R. v. Stewart, 2017 ONSC 5613
CITATION: R. v. Stewart, 2017 ONSC 5613
COURT FILE NO. 13899/15
DATE: 20170921
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
– and –
Thomas Stewart
George Hendry, for the Crown
Mark Jacula, for the offender
Heard: June 20, 2017
Bale J.:
Introduction
[1] Following the execution of search warrants issued under the Controlled Drugs and Substances Act, and the Criminal Code, Thomas Stewart was charged with a number of drug and firearm offences.
[2] Following trial, the offender was found guilty of the following offences:
• possession of prohibited or restricted firearm with ammunition, s. 95 of the Criminal Code;
• possession of cocaine for the purpose of trafficking, s. 5(2) of the Controlled Drugs and Substances Act; and
• possession of marijuana for the purpose of trafficking, section 5(2) of the Controlled Drugs and Substances Act.
[3] When I had finished giving my reasons for judgment, Crown counsel announced his intention to apply for an order cancelling Stewart’s bail. As a matter of courtesy, and because the offender had no prior notice of the application, Crown counsel suggested that there be a short adjournment to allow defence counsel to obtain instructions. When the court reconvened, the offender was nowhere to be seen. Defence counsel advised the court that he did not expect the offender to return to court that day, but that he expected him to be in attendance for his sentence hearing. I then cancelled the offender’s bail, and ordered that a warrant for his arrest be issued. Now, nine months, and numerous adjournments later, the offender remains unlawfully at large.
[4] In these circumstances, counsel for both parties agreed that the sentence hearing should proceed in the absence of the offender pursuant to s. 475(1) of the Criminal Code, and defence counsel continued to act for the offender pursuant to s. 475(4) of the Code.
Facts relating to the offences
[5] Stewart maintained two apartment units in a densely populated apartment complex in Whitby. In a unit on the sixth floor, he lived with his common law wife, and her two teenage daughters. In a unit on the third floor, he stored drugs for the purpose of trafficking.
[6] On execution of the search warrants, a loaded Glock handgun, and ammunition, were found hidden in a closet, in the sixth-floor apartment. Cocaine, phenacetin (a cutting agent), marijuana and heroin were found in various places, in the third-floor apartment. The drugs, for possession of which the offender was charged and convicted, were approximately one-half kilogram of cocaine, and one and one-half kilograms of marijuana.
Facts relating to credit for pre-trial custody
[7] The offender was granted bail on the current charges in August 2014.
[8] In October 2014, he was arrested and charged with possession of cocaine for the purpose of trafficking, and two counts of breach of recognizance (possession of unlawful drugs, and possession of drug paraphernalia). He then remained in custody for a period of 80 days, before again being released on bail in January 2015. In February 2015, those charges were withdrawn, but a s. 490 forfeiture order was made.
[9] In March 2015, the offender was arrested in Parry Sound, and charged with breach of recognizance (failing to remain in residence), and obstructing a peace officer by refusing to identify himself. He then remained in custody for a period of 52 days, until May 2015, when he was acquitted on the charge of breach of recognizance, and the obstruction charge was withdrawn.
[10] In July 2015, the offender was arrested, and charged with breach of recognizance (failing to remain in residence). He then remained in custody for a period of 77 days, until September 2015, when he was acquitted, and a s. 490 forfeiture order was made.
[11] In June 2016, the offender was arrested, and charged with two counts of breach of recognizance (prohibited communication with co-accused, and failure to remain in residence). He then remained in custody for a period of 172 days, until December 2016 when he was convicted on both counts. He was given a credit of 30 days for pre-trial custody, and sentenced to an additional one day in jail.
Circumstances of the offender
[12] Stewart is 45 years of age, and of Jamaican descent. He is not a Canadian citizen, and as a result of the sentence that will be imposed in this case, he will be subject to deportation, upon completion of his sentence.
[13] The offender has a brother and sister living in Canada, a sister living in the U.K., and a daughter living in Jamaica. On the basis that each of them contacted him at some point during the course of this proceeding, defence counsel argues that offender has a supportive family.
[14] In addition, the offender has had a long-term relationship with his common law wife, and her teenage daughters.
