Court File and Parties

Court File No.: CR-17-90000-437 Date: 2018-09-27 Ontario Superior Court of Justice

Between: Her Majesty the Queen And: Adrian Skeete

Counsel: V. Rivers, for the Crown S. Dudoni, for the defendant

Heard: August 28, 2018

Reasons for Sentence

Favreau J.:

Introduction

[1] On June 15, 2018, I found Adrian Skeete guilty of one count of possession of cocaine for the purpose of trafficking and one count of possession of a prohibited weapon.

[2] On August 28, 2018, I heard submissions from the Crown and from Mr. Skeete's lawyer on sentencing.

[3] This is my sentencing decision.

Circumstances of the Offence

[4] On May 21, 2016, the police stopped Mr. Skeete while he was driving his vehicle on the basis that his rear license plate light was not functioning. At the time Mr. Skeete was stopped, the police saw a knife on the passenger seat of the car, after which they conducted a search of Mr. Skeete and his car. The police found and seized 12.12 grams of crack cocaine and the knife.

[5] Based on the evidence at trial, I found that Mr. Skeete possessed the crack cocaine for the purpose of trafficking. I also found that the knife was a prohibited weapon as it opened by centrifugal force.

Circumstances of the Offender

[6] At the defence's request, a pre-sentencing report was made available to the Court.

[7] Mr. Skeete is 28 years old. He was born and raised in Toronto. His mother passed away last year since the time of his arrest on these charges. His father is still alive, although he is in poor health; he has suffered a stroke and has cancer. Since his mother's death, Mr. Skeete spends a significant amount of time caring for his father.

[8] Mr. Skeete has four siblings. One of his sisters passed away and another sister has serious mental health issues. Mr. Skeete has a positive relationship with his brother.

[9] Mr. Skeete has completed high school. He is currently working at two part-time jobs. He works as a mechanic's help at an auto service business, and he works as a commercial mover and installer for another employer. Both of his employers provided positive feedback about Mr. Skeete's character and work ethic.

[10] In addition to his employment, Mr. Skeete spends his time caring for his father and a niece, fixing computers and designing logos. He has aspirations to start his own design business.

[11] Mr. Skeete reports using crack cocaine in the last year and a half. He told the officer who completed the pre-sentencing report that he uses the drug to cope with the stress of his family's health problems, but that he is motivated to stop doing so and that he would be willing to attend counseling.

[12] Mr. Skeete has one prior criminal conviction. He was found guilty of armed robbery on July 13, 2011. He was initially sentenced to 4 years in custody, but on appeal his conviction was changed to robbery and his sentence was reduced to 12 months in custody.

Positions of the Parties

[13] The Crown takes the position that a mandatory minimum sentence of one year in custody applies in this case on the basis of section 5(3)(a)(i)(C) of the Controlled Drugs and Substances Act.

[14] The Crown seeks a total sentence of 18 months in custody broken down as follows:

a. 18 months for the conviction of possession for the purpose of trafficking; b. 6 months for the conviction of possession of a prohibited weapon; and c. All sentences to be served concurrently such that the total sentence would be 18 months.

[15] Mr. Skeete's counsel disputes that the mandatory minimum sentence applies to this case, and he proposes a sentence of 9 months with a reduction to reflect the time Mr. Skeete spent under house arrest while awaiting trial.

Sentencing Objectives

[16] As set out in section 719 of the Criminal Code, the fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society. This is achieved by imposing "just sanctions" that reflect one or more of the traditional sentencing objectives, which include denunciation, general or specific deterrence and rehabilitation.

[17] The Criminal Code lists a number of principles to guide sentencing judges. The parity principle is set out in section 718.2(b) of the Criminal Code, and it provides that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. As noted in R. v. Mann, 2010 ONCA 342 at para. 17, the parity principle is not to be applied in an absolute fashion; given the highly individualized sentencing process, sentences imposed for offences of the same type will not always be identical.

[18] The totality principle is addressed by section 718.2(c) of the Criminal Code. A sentencing judge who orders an offender to serve consecutive sentences must ensure that the combined sentence is not unduly long or harsh. The cumulative sentence imposed must not exceed the overall culpability of the offender (R. v. C.A.M., [1996] 1 S.C.R. 500 at para. 42).

[19] The restraint principle is reflected in both subsections 718.2(d) and (e) of the Criminal Code. As the court explained in R. v. Hamilton, [2004] O.J. No. 3252 (C.A.), at para. 95, the restraint principle is of paramount importance where incarceration is a potential disposition.

[20] The fundamental principle of sentencing is the proportionality requirement, which is set out in s. 718.1 of the Criminal Code: a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

Aggravating and Mitigating Circumstances

[21] In determining the sentence, I must consider aggravating and mitigating circumstances.

