Court File and Parties
Oshawa Court File No.: CR-17-14495 Date: 20190502 Ontario Superior Court of Justice
Between: Her Majesty the Queen – and – David Brown and Daimian Johnson Defendants
Counsel: K. Benzakein and B. Crackower, for the Crown R. Rusonik, for the Defendants, David Brown and Daimian Johnson
Heard: February 20, 2019
Reasons for Sentence
MCKELVEY J.:
Introduction
[1] The defendant, David Brown, has pleaded guilty to a charge that:
On or about the 6th day of June in the year 2016, have in his possession, a controlled substance for the purpose of trafficking, to wit: Coca (Erythroxylon), its preparations, derivatives, alkaloids and salts, namely Cocaine, contrary to Section 5(2) of the Controlled Drugs and Substances Act, thereby committing an offence under Section 5(3)(a) of the said Act.
[2] The defendant, Daimian Johnson, has pleaded guilty to three counts of trafficking in cocaine, relating to transactions which occurred on June 6, 2016, June 13, 2016 and June 28, 2016, contrary to Section 5(1) of the Controlled Drugs and Substances Act, thereby committing an offence under Section 5(3)(a) of that Act.
[3] The defendants now come before this court for sentencing on those offences, which is subject to a maximum sentence of imprisonment for life.
Background Facts
[4] The parties have submitted an Agreed Statement of Facts for purposes of sentencing. With respect to Mr. Brown, it is agreed that on June 6, 2016, Mr. Brown obtained two kilograms of cocaine from Mr. Johnson. On June 28, 2016, Mr. Brown was arrested and found in possession of approximately 1 kilogram of cocaine which was pressed into a brick. On June 29, 2016, police executed a search warrant at Mr. Brown’s residence and located the following items:
- $108,000;
- Mobile cellular telephones;
- A money counter;
- A bullet proof vest; and
- Drug paraphernalia, including a digital scale and an apparent debt list.
[5] With respect to Mr. Johnson, the Agreed Statement of Facts confirms that Mr. Johnson sold 1 kilogram of cocaine to a client on May 17, 2016. On May 17, 2016, Mr. Johnson sold 9 ounces of cocaine to another client. On May 25, 2016, police conducted a covert entry into Mr. Johnson’s residence. They found cash in his residence, which totalled approximately $160,000. On June 6, 2016, Mr. Johnson sold Mr. Brown 2 kilograms of cocaine. On June 13, 2016, Mr. Johnson sold a client 1 kilogram of cocaine. Mr. Johnson was arrested on June 28, 2016. Police located $72,860 inside a bag which was found in his vehicle. In addition, police seized 3 cellular telephones from the vehicle.
Applicable Legal Principles
[6] The principles of sentencing are set out in s. 718 of the Criminal Code, which provides as follows:
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.
[7] Section 718.1 provides that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
[8] Trafficking in cocaine has been recognized as a very serious offence and one which attracts a lengthy term of imprisonment. In R. v. Hamilton, 2004 ONCA 5549, [2004] O.J. No. 3252, Justice Doherty of the Court of Appeal for Ontario commented as follows:
The use and sale of cocaine kills and harms both directly and indirectly. The direct adverse health effects on those who use the drug are enormous and disastrous. Cocaine sale and use is closely and strongly associated with violent crime. Cocaine importation begets a multiplicity of violent acts. Viewed in isolation from the conduct which inevitably follows the importation of cocaine, the act itself is not a violent one in the strict sense. It cannot, however, be disassociated from its inevitable consequences.
[9] The Ontario Court of Appeal in R. v. Bryan, 2011 ONCA 273, [2011] O.J. No. 1581, set out a range of five to eight years in prison as being the proper range for someone, without a record, convicted of possession for purpose of trafficking in slightly more than 1 pound of cocaine.
[10] In R. v. McGregor, [2017] O.J. No. 2561, the Ontario Court of Appeal stated as follows:
We agree with the Crown that the case law supports the submission that eight years is toward the low-end of the accepted range for conspiracy to traffic in cocaine for mid-level dealers trafficking in quantities that include the kilogram level. While a very heavy sentence was warranted in this case, we cannot say that it is an error of law beyond the discretion of the trial judge to have imposed five years as part of a total sentence following a guilty plea and that is in accord with other sentences to which the parity principle applies.
