and photographed her, and the officer who returned her to a room after she had been fingerprinted and photographed.
[43] The police did nothing to facilitate Ms. Manoharan’s access to counsel until 6:11 a.m., when Zamparo left a message for duty counsel. Duty counsel either never returned the call or, more likely, returned it after Ms. Manoharan had been transported or was in the course of being transported to Old City Hall. Ms. Manoharan asked the transportation officer if she could speak to counsel, and repeated that request upon her arrival at the courthouse. She was advised that duty counsel would see her in the cells. Duty counsel ultimately assisted her at the bail hearing, where the Crown consented to her release on a recognizance, with her mother acting as her surety.
[44] There was no reason to delay Ms. Manoharan’s access to counsel after the police had secured her and her boyfriend’s residences, which would have been shortly after 4:25 a.m. The failure by the police to take any steps to facilitate her contact with counsel between that time and 6:11 a.m. breached the implementational component of Ms. Manoharan’s s. 10(b) rights. As a result of the breach, Ms. Manoharan never had the opportunity to speak to a lawyer while at 41 Division, and ended up in the nerve-wracking situation of arriving at a courthouse for a bail hearing without having received legal advice.
[45] Although the s. 10(b) informational breach was serious, it was rectified upon Brayman’s arrival at the scene. Correia could not have anticipated the lengthy delay in Brayman’s arrival. The delay was not Brayman’s fault or the fault of the officers involved in this investigation, but the result of circumstances beyond their control. Morse and Zamparo did their best to speed up the process but to no avail. They were unaware that Correia had only given Ms. Manoharan an abbreviated version of her s. 10(b) rights. Otherwise, they could have properly informed her of those rights themselves. None of the officers at the scene questioned or attempted to question Ms. Manoharan about the offences.
[46] The second s.10 (b) breach was more serious. Rather than facilitating Ms. Manoharan’s access to counsel as soon as her residence was secured – that is, when there was no longer any concern about her tipping off her mother or anyone else about the warrant, or about the possible destruction of evidence – the police waited until well after the search was completed before placing a call to duty counsel. The lateness of that call, which was made at 6:11 a.m., meant that Ms. Manoharan never had the opportunity to speak to a lawyer prior to being taken to court. Ms. Manoharan was provided the opportunity to speak to her mother while their home was being searched, and hence was not cut off entirely from the outside world. She was able to inform her mother about the fact that she was in custody and the nature of the charges she was facing. Her mother was also apparently made aware of where and when the bail hearing would take place, as she attended in court the following day. However, Ms. Manoharan’s contact with her mother was no substitute for legal advice.
[47] Although I found that it had not been established under s. 24(2) that the admission of the cocaine and police buy-money found in the Honda would bring the administration of justice into disrepute, I agree with counsel that the state misconduct in connection with the s. 10(b) breaches warrants a reduction in the sentence to be imposed on Ms. Manoharan.
Position of the Parties
Position of the defence
[48] The position of the defence is that a 90-day intermittent sentence for the offence of trafficking in cocaine, plus a conditional sentence for the offence of simple possession of the 3.12 grams of crack cocaine, would be an appropriate disposition. Mr. Webster did not specify a particular length of time for the conditional sentence.
[49] In support of this position, Mr. Webster referred to R. v. Johnson, 2015 ONSC 80, at para. 49, where Hill J. held that in the circumstances of that case, intermittent and conditional sentences could be “effectively combined to take advantage of their complimentary purposes.” Mr. Webster submits that a similar approach is appropriate in the present case.
[50] Mr. Webster described Ms. Manoharan as an exemplary person who made a terrible mistake. She had no prior involvement with the criminal justice system. He submits that the court can confidently conclude that Ms. Manoharan will never be before the courts again, and will continue to be a productive, law-abiding citizen.
