R. v. Askin
Conlan, J. – Reasons for Sentence
HMQ v. Askin, 2018 ONSC 4444
THURSDAY, JUNE 28, 2018
R E A S O N S F O R S E N T E N C E
CONLAN, J. (Orally):
I. Offences
Michael Askin has entered guilty pleas and has been found guilty of the following offences:
Count one, possession of a schedule one substance, methamphetamine, for the purpose of trafficking.
Count two, possession of a schedule one substance, heroin, for the purpose of trafficking.
Count four, possession of a schedule one substance, cocaine, for the purpose of trafficking.
Count five, possession of a prohibited weapon, namely a switchblade knife, and count seven, resisting arrest.
Mr. Askin is now to be sentenced on those findings of guilt.
R. v. Askin
Conlan, J. – Reasons for Sentence
II. The Facts
On August 3, 2017, in the City of Owen Sound, Mr.
Askin was arrested by the police for driving while under suspension. He was searched incidental to that arrest. The police found a prohibited weapon and illegal narcotics.
Mr. Askin was arrested and transported to the police station. There, the police intended to conduct a strip search of Mr. Askin. Mr. Askin was uncooperative. He wrestled with the police. He did everything that he could to refuse an examination of his anal region.
Ultimately, Mr. Askin was found to be in personal possession of the following: 5.7 grams of a mixture of heroin and fentanyl; 2.5 grams of methamphetamine; 8.5 grams of a mixture of methamphetamine and cocaine; 15.4 grams of cocaine; 12 hydromorphone pills; and 6.9 grams of cannabis marijuana.
In addition, a second prohibited weapon, another knife, was found in Mr. Askin’s motor vehicle, along with a scale that contained residue of heroin, cocaine, fentanyl, methamphetamine, and caffeine. Baggies were also found inside Mr.
R. v. Askin
Conlan, J. – Reasons for Sentence
Askin’s vehicle, and a cell phone that contained text messages indicative of drug trafficking.
Mr. Askin denies that he knowingly possessed fentanyl.
III. The Offender
This court has the benefit of a thorough pre-
sentence report. It is for Mr. Askin, unfortunately, a rather miserable report. It confirms that Mr. Askin is currently 37 years old, and has a lengthy criminal record, including multiple related convictions. I will have more to say in a moment about Mr. Askin’s criminal history.
The offender has a 10-year-old son with whom he has very limited contact. Mr. Askin has not graduated high school, and has a chequered job history. He has a lengthy history of drug abuse, and he recently experienced a disciplinary problem while incarcerated at the Central North Correctional Centre.
I accept that Mr. Askin’s life became even more difficult after the unfortunate death of his father, with whom he was close, that death having
R. v. Askin
Conlan, J. – Reasons for Sentence
occurred in December of 2014.
To his credit, Mr. Askin did address the court today. He spoke rather eloquently, and he expressed genuine remorse for his criminal activity.
I indicated a moment ago that I would say something further about Mr. Askin’s criminal history. I do not wish to belabour the point simply to embarrass Mr. Askin, however if this sentencing is ever reviewed, it is important to
note the sheer extent of the criminal record.
In 2006, in Saskatchewan, Mr. Askin was convicted of 14 offences; three counts of fail to attend court, seven counts of breach of recognizance, one count of simple possession of a schedule one substance, one count of carrying a concealed weapon, one count of obstruct a police officer, and one count of theft under $5,000.
In 2015, in Owen Sound, Mr. Askin was convicted of three offences; possession of a schedule one substance, another possession of a schedule one substance, and another possession of a schedule one substance.
R. v. Askin
Conlan, J. – Reasons for Sentence
In 2016, in Owen Sound, Mr. Askin was convicted of another narcotics offence, that is, simple possession of a schedule two substance.
In 2016, in Walkerton, Mr. Askin was convicted of seven criminal offences; assault, breach of recognizance, obstruct police, simple possession of a schedule one substance, breach of probation, another simple possession of a schedule one substance, and another simple possession of a schedule one substance.
In 2017, in Walkerton, Mr. Askin was convicted of
eight criminal offences; theft under $5,000, breach of probation, simple possession of a substance, resist police, breach of recognizance, another breach of recognizance, and another two counts of breach of probation.
In 2017, in Owen Sound, Mr. Askin was convicted of numerous further offences; breach of recognizance, breach of probation, possession of stolen property under $5,000, and another breach of probation.
In 2017, in Sault Ste. Marie, Mr. Askin was convicted of yet more offences; breach of probation, simple possession of a schedule two
R. v. Askin
Conlan, J. – Reasons for Sentence
substance, simple possession of a schedule one substance, and unauthorized possession of a prohibited weapon.
Frankly, there are simply too many convictions on Mr. Askin’s criminal record to count, and there are many, many prior convictions for narcotics offences, multiple prior convictions for obstruct police or resist police, and more than one prior weapons-related conviction.
And here Mr. Askin is to be sentenced once more for the same types of offences, namely narcotics offences, a weapons offence, and an offence involving improper conduct with the police.
There is no other way to put it than to say that Mr. Askin, although he presents as an eloquent person and is being sincerely remorseful for his conduct, which I accept, that he is a chronic recidivist, and a habitual criminal.
IV. The Principles of Sentencing
In my view, the paramount principles of sentencing applicable in this case are denunciation; general deterrence; specific deterrence; the need to separate this offender, Mr. Askin, from society; and rehabilitation.
R. v. Askin
Conlan, J. – Reasons for Sentence
Although some judges would conclude, given Mr. Askin’s criminal history, that any prospect of rehabilitation is a lost cause, I am not prepared to make that conclusion. Mr. Askin may some day be able to turn his life around.