[11] There may be situations where a particular sentence will fall outside the usual range. This is reflected in the comments of Justice Doherty in the Hamilton case, where he states,
The mitigating factors may be so significant as to take the case below the otherwise appropriate range. For example, in R. v. H. (C.N.), the offender’s cooperation with the authorities and his belief that he was importing marijuana and not cocaine, along with other more common mitigating factors, justified a sentence that was well below the range of sentence established for the importation of very substantial amounts of cocaine.
[12] In the present case, the defendants argue that the mitigating factors should take their sentences below the usual range which would apply.
Circumstances of the Offenders
[13] David Brown is currently 42 years old. He does have a criminal record. In 1998 he was convicted of importing or exporting a narcotic. There is a 1996 conviction for assault, as well as a conviction for failing to comply with a recognizance in 1997. The conviction relating to narcotics is concerning, but it is significant to note that prior to the case before me, there have been no further convictions for Mr. Brown since June of 1998.
[14] Mr. Brown is currently in a committed relationship. The couple have a child which was born in February 2017. He also serves in a parental role to the 10 year old daughter of his partner.
[15] Mr. Brown is currently employed at HCF Parts, which deals in high-rise hoist reconstruction for elevators. He has been working with that company off and on since January 2018. The management of HCF Parts has indicated a willingness to set Mr. Brown up for an apprentice program so that he can continue in that trade.
[16] Mr. Brown has also helped out in his community as reflected in a supporting letter from a non-profit organization called “Passing Blessings”.
[17] It is apparent that both Mr. Brown and Mr. Johnson have support from their families and friends in the community. This was reflected in a large group of people coming to court to support them during sentencing submissions.
[18] Mr. Johnson has no criminal record. He currently works for Mondelēz Canada Inc. as a material handler in their “Dad’s bakery”. He has been employed fulltime for Mondelēz since September 24, 2018.
[19] There is also evidence that Mr. Johnson has done volunteer work in the community, including working as a coach for the Ajax Soccer Club.
Position of the Parties
[20] The Crown’s position is that Mr. Brown should receive a sentence of five years imprisonment and that Mr. Johnson should receive a sentence of seven years. In support of their position that Mr. Johnson should receive a longer sentence than Mr. Brown, the Crown relies on the fact that the Agreed Statement of Facts establishes that Mr. Johnson had an extensive distribution network and sold cocaine to several people in very large quantities. The Crown also relies on the number of transactions that Mr. Johnson was involved in. Further, the Crown notes that Mr. Johnson was operating at a higher level in the supply chain. Mr. Brown was purchasing cocaine from Mr. Johnson. Finally, the Crown refers to the fact that there was a considerably larger amount of money seized from Mr. Johnson than Mr. Brown which reflects the nature and extent of his trafficking activities.
[21] The defence accepts that the sentences proposed by the Crown are reasonable generally. However, the defence position is that the proposed sentences do not adequately reflect all of the mitigating circumstances which need to be taken into account.
[22] I accept that the sentences proposed by the Crown are at the bottom if not below the range for both Mr. Brown and Mr. Johnson. These proposals therefore already reflect some very significant mitigating factors. The question I must address is whether the mitigating circumstances for each of the two defendants are so great that the sentences should be reduced to below those proposed by the Crown. The principal mitigating circumstances relied upon by the defendants are as follows:
- Both have pleaded guilty to the offences as noted above;
- Both individuals were subject to two separate arrests;
- Both were subject to restrictive bail conditions;
- Both have support from their families and in the community which they argue reduces the need for any specific deterrence;
- The defendants claim credit for the surrender of three firearms together with ammunition to the police; and
- Mr. Johnson seeks credit for testifying at the trial of one of his clients who was charged with possession of cocaine for the purposes of trafficking.
Ancillary Orders
[23] The Crown seeks a number of ancillary orders against both defendants as follows:
(a) As the offences are designated as a secondary designated offence under s. 487.04 of the Criminal Code, the Crown seeks an order under s. 487.051 for the defendants to provide samples for DNA analysis (b) The Crown seeks an order under s. 109 of the Criminal Code, prohibiting the defendants from possessing any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive substance. For Mr. Brown the order sought is for life. For Mr. Johnson the requested order is for 10 years.
[24] The defendants do not object to the ancillary orders. These ancillary orders will, therefore, form part of each of the defendants’ sentence. In addition, both parties have agreed to forfeiture/return orders in accordance with Exhibits 9A and 9B filed on the sentencing submissions. These orders as well, therefore, form part of each of the defendants’ respective sentences.