[15] With respect to employment, defence counsel advises that the offender “had done some labour jobs’, and had been employed at a restaurant.
Positions of the parties
[16] Crown counsel’s position is that the offender should receive a global sentence of eight to nine years, consisting of consecutive sentences of five to eight years for the drugs, and three and one-half to four years for the gun, to be served consecutively.
[17] Defence counsel’s position is that the offender should receive a global sentence of 3 to 4 years, consisting of 3 to 4 years for the gun, and 12 months for the drugs, to be served concurrently.
[18] With respect to range of sentence, Crown counsel relies upon the following cases: R. v. Bryan, 2011 ONCA 273; R. v. Bajada, 2003 CanLII 15687 (Ont. C.A.); R. v. Italiano, 2015 ONSC 2216; R. v. Danvers, 2005 CanLII 3044 (Ont. C.A.); R. v. Marshall, 2015 ONCA 692; R. v. McKenzie, 2016 ONSC 5025; R. v. Mansingh, 2016 ONCA 94; R. v. Dehaney, 2012 ONSC 3014; and R. v. Delchev, 2014 ONCA 448.
[19] In support of his position on sentence, defence counsel relies upon R. v. Le, 2014 ONSC 4288; R. v. Johnson, 2013 ONSC 4217; R. v. Channer, 2013 ONSC 4100; and R. v. Peterkin, 2013 ONSC 2116.
Sentencing principles
[20] In considering sentence in this case, I have taken into consideration the purpose and principles of sentencing provided for in ss. 718, 718.1 and 718.2 of the Criminal Code.
[21] In cases involving drugs, and the unlawful possession of restricted or prohibited firearms, denunciation, deterrence and protection of the public are the paramount principles of sentencing: Marshall, at para. 49.
Aggravating and mitigating factors
[22] The substantial quantity of drugs seized, the fact that the offender rented an apartment used solely for his drug-trafficking business, and the fact that he found it necessary to protect himself with a loaded handgun, place Stewart in the mid-range of the drug hierarchy. I did not accept the evidence given at trial by his common-law wife that he was otherwise employed. The fact that a loaded handgun was found in a closet in the apartment unit in which two teen-age girls resided, and would have been carried with him in a densely populated apartment complex, already troubled by crime, is a further aggravating factor.
[23] I have considered the absence of a prior criminal record to be a mitigating factor; however, I note that Stewart is not a youthful first offender, and given that he absconded in order to avoid sentencing, the prospects for rehabilitation would seem to be doubtful. I also note that the family members said to be supportive of him did not participate in the sentencing process.
Sentence before consideration of pre-sentence custody
[24] Considering the facts of this case, the purpose and principles of sentencing, the positions of the parties, and the cases cited by counsel, I have concluded that a fit sentence for Thomas Stewart is a global sentence of seven years. The sentences on the drug charges will be three and one-half years on the conviction for possession of cocaine for the purpose of trafficking, and one and one-half years on the conviction for possession of marijuana for the purpose of trafficking, to be served concurrently. The sentence on the conviction for possession of a prohibited or restricted firearm with ammunition will be three and one-half years, consecutive to the sentence on the conviction for possession of cocaine for the purpose of trafficking.
[25] While the cases cited by defence counsel might otherwise suggest a lighter sentence on the cocaine charge, they involved considerably smaller quantities of drugs indicative of street-level trafficking, rather than the mid-level trafficking that I have found Stewart to have been engaged in. See Le (13 grams of crack cocaine), Johnson (6.47 grams of cocaine), Channer (18.08 grams of cocaine), and Peterkin (1.31 grams of crack cocaine).
[26] The convictions for possession of cocaine for the purpose of trafficking, and possession of a prohibited or restricted firearm with ammunition, each considered alone, could easily have attracted significantly heavier sentences. However, in arriving at the global sentence of seven years, I took into consideration the totality principle, and the necessity of avoiding an overly long sentence, resulting from the fact that the circumstances of each of these offences are considered to be aggravating factors in relation to the other.
Credit for pre-sentence custody
[27] Following his arrest in May 2014, the offender remained in custody for a period of 95 days, before being released on bail in August 2014. Crown counsel agrees that credit for this time should be given on a 1.5 to 1 basis, resulting in a total credit of 143 days.
