R. v. McFarlane, 2019 ONSC 157

COURT FILE NO.: CR-17-9-466

DATE: 20190108

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

JOEL ALPHONSON MCFARLANE

Defendant

Christopher Walsh, for the Crown

Ryan Handlarski, for the Defendant

HEARD: November 1, 2018

REASONS FOR SENTENCE

faieta j.

1On June 19, 2018, the Defendant, Joel McFarlane, was convicted by a jury of:

• four counts of trafficking in a controlled substance, namely cocaine, contrary to Section 5(1) of the Controlled Drugs and Substances Act; and

• four counts of possession of property obtained by crime, contrary to Section 354(1)(a) of the Criminal Code and did thereby commit an offence contrary to Section 355(b) of the Criminal Code.

2Pursuant to s. 724 of the Criminal Code, I find the following background facts for purposes of determining the Defendant’s sentence.

Mr. McFarlane sold crack cocaine to an undercover police officer on four separate occasions over the course of eight months.

On August 18, 2015, Mr. McFarlane sold 3.2 grams of crack cocaine to the undercover officer for $240.

On August 26, 2015, Mr. McFarlane sold 3.2 grams of crack cocaine to the undercover officer for $240.

On October 7, 2015, Mr. McFarlane sold 6.77 grams of crack cocaine to the undercover officer for $450.

On March 2, 2016, Mr. McFarlane sold 7.34 grams of crack cocaine to the undercover officer for $450.

After the deal on August 18, 2015 was completed, the undercover officer said to Mr. McFarlane, “I will link you soon if it’s proper”. Mr. McFarlane replied “Cool. Anytime. Just call.”

After the August 26, 2015 deal, the undercover officer said to Mr. McFarlane “Thanks B. Link you in a couple of weeks?” Mr. McFarlane replied” Yah bro. Anytime, you know, just call me.”

After the October 7, 2015 deal, the undercover officer said to Mr. McFarlane “Thanks bro. Holla at you soon”. Mr. McFarlane replied “Yah G. Anytime, you know.”

After the March 2, 2016 deal, the undercover officer and Mr. McFarlane had the following conversation:

Officer: Yo bro, how much would you run me a oz for?

McFarlane: Do the math bro. Let’s see. And I get my shit straight from the yard. Shit is proper, you know?

Officer: Cool bro. Yah it is proper.

McFarlane: Well, let’s do the math. Q for $450, so I can do $1,800.

Officer: Really, eh?

McFarlane: Yah G. I don’t make much.

Officer: Can you do $1,600?

McFarlane: Nah G, I gotta make mine too.

Officer: Alright cool. I can work with that.

McFarlane: Cool G. Just call me when you’re ready.

IMPACT ON THE COMMUNITY

3Crack cocaine is an extremely dangerous and insidious drug with potential to cause a great deal of harm to individuals and to society: R. v. Woolcock [2002] O.J. No. 4927, para. 8.

CIRCUMSTANCES OF THE OFFENDER

4A Pre-Sentence Report, dated October 29, 2018, (“PSR”) states that:

• The Defendant was born in Toronto in December, 1990;

• The Defendant was raised in a single parent household by his mother who immigrated to Canada from Jamaica before he was born;

• The Defendant’s mother’s financial means were limited and the Defendant was frustrated by not being able to participate in sports such as basketball;

• The Defendant’s father remains in Jamaica and the Defendant visits him when he travels to Jamaica;

• The Defendant reported that he developed anger problems while in school as a result of bullied;

• The Defendant reported that he was expelled twice in secondary school and that he left high school in Grade 12;

• The Defendant reported that he was physically punished by his mother as a result of behavioural problems, mainly when he would get into trouble with his friends at school;

• The Defendant reported that his mother was displeased by his criminal record and does not condone any type of criminal behavior;

• The Defendant reported that he had attended CAMH for “behavioural problems”;

• The Defendant reported that his mother was his best friend however he declined to provide his mother as a collateral contact;

• The Defendant is unmarried and has lived with his six year old daughter and her mother for the last six years;

• The Defendant reported that he has had a girlfriend for the last year;

• The Defendant reported that he is employed full-time as a truck driver as of January 2018, however the Probation Officer was unable to confirm this information with the employer;

• The Probation Officer confirmed with his employer, that the Defendant is also employed part-time as a “Car Detailer” in Brampton. He works 20 hours per week at $17 per hour;

• The Defendant described himself as a “provider”;

• The Defendant repeatedly expressed a desire to move forward in a positive way and stated that he is amenable to change;

• The Defendant did not express remorse or take responsibility for his actions in respect of the current drug trafficking charges;

• When questioned about his impression of the offences and his experience in Court, the Defendant reported that being on house arrest and curfew limited his ability to work and finish school however he must “deal with the cards that he has been dealt”;

• The Defendant spoke of a desire to better himself, however he did not discuss a plan of action to avoid further conflict with the criminal justice system;

• The Defendant said that his daughter as his “motivation”; and

• If probation is imposed, it is recommended that the following conditions be imposed: (1) report in person to a probation officer as directed; (2) curfew condition; (3) attend and actively participate in all assessment, counselling or rehabilitative programs, such as anti-criminal thinking, as directed by the probation officer and complete them to the satisfaction of the probation officer; (4) sign any necessary release of information forms; (5) do not possess or consume any unlawful substances unless lawfully issued in your name.

