Court File and Parties

COURT FILE NO.: CR 17-70000484-0000 DATE: 20181214 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – SIMEON GEORGE-McCOOL Defendant

Counsel: M. Gharabaway, for the Crown S. Fattal, for the Defendant

HEARD: November 5, 2018

REASONS FOR SENTENCE

CAROLE J. BROWN, J.

[1] On August 16, 2018, Simeon George-McCool was convicted of possession for the purposes of trafficking in MDMA, a Schedule I substance, contrary to the CDSA, section 5(2), and was in possession of proceeds of crime in the amount of $1070.

[2] He was seen getting into a vehicle with two other men, one of whom had been identified to the police as a person believed to be dealing in drugs by a man who appeared to be working at the Drake concert held at Ryerson University on the evening of the arrest on September 11, 2015. Mr George-McCool was not identified by the person working at the concert as someone believed to be dealing in drugs. Nevertheless, upon his arrest, the subject drugs and money were located in the Coach bag he was carrying.

Circumstances of the Offender

[3] At the time of the offence, Mr. George-McCool was 23. He is now 26 years old. He had no previous criminal record. He has the support of his family. He lives with his father, who is employed with Canada Post and his stepmother, who is employed with Rogers. His mother works at a law firm.

[4] He expressed remorse and has taken full responsibility for his actions. He has changed his peer group and refuses to deal with or associate with anyone who has a criminal record. He wishes to lead a pro-social life. He wishes to attend college.

Positions of the Parties

Position of the Crown

[5] It is the position of the Crown that, in the circumstances of this case, the principles of deterrence and denunciation are paramount, but that they should be balanced with rehabilitation.

[6] The Crown outlined the mitigating and aggravating factors to be considered in the sentencing of Mr. George-McCool, as follows. Mitigating factors include that Mr. George-McCool had no prior record, was a youthful offender, had no outstanding charges. He had the support of his family, with whom he was close, all of whom were hard-working individuals. He had expressed remorse and took full responsibility for his actions. The PSR speaks highly for prospects of rehabilitation. Aggravating factors include that the MDMA seized from Mr. George-McCool is a Schedule I drug. He was arrested in the context of the Drake concert, where MDMA (Ecstasy) is often sold. The common sense assumption was that the MDMA found on his person was for the purposes of trafficking, as trafficking is a cash venture and he was found with $1070.

[7] The Crown seeks a custodial sentence of nine months less credit for his pretrial custody and for strict bail conditions. As regards pretrial custody, he was arrested on September 11, 2015 and released September 21, 2015 and should be accorded credit of 17 days. As regards the restrictive bail conditions, he was under full house arrest, except in the presence of a surety for three years, one month and 17 days. As such, the Crown would suggest credit of six months. As a result, the nine-month custodial sentence would be reduced by six months and 17 days, leaving 2 ½ months custodial sentence, followed by probation for two years.

Position of the Defence

[8] The defence seeks a non-custodial suspended sentence. Mr. George-McCool seeks to lead a pro-social life. He has changed his peer group and refuses to deal or associate with anyone with a criminal record. He wishes to avoid all such contact.

[9] He had, prior to the charges, taken a two-year HVAC program at George Brown College. At the time of his arrest, he worked full-time with Action Autoglass.

[10] The defendant submits that there are exemplary circumstances here, given that Mr. George-McCool has no criminal record, wishes to attend college, has the support of his family and is the father of a six-year-old. He is remorseful.

[11] There is great possibility of rehabilitation in his case. He has a job waiting at his uncle’s mechanics shop in the event that he receives a suspended or an intermittent sentence in order to be able to work and attend college.

[12] Both counsel agreed that a conditional sentence is not available in the circumstances of this case.

General Sentencing Principles

[13] The fundamental purpose of sentencing, as set forth at section 718 of the Criminal Code of Canada, is to protect society and to contribute, along with crime intervention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sentences that have one or more of the following objectives:

1. to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;
2. to deter the offender and other persons from committing offences;
3. to separate offenders from society where necessary;
4. to assist in rehabilitating offenders;
5. to provide reparations for harm done to victims or to the community; and
6. to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.

[14] The fundamental principle of sentencing pursuant to section 718.1 is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Further, in imposing a sentence, consideration must be had regarding the principles set forth in section 718.2.

[15] The principle of parity is a governing principle which must be considered. It requires a sentence to be similar to sentences imposed on similar offenders for similar offences committed under similar circumstances. Sentencing is, however, an individualized process which necessarily means that sentences imposed for similar offences may not be identical: R v Cox, 2011 ONCA 58 (Ont. C.A) and R v L.M., [2008] 2 S.C.R. 163, 2008 SCC 31 (S.C.C.).

