DATE: 20180509
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
DU-VANIER EDWARDS
Defendant
Barb Glendinning, Ryan Wilson for the Crown
Ryan Handlarski for the Defendant
Adrien Iafrate for the Ministry of Community Safety & Correctional Services
HEARD: April 30, 2018
Reasons for Sentence
Penny J.
Overview
[1] Following a trial by jury, Mr. Edwards was convicted of:
(1) possession of cocaine for the purpose of trafficking;
(2) possession of heroin for the purpose of trafficking; and
(3) possession of proceeds of crime, i.e., money with a value of less than $5,000.
Mr. Edwards’ hearing for sentence on these convictions took place on April 30, 2018. These are my reasons for sentence.
Circumstances of the Defendant
[2] Mr. Edwards was born in March 1993. He was 22 years of age at the time of his arrest on July 15, 2015. He had no prior criminal record. He is, therefore, a youthful, first-time offender.
[3] Mr. Edward’s left high school one credit short of his diploma. Following high school, he was employed in telemarketing and landscaping. He also played soccer competitively and coached youth soccer.
[4] Mr. Edwards lived with his both his parents until the age of 10, when his parents separated. He lived with his mother thereafter. The separation imposed financial hardship on the family as his mother often had only temporary employment or was unemployed.
[5] Following his arrest, Mr. Edwards completed his high school diploma at the Burnhamthorpe Adult Learning Center. He is also completed half a semester at Humber College in a program to become a certified plumber. His goal is to continue with that program upon release.
[6] Mr. Edwards used crack cocaine although he did not characterize his use as an addiction. He denied being a user of heroin.
[7] Mr. Edwards is fortunate in having a supportive family. His mother, his father and his older brother (who is a professional soccer player), in addition to his girlfriend, are all very supportive of Mr. Edwards’ articulated desire to become a law-abiding, useful and productive member of society. Mr. Edwards has had the same girlfriend for nine years. She stood by him through his arrest and trial. Mr. Edwards, however, hid his drug trafficking activities, and his use of crack cocaine, from his loved ones, including his girlfriend.
[8] Mr. Edwards chose to exercise his right to address the court on sentence. He expressed profound regret for the bad choices he made that landed him in his current predicament. Having lived under a combination of house arrest and pre-sentence incarceration for over two years, he assured the court he had learned his lesson.
Circumstances of the Offences
[9] Acting on information from a confidential informant, the police obtained and executed a search warrant of Mr. Edwards’s apartment. During the search, the police seized approximately 49.48 grams of cocaine and 4.72 grams of heroin. The police also seized $7,360 in cash. The jury accepted that some of this cash was the proceeds of Mr.Edwards’ drug trafficking activities and found him guilty of possession of proceeds of crime under $5,000. Part of the Crown’s evidence was that the amount of heroin seized was borderline and could have been consistent with personal use but, in combination with the cocaine and the cash, it seemed more likely that the heroin was for the purpose of trafficking. Mr. Edwards testified. During his evidence at trial, Mr. Edwards admitted to possession of cocaine for the purpose of trafficking but denied possession of heroin for the purpose of trafficking. Mr. Edwards testified that he was not a heroin user. He also admitted that $2,000 - $3,000 of the cash found in his apartment was the result of his cocaine trafficking, but said the rest was from gainful employment.
Positions of the Parties
[10] The Crown seeks a sentence of three years on the charge of possession for the purpose of trafficking in heroin. The Crown seeks concurrent sentences of one year for possession of cocaine for the purpose of trafficking and six months for the possession of proceeds of crime. The Crown also seeks two years’ probation and the following ancillary orders:
(a) an order for a sample of DNA;
(b) an order for the forfeiture of $4,999 of the total amount seized by the police; and
(c) an order for a s. 109 weapons prohibition.
