Court File and Parties

COURT FILE NO.: CR-17-277 DATE: 2018 11 28 ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN David Quayat, for the Crown

- and -

ELIDIO MORAN Ashley Audet, for the Defence

HEARD: September 28, 2018

REASONS FOR SENTENCE

Petersen J.

[1] Mr. Moran was convicted of possession for the purpose of trafficking of a Schedule 1 controlled substance contrary to s.5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (CDSA).

[2] On March 26, 2016, he was arrested for mischief over $5,000. A strip search conducted incident to arrest resulted in discovery and seizure of 24.95 grams of concealed crack cocaine.

[3] At trial, Mr. Moran brought an application to have the drugs excluded from the evidence based on an alleged violation of his s.8 Charter rights. I determined that there was no breach and denied his application. He then elected to proceed with an agreed statement of facts rather than have a conventional trial. Both Crown and Defence counsel invited me to convict Mr. Moran based on the agreed facts. This manner of proceeding was adopted (instead of a guilty plea) in order to preserve Mr. Moran’s ability to appeal my decision on the admissibility of the evidence.

[4] I verified and confirmed Mr. Moran’s comprehension and voluntary election of this manner of proceeding.

Circumstances of the Offender

[5] Mr. Moran is 27 years old. Defence counsel advised that he was born in Jamaica and is the eldest of five children. He came to Canada when he was three years old.

[6] Defence counsel also advised that Mr. Moran spent his teenage years, from age eleven to eighteen, in the care of the Children’s Aid Society. He moved between three group homes and two foster homes. He completed grade 11 studies but does not have a high school diploma. There is no evidence relating to his employment history. I do not know whether he has ever held a lawful job.

[7] With limited education and minimal family support, he struggled to make pro-social choices. The potential for earning money through the sale of illicit drugs became attractive to him. He ended up convicted in May 2011 of possession for the purpose of trafficking a controlled substance, possession of a prohibited or restricted firearm with ammunition, and careless storage of a firearm, for which he was sentenced to a total of 20 months’ imprisonment (i.e., 14 months for the drug offence and 6 consecutive months for the weapons offences).

[8] Since then, Mr. Moran has accumulated thirteen additional convictions. Although most are for relatively minor offences, two are drug-related (simple possession convictions in August 2012 and November 2016). He has several convictions for failures to comply with probation orders and undertakings.

Legal Parameters

[9] Possession of crack cocaine for the purpose of trafficking is a serious offence punishable by up to life imprisonment: s.5(3)(a) of the CDSA.

[10] The fundamental purpose and objectives of sentencing are set out in s.718 of the Criminal Code. Deterrence and denunciation are the paramount objectives in cases involving this type of drug-related offence: R. v. Khandid, 2018 ONCJ 300 at para.48. Drug trafficking is a serious societal problem. Although crack cocaine is not the most dangerous of hard drugs available on the streets, it is nevertheless a highly addictive substance that inflicts grievous harm on users, their families, and their communities: Khandid, at paras.20-29. Those like Mr. Moran who possess it for the purpose of trafficking and profit from its distribution exploit the vulnerabilities of addicts and spread misery in society. Their actions must be condemned by the court. Others who would contemplate engaging in similar activity need to know that the cost of a poor decision will outweigh the potential financial gain.

[11] Denunciation and general deterrence are not, however, the only objectives that should be served by the sentence imposed in this case: Khandid, at para.48. Rehabilitation also plays a role and specific deterrence is an important consideration because Mr. Moran has demonstrated recidivist behaviour.

[12] Sections 718.1 and 718.2 of the Criminal Code also require me to also take into consideration the principles of proportionality, restraint and parity in sentencing.

Case Law

[13] With respect to the principle of parity, the Crown and Defence counsel both submitted cases for my consideration. The Crown’s cases include: R. v. Khandid; R. v. Woolcock; R. v. Carelse-Brown, 2013 ONSC 7042; and R. v. Gerrard, 2017 ONCJ 502. Defence counsel’s cases include: R. v. Cardwell, 2010 ONCA 445; R. v. Bryan, 2013 ONCA 97; R. v. Marshall, 2013 ONSC 6206, aff’d 2015 ONCA 692; and R. v. Wawrykiewicz, 2017 ONSC 3527.

[14] I am not going to review the case law in detail. None of the cases submitted is directly comparable to the case before me. Some of them involve similar quantities of crack cocaine, but each case has unique surrounding circumstances and each involves offenders with varying backgrounds. There are both mitigating and aggravating factors present in each of the cases that distinguish them from the case before me. The cases are, however, helpful in establishing that the appropriate range of sentence for an offence of this nature is from six months to two years less a day.

Positions of the Crown and Defence

[15] The Crown and Defence counsel agree on the appropriate range of sentence, but they disagree on where this case falls within the range.

[16] The Crown asks the Court to sentence Mr. Moran to 18 months’ imprisonment. Defence counsel submits that a more appropriate sentence would be 13 months’ imprisonment followed by two years’ probation, with one month of credit for pre-trial time served in custody and on house arrest.