[22] While the quantities of drugs in Mr. Skeete's possession at the time of the arrest were not large, the nature of the substance at issue is an aggravating factor. In R. v. Woolcock, [2002] O.J. No. 4927 (C.A.), at para. 9, the Court of Appeal noted that "crack cocaine is an extremely dangerous and insidious drug with potential to cause a great deal of harm to individuals and to society" and that possession of crack cocaine for the purpose of trafficking is a "serious offence".

[23] Mr. Skeete also has a prior criminal record for robbery.

[24] The mitigating factors in this case are that Mr. Skeete has maintained steady employment, and that he is well regarded by his employers. He appears to have strong family ties, and takes responsibility for caring for his father and other family members.

[25] Mr. Skeete has also expressed a desire to stop using crack cocaine and a willingness to attend counseling for assistance.

[26] I note that the pre-sentencing report makes reference to the police advising the officer who prepared the report that Mr. Skeete is “known as an identified gang member”. There was no evidence on this point at trial nor does the report contain any details about this statement. In the absence of more information, I wish to make clear that I have not considered the claim that Mr. Skeete is a known gang member as an aggravating factor. This is very a serious allegation that, if true, could affect a person's prospects of rehabilitation. However, in my view, in order to take gang affiliation into account, more than an unparticularized comment from the police is required.

Application of the Mandatory Minimum Sentence

[27] The Crown argues that the mandatory minimum sentence of one year set out in section 5(3)(a)(i)(C) of the Controlled Drugs and Substances Act applies in this case because Mr. Skeete was in possession of a prohibited weapon at the time he was found to be in possession of cocaine for the purpose of trafficking.

[28] The relevant provisions are as follows:

5 (1) No person shall traffic in a substance included in Schedule I, II, III, IV or V or in any substance represented or held out by that person to be such a substance.

(2) No person shall, for the purpose of trafficking, possess a substance included in Schedule I, II, III, IV or V.

(3) Every person who contravenes subsection (1) or (2)

(a) subject to paragraph (a.1), if the subject matter of the offence is a substance included in Schedule I or II, is guilty of an indictable offence and liable to imprisonment for life, and

(i) to a minimum punishment of imprisonment for a term of one year if

(C) the person carried, used or threatened to use a weapon in committing the offence (emphasis added)

[29] In this case, Mr. Skeete had the knife on the passenger seat of his car at the time he was stopped by the police. In my decision of June 15, 2018, I did not find that Mr. Skeete was "carrying, using or threatening to use the knife in committing the offence". There was no evidence at trial of any link between Mr. Skeete's possession of the prohibited weapon and his possession of drugs for the purpose of trafficking. In fact, I dismissed the charge of possession of a weapon for a dangerous purpose, one of the elements of which is that the person charged must possess the weapon for a purpose dangerous to the public. In doing so, I found that "the Crown did not make any arguments that Mr. Skeete possessed the knife for a purpose dangerous to the public", and that I was "not satisfied that there is sufficient evidence on which I could make such a finding beyond a reasonable doubt".

[30] The Crown did not provide any cases that support the position that simply having possession of a prohibited weapon at the same time as possession of a controlled substance for the purpose of trafficking, without any clear link between the possession of the weapon and the trafficking offence, is sufficient to meet the requirements of subsection 5(3)(a)(i)(C) of the Controlled Drugs and Substances Act.

[31] Accordingly, I am not prepared to find that the minimum sentence of one year applies in this case.

Sentences Imposed in Other Cases

[32] In deciding on the appropriate sentence in this case, I must consider sentences imposed in similar circumstances to ensure that the principle of parity is met.

[33] In Woolcock, the appellant was found guilty of possession of crack cocaine for the purpose of trafficking. The amount at issue was approximately 5 grams. The Court of Appeal stated that the "range of sentence for this type of offence appears to be 6 months to 2 years less a day". The Court also noted at the same paragraph that "the cases that fall at the higher end of this range involved either larger quantities of narcotics or offences committed while the accused was on probation for a similar offence." In that case, the Court reduced the trial judge's sentence of 2 years less one day to 15 months on the basis that the trial judge had failed to consider the principle of rehabilitation.

[34] During argument, the Crown put forward the decisions in R. v. Harrison, 2009 ONCA 1823 (C.A.) and R. v. Williams, 2010 ONSC 3904 (Sup. Ct.), as cases where the range in Woolcock was applied.

[35] In Harrison, the Court of Appeal found that a 12 month sentence (with reductions for pre-sentence custody) was appropriate in a case involving possession of 8.95 grams of cocaine for the purpose of trafficking.