5The PSR describes Mr. McFarlane’s criminal record, other than the conviction that is the subject-matter of this sentencing hearing, as follows:

Level and Location of Court Date (Month-Day-Year)

Offence

Disposition

Toronto, Ontario Youth Justice Court 2007-11-15

(1) Fail to Comply Recognizance – Section 145(3) Criminal Code

(2) Robbery – Section 344 Criminal Code

(1) Time served (221 days) & Probation 12 months

(2) Probation 12 months concurrent & mandatory prohibition order - section 51(1) Youth Criminal Justice Act

Toronto, Ontario Youth Justice Court 2011-05-05

Robbery

Probation 6 months & mandatory prohibition order – section 51(1) Youth Criminal Justice Act

Newmarket Court 2013-05-07

Possession of Firearm or Ammunition Contrary to Section 117.01(1) Criminal Code

Suspended Sentence & Probation 12 months

Toronto, Ontario 2013-08-27

(1) Fail to Comply with Recognizance – Section 145(3) Criminal Code

(2) Possession of Schedule I Substance for the Purpose of Trafficking – Section 5(2) Controlled Drugs and Substances Act

(1) 63 days concurrent

(2) 63 days concurrent & mandatory weapons prohibition section 109 Criminal Code

Toronto, Ontario 2013-08-27

Possession of a Schedule I Substance – Section 4(3) Controlled Drugs and Substances Act

63 days (94 days pre-sentence custody)

Defendant’s Statement

6Mr. McFarlane read the following statement at the sentencing hearing:

First I want to say thank you for taking the time that has been spent on my case. One of the reasons I told probation officer I was interested in being a lawyer or a paralegal is because I really learned about our justice system and the principles like the right to have my own lawyer, the right to have a jury and the presumption of innocence.

I am grateful for all the time that has been taken on my case, at trial and sentencing.

The experience has motivated me to finish high school and pursue higher education.

I made a big mistake by quitting school when I was a teenager and it has impacted my life ever since.

I also want to say that I have learned a lot from being in this criminal justice system, the last 2 ½ years.

I now realize how much my actions impact, not only me, but loved ones especially my mother and daughter in this case.

I do not want to put them through anything like this ever again. [Emphasis added]

7In my view, the above statement is an expression, although not a strong expression, of responsibility and remorse.

Letters of Support

8Mr. McFarlane submitted several letters of support.

9The Defendant’s mother provided the following letter, dated October 29, 2018:

This whole thing has been very hard yet draining to deal with. It's been a world wind of situations and emotions but what I fear the most is the outcome. Him being my only boy child I've tried my best to stay close with him and he's always been protective of his family. As it hasn't always been easy it has always been just us. We all support each other and I don't know how we would get by without each one of us.

I have always knew that no matter what I am going through Joel would help me through it. I've been extremely stressed out over not only this situation but other aspects of my life and he has always stepped up. I've hit difficult times not only financially but within my health due to stress and high blood pressure causing him to be around even more and also become now more than ever the person whom I confide in. He keeps me motivated and tries his best to insure I'm in a better frame of mind. Anything needed to be done around the house he makes sure it's attended too as well as bringing me or his sister anywhere necessary no matter the distance.

He stays extremely close with his sister where he is almost like a father figure to her. Joel makes sure she's doing well in school, attends church, makes sure she's focused and whatever she is going through she speaks to him. When she is having tantrums/break-downs he is who she listens to the most and shares her thoughts with.

He deals with her however needed and the help with her is needed trying to keep her on the right path. He takes her places and introduces her to new things. She gets by each month because she knows he's always just a call a way. No matter what is happening he would put everything on pause if she called him right this second.

Joel is an amazing father he is the pillar of his daughter's life, she's a daddy's girl and nothing is ever too much for him to figure out when dealing with her. He has created a bond with his daughter and sister that is unbreakable. If he does for one he does for the other. He always has spoken that he would never want to be an absent father as he grew up without one. He has taken that extra step to be the best father he can be not only to his daughter but his sister as well.