[17] Defence counsel argues that 13 months’ imprisonment would satisfy the principles of denunciation and deterrence, while a lengthy period of probation would incentivize Mr. Moran to turn his life around and maximize his prospects for rehabilitation. She advised the court that he has expressed to her a desire to do whatever is necessary to choose a different path and change the direction of his life. While Defence counsel conveyed her impression that he was sincere and I have no reason to doubt that he left that impression on her, I note that Mr. Moran did not make any statement directly to the court expressing remorse for his actions or a commitment not to repeat them. I am therefore unable to assess for myself the sincerity of his expressed desire to turn his life around.

[18] The Crown submits that Mr. Moran’s history on probation is uninspired. He has two convictions for breaches of probation orders in August 2012 and February 2014. The Crown argues that past performance is the best predictor of future results and submits that a lengthy period of probation will simply set Mr. Moran up for another breach.

Aggravating Factors

[19] The nature and quantity of the drug (24.95 grams of crack cocaine) in Mr. Moran’s possession is an aggravating factor: Khandid, at para.39.

[20] Mr. Moran’s criminal record is also an aggravating factor, although I note that his last four convictions post-date the offence for which he is being sentenced today. Those convictions are not a factor in sentencing him for this offence. Even disregarding those recent convictions, he has a significant record of repeated conflict with the law, including prior drug offences.

Mitigating Factors

[21] Mr. Moran pleaded not guilty to the charge against him, but his defence consisted exclusively of arguing for the exclusion of evidence based on an alleged Charter violation. Although his Charter application was denied, it was not frivolous and cannot be said to have wasted the court’s time and resources. So while he does not get the benefit of the significant mitigation that would flow from a guilty plea, the efficient manner in which he conducted his defence entitles him to some mitigation: R. v. Wawrykiewicz, 2017 ONSC 3527, at para.25.

Disposition and Reasons for Sentence

[22] Mr. Moran’s offence is serious. Crack cocaine is an insidious drug that is a scourge on society. There is no evidence that Mr. Moran is dealing crack cocaine in order to feed his own drug addiction, which might have lessened his moral blameworthiness: R. v. Barkow, 2008 ONCJ 84.

[23] I can understand how he may have been seduced by the prospect of financial gain through illicit drug trafficking. He experienced considerable instability in his childhood, lacked family support and had limited education and employment prospects. He nevertheless bears responsibility for the choices that he has made.

[24] The fundamental principle of proportionality to the gravity of his offence and to his personal responsibility requires a significant custodial sentence. The objectives of general deterrence and denunciation also require a significant custodial sentence. Mr. Moran is, however, a relatively young man. He has time to turn his life around. Although he has not demonstrated strong rehabilitative prospects, I do not want to impose a sentence so harsh that it extinguishes any hope he has of making positive changes in his life. The 18 months’ imprisonment proposed by the Crown might well have that demoralizing effect. It is too harsh a penalty in the circumstances of this case. The principle of restraint requires that I impose the shortest term of incarceration that will achieve the applicable sentencing objectives.

[25] In my view, the sentence proposed by Defence counsel is insufficient to satisfy the objective of specific deterrence. Mr. Moran was previously convicted of the same offence seven years ago and, at that time, received a sentence of 14 months’ imprisonment. Defence counsel argued that a lesser sentence should be imposed because the 14 month sentence came after a trial and in the context of concurrent weapons offences, which were aggravating factors not present in the case before me. These are relevant considerations, but I note that Mr. Moran, at the time of the previous offence would have been a youthful first-time offender. He is now more mature and has acquired a significant criminal record. This is an aggravating factor that was not present at the time of his sentencing on the previous offence.

[26] I am concerned that a lesser custodial sentence than what he previously received would lead him to conclude that a short stint of incarceration is simply part of the cost of dealing drugs. It would not have the desired deterrent effect and would not adequately denounce his criminal activity.

[27] For the foregoing reasons, I find that a proportionate and appropriate sentence in this case is 16 months’ imprisonment, followed by one year of probation. I accept Defence counsel’s submission that a term of probation could incentivize Mr. Moran to make pro-social choices and pursue lawful employment and productive activities. I have some doubts about his ability to abide by conditions of probation, given his previous breaches, but I am not prepared to assume that he is incapable of compliance with probation orders. If he is serious about making positive changes in his life, he should have no difficulty completing a single year of probation.

[28] Mr. Moran will be credited for on a ratio of 1:1.5 for six days of pre-trial custody (upon his arrest) and will also receive credit for 139 days that he spent under strict house arrest. I agree with Defence counsel’s submission that he is entitled to this credit pursuant to the principles articulated in R. v. Downes (2006), 79 O.R. (3d) 321 (C.A.). He will receive a total credit of one month, so his remaining sentence is 15 months’ imprisonment followed by 12 months’ probation.

[29] The Crown is not seeking an order for the taking of a DNA sample because Mr. Moran’s DNA is already on record in the police’s known-offender databank.

[30] A mandatory weapons prohibition order will be made under s.109 of the Criminal Code.

[31] The imposition of a $200 victim fine surcharge is also mandatory. Time to pay?

Petersen J.

[32] Released: November 28, 2018