[11] The Crown agrees there should be a credit for pre-sentence custody in a ratio of 1.5:1, which I calculate as a total of 626 days on account of pre-sentence custody. The Crown also agrees there may be additional credit for bail conditions and lockdowns available as a matter of the Court’s discretion, but disagrees with the quantification of these latter amounts as proposed by the defendant.
[12] The defendant submits that two years is a fit sentence for the possession of heroin for the purpose of trafficking. He agrees with the Crown submission for concurrent time on the convictions for possession of cocaine for the purpose of trafficking and proceeds of crime. The defendant seeks a pre-sentence custody credit of 626 days as well as an additional 147 to 265 days’ credit for lockdowns he suffered at the Toronto South Detention Centre (on a ratio of 1:1) and further credit for another 125 days for time spent under strict bail conditions. In the defendant’s submission, he has already accumulated more pre-sentence custody to his credit than his fit sentence.
[13] The defendant also seeks the return of $4,360. He argues that the jury must have accepted his evidence that only a maximum of $3,000 of the seized funds were attributable to illegal activity.
Principles of Sentencing
[14] The fundamental purpose of sentencing, as set out in s. 718 of the Criminal Code, is to contribute, along with crime prevention measures, to respect for the law and the maintenance of a just, peaceful and safe society. In this case, the following objectives predominate:
denouncing unlawful conduct,
deterring the offender and others from committing crimes, and
assisting in the rehabilitation of the offender.
[15] Any sentence imposed must be proportionate to the gravity of the offence and the responsibility of the offender.
[16] The Criminal Code (s. 718.2) also requires me to bear in mind that:
(a) the sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender;
(b) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;
(c) the sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;
(d) offenders should not be deprived of liberty if less restrictive sanctions may be appropriate; and
(e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders.
Analysis
Possession of Heroin for the Purpose of Trafficking
[17] The law recognizes that a purely commercial interest in the context of a charge for possession of heroin for the purpose of trafficking (as opposed to an addict compelled to feed his habit), is an aggravating factor. In this case, the defendant testified that he did not use, and was not addicted to, heroin. Accordingly, his interest was purely commercial.
[18] On the mitigating side of the equation, is the fact that the amount of heroin involved is relatively small.
[19] The defendant submits that his admission, during his evidence, of possession of cocaine for the purpose of trafficking and possession of proceeds of crime under $5,000 should be treated as a guilty plea in mitigation of sentence. I am unable to agree. The real issue here is the possession of heroin for the purpose of trafficking. There was no admission on this count. In addition, the defendant only admitted to the cocaine and proceeds of crime counts after the Crown had put in all its evidence. There was no real saving in time or trouble. The Crown would have conducted its case differently had there been a true plea of guilty in advance of trial.
[20] Of more importance is the defendant’s relative youth and the fact that this was his first offence. While there was an act of backsliding after the terms of his house arrest were varied, which resulted in the breach of the defendant’s bail terms and his pre-sentence incarceration, he pleaded guilty to that breach and has been independently sentenced in that matter.
[21] There is no doubt that heroin is a pernicious drug and that a conviction for possession for the purpose must engage the elements of denunciation and deterrence. However, Mr. Edwards is a youthful first offender who has strong family and other relationship support. He has, since his arrest, taken every opportunity to further his education, including taking numerous courses while in detention. He has a plan to continue with the Humber College course leading to certification as a plumber.
[22] In my view, a penitentiary sentence is warranted. However, the Crown’s precedents involve significantly larger amounts of heroin, older, more mature accused and, in some cases, circumstances in which the heroin conviction was not the first offence.
[23] In all the circumstances of this case, balancing the need for denunciation and deterrence against the strong prospects for rehabilitation, I find that 28 months’ detention is a fit sentence for Mr. Edwards’s conviction on the heroin count.
[24] I agree with and accept the parties’ submissions that a fit sentence for the conviction on the cocaine count is one year concurrent; likewise I agree with and accept the parties’ submissions that six months concurrent is a fit sentence for the possession of proceeds of crime under $5,000.