Our family as a whole has never had it easy, I'm fearful of the damage it would cause the girls to be away from him as they are not use to not being around him. I'm not sure how I personally will deal as he keeps me going. To think of him not being here not only puts me into a horrible mindset but it worries me of our coming days if left without him.

10The Defendant’s aunt provided the following letter, dated October 26, 2018:

My nephew and I have a great open relationship as far as I can remember Joel has always been a backbone for his mother, sister, daughter and crazy enough myself. He's always there to help even when you decline he puts in that effort.

You raise a child you don't raise their mind. Joel isn't the perfect child as many other kids he has made bad decisions, ones that by speaking to him and seeing his progress that I know he’s learnt from and can do better. As a member of the Toronto Central Seventh-Day Adventist Church I'm involved in many church activities which majority of the time Joel is the person whom brings me to and from these activities or events. On some days he participates or stays for service. I encourage him but never over push for him to be more involved in church because I believe that with the path he is on now he will benefit greatly as he continues to attend.

It breaks my heart to know that he might be sent a way not only do I worry but I worry what or whom he will become if in fact incarcerated. Joel is not just my nephew he is my son. He helps me with needing to maneuver with not only church events but as well as my day to day errands and obligations. It will be such a toll on myself without him but I can't imagine my sister, my niece and his daughter getting by easily with him incarcerated.

I understand that he cannot go unpunished for his actions but I am begging the courts for alternate solutions other than incarceration so he can pay his dues but still be able to fully help take care of his family that needs his support as always.

11Judith Marsden provided the following undated letter:

I am Joel's mother in law and I have known Joel for about 10 years. He is a very good young man, has always talked and acted respectful. I am writing you today as someone that has always supported this young man. I do NOT approve, nor condone the situation that has come before him right now, BUT I do believe everyone deserves a second chance.

I know you will have to give some kind of punishment but I do not think jail is the answer. Maybe he can give back to society/community by volunteering or, giving back with charitable work. Mr. McFarlane is a very good artist, I have seen his drawings and work that he put in, and he told me he would like to go back to school to apply his talent if given the chance - to pursue the field. Please give him one more chance - he loves his family very much especially his daughter. Joel just needs to believe in himself as much as i believe in him. I would NOT be writing this letter today if I did not support and trust that he could be a better him - better than this. Please find it in your heart and take into consideration his daughter and mother that do need him here with them.

12The Defendant’s friend, Melissa Modeste, provided the following letter dated October 24, 2018:

I’ve known Joel for over 15 years, but within the last 3 ½ years we’ve become the best of friends. We grew up in the same area, attended the same elementary schools. We obviously grew up but never once forgotten each other let alone walk past each other. With our families still living in the surrounding area we would occasionally bump into each other.

Eventually after deciding to catch up I hit some rough patches in my life. A little bit before being diagnosed with anxiety and depression, my friendship with Joel turned into him just trying to see me happy and get through things. He was able to get me to open up about things that I had hidden and only my therapist knew as well as help me get through day to day issues or obligations. His messages just to check in or words of encouragement has been my boost to help me going at times. We have become each others support systems.

Joel is a loving soul and he’s not only a big part of my life he’s a major role model for my son. I have a seven year old boy that since introduced even in passing Joel would always show him love or get him treats like candy etc. Within us bonding he’s been more involved as ever with him. As much as my son’s father is around he is more absent than anything Joel is more active in his life. He not only plays with him or speaks to him on respecting his mother, he has taught him soccer moves, basketball moves, he encourages him. Whenever I’m unable to pick him up or drop him to school he makes sure he always does it and stays with him until needed. My son looks up to Joel, he respects him and at this time of yearning the need of a male figure, along with having small anger issues I’m terrified of his reactions if Joel is absent due to his attachment to him. He’s been more relaxed, grades are improving, he’s controlling his emotions and able to be more vocal, most importantly he loves him, feels loved and protected.

As a single mother who is a full time student at centennial college and works part time. My hands are more tied than ever no one supports me the way he does and unfortunately at this point I’m unsure of how I will make it through not only school, but financially as well without him around. I’m also afraid of becoming fully dependant on medication again as with his help etc. I’ve been able to be take less pills and make it through the day.

I’m speaking on myself and my son but I also know how much he supports his family especially his daughter and I know that not only myself but they will be extremely devastated and things will become harder for all of us. No one is perfect, mistakes are made but everyone deserves a chance and I know that he would never put any of us through this again. The process of this has been long and even through it’s in God’s hands I am praying, but also asking that the court not just take him out of our lives because even though he must be held responsible; it will not only break us the family emotionally but put us in unpredictable circumstances.