Aggravating Factors
[25] There are a number of serious aggravating factors in this case. The amount of cocaine involved was very substantial. With respect to Mr. Brown, he was involved in a transaction for 2 kilograms of cocaine and Mr. Johnson was involved in transactions that totalled considerably more than 2 kilograms. The amounts of cocaine involved, therefore, represent a serious aggravating factor. The Agreed Statement of Facts refer to discussions between Mr. Johnson and Mr. Brown using coded language. I infer that both Mr. Brown and Mr. Johnson had an ongoing relationship at the time these offences occurred and were involved in the business of buying and selling cocaine. It is also clear that the trafficking activities were being conducted at a fairly high level. Following his arrest, Mr. Brown was found with $108,000 in cash together with multiple cellular telephones, a money counter, a bullet proof vest and other drug paraphernalia. With respect to Mr. Johnson, the covert entry into his house prior to his arrest disclosed approximately $160,000 in cash. Following his arrest, police located $72,860 inside his vehicle as well as three cellular telephones. Both Mr. Johnson and Mr. Brown at the relevant time were heavily involved in the drug trade.
[26] The defence suggests that the offences were committed by the defendants to provide for their respective families and that they therefore were acting out of “altruistic motives”. There is no evidence, however, that the defendants came from impoverished circumstances nor is there any suggestion that they could not have earned income through lawful means. I have concluded in the circumstances that the offences were committed entirely for profit. I do not accept that the drug activities were carried out for altruistic reasons.
[27] As noted above, Mr. Brown does have a criminal record involving drug offences. This record is tempered by the fact that there have been no convictions since 1998.
Mitigating Factors
Guilty Pleas
[28] There are also a number of significant mitigating factors in this case. Both David Brown and Daimian Johnson pleaded guilty to the drug charges. I accept that this reflects their acceptance of responsibility and expression of remorse for their actions and is a very important mitigating factor. Having said that, I have concluded that the guilty pleas have been fully reflected in the Crown’s proposed sentences. They would not justify a further reduction below those proposed by the Crown.
Two Separate Arrests
[29] Both Mr. Brown and Mr. Johnson were initially arrested on June 28, 2016. They were subsequently re-arrested and additional charges were added on July 6, 2016 following completion of an investigation by police into the activities of not only these defendants, but others whose activities were also being monitored. The Crown advised that these further arrests were necessitated by the additional charges being laid against Mr. Brown and Mr. Johnson following completion of the police investigation. The defence argues that it was not necessary to re-arrest the defendants in order to add the additional charges. The defence position is that both Mr. Johnson and Mr. Brown should receive an additional six months credit relating to the fact that they were arrested on two separate occasions and had to go through two bail reviews. I agree with the defence that having to go through a second arrest and bail review would have caused the defendants some additional anxiety and frustration. I disagree, however, with the suggestion that their sentences should be further discounted by six months on this account. In my view, the proposed sentences adequately reflect this mitigating factor.
Personal Circumstances of the Defendants
[30] I have taken into account the personal circumstances of the defendants as outlined previously. In addition, while none of the parties requested pre-sentence reports, both Mr. Brown and Mr. Johnson made personal statements to the court during sentencing submissions. Mr. Brown explained to the court that he has “messed up” and takes responsibility for his actions. He stated that he made some bad decisions and stated that it must look like drug dealing is what he does as a profession. Mr. Brown appeared genuinely remorseful about his conduct.
[31] Similarly, Mr. Johnson told the court that he made “one of the greatest mistakes” of his life. He was grateful that his family and friends have supported him and acknowledged that it was his own decision to make these mistakes. He volunteered that he “owns these mistakes and whatever comes with it”. He asserted that he will take the time in jail to make himself better and to learn from his mistakes. He asked the court to see some positive aspects that he can offer to the community in the future.
[32] As with Mr. Brown, I had no reason to doubt Mr. Johnson’s sincerity.
