Court File and Parties
Oshawa Court File No.: CR-17-14520 Date: 2018-11-06 Court: Ontario Superior Court of Justice
Between: Her Majesty the Queen And: Hazare Raj-Kumar Roman, Defendant
Counsel: J.D. Frost, for the Crown D.S. Sederoff, for the Defendant
Heard: August 13-17, 20-22, September 20, 2018
Reasons for Sentence
Charney J.:
Introduction
[1] At the outset of this trial Hazare Roman was charged with two offences: possession of fentanyl for the purposes of trafficking, and possession of cocaine for the purposes of trafficking.
[2] Mr. Roman, and his co-accused, Jacinda Hudson, elected to be tried before a jury. The trial commenced on August 13, 2018.
[3] On August 20, 2018, counsel for Mr. Roman brought a motion for a directed verdict of not guilty on the charge of possession of fentanyl for the purposes of trafficking. The Crown consented to the directed verdict, and a verdict of not guilty was entered in accordance with the Supreme Court of Canada’s decision in R. v. Rowbotham, [1994] 2 S.C.R. 463.
[4] The evidence portion of the trial ended on August 20, 2018, and we adjourned for the day, with the intention of beginning the pre-charge conference with counsel on August 21, 2018.
[5] On August 21, 2018, Mr. Roman advised that he wanted to change his plea to guilty on the count of possession of cocaine for the purposes of trafficking. A plea inquiry was conducted and a conviction was registered.
[6] The Crown withdrew the charge of possession of cocaine for the purposes of trafficking against Ms. Hudson.
[7] On August 22, 2018, Ms. Hudson was found guilty by the jury of importing fentanyl and possession of fentanyl for the purposes of trafficking.
[8] On September 20, 2018, I heard submissions from the Crown and Mr. Roman’s counsel on sentencing.
[9] The Crown and defence made a joint submission of 9 months in prison plus probation, and agreed that Mr. Roman should receive 20 days credit on the basis of 1.5:1 for the two weeks he spent in custody before obtaining bail.
[10] The Crown and defence could not agree on the amount of time Mr. Roman should be credited for the four months Mr. Roman spent under house arrest and the additional 18 months he remained under curfew. The Crown submits that Mr. Roman should receive 2 – 3 months credit. The defence takes the position that Mr. Roman should receive a full 8 months credit for the house arrest and curfew time, resulting in a suspended sentence and probation.
Circumstances of the Offence
[11] On or about October 18, 2016, the Canada Border Services Agency in Richmond, British Columbia intercepted four packages arriving from Guangdong, China via post from the same importer. These packages were addressed to three separate persons at three separate addresses in Ontario. One of the packages was addressed to the co-accused, Jacinda Hudson, at her residence in Ajax, Ontario.
[12] Each of the packages contained 300 grams of fentanyl.
[13] On November 1, 2016, a General Warrant was issued allowing the RCMP to conduct a controlled delivery of the package to Jacinda Hudson or anyone acting on her behalf at her residence in Ajax. The fentanyl was removed and replaced with an inert substance of the same weight.
[14] The police staged a postal delivery of the package to Ms. Hudson’s residence on November 4, 2016. Ms. Hudson was not at home, but the package was accepted by Mr. Roman, who was staying with Ms. Hudson at the time. Mr. Roman was arrested at Ms. Hudson’s house shortly after he accepted the controlled delivery.
[15] When Ms. Hudson returned to her residence she was also arrested by the police.
[16] The police conducted a search of the residence where they found the unopened package accepted by Mr. Roman on the front entrance table inside the residence. The police also found 10 grams of cocaine in 20 separate baggies with 0.5 grams in each bag in a sunglass case on the front entrance table.
[17] Both Mr. Roman and Ms. Hudson were charged with importing fentanyl, possession of fentanyl for the purposes of trafficking, and possession of cocaine for the purposes of trafficking.
[18] The charge of importing fentanyl was dismissed as against Mr. Roman (but not Ms. Hudson) at the preliminary inquiry.