POSITION OF THE CROWN

13The Crown seeks a sentence of 18 months custody plus:

• a probation order that requires Mr. McFarlane to maintain employment and complete his high school education;

• the following ancillary orders: (1) a fine in lieu of forfeiture of the $930 paid to him during the first three undercover drug purchases; (2) a lifetime weapons prohibition order pursuant to section 109 of the Criminal Code; (3) an order to provide DNA samples pursuant to s. 487.051 of the Criminal Code.

14The Crown also submits that the Defendant should receive a total of 189 days of credit for time served calculated as follows: (1) enhanced credit of 8 days for the time that he spent in custody in March 2-3, 2016 on these charges and February 13, 2018 when arrested in Peel; (2) 181 days of credit for the stringent bail conditions, as requested by the Defendant, based on: (a) 161 days under house arrest from March 3, 2016 to August 11, 2016; and (b) 881 days, as of November 1, 2018, living under a curfew.

POSITION OF THE DEFENCE

15The Defence seeks a sentence of one year custody less: (1) credit for 4 days of pre-sentence custody at 1.5:1; (b) credit of 170 days for time spent under stringent bail conditions; (c) credit of 100 days for Charter violations as a result of the Defendant’s alleged arbitrary arrest and improper search of his person and vehicle in Peel Region on February 13, 2018.

16The Defence submits that Mr. McFarlane is a strong candidate for rehabilitation given that he has complied with his conditions of bail for the last 2 ½ years, secured employment, has been devoted to his family, particularly his daughter, and has motivation to pursue his high school diploma and post-secondary education. The Defence submits that a one year sentence will assist in Mr. McFarlane’s rehabilitation. He submits that this sentence is six times higher than the last sentence that he received, reflects the gravity of the offences but will not remove him from the community for an extended period and will allow him to continue to work, provide for daughter and further his education.

17With the credits applied, there would remain a sentence of 89 days left to serve which the Defence submits should be served intermittently to permit the Defendant to continue with his employment, take care of his daughter and engage with a probation officer to finish his high school degree and further his education.

18The Defence does not oppose the ancillary relief sought by the Crown.

PRINCIPLES OF SENTENCING

19Section 718 of the Criminal Code states that:

The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. [Emphasis added]

20Determining a fit and proper sentence requires an assessment of which sentencing objectives figure most prominently in the factual circumstances of a case: R. v. Proulx, 2000 SCC 5, para. 113.

21Proportionality is the “cardinal principle” in determining whether a sentence is fit. A sentence must be proportionate to the gravity of the offence (how serious the crime and its consequences were) and the degree of the responsibility of the offender (their moral blameworthiness): Criminal Code, s. 718.1; R. v. Lacasse, 2015 SCC 64, para. 12.

22Other sentencing principles that a court must take into consideration when deciding what is a fit sentence are:

• Any aggravating or mitigating circumstances relating to the offence or the offender: s. Criminal Code, s. 718.2(a);

• A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances (the “parity principle”): Criminal Code, s. 718.2(b);

• When consecutive sentences are imposed, the combined sentence should not be unduly long or harsh (the “totality principle”): Criminal Code, s. 718.2(c);

• An offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances (the “principle of restraint”): Criminal Code, s. 718.2(d); and

• All available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention in the circumstances of Aboriginal offenders: Criminal Code, s. 718.2(e).

23Time spent in custody as a result of an offence may be taken into account in determining a sentence: Criminal Code, s. 719(3). In addition, a sentencing judge may take into account, as a relevant mitigating circumstance on sentencing, time spent under stringent bail conditions, especially house arrest. The amount of credit to be given, if any, is a function of several factors including the period of time spent under house arrest, the stringency of the conditions, the impact on the offender's liberty; and the ability of the offender to carry on normal relationships, employment and activity: R. v. Adamson, 2018 ONCA 678, paras. 106-107.

24The collateral consequences of a sentence, namely any consequences of the impact of the sentence on the offender, may be taken into account in sentencing so long as it does not violate the principle of proportionality: R. v Pham, 2013 SCC 15, paras. 11-15.

25Courts have also developed principles to moderate the range of sentences for offenders with prior criminal records: R. v. Courtney, 2012 ONCA 478 (“jump principle”); R. v. Oxford, 2010 NLCA 45, para. 22 (“gap principle”); R. v. Chudley, 2016 BCCA 90, para. 26 (“step principle”).

26Accordingly, as a result of the application of the above principles, sentencing is an individualized process as no two cases are alike.