[28] However, the offender spent additional time in custody prior to trial – time for which defence counsel argues he should receive additional credit. In making this argument, defence counsel relies on R. v. Reid, 2005 CanLII 14964 (Ont. C.A.), and R. v. Tsai (2005), 2005 CanLII 22191 (ON CA), 198 C.C.C. (3d) 533 (Ont. C.A.). In opposing the additional credit, Crown counsel relies on R. v. Wilson, 2008 ONCA 510, and R. v. Pammett, 2016 ONCA 979. On this issue, I agree with defence counsel.
[29] In both Reid and Tsai, the offenders were arrested on a first set of charges, and released on bail. They were then arrested on a second set of charges, and denied bail. In each case, the second set of charges was later withdrawn, but the accused was found guilty on the first set of charges. On appeal from sentence in Reid, the court held that the trial judge should have taken the withdrawal of the second set of charges, and the time served in relation thereto, into account on sentencing, and given the accused credit for pre-trial custody served following his arrest on the second (withdrawn) set of charges. The facts in Tsai were slightly different (the accused was sentenced on the first set of charges before the withdrawal of the second set of charges); however, on appeal, the court applied Reid, and held that although the sentence on the first set of charges was fit at the time it was imposed, the withdrawal of the second set of charges was a change in circumstances, and the sentence was reduced to reflect the pre-trial custody served, following his arrest on the second (withdrawn) set of charges.
[30] Wilson was an appeal from sentence on robbery charges. The offender had been arrested on charges of importing cocaine, and released on bail. While still on bail, he was arrested on robbery charges, and detained pending trial on those charges. Following trial, he was convicted and sentenced to two years, less a day, on the cocaine charges. Although he filed an appeal from conviction, he did not apply for bail pending appeal, and served the entirety of his sentence before the appeal was heard, and before his trial on the robbery charges.
[31] Following trial on the robbery charges, Wilson was convicted and sentenced to seven years in prison, in addition to a credit of three years for pre-trial custody. The credit for pre-trial custody did not include the time spent serving his sentence on the cocaine charges.
[32] Wilson’s appeal from conviction on the cocaine charges was successful, and a new trial was ordered. However, prior to the commencement of the new trial, the trial judge found a Charter s. 11(b) violation, and the proceeding was stayed.
[33] On an appeal from sentence on the robbery charges, Wilson argued that he should receive credit for the time spent serving his sentence on the cocaine charges, considering the successful appeal, and subsequent stay of proceedings.
[34] In rejecting the appellant’s argument, Rosenberg J.A. held that the time spent serving the cocaine sentence was unrelated to the robbery offences, that an accused cannot “bank” time spent in custody, and that to give the appellant credit for time spent serving a sentence for another offence would “distort the sentencing regime.” He reasoned that there was no basis in principle between allowing credit for time spent serving a sentence for another offence, and giving an offender credit for pre-trial custody served years earlier which had not been “used up”, because the offender had been acquitted of that earlier charge. Although not expressly stated, one of the implications of the decision is that allowing time served to be banked would have the impermissible result of allowing an offender to offend with full, or at least partial, impunity.
[35] In Wilson, the appellant had relied on Reid and Tsai in support of his argument for the additional credit. However, Rosenberg J. distinguished those cases and noted, at paras. 49f, that at the time of his detention, the accused had faced a reverse onus as a result of the first set of charges, and that “[i]n both cases, the accused was refused bail on the second set of charges (the charges that were later withdrawn) because he was already on bail for the first set of charges. Thus, in part, the time spent in custody for the withdrawn set of charges could be attributed to the first set of offences.” He also noted that in neither of the two cases was the court being asked to retroactively consider giving credit for an actual sentence served on an unrelated charge.
[36] In Pammett, the offender was arrested on drug charges, and released on bail. More than a year later, while still on bail, he was re-arrested on a second set of drug charges. Following this second arrest, he did not apply for bail, and remained in custody.