[33] It is my hope that neither Mr. Brown nor Mr. Johnson will re-engage in criminal activity following their release. Based on their statements to the court and their acceptance of responsibility by pleading guilty I accept that there is a reasonable prospect of rehabilitation for both these defendants. Having said that, one of the fundamental principles of sentencing as set out in s. 718.1 of the Criminal Code is that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. In the case of both Mr. Brown and Mr. Johnson, the gravity of their offences and their degree of responsibility means that their moral blameworthiness is at a very high level. I am also mindful that the lengthy terms of incarceration associated with these offences are to a large extent based on the need for general deterrence. This was recognized in the Ontario Court of Appeal decision in R. v. H. (C.N.), 2002 ONCA 4918, [2002] O.J. No. 4918, where the court stated,
In that case, the court was considering drinking and driving offences and we held that incarceration for such crimes could be justified on the basis of general deterrence. The same applies for importing large quantities of cocaine for personal gain. These are offences that ordinarily require some degree of planning. The trial judge recognized that fact himself when he said at para. 35 of his reasons that “where potential offenders can deliberate on the cost/benefit of committing the offence, general deterrence might well be seen as a principle that is effective in curtailing drug crimes.” The trial judge, however, discounted the value of general deterrence in the case of couriers, in part, because it could never be 100 per cent effective as there would always be people ignorant or desperate enough to take the risk. That may be, but it was not a basis for rejecting the application of the general deterrence objective in courier cases. Just as in the drinking and driving context, prison sentences alone will never solve the problem, but they do have a role in deterring crime.
[34] Having taken into account all of the personal circumstances of the defendants, I have concluded that they do not justify a reduction in sentence below the sentences proposed by the Crown.
Restrictive Bail Conditions
[35] Both defendants initially had very restrictive bail conditions which were subsequently amended. In the case of Mr. Brown, he was subject to house arrest for about nine months from July 6, 2016 until April 6, 2017. After that point he was subject to a curfew between 10:00 p.m. to 6:00 a.m. until May 1, 2017, at which time the curfew was changed to run between 12:30 a.m. to 6:00 a.m.
[36] With respect to Daimian Johnson, he was initially required to reside in Kleinberg away from his family and was subject to a curfew from 10:00 p.m. to 6:00 a.m. unless at work or with his surety. From August 23, 2017 to June 20, 2018 he was required to reside in Kleinberg but was permitted to attend at the family home and was subject to a curfew between 11:00 p.m. to 6:00 a.m. From June 20, 2018 onwards Mr. Johnson was allowed to reside at the family home and was subject to a curfew from 11:00 p.m. to 6:00 a.m. unless at work or with his surety (his wife).
[37] The Crown takes the position that the restrictive bail conditions were taken into account when it recommended the proposed sentences. The defence disagrees with this assertion.
[38] In R. v. Downes, 2006 ONCA 3957, [2006] O.J. No. 555, the Ontario Court of Appeal noted that stringent bail conditions, especially house arrest, represent an infringement on liberty and is a form of punishment although of a different character than actual incarceration. The court goes on to conclude that time spent under stringent bail conditions, especially under house arrest, must be taken into account as relevant mitigating circumstances. In the Downes case, the defendant was under house arrest for 18 months. The Court of Appeal found that a credit of five months was appropriate.
[39] It is apparent that a court may not always specify a specific credit for restrictive bail conditions. In R. v. Dragos, 2012 ONCA 538, [2012] 111 O.R. (3d) 481, the Ontario Court of Appeal in reviewing a judge’s sentencing reasons noted that “a precise mathematical calculation of the credit to be given for pre-sentence bail” is not required. What is required is that in a proper case, consideration should be given to pre-sentence bail and in the final analysis the mitigating weight to be assigned to pre-sentence bail, if any, is a discretionary matter for the sentencing judge.
[40] Although the Crown indicates that it has already taken into account the restrictive bail conditions in terms of the proposed sentences for each of the defendants, I have concluded that some additional credit is required. It is significant to note that there was considerable uncertainty about the restrictive bail conditions imposed upon Mr. Johnson and Mr. Brown when the Crown initially proposed the sentencing ranges. I am not satisfied that the proposed sentences take these fully into account. I note that for both Mr. Brown and Mr. Johnson, the initial bail conditions were very restrictive. Mr. Brown was subject to house arrest for nine months followed by a curfew. Mr. Johnson was required to reside in Kleinberg and was not permitted to attend at the family home for over a year. Mr. Johnson was not allowed to reside within the family home until June 2018. In accordance with the Dragos decision, I am not proposing to stipulate a mathematical calculation of the additional credit to be given. However, I am taking this into account as an additional mitigating factor which serves to reduce the sentences proposed for each of the defendants below those which have been proposed.