Range of Sentence

27The range of sentence for this type of offence appears to be six months to two years less a day. The low end of the range was adopted where there was a one-off transaction involving a very small amount of crack cocaine that was sold for $20 to a friend for no profit and the Defendant had taken positive steps to rehabilitate himself while under house arrest: R. v. Butters, 2017 ONCA 973. Cases at the higher end of the range involve larger quantities of narcotics or were committed while the accused was on probation: R. v. Woolcock [2002] O.J. No. 4927 (C.A.), para. 15; R. v. Ahmed, 2016 ONCA 831 (C.A.), para. 4. In Woolcock, the accused was convicted of one count of possession of cocaine (5.3 grams crack cocaine and 1 gram of a substance that appeared to be crack cocaine), one count of possession of marijuana (less than 1 gram) and possession of the proceeds of crime (about $1000 cash) and received a sentence of 15 months incarceration.

28A sentencing range is a guideline, not a hard and fast rule: R. v. Nasogaluak, 2010 SCC 6, para. 44. As now Chief Justice Wagner stated in Lacasse, paras. 57-58:

Sentencing ranges are nothing more than summaries of the minimum and maximum sentences imposed in the past, which serve in any given case as guides for the application of all the relevant principles and objectives. However, they should not be considered "averages", let alone straitjackets, but should instead be seen as historical portraits for the use of sentencing judges, who must still exercise their discretion in each case …

There will always be situations that call for a sentence outside a particular range: although ensuring parity in sentencing is in itself a desirable objective, the fact that each crime is committed in unique circumstances by an offender with a unique profile cannot be disregarded. The determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purely mathematical calculation. It involves a variety of factors that are difficult to define with precision. This is why it may happen that a sentence that, on its face, falls outside a particular range, and that may never have been imposed in the past for a similar crime, is not demonstrably unfit. Once again, everything depends on the gravity of the offence, the offender's degree of responsibility and the specific circumstances of each case. …

29In Woolcock, the Ontario Court of Appeal stated, at para. 8:

… possession of crack cocaine for the purpose of trafficking is a serious offence warranting emphasis on the principles of deterrence and denunciation. However, when sentencing an offender convicted of such an offence, it is incumbent on the trial judge to consider all of the principles of sentencing - including the accused's prospects for rehabilitation. Section 718 of the Criminal Code directs a sentencing judge to consider the full panoply of sentencing objectives, including, but not limited to, assisting in the rehabilitation of offenders.

Sentences for Trafficking in Low-Level Amounts of Crack Cocaine

30The Crown relied on the following sentencing authorities in respect of convictions for trafficking in low-level amounts of crack cocaine:

Case

Offence(s)

Amount

Plea

Factors

Sentence

R. v. Mandolino, [2001] O.J. No. 289 (Ont. C.A.)

Trafficking x2

0.8 g total

Guilty

• Minor, dated prior record
• 29 years old
• Addict who had taken steps to deal with addiction

Sentenced reduced from 15 months jail to 10 months jail (given that sentence exceeded range sought by Crown)

R. v. Malcolm, [2000] O.J. No. 4309 (Ont. C.A.)

Possession for the purpose

0.9 g

Not Guilty

• No prior record

6 months jail

R. v. McKenzie, [2004] O.J. 2600 (Ont. C.A.)

Trafficking Possession for the purpose

0.181 g 2.18 g

Not Guilty

• Dated, related prior record
• 25 years old
• Sentenced in absentia

20 months jail

R. v. Bryan, 2003 CanLII 24337 (ON CA), [2003] O.J. No. 1960 (Ont. C.A.)

Possession for the purpose Proceeds

2.9 g $1500 Cdn

Not Guilty

12 months jail

R. v. J.C., [2000] O.J. No. 5995 (Ont. S.C.J.) R. v. J.C., [2000] O.J. No. 5142 (Ont. C.A.)

Trafficking Possession for the purpose of trafficking Proceeds

0.59 g 3.62 g $530 Cdn

Not Guilty

• 23 years old
• Minor unrelated prior record

12 months jail ~ sentence appeal dismissed

R. v. Woolcock, [2002] O.J. No. 4927 (Ont. C.A.)

Possession for the purpose Proceeds

5.3 g (plus additional 1 g) $926 Cdn $60 US

Not Guilty

• Prior related record
• 53 years old
• Not an addict

Sentence reduced from 2 years less one day to 15 months jail ~ Court noted that the range of sentence for this type of offence is 6 months to 2 years less a day

R. v. Meggo, [1998] O.J. No. 2564 (Ont. C.A.)

Possession for the purpose

7 g

Not Guilty

• No prior record

18 months jail

R. v. Bui, [2004] O.J. No. 3452 (Ont. C.A.)

Possession for the purpose

7 g

Not Guilty

• No criminal record
• Very strong character evidence offered

18 months jail, 18 months probation

Aggravating Factors

31There are a number of aggravating factors:

• The Defendant was a mid-level retail trafficker of crack cocaine as he sold two “8-balls” for $240 and two “Q”s for $450 to D/C Rhone and offered to sell him an ounce of crack cocaine for $1,800.00. Given the size of the transactions, it would appear that the Defendant was a “street level supplier”: R. v. Okash, [2010] O.J. No. 1165, para. 13.