[51] Mr. Webster pointed out that despite enduring a lot of hardship in her life, Ms. Manoharan has managed to rise above it all, maintain employment, and has proved to be an outstanding employee at her various jobs. At the same time, she is a devoted daughter, taking care of her mother and contributing to her financial support, all the while attending university and furthering her education. Ms. Manoharan has proven herself amenable to counselling, as attested to by the present and former pastors at her church, and is actively involved in her community as a volunteer and as a mentor to young people. A sentence of straight jail time would be a crushing sentence and devastating not only to Ms. Manoharan but also to her mother.
[52] Mr. Webster also asks the court to take into account the anxiety that Ms. Manoharan suffered as a result of the s. 10(b) Charter breaches.
Position of the Crown
[53] The Crown opposes the imposition of a conditional sentence as part of the disposition in this case. Mr. Amarshi submits that a jail term of eight to nine months, followed by a period of probation, would be fit and proper in the circumstances.
[54] Mr. Amarshi relies on the Court of Appeal’s decision in R. v. Woolcock, [2002] O.J. No. 4927 (C.A.), which held that the principles of denunciation and deterrence are paramount in cases involving trafficking in cocaine and possession of cocaine for the purpose of trafficking because of the serious nature of these offences. Crack cocaine is recognized as an extremely dangerous and insidious drug with the potential to cause a great deal of harm to individuals and to society.
[55] Referencing the cases of R. v. Madeiros, [2001] O.J. No. 5664 (S.C) and R. v. Radassao, 1994 CanLII 779 (ON CA), [1994] O.J. No. 1990, 74 O.A.C. 78 (C.A.), the court in Woolcock held that the range for street-level trafficking in cocaine is six months to two years less a day. The court noted, however, that many cases that fall at the higher end of this range involve either larger quantities of narcotics or offences committed while the accused was still on probation for a similar offence. As neither of those factors applies to Ms. Manoharan, Mr. Amarshi takes the position that a sentence at the lower end of the range in Woolcock – that is, an eight to nine-month sentence – is appropriate.
[56] In Radassao, the 33-year-old first offender was found guilty of trafficking in half an ounce of cocaine for $750. He had a history of involvement in community activities and had a supportive family. As a result of the criminal charge, he had lost his job as a security guard at a hospital. Notwithstanding these mitigating factors, the Court of Appeal upheld the 12-month sentence imposed by the trial judge.
[57] Mr. Amarshi noted that Ms. Manoharan did not plead guilty to these offences, and thus does not benefit from the mitigating factor of remorse. She is not an addict. Her motivation in selling the drug was strictly for financial gain.
[58] Ms. Manoharan was the “back-end” or supplier to Mr. Sawh, who received only ten of the $250 of the police buy-money. Yet Mr. Sawh was the one who took all the risks in this operation, as he dealt directly with the undercover officer. Mr. Amarshi submits that this demonstrates a certain degree of sophistication on Ms. Manoharan’s part in terms of the commission of the offence. She was obviously one level higher than Mr. Sawh on the chain of distribution of the drug.
[59] In addition to Woolcock and Radassao, Mr. Amarshi relied on the following cases: R. v. Williams, [2010] O.J. No. 2971 (S.C.); R. v. Harrison, [2009] ONCA 386; R. v. Kenyon, [2008] O.J. No. 2486; R. v. Mangal, [2009] O.J. No. 1373 (S.C); and R. v. Carelse-Brown, [2013] ONSC 7042; aff’d at 2016 ONCA 943.
Case Law
[60] In Woolcock, the 53-year-old appellant was found guilty of possession of 5.3 grams of crack cocaine for the purpose of trafficking and possession of the proceeds of crime, which consisted of approximately $1,000 in cash. He was not an addict, and had two prior convictions for drug-related offences. In imposing a sentence of two years less one day, the trial judge emphasized the serious nature of the offences, the fact that this was not an isolated incident, and the fact that the appellant was selling crack cocaine as part of a business and doing so in a residential community. He found that a conditional sentence was inappropriate as the focus of the sentence had to be on deterrence and denunciation.
[61] The Court of Appeal agreed that a conditional sentence was inappropriate, but reduced the sentence to 15 months on the basis that the trial judge had failed to consider the principle of rehabilitation.