Surrender of Firearms
[41] Both defendants are seeking a substantial reduction in their sentence relating to the surrender of firearms to the police. The defence asserts that an 18 month credit should be given to each of the defendants for the surrender of the firearms, while the Crown takes the position that no credit should be given. The Crown further asserts that the defence has not established any connection between the surrender of the firearms and the defendants in this case. It relies at least in part on an email dated October 24, 2018 from Frederic Braley to defence counsel in which he confirms that on October 10, 2018 defence counsel surrendered assorted firearms and ammunition which had been received by defence counsel anonymously by someone who said he was doing it on behalf of David Brown and Daimian Johnson. The Crown points out that this email is a hearsay document and they object to its admissibility.
[42] There is, however, affidavit evidence from Sergeant Didanieli. In his Affidavit sworn November 16, 2018, he states that he is the officer in charge of the Toronto Police Service Organized Crime Enforcement – Firearms Enforcement Unit. He goes on to state that on October 10, 2018, three firearms were surrendered to him by defence counsel. The three firearms were listed by Officer Didanieli, together with an estimated “street value” as follows:
- Rifle – (SKS replica) .223 caliber with a street value of $1000 to $1500
- Rifle – (AR-15 type carbine) .223 caliber with a street value of $1500 to $2000
- Semi-automatic handgun/Glock .40 caliber with a street value of $3500 to $4000
[43] I am prepared to accept the affidavit of Sergeant Didanieli as sufficient evidence that the three above-noted firearms were surrendered by defence counsel on behalf of the defendants. There is no evidence that the defendants had any direct involvement in the surrender of the guns. The question which remains is to what extent should the defendants be entitled to any credit for the surrender of the firearms. It is clear that no credit for this has been given in the figures proposed by the Crown.
[44] In suggesting that a credit of 18 months should be given to each of the defendants the defence notes that the AR-15 is an assault rifle and is very dangerous. Similarly, the Glock handgun is a very dangerous handgun associated with criminal activity. The defence argues that there is a substantial societal benefit to having these guns “off the street”. It is suggested that by giving credit on sentence to the anonymous surrender of dangerous firearms, the court is promoting a safer community. However, the quid pro quo, is that credit needs to be given to the defendants on whose behalf the firearms have been surrendered.
[45] The defendants rely on the Ontario Court of Justice decision in R. v. Liu, [2013] O.J. No. 865. In that case, counsel had agreed on a sentence of 15 months incarceration for possession of cocaine for the purpose of trafficking, subject to considering a possible credit for items surrendered to police which included a fully operational 9 mm machine pistol and some drugs. It is noted in the decision that the defendant in the Liu case managed to surrender the items without incriminating a single person. The contraband appeared to be turned over to the police by Mr. Liu. Justice Finnestad gave Mr. Liu six months credit for the surrender of the drugs and more importantly of the machine gun. In his Reasons he stated,
It is clear that co-operation with police is an extraordinary circumstance that can lead to a reduction of sentence beyond the range which would ordinarily be appropriate. However, since few of the facts or policy reasons behind giving credit for providing information are present in the circumstances of this case, I do not find that it falls within the same category as the cases cited in support of this proposition. In this regard I am in agreement with the Crown’s submissions. However, I am satisfied that the provision of the items surrendered to police is such that it should be recognized as constituting an extraordinary circumstance that can also lead to a reduction of sentence beyond that which would otherwise be appropriate. There is no doubt that the surrender came at some cost to Mr. Liu, that there was as a consequence fewer drugs available to distribute on the streets of Toronto, and most importantly that an instrument of death in the form of a machine gun has been removed from the hands of the criminal element of this city. It is appropriate that this be recognized in a reduction of sentence below the range of 15 months that would otherwise be appropriate.
[46] As pointed out by the Crown in their argument, it is significant that the defendants in this case have not adduced any evidence to suggest they had any direct involvement in the surrender of the guns. There is no evidence of genuine cooperation by the defendants and there is no evidence that they took any personal risk as part of the surrender of the firearms.