[16] The totality principle must be considered for some sentences. Section 718.2(c) provides “where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh”. The principle is engaged where there is a sentence for multiple offences and requires the court to craft a global sentence of all offences that is not excessive: M.(C.A.), [1996] 1 S.C.R. 500 at para 42 (S.C.C.). If the cumulative sentence is too harsh, the court must adjust the total sentence so it is not out of proportion to the gravity of the offences.

[17] In this case, the principles of deterrence and denunciation are of primary significance but, given the circumstances of the offender, should be balanced with rehabilitation.

Mitigating and Aggravating Factors

Mitigating Factors

[18] Mr. George-McCool is a youthful offender with no prior criminal record and no outstanding charges against him. He has the support of his family who are all gainfully employed. He has a six-year-old son. He has expressed remorse and has taken full responsibility for his actions.

[19] Prior to being arrested, he had taken a two-year HVAC course at George Brown College, and was gainfully employed in a full-time job. He wishes to continue his college education.

[20] He has gainful employment awaiting him at his uncle’s mechanics shop.

[21] He has distanced himself from all contact with peers who have a criminal record and does not wish to further associate with anyone with a criminal record.

Aggravating factors

[22] Mr. George-McCool was found to be trafficking in MDMA, a Schedule I drug, which is often sold at concerts, rave parties and nightclubs.

[23] In this case, I am satisfied that the mitigating factors outweigh the aggravating factors. It is of particular note that Mr. George-McCool has a close, supportive family, is remorseful, has begun the process of rehabilitation by disassociating himself from those with a criminal record, had, prior to the charges, undergone a two-year program at George Brown College and at the time of his arrest, worked full-time. The prospects for rehabilitation are good.

Analysis and Conclusions

[24] Should Mr. George-McCool be given a custodial sentence, as urged by the Crown or a suspended sentence as urged by the defence?

[25] Generally, in cases of trafficking in Schedule I drugs, a custodial sentence is imposed, except in rare or exceptional circumstances, where a suspended sentence may be imposed. As an example, such exceptional circumstances have been found in cases involving the following mitigating circumstances:

1. Rehabilitation after arrest: R v Duncan, [2016] O. J. No. 25;
2. A guilty plea to trafficking in MDMA: R v Caputi, [2013] O. J. No. 6447;
3. No related record, rehabilitation, youthful offender: R.v Dickey, [2015] B. C. J. No. 1465 (BCSC); affirmed 2016 BCJ no. 873 (BCCA); and
4. A guilty plea, no criminal record, good prospects for rehabilitation: R v Orr [2015] BCJ No. 1553 and see: R v Dallal [2018] O. J. No. 912.

[26] I have considered the cases relied upon by both the Crown and the defence, and have considered those cases of trafficking in controlled drugs where suspended sentences have been imposed: R v Caputi, supra; R v Azeez [2014] O.J. No. 3091; R v Thevarajah [2016] O.J. No. 6428; R v Dallal, [2018] O.J. No. 912.

[27] A suspended sentence involves a sentence which is suspended or delayed to allow the offender to serve a period of probation which cannot exceed three years. The offender must comply with the conditions of probation, failing which the offender can be sentenced for the offence of breach of probation and the suspended sentence can be revoked.

[28] In the case of R v Voong, 2015 BCCA 285, it was recognized that, while conditional sentences were no longer available for drug trafficking offences, there was a continuing place for suspending the passing of a sentence for such offences and the imposition of probation orders, where the circumstances were exceptional. The court stated as follows:

[19] Where no minimum sentence is required, the Criminal Code permits a court to suspend the passing of a sentence, rather than impose a sentence (s. 731(1)(a)) and to place a person on probation for a maximum of 3 years (s. 732.2(2)(b)). If an offender who is on probation is convicted of an offence, the suspension of the sentence may be revoked and the offender may be brought back before the court for sentencing. At that point, the judge may impose any sentence that could have been imposed at the time the sentence was suspended (s. 732.2(5)(d)).

[20] If probation is ordered, the judge must impose certain mandatory conditions found in s.732.1(2) and may also impose optional conditions (s.732.1(3)(a)-(g.2)). Under s. 732.1(3)(h), the court may also impose any other “reasonable condition… for protecting society and for facilitating the offender’s successful reintegration into the community”.

[21] Suspended sentences were imposed in drug trafficking cases before CSOs [Conditional Sentence Orders] became available in 1996 (introduced by the Act to Amend the Criminal Code (Sentencing) and Other Acts in Consequence thereof, S. C. 1995, c 22). A suspended sentence is still a sentencing option in law in the cases at bar, as there is, at this time, no minimum sentence for the offences at issue.