[19] At trial, the Crown introduced evidence of several text messages between Mr. Roman and Ms. Hudson. These text messages strongly suggested that Mr. Roman knew nothing about the package delivered by the police. Indeed, when Ms. Hudson testified on her own behalf, the Crown asserted that Ms. Hudson had invited Mr. Roman to sleep over and then left him alone at her residence the following morning so that Mr. Roman would unwittingly accept delivery of the package while Ms. Hudson was out running errands. Hence Mr. Roman’s consent motion for a directed verdict of not guilty on the fentanyl charge.
[20] While there was no direct evidence that the cocaine found in the residence belonged to Mr. Roman, there was evidence of text messages on a cell phone found in the bedroom of the residence that linked Mr. Roman to drug dealing during the relevant period.
[21] During her testimony, Ms. Hudson denied any knowledge of either the package of fentanyl addressed to her or the cocaine found on the front entrance table.
[22] When the trial concluded on August 20, 2018, the only remaining charge against Mr. Roman was possession of cocaine for the purposes of trafficking. Had Mr. Roman not pled guilty on August 21, 2018, it was not certain that he would have been convicted of that offence by the jury. Indeed, it is possible that Ms. Hudson would have been convicted, since the cocaine was found on the front hall table of her home beside the fentanyl package.
[23] As indicated above, on August 22, 2018, Ms. Hudson was convicted by the jury of the two remaining charges against her: importing fentanyl and possession of fentanyl for the purposes of trafficking.
Circumstances of the Offender
[24] Mr. Roman is 30 years old. He has four children who he supports by working as a disc jockey at various locations. He is currently employed at Boston Pizza as an Entertainment, Promotions and Security Advisor. He has provided letters of reference from four of his employers that attest to his reliability, punctuality and professionalism. He has also filed letters from the mothers of his children confirming his dedication as a father. He has no prior criminal record.
[25] Mr. Roman was held under house arrest for 4 months. At that time his bail conditions were varied to permit him to leave the home except between the hours of 11:00 p.m. and 6:00 a.m. Since being arrested, Mr. Roman has complied with all bail conditions and has had no further involvement with the police. The evidence indicates that during the time he was on bail under curfew he focused his energies on his employment and his children. He has expressed remorse and taken responsibility for his actions.
[26] Considering the letters of reference and his efforts at maintaining employment and supporting his children, together with his expressions of regret at the sentencing hearing, I am satisfied that Mr. Roman is an excellent candidate for rehabilitation.
Sentence
[27] I find that the joint submission of a 9 month sentence, while lenient, is appropriate given Mr. Roman’s circumstances and his guilty plea. While the Crown argues that this was an eleventh hour guilty plea, I accept the defence position that Mr. Roman was not really in a position to plead guilty on the cocaine charge until the fentanyl charge was finally resolved in his favour. I accept that Mr. Roman’s guilty plea in these circumstances demonstrates that he has taken responsibility for his actions. Moreover, Mr. Roman’s guilty plea, even at the eleventh hour, ensured that Ms. Hudson would not be wrongfully convicted of an offence. I do not know whether his change of plea was motivated by this concern, but his guilty plea in these circumstances demonstrated a certain courage that should not go unrecognized. Accordingly, I am satisfied that the joint submission on sentence, while lenient given the quantity of cocaine involved, is appropriate in this case and will neither bring the administration of justice into disrepute nor impair the public interest.
Credit for Restrictive Bail Terms
[28] When Mr. Roman was released from custody on bail, he was initially subject to a term that required him to reside with one of his sureties and remain in his residence at all times except for prescheduled medical appointments, in the direct company of one of his sureties, and to attend court or meet with his lawyer.
[29] This judicial interim release order remained in effect for a period of four months before it was varied and this “house arrest” condition was replaced with a curfew requiring the accused to be in his residence between 11:00 p.m. and 6:00 a.m. unless in the direct company of one of his sureties.
[30] In R. v. Downes, 2006 ONCA 3957, 79 O.R. (3d) 321, the Court of Appeal confirmed that some mitigating credit should generally be given to an offender who has spent a long time under house arrest and that it is incumbent on the sentencing judge to explain why he or she has decided not to take pre-sentence house arrest into account. The Court stated, at para. 29:
Stringent bail conditions, especially house arrest, represent an infringement on liberty and are, to that extent, inconsistent with the fundamental principle of the presumption of innocence. House arrest is a form of punishment, albeit of a different character than actual incarceration.