V. The Aggravating and Mitigating Factors
The aggravating factors here include the terrible lengthy and related criminal history, and the fact that Mr. Askin was in possession for the purpose of trafficking of three different highly addictive and deadly narcotics, methamphetamine, heroin, and cocaine. And on top of all of that, although unknowingly, which I accept, Mr. Askin was in possession of fentanyl.
The chief mitigating factor is that Mr. Askin entered guilty pleas to the charges, which saved the expense and the time of a trial, which also surrendered any argument that he might have had in defence of the charges, and which was a sign of his remorse.
I find it difficult to pinpoint any other mitigating factor in this case.
VI. Analysis and Decision
R. v. Askin
Conlan, J. – Reasons for Sentence
The Crown has requested a sentence of three and a half years on a global basis in the penitentiary, less 443 days for pre-sentence custody, leaving a balance of 834 days to serve in the penitentiary.
The Crown also requests ancillary orders.
The defence position is time served, the equivalent of 443 days in custody, and two years of probation.
Each side has made some cogent submissions in support of its position.
In my view, despite the able submissions of Ms Grewal, there are two major problems with the position advanced by the defence. First, I am of the view that 443 days is a woefully inadequate sentence for Mr. Askin on these facts, and, second, I am of the view that further probation for Mr. Askin would likely not be productive. With this criminal history, it will be up to Mr. Askin to make the changes in his life as he sees fit.
Next, dealing with the matters agreed to. Both sides agree that Mr. Askin’s pre-sentence custody credit be treated as 443 days, on a grossed-up basis of 1.5 days credit for every one day
R. v. Askin
Conlan, J. – Reasons for Sentence
served.
In addition, both sides agree with the following ancillary orders, all of which are imposed by this court:
Victim fine surcharges on each conviction. Twelve months to pay upon release from custody.
A Section 109 order. The Crown requested a 109 order for 10 years and life, according to the two paragraphs of subsection (2), but given Mr. Askin’s lengthy criminal history, which includes prior weapons-related convictions, I am of the view that the appropriate Section 109 order is for life for all items covered therein.
A primary DNA order.
And a forfeiture order for the items seized by the police, per the draft prepared by the Crown and approved of by the defence.
All of those ancillary orders are imposed.
On the penultimate question of how much further time in custody Mr. Askin should serve, there is
nothing unreasonable about the position advanced
R. v. Askin
Sentence
by the Crown, another 834 days in prison. However, to give Mr. Askin some additional credit for the guilty pleas, and to recognize his positive comments to the court today, I will reduce that further time in custody from the 834 days sought by the Crown to two years even, in the penitentiary.
S E N T E N C E
And, thus, the sentence of the court is as follows:
Number one, victim fine surcharges on each conviction, twelve months to pay upon Mr. Askin’s release from custody.
Number two, a forfeiture order per the draft prepared by the Crown and approved of by the defence.
Number three, primary DNA order.
Number four, Section 109 Criminal Code firearms and weapons prohibition order for life.
And number five, on top of 443 days in custody already served, Mr. Askin is sentenced on a
R. v. Askin
Sentence
global basis to a further two years imprisonment.
The sentence will be broken down as follows:
On count two, possession of heroin for the purpose of trafficking, 443 days time served, plus two years imprisonment from today.
On count one, possession of methamphetamine for the purpose of trafficking, two years imprisonment from today, concurrent.
Count four, possession of cocaine for the purpose of trafficking, two years imprisonment from today, concurrent.
Count five, possession of a prohibited weapon, six months in custody from today, concurrent.
Count seven, resist police, six months in custody from today, concurrent.
The global sentence is two years imprisonment from today on top of 443 days time served.
Mr. Askin, I am required to tell you that you must pay the victim fine surcharges, or else you could be charged.
R. v. Askin
Sentence
You must obey the forfeiture order that you will receive a copy of, or else you could be charged.
You must cooperate with the police in giving a
sample of your blood for DNA purposes, or else you could be charged.
You must obey the firearms and weapons prohibition order, or else you could be charged.
I know, Mr. Askin, that this is not the sentence that you were hoping for today, but despite the able submissions from your lawyer, Ms Grewal, in my view that is the most that this court can temper the sentence. And I do wish you good luck moving forward.
MICHAEL ASKIN: Thank you.
MS GREWAL: Thank you.
THE COURT: Is there anything further, counsel?
MS GREWAL: No, Your Honour.
MS LAWSON: Just by way of clarification, I believe Your Honour said that it was a primary designated offence?
THE COURT: It is. Is it not?
MS LAWSON: It’s a secondary…
THE COURT: Okay.
MS LAWSON: …designated offence.
THE COURT: I apologize.
MS LAWSON: I think it makes a difference, Your
R. v. Askin
Sentence
Honour.
THE COURT: I apologize for that. So it is a secondary DNA order,…
MS LAWSON: That’s correct.
THE COURT: …not a primary…
MS LAWSON: Yes.
THE COURT: …DNA order.
MS LAWSON: I think it makes a difference to the powers that be.
THE COURT: Thank you.
MS LAWSON: And any counts not pled to can be noted withdrawn, please.
THE COURT: All outstanding matters are withdrawn at the request of the Crown.
MS LAWSON: Thank you.
THE COURT: Ms Grewal, any other questions?
MS GREWAL: No, Your Honour. Thank you very much for your time.
P R O C E E D I N G S C O N C L U D E D
R. v. Askin
Certification
FORM 2
Certificate of Transcript (Subsection 5(2))
Evidence Act
I, Susan Marriott, certify that this document is a true and accurate transcript of the recording of R. v. Askin in the Superior Court of Justice held at 611 9th Avenue East, Owen Sound, taken from Recording 1011-302-20180628-095021—10-CONLANC, which has been certified in Form 1.
Date Susan Marriott
ACT ID #7183710780