• The cocaine was in crack form, which is more serious than powder;

• At the end of each deal, the Defendant told D/C Rhone that he could call him any time and, each time D/C Rhone called, the Defendant delivered crack cocaine on short notice which demonstrates that he had a ready supply;

• He sold high quality crack cocaine;

• The Defendant’s motive was purely financial given that he has no history of drug use or drug dependency; and

• The Defendant has a previous conviction for trafficking a Schedule 1 substance for which he was sentenced to 63 days in addition to 94 days pre-sentence custody.

Mitigating Factors

32There are a number of mitigating factors:

• The Defendant expresses some responsibility and remorse for these offences;

• The low quantities of cocaine and money involved and the street-level nature of the trafficking;

• The crack cocaine was never consumed and no one was harmed;

• The police initiated and solicited all purchases of crack cocaine;

• The Defendant was 24 years old at the time that he committed most of these offences;

• The Defendant experienced financial deprivation during his youth and was abandoned by his father;

• The Defendant was bullied at school and failed to graduate from high school in part for this reason;

• Although he did not plead guilty, the Defendant streamlined the trial issues and admitted that he sold the crack and received the proceeds during the final deal;

• The Defendant is employed; and

• The Defendant has complied with his bail conditions for almost three years.

Are the Defendant’s Arrests on February 13, 2018 and May 2, 2018 a Mitigating Consideration?

33The Defendant was arrested on February 13, 2018 due to a mistaken belief that he had violated his bail condition that kept him under house arrest as this condition had been varied more than 18 months earlier. This arrest resulted from the police’s failure to update CPIC. As a result, the Defendant was held in custody for three hours and released with the requirement that he return to court on March 15, 2018. The Defendant failed to appear in court on March 15, 2018 and was arrested on May 2, 2018 for failure to appear in court on March 15, 2018. He remained in police custody until May 3, 2018 when both charges were withdrawn. The Defendant asks that his sentence be reduced by 3 to 6 months as a result of his arrests on February 13, 2018 and May 2, 2018 and the search of his automobile on February 13, 2018.

34Mr. McFarlane delivered an affidavit sworn October 15, 2018. It states:

I was charged on March 2, 2016 with the offences of trafficking cocaine x 4, possession of proceeds of crime x 4 and possession for the purpose of trafficking cocaine. I was released on bail on March 3, 2016 to two sureties, including my girlfriend, Lutesha Wilson, and my friend Alexis Bonnick. I was released with a condition to remain on house arrest with very few exceptions. Attached to this affidavit as Exhibit A is a copy of my original recognizance.

I spent five months and eight days on a strict house arrest bail. On August 11, 2016, my bail was varied to change the house arrest condition to a curfew between the hours of 11:00 p.m. and 6:00 a.m. I have been abiding by that condition ever since for the last approximately two years and three months. Attached to this affidavit as Exhibit B is a copy of the bail variation of August 11, 2016.

On February 13th, 2018, I was at a friend’s apartment in Malton taking my laundry out of one vehicle and putting it into another vehicle at 7095 Rexwood Boulevard. A police cruiser came into the building parking lot and drove around and came over to me and asked me for my name. I gave the police officer my name and continued to move clothing between the two vehicles. The police officer then asked me to come towards the vehicle and told me that I was breaching my bail. I told him that I was not breaching my bail and he told me that I was on house arrest, which I said was not true. At that point, I was immediately placed in handcuffs. It was approximately 11:50 a.m. and the parking lot was full of residents of the apartment building coming and going. I felt humiliated to be arrested in broad daylight in front of so many people, especially for something I knew to be untrue.

After I was handcuffed, I was placed in the back of a scout car and back up came. I tried to plead with the arresting officer to check the system, call the Toronto Police and call my lawyer. Then my vehicle was searched and the vehicle that did not belong to me was also searched by two police officers. The arresting officer then came back to the vehicle and said that he had confirmed that I was on house arrest. I was then taken to a police division in Brampton.

When I went back to the police division I spoke to the sergeant explained to him that I was not on house arrest and that I had a lawyer and to please call my lawyer or call my sureties or check the internal system in Toronto to find the document to prove that I was not on house arrest. I spent approximately three hours in the police station and the arresting officer gave me the option of either waiting until my surety could pick me up or driving to my surety’s house because he believed that I was on house arrest. At that point, I decided to have the officer drive me to my residence. I would describe the process of being arrested, having my car searched and held at the station for three hours when I had done nothing wrong as being very disheartening and exasperating. It is hard to describe the feeling of being arrested in public and taken to the police station in a police car because it seems like the police internal system has not been updated, despite the fact that I had not been on house arrest for more than a year and a half.