[31] The Court concluded, at para. 34:
[I]t is inappropriate to adopt a rigid formula because there can be such a wide variation in bail conditions and even house arrest conditions. In some cases, the terms of the house arrest may impinge very little on the offender's liberty. Some accused may be allowed to work as usual, take care of their family obligations as usual and in general, see little serious impact on their pre-bail way of life. For others, house arrest may be very difficult. The accused may find themselves essentially confined to a very small space, cut off from family and friends and unable to obtain employment.
[32] The Court summarized the principles for approaching credit for pre-trial bail conditions at para. 37:
- Time spent on stringent pre-sentence bail conditions, especially house arrest, is a relevant mitigating factor.
- As such, the trial judge must consider the time spent on bail under house arrest in determining the length of sentence.
- The failure of the trial judge to explain why time spent on bail under house arrest has not been taken into account is an error in principle.
- The amount of credit to be given for time spent on bail under house arrest is within the discretion of the trial judge and there is no formula that the judge is required to apply.
- The amount of credit will depend upon a number of factors including, the length of time spent on bail under house arrest; the stringency of the conditions; the impact on the offender's liberty; the ability of the offender to carry on normal relationships, employment and activity.
- Where the offender asks the trial judge to take pre-sentence bail conditions into account, the offender should supply the judge with information as to the impact of the conditions. If there is a dispute as to the impact of the conditions, the onus is on the offender to establish those facts on a balance of probabilities in accordance with s. 724(3) of the Criminal Code.
[33] I have not been provided with any evidence regarding the impact or hardship of 4 months of house arrest and 18 months of curfew on Mr. Roman. Nonetheless, I accept that there was a significant restriction on Mr. Roman’s liberty during the house arrest. The Crown quite fairly recognizes this restriction with its acknowledgment that 2–3 months credit should be given for this period.
[34] The 2–3 months credit proposed by the Crown is very generous. While there is no formula that the court is required to apply, it is helpful to see how other courts have approached this issue in similar circumstances. See: R. v. Fenton, 2017 ONSC 5945, at para. 32 and cases cited therein, which states: “For bail involving house arrest, credit of one day for every four to 4.5 days is not uncommon.”
[35] In R. v. K.M., 2017 ONSC 4769 at para 25, K.L. Campbell J. accepted the defence counsel submission that a credit of approximately one day in custody for every four days that the accused was subject to “house arrest” was appropriate. The house arrest in that case was very similar to the terms of the house arrest in this case.
[36] In R. v. Ebanks, April 28, 2016, unreported, Salmers J. provided two months credit for five months house arrest and 20 months curfew for a 25 year old offender convicted of possession of 11 grams of cocaine for the purposes of trafficking.
[37] While credit should be given for Mr. Roman’s house arrest, I am not prepared to provide any credit with respect to the period covered by the curfew. The evidence indicates that Mr. Roman was able to maintain employment during this period, and while no doubt an 11:00 p.m. curfew is inconvenient, there is no evidence that it presented real hardship or restriction on his liberty.
[38] In the circumstances of this case, and in particular Mr. Roman’s guilty plea and acknowledgment of responsibility, together with the Crown’s position, the custodial sentence that would otherwise have been imposed upon the accused will be reduced by two months and ten days as credit for the period he was under house arrest, in addition to the 20 days credit for pre-trial detention pending bail. In total, his custodial sentence will be reduced by three months, leaving 6 months remaining.
Disposition
[39] Mr. Roman will be sentenced as follows:
i. For possession of cocaine for the purposes of trafficking, 9 months custody per the joint submission of Crown and defence. ii. Credit for pre-sentence custody and house arrest, 3 months in accordance with these Reasons. iii. Probation for a period of one year. iv. Ancillary orders: DNA order as requested and 10 years firearms prohibition pursuant to s. 109 of the Criminal Code.