[47] In R. v. Cinelli, 2018 ONSC 4983, [2018] O.J. No. 4490, Justice Bawden dealt with a situation where the defendant offered to provide police with a firearm and multiple rounds of ammunition in hopes of receiving consideration towards his sentence. In that case the court noted that there is authority to reduce the length of a sentence where an offender has cooperated with authorities. See R. v. H. (C.N.), supra. In that case the court noted that a reward in terms of sentencing should be granted if the defendant has genuinely cooperated with authorities, whether or not the information supplied leads to arrests or seizures. Justice Bawden in the Cinelli case notes that,
The discount will rarely be substantial unless the offender discloses everything that he knows. The reward for providing assistance should be granted if the offender has genuinely co-operated with the authorities whether or not the information supplied turns out to have been effective.
In the Cinelli case the court gave the defendant four months of credit towards his final sentence.
[48] The Crown argues in this case that as there is no evidence that the accused cooperated with the police, there should be no credit given to the defendants. Similarly, they note that there is no evidence of any risk having been undertaken by either of the defendants in connection with the surrender of the firearms. They also argue that it would be dangerous for the court to offer a credit to someone who arranges for the surrender of firearms. They suggest that guns may, in certain circumstances, be kept by the criminal element for the purpose of turning them in for credit in the event that they are subsequently convicted of a criminal offence. The Crown argues that this is tantamount to criminals being able to “purchase a mitigating element on sentence”.
[49] I have concluded that some modest credit should be given in relation to the surrender of weapons in this case. I reject the suggestion that if a reduction in sentence is given for such surrenders, criminals will be tempted to stockpile or import weapons against the possibility of arrest. Were criminals to do this, they would risk serious consequences if they were found in the possession of such weapons which would create a greater risk than the potential benefit in the event they are charged with another criminal offence. In balancing the benefit to be gained from the surrender of dangerous weapons to the potential risks, I conclude that the balance favours providing some incentive and recognition to offenders in this situation.
[50] I agree therefore, with the defence, that the surrender of dangerous weapons should be encouraged. There is a significant benefit to society in having dangerous weapons taken off the street. However, in the absence of any evidence which establishes a connection between the actions of an accused and the surrender of the firearms, then the credit should be modest. It is a factor, however, that I have taken into account as a mitigating factor which would reduce the sentence for each of the defendants below the range which has been proposed by the Crown. As both defendants are claiming any mitigating effect from the surrender of the firearms it follows that any credit needs to be split between them. I have concluded it is not necessary to place a specific mathematical value on the surrender of the firearms. I have, however, taken it into consideration in my sentencing decisions.
Credit for Testifying at Trial
[51] Mr. Johnson was called as a witness at the trial of Michael Berquas, who was accused of purchasing cocaine from Mr. Johnson. In recognition of Mr. Johnson attending as a witness at the trial of Mr. Berquas, Mr. Johnson is seeking a credit of 12 months towards the sentence he would otherwise be required to serve. The position of the Crown is that he should not receive any credit as his evidence was not helpful to the Crown and the charges against Mr. Berquas were dismissed.
[52] The relevant case law establishes that offenders who cooperate with the Crown may be entitled to substantial leniency in their sentencing. The reasons for this were outlined by Justice Hill in R. v. John Doe, [1999] O.J. No. 5089, and were substantially adopted by the Court of Appeal in their decision in R. v. H. (C.N.), supra. The policy reasons for encouraging cooperation with offenders reflects the fact that this cooperation can assist in apprehending serious criminals and encourages other offenders to come forward. It also encourages criminals to have less confidence in each other. Further, leniency in sentencing reflects that any custodial sentence for an offender may be rendered more onerous because an offender may face reprisals in prison or may need to be removed to a prison far away. Time spent in jail may also have to be in protective custody for the offender’s own protection. In some cases the offender’s family may be at risk of reprisal from the criminal element.
[53] There is no clear guidance in the case law to which I was referred to as to how any credit for an offender is to be calculated. I note in the H. (C.N.) decision, the Court of Appeal suggested that a one year reduction in sentence should have been considered in a drug case where the sentencing range was in the six to eight year range. In that case the court found that the defendant had provided information, most of which, with very little effort, the police could have obtained themselves by searching the defendant’s belongings. It is apparent that the credit to be given in any particular case is highly discretionary and dependent upon the particular circumstances of the case. In the H. (C.N.) decision, the Court of Appeal suggests that the mere providing of information which is already known to the police or which fails to provide reliable information is not worthy of any sentencing credit. However, where an offender has genuinely cooperated with authorities, an offender may be entitled to credit whether or not the information supplied objectively turns out in fact to have been effective. Thus, the fact that the charges were dismissed against Mr. Berquas does not necessarily rule out an entitlement by Mr. Johnson to credit for his cooperation in acting as a witness at trial against Mr. Berquas.