[22] Where a suspended sentence was imposed in drug trafficking offences prior to the availability of a CSO, there was always an indication of exceptional mitigating circumstances.…

[37] A probation order has primarily a rehabilitative objective; however, as the statutory terms refer to the purposes of “protecting society” and “reintegration into the community”, it is not limited to this objective.

[38] What is required for the imposition of an optional condition in a probation order is a “nexus between the offender, the protection of the community and his reintegration into the community” (R v Shoker, 2006 SCC 44 at para. 13).

[39] A suspended sentence has been found to have a deterrent effect in some cases. Because a breach of the probation order can result in a revocation and sentencing on the original offences, it has been referred to as the “Sword of Damocles” hanging over the offender’s head…

[29] Exceptional circumstances were defined to include:

[59]… a combination of no criminal record, significant and objectively identifiable steps towards rehabilitation for the drug addict, gainful employment, remorse and acknowledgement of the harm done to society as a result of the offences, as opposed to harm done to the offender as a result of being caught. This is a non-exhaustive list, but at the end of the day, there must be circumstances that are above and beyond the norm to justify a non-custodial sentence. There must be something that would lead a sentencing judge to conclude that the offender had truly turned his or her life around, and that the protection of the public was subsequently better served by a custodial sentence. However, Parliament, while not removing a non-custodial sentence for this type of offence, has concluded that CSO sentences are not available. Thus it will be the rare case where the standard of exceptional circumstances is met.

See: R v Dickey, supra.

[30] In this case, some of the exceptional circumstances recognized by other courts are present, including the following: Mr. George-McCool is a youthful offender, who has an absence of a prior criminal record, no pending charges, has expressed remorse and has disassociated himself from peers who have a criminal record or an anti-social life. There is, in my view, a good prospect for rehabilitation. I am satisfied that Mr. George-McCool has taken steps toward rehabilitation. He was gainfully employed prior to his arrest and a job is waiting for him with his uncle, who owns a mechanic shop. He wishes to work, to continue his education and to dedicate himself to prosocial activities.

[31] I am of the view that a short custodial sentence, followed by probation such as is proposed by the Crown, will not serve the purposes of denunciation and deterrence any better than a longer period of probation. I am of the view that a suspended sentence also satisfies the objectives of denunciation and deterrence, particularly as the suspended sentence can be revoked, where breached, and a sentence imposed. It further balances these purposes with rehabilitation.

[32] The parties agree that, in the event necessary, credits should be accorded as follows: 17 days pre-trial custody and 6 months for the Downes credit.

[33] Mr. George-McCool, please stand.

[34] For all of the reasons set forth above, and taking into consideration the mitigating and aggravating factors, the caselaw presented by the Crown and your counsel and the principles of sentencing, I sentence you to a suspended sentence.

[35] I also sentence you to a probationary period of 2 years on the following conditions:

1. You will keep the peace and be of good behaviour.
2. You will notify the court or the probation officer in advance of any change of name or address and promptly notify the court or the probation officer of any change of employment or occupation.
3. You will report to a probation officer within four working days, or such longer period as the court directs, after the making of the probation order, and, thereafter when required by the probation officer and in the manner directed by the probation officer.
4. You will attend for and actively participate in and to the satisfaction of your probation officer any assessment, treatment or counselling as required by your probation officer and you will sign whatever consents or releases as may be required by your probation officer in order to monitor and verify compliance with said assessment, treatment or counselling and you will provide written proof of completion of said assessment, treatment or counselling to your probation officer.
5. You will attend and actively participate, and to the satisfaction of your probation officer, in 100 hours of community service at a community centre or agency as approved by your probation officer. You will provide proof of completion of said community service to your probation officer.
6. You will be gainfully employed and/or attending college full time.
7. You are not to have in your possession or under your control any drugs or substances not otherwise prescribed for your use.
8. You shall not be within 100 m of Abadula Biya or Jevon Moore, or any place where either of them reside, are employed or attend school.
9. You will not own, possess or carry any weapons as defined by the Criminal Code.
10. You will be under curfew for the first four months of the probationary period from 9 PM to 6 AM, as a reasonable limitation on your freedom, except when you are required to be out for purposes of employment or education or medical emergencies or any other reason approved of in advance by your probation officer.

[36] Ancillary orders are as follows:

1. a s.109 order for 10 years:
2. a DNA order, as this is a secondary offence;
3. a forfeiture order for all drugs, drug paraphernalia and proceeds of crime.

[37] Mr. George-McCool, I believe that you wish to lead a positive, prosocial life, that you wish to improve yourself and continue on the road to rehabilitation. Your family is supportive. You have a six-year-old who looks to you to be a role model. I am certain that you wish to be a good role model to your child and to be seen by your parents as a good man, who is contributing to society. Mr. George-McCool, I wish you well. Please do not disappoint us.

Carole J. Brown, J. Released: December 14, 2018