[62] In Williams, the 26-year-old offender was convicted of trafficking in crack cocaine and possession of 5.5 grams of crack cocaine for the purpose of trafficking. Although he had no prior criminal record, Mr. Williams was convicted while on bail of possession of marijuana and two counts of failing to comply with his recognizance. Another aggravating factor was his attempt to evade arrest. The pre-sentence report listed several areas of concern, including the offender’s unemployment, aggressive behaviour, and a negative peer group. None of these aggravating factors are present in Ms. Manoharan’s case.
[63] Hill J. imposed a sentence of 9 months’ imprisonment plus one year of probation. He rejected the possibility of a conditional sentence, which was still available at that time, as he found that even with very strict conditions, such a sentence would pose an intolerable risk to public safety. He also found that a conditional sentence would not be consistent with the fundamental purpose and principles of sentencing. At paras. 20-30, Hill J. provides a helpful review of sentencing decisions relating to street-level trafficking in crack cocaine, which are reproduced in my reasons for sentence with respect to Ms. Manoharan’s co-accused, Mr. Sawh: see R. v. Sawh, 2016 ONSC 7797, at paras. 32-35.
[64] In Harrison, the Court of Appeal held that a 12-month jail sentence for a first offender convicted of possession of nine grams of crack cocaine for the purpose of trafficking was appropriate. The offender had breached her bail conditions on one occasion.
[65] In Kenyon, the 27-year-old offender was convicted of possession of 26 grams of crack cocaine for the purpose of trafficking. He had a prior conviction for simple possession and two convictions for failing to comply with a recognizance. He had dropped out of school in Grade 10, and had worked only briefly prior to his arrest. He provided financial support to his children and saw them on a weekly basis. The offender’s lawyer submitted that a 12-month jail sentence was appropriate. The Crown’s position was that a sentence in the range of two to two-and-a-half years would be fit and proper. In imposing a sentence of 19 months, Brown J. stated that “some consideration must be given to trying to preserve family bonds before incarceration shatters them irreparably.” Mr. Amarshi submits that although there is a societal interest in preserving family bonds, and that some consideration should be given to the fact that Ms. Manoharan financially supports her mother, a custodial term of eight to nine months is still warranted.
[66] In Mangal, Conway J. imposed a 12-month jail sentence on a 20-year-old first offender who pleaded guilty to possession of 9.16 grams of crack cocaine for the purpose of trafficking. A cell phone and $1,255 were also found in his possession. Between the date of the sentencing submissions and the imposition of sentence, he was charged with a related offence and was in custody. There were several mitigating factors, including the fact that the offender had completed two thirds of the certification process required for a real estate license. However, Conway J. found that the risk of re-offending was not sufficiently low to impose a conditional sentence.
[67] The circumstances of the offence and the offender in Carelse-Brown are very different from those in the present case. In Carelse-Brown, the offender, age 24, was convicted of possession of a much larger quantity of crack cocaine – 25 grams – for the purpose of trafficking. The only mitigating factors were his youth and lack of criminal record. He was not employed or going to school at the time of the offences or subsequently. Goldstein J., in addition to a 21-month jail sentence, imposed a three-year probationary term “to satisfy the imperative of rehabilitation by recognizing that [the offender] is a young man in need of direction and supervision.” Mr. Amarshi relies on this decision with respect to the principle that the objective of rehabilitation can be met through an order of probation. He submits that a jail sentence followed by a period of probation would be appropriate in the case of Ms. Manoharan, who appears to have good rehabilitative prospects.
[68] As stated earlier, defence counsel relies on Hill J.’s decision in Johnson in support of his position that an intermittent sentence for the trafficking offence, combined with a conditional sentence for the simple possession of cocaine, would satisfy the sentencing objectives in this case.
[69] In Johnson, the 26-year-old first offender was charged with four counts of trafficking in powder cocaine over a 28-day period. Since these offences pre-dated the Safe Streets and Communities Act, a conditional sentence was still available. Mr. Johnson pleaded guilty to two counts, but the facts relating to all the offences were taken into account on sentencing.