[36] In Williams, the defendant was found guilty of simple possession and possession for the purpose of trafficking of a total of 5.5 grams of crack cocaine. The defendant was a first time offender, and the court found that he had strong prospects of rehabilitation. The Court imposed a sentence of 9 months in custody followed by one year probation.

[37] The Crown argues that, while Mr. Skeete’s case falls within the Woolcock range, a higher sentence should be imposed than in Harrison or Williams given that the quantity of drugs at issue in this case is higher and given Mr. Skeete's prior record.

Appropriate Sentence in This Case

[38] As referred to above, given the nature of the substance involved and its negative societal impact, the paramount objectives of sentencing for offences involving the trafficking of crack cocaine are denunciation and deterrence: Williams, at para. 21. However, rehabilitation is also to be considered.

[39] In this case, while the amount at issue is not large, it is nevertheless significantly larger than in Woolcock, Williams and Harrison.

[40] In addition, there is no evidence that Mr. Skeete was an addict at the time of the offence. While the pre-sentencing report states that Mr. Skeete started using crack cocaine one and a half years ago, this postdates his arrest. In any event, his evidence at trial was that he had bought the drugs with employment income. Therefore, there is no evidence that, at the time of the offence, he was trafficking crack cocaine for the purpose of supporting an addiction.

[41] Mr. Skeete is not a first time offender. While he only has one previous non drug related offence, robbery is a serious offence.

[42] In terms of rehabilitation, Mr. Skeete evidently has a strong relationship with his family and a demonstrated commitment to his employment. He has also expressed a desire to obtain counseling for his drug use.

[43] I do not agree with the Crown's suggestion that an 18 month sentence is appropriate in this case. I find that such a sentence is too high given the quantity of drugs at issue and given that, while it is not Mr. Skeete's first offence, it is his first drug offence.

[44] However, I also do not agree with the defence's suggestion that 9 months is an appropriate sentence. It is out of line with the cases referred to above given the quantity at issue, and it does not reflect the seriousness of the offence and Mr. Skeete's prior record.

[45] I find that a sentence of 15 months for the conviction of possession for the purposes of trafficking and a sentence of 4 months for the conviction of possession of a prohibited weapon are appropriate in this case. In my view, these sentences are proportionate to the gravity of the offences, reflect the aggravating and mitigating circumstances, and satisfy the objectives of denunciation and deterrence while taking account of the prospects of rehabilitation.

[46] Both the Crown and the defence agree that the sentences should be served concurrently. I agree. In my view, imposing consecutive sentences would be unduly disproportionate and harsh in the circumstances: R. v. Gummer, [1983] O.J. No. 181 (Ont. C.A.) at para. 13.

Conclusion

[47] Accordingly, I sentence Mr. Skeete to 15 months in custody broken down as follows:

a. 15 months for the possession for the purpose of trafficking conviction; and b. 4 months for the possession of a prohibited weapon conviction to be served concurrently with the conviction of possession for the purpose of trafficking.

[48] The period of custody is to be reduced by 6 days to reflect Mr. Skeete's 4 days in custody following his arrest. In addition, in accordance with R. v. Downes, [2006] O.J. No. 555 (C.A.), a reduction should be made to reflect that Mr. Skeete was under house arrest as a condition of his bail for a period of 12 months following his arrest. Both the Crown and the defence submit that the reduction should be between 4 to 6 weeks. Looking at the restrictions imposed on Mr. Skeete and the relevant case law, including R. v. Torrezao, 2018 ONSC 2157 (Sup. Ct.), I find this proposed reduction to be too low. In my view, a reduction of 2 months is appropriate. Accordingly, Mr. Skeete is to serve a sentence of 13 months less 6 days.

[49] I note that neither the Crown nor the defence requested a period of probation. I also note that Mr. Skeete expressed a desire to stop using crack cocaine and a willingness to participate in counseling. I therefore highly recommend that he be given an opportunity to participate in a drug counseling program while in custody.

[50] In addition, I make the following ancillary orders:

a. Pursuant to section 109 of the Criminal Code, I order that Mr. Skeete is prohibited from possessing any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life, and that he is prohibited from possessing any firearm (other than one that is prohibited or restricted), cross-bow, restricted weapon, ammunition and explosive substance for 10 years; b. I order that a DNA sample be given pursuant to section 487.051(3) of the Criminal Code, as Mr. Skeete has been convicted of a secondary designated offence and I am satisfied that it is in the best interests of justice to make such an order having regard to the nature and circumstances surrounding the offense and the minimal impact that it will have on Mr. Skeete's privacy and security of the person; and c. Pursuant to section 737(2)(b)(ii) of the Criminal Code, Mr. Skeete is to pay the victim surcharge of $200 for each indictable offence for a total of $400. This amount is to be paid within 18 months of today's date.

Favreau J. Released: September 27, 2018