Pre-Sentence Detention
[25] I calculate the defendant’s pre-sentence detention, applying a 1.5:1 ratio, at 626 days, or 20 months and 15 days. From a total period of incarceration since January 27, 2017 (468 days) must be deducted the 60 day sentence imposed by the Ontario Court of Justice for breach of Mr. Edwards’s recognizance. To this must be added the nine days in custody resulting from Mr. Edwards’s original arrest in 2015. That number, 417, is multiplied by 1.5 to reach the standard credit for pre-sentence custody of 626 days, or 20 months and 15 days.
R. v. Duncan – Time Served Under Lockdown
[26] In certain circumstances, particularly when harsh conditions prevail during pre-sentence incarceration, mitigation greater than the 1.5:1 credit set out in s. 719(3.1) of the Criminal Code, may be appropriate. In considering whether any enhanced credit should be given, the court must consider the conditions of the pre-sentence custody and the impact of those conditions on the defendant. If the court finds that there is an adverse effect on the defendant flowing from the pre-sentence conditions, the sentence can be reduced further to reflect added mitigation for the harsher than normal conditions of the pre-sentence incarceration, R. v. Ward-Jackson 2018 ONSC 178, at para 43.
[27] In this case, the defendant points to the Toronto South Detention Centre records, which show 147 days of lockdown during his approximately 400 days in pre-sentence custody. These records, however, indicate a significant number of partial lockdowns. The defendant also gave evidence that he made his own calculations of lockdowns, which reflect lockdowns on 264 days. Mr. Edwards’s calculations included what he experienced as a lockdown during any three hour period. His calculation of the days was made by placing handwritten “X”s on a small calendar. There is obviously an element of subjectivity to this calculation, and, by his own admission, it includes more than full lockdowns which lasted all day.
[28] The Toronto South Detention Centre records were also less than perfect. At the hearing, corrections were made to an earlier report as some lockdown events were missed the first time. There was also evidence given from a corrections officer that a significant number of localized lockdowns can occur which are discretionary and may not be captured in the institution’s record-keeping system.
[29] Based on the TSDC records, some form of lockdown was in effect during about 35% of the period of pre-sentence custody. According to Mr. Edwards’s calculations, it was more like 65% of his pre-sentence custody.
[30] While I accept that there is likely some discrepancy between the way the record-keeping at TSDC is supposed to be done and how it is actually done, I am equally unable to accept that every one of Mr. Edwards’s 264 days represented a full lockdown during which he was deprived of any access to the outside yard, showers or telephone calls or visits for the whole day.
[31] I do accept, however, that there was a material period of lockdown, mostly based on staff shortages (which, of course, are entirely outside Mr. Edwards’s control), which had a very detrimental impact on Mr. Edwards’s incarceration. I accept Mr. Edwards’s evidence that being confined to his cell, denied access to the outdoors exercise area, denied access to showers and denied access to visits from and/or telephone contact with the outside world, had a significant negative impact on the conditions of his pre-sentence incarceration.
[32] In all of the circumstances, I find Mr. Edwards is entitled to an additional credit of four months on account of having served a significant portion of his pre-sentence custody in unusually harsh conditions due to lockdowns.
R. v. Downes – Time Spent Under House Arrest
[33] Mr. Edwards was released on a strict, house arrest bail with virtually no exceptions on July 23, 2015. This lasted until May 9, 2016, some 292 days. Mr. Edwards was granted an exception to his strict bail terms from May 9, 2016 to September 14, 2016 in order to attend the Burnhamthorpe Adult Learning Center from 8 AM to 3 PM to complete his high school education. This was for a further 129 days. On September 14, 2016, Mr. Edwards’s bail terms were further varied to permit him to be out of his father’s residence from 6 AM to 8 PM. It was during this time that he breached his recognizance.
[34] Again, Mr. Edwards provided evidence of the constraining nature of his bail terms, and the adverse impacts it had on him, from July 23, 2015 to September 14, 2016.