[54] In the present case the only cooperation by Mr. Johnson was his attendance at trial in response to a summons and giving evidence at the trial of Mr. Berquas.
[55] In considering the scenario of an offender giving evidence at trial against another offender, I have concluded that the court should consider a number of factors. These include the following:
- This court’s evaluation of the significance and usefulness of his assistance in giving evidence.
- The truthfulness, completeness and reliability of his evidence.
- The nature and extent of the defendant’s assistance generally.
- Any danger or risk of injury to the defendant or his family resulting from his assistance.
[56] In the present case the defence argues that Mr. Johnson’s assistance was significant in that he acknowledged conducting drug transactions with someone by the name of B. Specifically, Mr. Johnson testified as follows:
Can I indulge for a second? I just want to correct a piece of testimony I gave earlier. Is that okay, Your Honour? I want to just make it perfectly clear that just before the recess we had a review of the notes and I went over all the facts that were in here and I completely agree that everything that was in here – there’s nothing that’s in dispute. There is just the, the testimony earlier in regards to Michael Berquas that it’s alleged that I did transactions with that I dealt with somebody by the name of B. It looks like him, but I am aware that he does have a twin, so I’m not sure if it’s actually him who’s sitting in the courtroom or not. But all of the facts that were entered on my guilty plea on the date, I agree that everything that’s in here – and I’m not in opposition to anything that I testimonied ( sic ) otherwise at the beginning.
[57] The defence notes that the identity of Mr. Berquas was not a significant issue at trial and the failure by Mr. Johnson to specifically identify Michael Berquas as the person he conducted business with was neither a significant omission nor unreasonable given the fact that Mr. Berquas had a twin brother.
[58] In looking at Mr. Johnson’s evidence generally, however, it is apparent that Mr. Johnson’s evidence did little to advance the Crown’s case. His answers were inconsistent and there was significant doubt about whether Mr. Berquas was involved in any unlawful transactions. For example when Mr. Johnson was first asked if he knew Michael Berquas his answer was:
I – the first time I hear that name was when I came to court. I don’t know who is Michael Berquas.
[59] When he was asked if he recalled who he sold cocaine to on June 13, 2016, he responded:
No, I don’t.
[60] Later in his evidence after acknowledging that he did transactions with someone by the name of B., Mr. Johnson acknowledged that he sold a kilogram of cocaine to either Mr. Berquas or his brother. He stated after refreshing his memory from an Agreed Statement of Facts as follows:
Question: Does that assist in refreshing your memory of how much cocaine you sold on that day? Answer: Okay, “Mr. Johnson acknowledges that he sold Mr. Berquas one kilogram of cocaine in that transaction.” Yes, I do acknowledge that I sold a kilo of cocaine on that date, but I’m not sure if I sold it to Mr. Berquas or his brother. I’m not sure if that was the person. Question: Okay. Answer: But I do acknowledge to the transaction on that day.
[61] Later in his evidence, however, he stated that he did not recall where the transaction took place and stated that the drugs may have been dropped off by someone else when he testified as follows:
It may have happened via someone else dropping it off. I don’t recall what happened on that date. Like you’re asking me – you said if I sold it on that day, the wire taps and the evidence you provided indicates it happened on that day. I agree that it happened that day, what had happened I don’t recall.
[62] This evidence substantially reduced the value of his evidence as it suggests Mr. Johnson did not actually witness delivery of any cocaine to Mr. Berquas, nor did he have a recollection of the transaction. Not surprisingly the trial judge found the evidence of Mr. Johnson to be of little assistance in proving the case against Mr. Berquas. Justice Lavine in her decision of March 27, 2017 commented as follows on the evidence of Mr. Johnson,
There are many reasons to be concerned about Mr. Johnson’s credibility and reliability. Some are his evidence of continually evolved; he qualified virtually every answer; he repeatedly stated that he could not now recall the details of his trafficking cocaine in May and June 2016, nor did he ever state that he had a better memory of those events at the time the facts were acknowledged as correct by counsel on his behalf at his plea proceedings in May 2018. He, at times, explained the lack of memory by the passage of time and desire to suppress that time in his life.