[37] Following trial on the first set of charges, Pammett was convicted and sentenced. Later, the second set of charges was withdrawn. On appeal from the sentence imposed with respect to the first set of charges, he argued that he should receive credit for the time spent in pre-trial custody following his arrest on the second set of charges. In rejecting that argument, the court cited Wilson, and noted that Pammett had not applied for bail following his arrest on the second set of charges, and that the release order made in relation to the first set of charges was never rescinded. In the result, the court held that Pammett was not in custody as a result of the first set of charges, and that there was no basis to credit the pre-trial custody to the sentence imposed on those charges.
[38] As in Reid and Tsai, and unlike in Wilson, Stewart is not asking to be given credit for time spent serving a sentence on an unrelated charge. The issue for this court, then, is whether the second, third, fourth and fifth sets of charges are sufficiently related to the first set of charges (upon which the offender is now being sentenced) that it can be said that the time spent in pre-trial custody as a result of the later charges can, at least in part, be attributed to the first set of charges.
[39] The answer is that the pre-trial custody which followed his arrest on the second and following sets of charges can, in a very real sense, be attributed to the existence of the charges for the offences upon which the offender is now being sentenced. But for the outstanding charges at the time of his arrest in October 2014, the offender may not have been detained on the cocaine charge, and of course, but for the original charges, there would have been no recognizance to breach.
[40] For these reasons, the offender will be given a credit (at 1.5:1) of 23 months, for time served in pre-sentence custody.
Credit for strict release terms
[41] Stewart’s recognizance required that he remain in his residence, except:
• for medical emergencies involving him, or a member of his immediate family (spouse, child parent or sibling);
• to go directly to, from, and while at, court or meetings with his lawyer;
• for the purposes of travelling directly to, from, and while at, work; and
• unless in the presence of one of his sureties.
[42] In addition, the offender was prohibited from contacting his co-accused, except through legal counsel for the purpose of preparing a defence.
[43] Relying on R. v. Downes (2006), 2006 CanLII 3957 (ON CA), 79 O.R. (3d) 321 (C.A.), defence counsel argues that Stewart should receive credit for time spent under what amounted to stringent bail conditions. He calculates that the offender was under such conditions for approximately fifteen months, and submits that a credit of four months would be appropriate. Crown counsel opposes any such credit. On this issue, I agree with the Crown, for the following reasons.
[44] First, under s. 724(3) of the Criminal Code, the offender has the onus of proving, on a balance of probabilities, any facts upon which he wishes to rely in mitigation of sentence. In this case, having absconded, Stewart was unable to supply the court with any information as to the impact of the conditions on his life. While I agree with defence counsel that some negative impact may be inferred from the nature of the conditions, particular bail conditions will have different effects on different offenders, and in the absence of any evidence, I am not in a position to know what impact the conditions, in this case, had on Stewart.
[45] Second, under s. 475(2) of the Code, the court may take an adverse inference when an accused has absconded during the course of his trial. On the facts of the present case, it is appropriate that such an inference be taken, and I infer that had Stewart attended, and testified at the sentence hearing, his evidence would not have supported his request for the additional credit.
[46] Third, bail conditions are only an infringement on an accused’s liberty, if he complies with them. The facts of the present case, including the December 2016 convictions for breach of recognizance, and the fact that he has absconded, suggest that Stewart took his release conditions less than seriously.
Disposition
[47] The global sentence of 7 years will be reduced by the credit of 23 months for pre-sentence custody, with the result that Stewart will serve a penitentiary sentence of 5 years and 1 month. The credits will be allocated such that the effective sentence on the cocaine charge will be two years and six months, and on the firearm charge, two years and seven months.
[48] In addition, there will be the following ancillary orders: a lifetime weapons prohibition, a DNA sample to be given upon execution of the arrest warrant, and an order that all items seized upon execution of the search warrants be forfeited to Her Majesty, to be disposed of as the Attorney General directs, or otherwise dealt with in accordance with law. These ancillary orders were not opposed by the defence.
“Bale J.”
Released: September 21, 2017
CITATION: R. v. Stewart, 2017 ONSC 5613
COURT FILE NO. 1513899/15
DATE: 20170921
ONTARIO
SUPERIOR COURT OF JUSTICE
Her Majesty the Queen
– and –
Thomas Stewart
REASONS FOR JUDGMENT
Bale J.
Released: September 21, 2017