[35] In all of the circumstances, I conclude Mr. Edwards is entitled to a further credit of three months in mitigation of his sentence on account of the constraints associated with his bail terms.
Forfeiture of Cash
[36] As noted earlier, the Crown seeks forfeiture of $4,999 of the $7,360 seized, based on the fact that Mr. Edwards was convicted of possession of proceeds of crime under $5,000. The defence maintains that, in order to convict Mr. Edwards of the lesser and included offence of possession of proceeds of crime under $5,000, the jury must have accepted Mr. Edwards’s evidence that only up to a maximum of $3,000 of the funds seized were the proceeds of crime.
[37] I do not think it necessarily follows from the jury’s acquittal on the charge of possession of proceeds of crime over $5,000 that the jury must have accepted Mr. Edwards evidence that only a maximum of $3,000 was derived from drug trafficking. All that can safely be concluded from the jury’s conviction is that the ill-gotten funds possessed were less than $5,000. I therefore agree with the Crown’s submission and order forfeiture of $4,999 of the funds seized.
Probation and Ancillary Orders
[38] Although I have found that, as a youthful first offender in the circumstances of Mr. Edwards’ particular case, he is a strong candidate for rehabilitation, it is troubling that, once released from house arrest during the day without condition, Mr. Edwards breached his recognizance and re-offended.
[39] In the circumstances, I find that Mr. Edwards will benefit from a term of probation, which I set at two years. During that time, in addition to the usual terms, Mr. Edwards shall seek full time employment or be in full time attendance in an educational program.
[40] In addition, I grant the following ancillary orders:
(1) Mr. Edwards shall submit a sample of his DNA so that it may be lodged in the DNA database; and
(2) Mr. Edwards shall be subject to a weapons prohibition under s. 109 of the Criminal Code.
Sentence
[41] Mr. Edwards, please stand.
[42] Mr. Edwards, you came before the court as a youthful first offender.
[43] You were charged and found guilty of very serious crimes.
[44] You are fortunate to have strong support from your family and close friends.
[45] You have shown a desire to make up for the serious mistakes you have made and to obtain skills that will enable you to enter the workforce and become a productive member of society.
[46] Being a first offender is a rare opportunity. It is rare because you can only be a first offender once. This gives you a chance – one chance to show you can successfully overcome this problem and continue on with your life as a law abiding and productive member of society. You will never get a chance like this again because you will never be sentenced as a first offender again.
[47] I am giving you that chance. With this sentence, I am recognizing in a significant way your potential for rehabilitation. I am giving you a chance to prove yourself worthy. I hope you will not disappoint me.
[48] Mr. Edwards, for the conviction on possession of heroin for the purpose of trafficking, I sentence you to 28 months.
[49] For the conviction on possession of cocaine for the purpose of trafficking, I sentence you to one year, concurrent.
[50] For the conviction on possession of proceeds of crime under $5000, I sentence you to six months, concurrent.
[51] You shall receive 20 months 15 days credit for your pre-sentence incarceration.
[52] You shall receive an additional credit of four months due to unusually harsh conditions during your pre-sentence detention.
[53] You shall receive a further credit of three months on account of your bail conditions.
[54] Your credits total 27 months 15 days. Accordingly, I sentence you to a further 15 days’ incarceration.
[55] In addition to this sentence, you shall be subject to a probation order for two years and report to your probation officer as directed. You shall, during the period of probation, seek full time employment or be enrolled in a full-time educational program.
[56] $4,999 of the funds seized from your apartment shall be forfeit to the Crown.
[57] In addition, you shall provide a sample of your DNA and you shall be subject to a weapons prohibition under s. 109 of the Criminal Code.
Penny J.
Released: May 9, 2018
DATE: 20180509
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
DU-VANIER EDWARDS
Defendant
REASONS FOR JUDGMENT on sentence
Penny J.
Released: May 9, 2018