[70] In the first count, Mr. Johnson was the “back end” or supplier to another individual, who sold .85 grams of cocaine to an undercover officer for $100. In the remaining three counts, the undercover officer purchased the cocaine directly from Mr. Johnson in the following amounts: .90 grams for $100, 1.35 grams, for $100, and 12.45 grams for $700, respectively. About 20 minutes after the last transaction, Mr. Johnson was arrested at his residence, where the police located $1,850 in Canadian currency and $101 in US currency.
[71] After completing high school, Mr. Johnson obtained a diploma in Corporate and Commercial Security from a community college. He obtained employment in the private investigation field, but was unexpectedly dismissed on account of a criminal charge, although he was discharged at the preliminary inquiry in that case. At the time that he committed these offences, he was unemployed, unable to find similar work and feeling financial pressure as a result of a large student loan and child support obligations. His parents, who were not well, relied heavily on him. Mr. Johnson expressed concern that any period of incarceration would negatively impact his ability to care for his family. While on bail, he counselled at-risk youth and explained to them the error of his decision to turn to drug trafficking.
[72] After weighing the aggravating and mitigating factors, Hill J. determined that there was some merit in treating the offences as interrelated and that a blended sentence, consisting of a period of incarceration in the intermittent range, followed by a lengthier conditional sentence, was appropriate. In coming to this conclusion, he referred to R. v. Middleton, 2009 SCC 21, where, at para. 53, Fish J. observed that “intermittent and conditional sentences can be effectively combined to take advantage of their complimentary purposes.” Applying this approach, Hill J. imposed a 90-day intermittent sentence on one count, to be served concurrently with an 18-month conditional sentence on the second count.
The Appropriate Sentence in this Case
[73] Sentencing is a highly individualized process that requires the assessment of many factors in order to determine the most appropriate sentence.
[74] The aggravating factors in this case include the following:
The serious nature of the drug that was trafficked. Crack cocaine is a hard drug that is highly addictive and dangerous. Trafficking in crack cocaine preys on the addiction of others for profit, and does incalculable harm not only to those who use the drug but to society generally.
The commercial character of the trafficking. Ms. Manoharan is not an addict. There was no evidence that she is a user of crack cocaine. Her motivation in selling the drug was strictly financial.
There was some degree of sophistication in the commission of the offence in the sense that someone other than Ms. Manoharan – that is, Mr. Sawh – dealt directly with the undercover officer. However, I also note that Ms. Manoharan was not very far removed or distanced from the act of trafficking, as she parked her car directly behind the undercover officer’s vehicle. Her role as the supplier of cocaine was obvious, as the undercover officer was able to observe Mr. Sawh entering and exiting the Honda just minutes before he handed over the drug to Lapensee.
[75] The mitigating factors for consideration are as follows:
Ms. Manoharan is a first offender, with no prior involvement with the criminal justice system. By all accounts, it is highly unlikely that she will ever be before the courts again. I note that during the almost three years and eight months that she has been on bail, there have been no breaches of her bail conditions.
Although Ms. Manoharan did not plead guilty, the PSR indicates that she expressed remorse for her involvement with these offences to her former employer, Scott McWilliam, whom she has known for six years. She also indicated to the court that she was “sorry for everything that has happened” and that she has changed her life around since her arrest.
Despite the many setbacks in her life, Ms. Manoharan has an impressive employment history. She is currently holding down two jobs, and performing well in both of them. She lost a third job as a result of these offences. All of her employers, both past and present, who were contacted by the probation officer, spoke glowingly of Ms. Manoharan. She is regarded as honest and a person of integrity. Her commission of these offences was described by a co-worker as out-of-character.
Ms. Manoharan is in the middle of obtaining a Master’s degree at the University of Toronto, where she is enrolled as a part-time student. Given her level of intelligence and determination, there is every likelihood that she will complete that degree.