At the time I was arrested, I had understood that because I had an existing lawyer (on the charges that I was subsequently convicted of an am now being sentenced for) on a Legal Aid certificate that meant he would be retained for my matter in Brampton. My counsel had told me that it would be a simple matter to have the charges withdrawn. I had interpreted from this conversation that my counsel could attend on my behalf to have the mistaken charge withdrawn. I did not think much about the charge of fail to comply with my house arrest condition subsequently because I knew that it was a charge in error. I realize now that this was a mistake on my part and that my lawyer was not retained on my charge of fail to comply.

On May 2, 2018, I was pulled over at 12:20 p.m. by an O.P.P. officer that appeared to me to be part of a R.I.D.E. program or something like that. As soon as I drove onto the ramp of the 403 at Mavis Road in Mississauga, I was spoken to by a police officer who told me he thought I was speaking on my phone and then asked for my driver’s licence. I provided my driver’s licence and told the officer that I was not on the phone and that my phone was connected to blue tooth, which he could see himself on the panel in the vehicle. The officer then asked me if I was on charges to which I said yes and then told me that there was a bench warrant for my arrest, which I was not aware of and caused me a great deal of distress.

I was then taken to the same division in Brampton that I had been taken to on February 13th, 2018. On this occasion, I was told by the booking sergeant that I would be spending the night and have a bail hearing the next morning. My daughter, Mariah [date of birth omitted] and my girlfriend, Lutesha [date of birth omitted] are both born on the day that I was arrested. We had planned to have a birthday party for my daughter at Chuck E Cheese after school that day. Once I heard that I would be staying the night at the police division, I had to call my girlfriend and tell her that I could not make the birthday party and we decided over the phone to cancel the birthday party reservation even though we would lose a deposit because we felt we should both be present for her birthday celebration. I still find it very painful that I was not able to spend the day with my daughter the day of her sixth birthday, as we had planned and that my failure as a father to be with her was as a result of an arrest that I knew was based on an error.

I spent the night in custody and though I have been in jail for short periods of time before, there was nothing I have experienced that was as painful and distressing as losing my freedom in this circumstance. I could not sleep all night and was so angry and hurt that I was not able to spend the birthday with my girlfriend and daughter.

I went to court the next day and told duty counsel that I was not on house arrest when I was arrested in February and to speak to my lawyer who had the document proving that I was not on house arrest. I spent most of the day in the cells waiting. The charges were withdrawn sometime in the afternoon and I was released from the prisoner’s box. Attached to this affidavit as Exhibit C is the transcript of my appearance in bail court where my charges were withdrawn.

When I look back, I find it very difficult to accept that I was arrested and handcuffed in public, put in a police car and detained for over three hours, arrested a second time and lost my freedom for two days and was unable to be there for the birthday of my girlfriend and daughter all because of an error in paperwork.

35Lutesha Wilson is the mother of Mr. McFarlane’s six year old daughter. Ms. Wilson’s affidavit, sworn October 28, 2018, states, in part that:

I am in a relationship with Joel McFarlane and we have a six-year old daughter together, Mariah McFarlane.

I have been Joel McFarlane’s surety since his release on March 3, 2016.

From March 3, 2016 to August 11, 2016, Mr. McFarlane was on house arrest conditions with a few exceptions, one of those exceptions was to be out in my presence.

I got into a car accident on January 12, 2016 and had several injuries from that car accident, including a neck and back injury and tore a ligament in my shoulder. I had to wear a neck brace following my accident for approximately one month.

After I removed the neck brace, I had to attend physiotherapy to regain my movement. I did not regain my regular movement that I had before the accident for approximately one year.

During the period of time that Mr. McFarlane was on house arrest, I was at home recovering. I usually only left the home for physiotherapy and doctor’s appointments. Mr. McFarlane drove me to my appointments during this period of time.

Because I was at home recovering, I was not able to take Mr. McFarlane out of the apartment to places that he wanted to go. Mr. McFarlane was mostly home with me at the apartment (until his house arrest was changed) helping with our daughter and helping me with household chores and duties that I was not able to deal with because of my injuries.

The period of time where Mr. McFarlane was on house arrest was a very difficult time for him. Mr. McFarlane had a lot of difficulty sleeping during the time that he was on house arrest, which was something that he never had difficulty with before his arrest. Mr. McFarlane often expressed to me the difficulty he was having being confined at home in our apartment.

