Her Majesty the Queen v. Malcolm Williams

Court File No.: CRIMJ(F)923/18 Date: 2019-06-05

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN Robert Tremblay, for the Crown

- and -

MALCOLM WILLIAMS Brian Crothers, for the Accused

REASONS FOR SENTENCE

BARNES J.

INTRODUCTION

[1] After a judge-alone trial, Malcolm Williams was acquitted of assault, contrary to the Criminal Code of Canada, R.S.C., 1985, c. C-46, and convicted of one count of possession of cocaine for the purpose of trafficking, contrary to the Controlled Drugs and Substances Act, S.C. 1996, c. 19. I must now determine the appropriate sentence.

BACKGROUND FACTS

[2] At approximately 5:14 p.m. on November 11, 2016, a Bramalea City Centre Mall security guard, Jacob McNabb, was investigating reports of three males in a single bathroom stall with smoke in the air. Mr. McNabb attended the scene, identified himself as a security officer and instructed the young men to exit the stall. One of these men was Malcolm Williams.

[3] Initially, they did not comply. Eventually they exited the stall. Two of the men fled. There was physical contact between the security guard, Mr. McNabb, and Mr. Williams. Mr. McNabb sought to arrest Mr. Williams for assault. Mr. Williams managed to evade Mr. McNabb. Mr. Williams was tackled and brought to the ground by other security guards who had arrived on scene.

[4] At approximately 5:15 p.m., Mr. McNabb arrested Mr. Williams for assault. At 5:24 p.m., mall dispatch called police and told them that Mr. Williams was in custody for assault. At 6:13 p.m., the police called mall security and advised them that they would be late. The police did not arrive until 8:29 p.m.

[5] Mr. Williams was transferred to police custody at 9:21 p.m. He had been in the custody of mall security for approximately four hours.

[6] The police arrested Mr. Williams for assault. A search of Mr. Williams incidental to that arrest revealed that he had 2.2 grams of marihuana, 2.4 grams of cocaine, 28 grams of cocaine concealed in his pants. At trial, Mr. Williams conceded that he had the cocaine on his person for the purpose of trafficking.

POSITION OF THE PARTIES

[7] The Crown seeks an 18-month sentence with credit for any pre-trial custody, a s. 109 weapons prohibition order for 10 years and a DNA order.

[8] Mr. Williams was under house arrest during that period. He was under house arrest for two years. Nine months of the two years was served as a conditional sentence. In effect, Mr. Williams was subject to a restrictive house-arrest type bail condition for 15 months. Relying on the Court of Appeal’s decision of R. v. Downes (2006), 79 O.R. (3d) 321 (C.A.), Mr. Williams seeks credit of three to five months for those strict bail conditions. Defence counsel submits that a sentence of 9 months minus pre-trial credit is appropriate.

LAW

[9] The applicable sentencing principles are enumerated in s. 718 of the Criminal Code and s. 10 of the Controlled Drugs and Substances Act. Deterrence and denunciation are paramount sentencing considerations in this case; however, rehabilitation is also an important consideration.

[10] In [R. v. Woolcock, [2002] O.J. No. 4927 (C.A.)], police executed a search warrant of Mr. Woolcock’s residence and discovered 6.3 grams of crack cocaine; less than 1 gram of marihuana; and drug paraphernalia, including a digital scale, drug packaging, a debt list, and cash in the amounts of $926 and US $60. Mr. Woolcock was convicted after a jury trial of possession of cocaine for the purpose of trafficking.

[11] Mr. Woolcock was 53 years old. He was not addicted to drugs. He had 2 prior drug convictions where he received a 30-day sentence. Prior to his 1998 conviction, Mr. Woolcock lived a normal and productive life. He was gainfully employed and owned his own business for a time. In 1991, his 23-year marriage ended and his older brother passed away. He lost his business and lost his house. He began associating with drug dealers.

[12] The Court of Appeal set a wide sentence range for this type of offence, between six months to two years less one day. The court reduced the trial sentence of 2 years less a day to 15 months.

[13] In R. v. Barkhouse, 2017 ONCA 29, Mr. Barkhouse pled guilty to possession of 28 grams of cocaine for the purpose of trafficking. He pled guilty and was admitted to the Halton Drug Treatment program, from which he was expelled. Mr. Backhouse was a drug addict, a first time offender with strong family and community support and has a treatment plan in place for when he was released. The trial sentence of 15 months was reduced to 9 months.

[14] In R. v. Ahmed, 2016 ONCA 831, Mr. Ahmed pled guilty to conspiracy to traffic in cocaine. The amount involved was 28 grams. He had two previous convictions for possession of cocaine and a prior conviction for possession of cocaine for the purpose of trafficking. He was not a member of a criminal organization, but had links to a “larger semi-organised criminal commercial enterprise”: at para. 4. Mr. Ahmed had broken away from his co-conspirators and left behind his negative peer group to work in his father’s business. The trial judge gave him two months credit for the seven and a half months of immigration detention. The trial sentence of two years less a day, less eight months’ credit for pre-sentence custody, was upheld on appeal.

[15] The aggravating factors are as follows: the insidious and destructive nature of cocaine, which is highly addictive and has a destructive impact on humanity that is well documented and not in dispute; Mr. Williams admitted that possession was for the purpose of trafficking; the motive was purely commercial; he had no addiction; the quantity was significant, namely 28 grams; and Mr. Williams was in possession of the cocaine in a public place, a mall.

[16] The mitigating factors are as follows: Mr. Williams has no criminal record prior to this offence; he was detained for a lengthy period by mall security guards on a charge of minor assault; there is no evidence that he was selling cocaine in the mall; Mr. Williams has strong family support from his mother, sister and father; Mr. Williams intends to re-train and seek employment, and he has expressed his prospects for rehabilitation to be good; and his agreed statement of facts and testimony admitted possession and possession for the purpose of trafficking. He raised a discrete legal issue; otherwise, the agreed statement of facts was essentially a guilty plea on the possession for the purpose charge, and this approach saved court time.

DISCUSSION/ANALYSIS

[17] The quantity of crack cocaine, 28 grams, is the same as in Barkhouse and Ahmed. No addiction or ties to a large criminal organisation exist in this case. Mr. Williams noted that he had received 28 grams of crack cocaine for sale on consignment.

[18] In this case, the conditions under which the agreed statement of facts was admitted into evidence and the length of Mr. Williams’ detention amount to an exceptional circumstance. Upon considering the aggravating and mitigating factors within the ranges set out in Woolcock, the appropriate sentence in this case is 18 months. Given the exceptional circumstances, the sentence is reduced to 13 months. He shall receive 2 months’ credit for the 15 months spent under restrictive house arrest; therefore, Mr. Williams is sentenced to 11 months. There will be a s. 109 order for 10 years and a DNA order.

Barnes J. Released: June 5, 2019