Ms. Manoharan’s mother depends on her for financial support, physical care, and for assistance in other daily and household activities. Ms. Manoharan’s efforts to help her mother date back a number of years; for example, when her mother was unable to work after her father’s sudden death, Ms. Manoharan interrupted her university education to take a job so that she could work and assist with household expenses.
Ms. Manoharan is very involved with her community through her church, where she acts as a volunteer and also mentors young people. She has also sought and received counselling from her pastor with respect to her involvement in these offences.
Ms. Manoharan’s s. 10 (b) Charter rights were breached. The delay by the police in contacting duty counsel resulted in her not being able to obtain legal advice while at 41 Division and prior to being transported to court for a bail hearing. This, no doubt, added more stress to what was already a stressful situation for Ms. Manoharan, given her lack of experience with the criminal justice system.
[76] In determining the appropriate sentence in this case, I have considered and weighed the principles of sentencing set out in ss. 718 to 718.2 of the Code, the aggravating and mitigating factors, and the submissions of counsel. The serious nature of the offences warrants an emphasis on denunciation and deterrence. However, in my view, those principles can be adequately addressed by taking the same approach as that of Hill J. in Johnson – that is, by treating the offences as interrelated, and imposing a blended sentence that consists of a period of incarceration in the intermittent range on the trafficking charge, and a lengthier conditional sentence with a term of house arrest on the charge of simple possession. The totality of these sentences reflects the moral blameworthiness of the offences, but at the same time takes into account the strong mitigating circumstances, including the s. 10(b) Charter violations. It will allow Ms. Manoharan to maintain her employment so that she can continue to provide financial support to her mother and attend to her mother’s other needs.
[77] The sentence imposed on Count 4 is 90 days incarceration, to be served on an intermittent basis – today for processing and thereafter on consecutive weekends, starting on Friday at 8:00 p.m. until Monday morning at 6:00 a.m., commencing on January 27, 2017.
[78] On Count 5, the sentence imposed is a concurrent term of imprisonment of 18 months, to be served in the community upon the mandatory terms set out in s. 742.3(1) of the Code, and the following optional conditions:
(1) For the first 10 months of the sentence, you will remain in your residence at all times, subject to the following exceptions and the travel related to those exceptions:
(a) service of the intermittent sentence of custody;
(b) scheduled meetings with your conditional sentence supervisor;
(c) attendance for counselling as may be recommended by the supervisor;
(d) employment on a schedule reported in advance to the supervisor;
(e) attendance at the University of Toronto in connection with the completion of your university degree;
(f) attendance at your church for worship, counselling, volunteer work or the mentoring of young people;
(g) medical appointments for yourself or your mother, reported in advance to the supervisor;
(h) the performance of 50 hours of community service, to be completed on or before February 23, 2018.
(i) for one four-hour period per week, arranged in advance with the supervisor, in order to shop for necessities and other items; and
(j) such further and other exceptions as may be approved in advance by your supervisor.
(2) For the remaining 8 months of the sentence, you will be subject to a curfew of midnight to 5:30 a.m., subject to such exceptions as may be approved in advance by the supervisor.
(3) Throughout the sentence, the following conditions apply:
(a) no contact with the co-accused, Deepu Sawh;
(b) no contact or association with anyone known to you to have a criminal record; and
(c) no possession of any drug/medication without a valid prescription in your own name
[79] For clarity, and pursuant to s. 732(3) of the Code, the court orders that with the imposition of the 18 months’ imprisonment to be served conditionally, the intermittent sentence shall be served as above directed and not on consecutive days.
Ancillary Orders
[80] Pursuant to s. 109 (1)(c) of the Code, Ms. Manoharan is subject to a 10-year weapons prohibition order under s. 109 (2)(a), and a lifelong weapons prohibition order under s. 109 (2)(b).
GARTON J.
Released: January 23, 2017
CITATION: R. v. Manoharan, 2016 ONSC 480
COURT FILE NO.: 1-642634
DATE: 2017/01/23
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
– and –
LINDSY MANOHARAN
Reasons on sentence
GARTON J.
Released: January 23, 2017