I could not take Mr. McFarlane out of the apartment for social reasons or other reasons during the period of time he was on house arrest because of my injuries. While he was on house arrest, he was either at home or taking me to my medical appointments. There was also an exception on his bail to be out with a signed and dated note from me to adhere to childcare responsibilities. There were a handful of occasions where I wrote a note to enable him to pick up our daughter from daycare.

36The Crown disputes that any additional credit is justified as the Crown disputes that the Defendant’s arrest on May 2, 2018 or the search of his car violated his rights under sections 8 and 9 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c. 11.

37I find that the Defendant’s needless arrest and search of his automobile on February 13, 2018 was “as a result of” the offences for which he was convicted in this case and I find that such circumstances are a relevant mitigating consideration on sentencing that go beyond the two days credit suggested by the Crown.

38However, the time that Mr. McFarlane spent in custody on May 2-3, 2018 was a result of his admitted mistake in failing to appear in Court on March 15, 2018. Mr. McFarlane detention on May 2-3, 2018 was not a foreseeable or necessary result of being charged with being in breach of his bail conditions.

CONCLUSIONS

39The primary sentencing objectives in this case are deterrence and denunciation as: (1) this is Mr. McFarlane’s second set of drug trafficking convictions; (2) such activity was done purely for profit. His potential for rehabilitation is somewhat undermined by the fact that: (1) he has not expressed remorse and regret for his drug trafficking behavior in stronger terms; (2) he does not have a clear, concrete plan for education and future employment.

40A sentence of 18 months is consistent with sentences imposed on persons without records convicted of trafficking fewer times in similar or smaller amounts than Mr. McFarlane: R. v. Meggo [1998] O.J. No. 2564 (C.A.); R. v. Bui, [2004] O.J. No. 3452 (C.A.). An 18 month sentence would also fall below the 20 month sentence imposed for a person with a dated, related record who trafficked only twice in a significantly smaller amount: R.v. McKenzie, [2004] O.J. No. 2600 (C.A.).

41It appears that Mr. McFarlane appreciates that he has reached a fork in the road of his life. Mr. McFarlane states that he is motivated by his six year old daughter to live a life free from crime by completing his high school education and improving his career prospects. He has not re-offended while on bail. For his daughter’s sake, I hope that his actions continue to match his words. I expect that Mr. McFarlane will be sentenced to a much longer custodial sentence if he re-offends in similar circumstances as, given that he is now 27 years old, the window on labelling the Defendant a youthful offender will soon close and his rehabilitative potential becomes increasingly unlikely with each conviction.

42In balancing the need for deterrence and denunciation along with the prospects for rehabilitation, as well as the principles of totality and restraint, as well as all of aggravating and mitigating circumstances that I have described, I find that a fit total sentence is 14 months incarceration, followed by three years of probation. Against this sentence, the Defendant shall be given 4 days credit for time served in pre-trial custody and a credit of 170 days months for stringent bail conditions. These sentences for each conviction shall be served concurrently.

43As noted earlier, both the Crown and the Defence agree and I order that Mr. McFarlane should receive 189 days credit against this sentence. Accordingly, the remaining time to be served by Mr. McFarlane is 231 days.

44In order to facilitate Mr. McFarlane’s rehabilitation the probation order shall include the conditions found in s. 732.1(2) of the Criminal Code as well as the following additional conditions made pursuant to s. 732.1(3) of the Criminal Code that require Mr. McFarlane to:

• Keep the peace and be of good behavior;

• Report to a probation officer within seven days from the Defendant’s release from custody and thereafter, when required by the probation officer and in the manner directed by the probation officer;

• Remain within the jurisdiction of the Court unless prior written permission to go outside that jurisdiction is obtained from the Court or the probation officer;

• Appear before the Court when required to do so by the Court;

• Notify the Court or the probation officer in advance of any change of name or residence, and promptly notify the Court or the probation officer of any change of employment or occupation;

• Attend and actively participate in any assessment, counselling or rehabilitative program(s) as directed by a probation officer and complete them to the satisfaction of a probation officer.

• Sign any release of information forms, as directed by a probation officer, to allow a probation & parole officer to monitor your attendance, participation and completion of any assessments, counselling or rehabilitative programs as directed;

• Complete high school within one year;

• Stay inside his residence between the hours of 11:00 p.m. and 6:00 a.m. each day, for six months following his release from his custodial sentence except with the prior written consent of a Probation Officer or while in the company of his mother or the mother of his daughter, Lutesha Wilson; and

• Maintain employment.

45I also order that:

• The Defendant provide DNA samples pursuant to s. 487.051 of the Criminal Code; and

• A weapons prohibition order be issued against the Defendant for a period of 10 years pursuant to s. 109 of the Criminal Code;

• Mr. McFarlane pay a fine, in lieu of forfeiture, of $930.