At the outset of his evidence, Johnson stated that he had paid scant attention to the facts outlined during his guilty plea proceedings, describing the facts as “basically, just protocol that you guys (the Crown) want them in at the time,” and that he understood from his then lawyer that there is “no point to bicker in regards to the facts.”
Later, he stated that he completely agreed with everything in the facts read in his plea proceeding, with nothing in dispute, qualified only by whether he did transactions with Michael Berquas. He did, at various subsequent points, stipulate that he agreed with or did not oppose the facts entered on his plea. No explanation was given for his varying positions, or the position that he could not remember the place or detail of what occurred, but was prepared to acknowledge the transaction and the facts read in at his plea.
At other points, Johnson’s memory was, to some extent, refreshed by reading the facts as acknowledged on his plea. He did “acknowledge to the transaction on that day” (the same of 1.0 kilogram of June 13, 2016), but he qualified in various ways that he was not sure to whom he sold. He then allowed at points the party to the transaction “B” looks like him, “Berquas”. He maintained that he had no memory of the facts as read in relating to May 17th, 2016, which were not the subject of a plea, but additional facts read in.
I have carefully considered Ms. Benzakein’s very thorough argument, the confirmation offered by the police surveillance and the real possibility that Johnson’s uncooperativeness, reluctance, and the frailties of his evidence may be attributed to a desire to shield Berquas from liability.
In the end, however, exercising the care required in the circumstances and considering the totality of the evidence, including that the evidence that a sale occurred in the car as alleged depends on Mr. Johnson, the difficulties with the reliability of his evidence and the absence of any evidence of drugs located on Mr. Berquas, I cannot be satisfied, and I am not satisfied, that Mr. Berquas is sufficiently reliable to be sure to the requisite standard of proof beyond a reasonable doubt that Mr. Berquas was in possession of cocaine for the purpose of trafficking as alleged.
[63] It is apparent from the Reasons of Justice Lavine that the evidence of Mr. Johnson to the Crown’s prosecution of Mr. Berquas was of limited or of no use. She specifically contemplated that Mr. Johnson’s testimony may have been motivated by a desire to shield Mr. Berquas from liability.
[64] The defence argues that the frailties in Mr. Johnson’s evidence could have been avoided to a substantial extent if the Crown had contacted defence counsel in advance and had properly prepared Mr. Johnson for giving his evidence. It is conceded, however, that Mr. Johnson declined assistance from the Crown when asked on the day he was to give evidence if he was prepared to meet with the Crown to prepare him. His reasoning for refusing was that he wanted to speak to his lawyer. He apparently did speak with his counsel after the initial recess, following which he did, as noted previously, acknowledge the accuracy of the Agreed Statement of Facts. I agree with the defence that it certainly would have been preferable for the Crown to have contacted Mr. Johnson’s counsel in advance to obtain his cooperation. I accept this as a mitigating circumstance to some extent. I also accept that the fact that Mr. Berquas had a twin brother may have contributed to Mr. Johnson having some difficulty in identifying the accused. However, it does not explain his initial testimony that he first heard the accused’s name when he came to court. It is apparent in reviewing the transcript from his attendance in court, Mr. Johnson’s evidence was of very little assistance to the prosecution and the truthfulness, completeness and reliability of his evidence was sadly lacking. In my view, Mr. Johnson must accept substantially all of the responsibility for these deficiencies and the fact that overall his assistance to the prosecution was close to zero.
[65] Given the outcome of the trial and the nature of the assistance provided by Mr. Johnson, I am not persuaded that there is a risk to Mr. Johnson or his family resulting from his attendance at trial. I have concluded, however, that in confirming the drug transaction with someone by the name of B., Mr. Johnson should be entitled to some limited credit on sentence. In considering all the circumstances, though, the credit should be very modest and ought not to exceed two months. This reduction has been included in my sentencing decision for Mr. Johnson.
[66] Mr. Brown, would you please stand. Further to the foregoing reasons, I sentence you as follows:
For your conviction on Count 8, I sentence you to a sentence of four years and seven months incarceration, together with the ancillary orders as outlined earlier in these Reasons.
[67] Mr. Johnson, would you please stand. Further to the foregoing reasons, I sentence you as follows:
For your conviction on Counts 7, 9 and 11, I sentence you to a sentence of six years and five months incarceration, together with the ancillary orders as outlined earlier in these Reasons.
Justice M. McKelvey