R. v. Alexander, 2019 ONSC 3737

Court File and Parties

Date: 2019-06-17 Court: Superior Court of Justice – Ontario

Between: Her Majesty the Queen Counsel: Julia DeFilippis for the Public Prosecution Service of Canada

• and -

Boyd Alexander Counsel: Rafik Kodsy for Mr. Alexander

Heard: June 12, 2019

Reasons for Sentence

Corrick J. (orally)

Introduction

1Mr. Alexander pleaded guilty before me on January 26, 2018 to possession of cocaine for the purpose of trafficking. The matter of sentence was adjourned until October 5, 2018 to permit Mr. Alexander to complete a residential drug treatment program. He failed to appear for sentencing. He was arrested on March 5, 2019 and charged with failing to appear in court. He pleaded guilty to that charge before me on June 12, 2019. He appears before me today for sentencing on both charges.

Circumstances of the Drug Offence

2On July 28, 2016, the police executed a search warrant on a residence. Mr. Alexander was found in the residence in possession of 26.03 grams of powder cocaine.

Legal Parameters

3Possession of cocaine for the purpose of trafficking is punishable by a maximum of life in prison. The maximum penalty reflects the seriousness with which Parliament regards this offence.

Positions of the Parties

4Ms. DeFilippis, on behalf of the Crown, submits that a total sentence of 15 months in custody is the appropriate disposition in this case. She also seeks a DNA order, and a weapons prohibition order.

5Mr. Kodsy, on behalf of Mr. Alexander, submits that the court ought to fashion a sentence that addresses the root cause of Mr. Alexander’s criminal behaviour - his drug addiction. He argues that after Mr. Alexander is credited with the time he has spent in pre-sentence custody, he should be sentenced to a 90-day term of imprisonment to be served intermittently on the drug charge. This sentence should be followed by a conditional sentence of some length for the fail to appear charge. The important term of the conditional sentence would be a requirement that Mr. Alexander receive treatment for his drug addiction.

6Both parties agree that Mr. Alexander should be credited for the 113 days he has spent in pre-sentence custody at the rate of 1.5 to 1.

7Mr. Alexander does not contest the imposition of the ancillary orders sought by Ms. DeFilippis.

Circumstances of the Offender

8Mr. Alexander is 26 years old. He has four children, between the ages of 8 years and six months. He supports three of those children.

9He has not completed high school. He suffers from ADD, and had a difficult time in school as a result. He experienced negative side effects from the medication he was prescribed and his parents stopped giving it to him. He has unsuccessfully tried to complete high school at three different adult learning centres.

10Mr. Alexander has worked off and on for his father’s cleaning business since 2009. It does not appear that he has had other significant employment. In the summer of 2018, he apprenticed with a locksmith business. The owner of that business has indicated in a letter filed with the court that he is prepared to provide Mr. Alexander a job upon his release from prison.

11Mr. Alexander’s mother and two long-time friends have also written letters indicating their support for Mr. Alexander.

12Mr. Alexander has the following criminal record.

• 02-27-2009 fail to comply - recognizance 1 year probation
• 03-19-2009 armed robbery time served (30 days) & 18 months probation
• 11-17-2009 theft under fail to comply - disposition time served (15 days) & 18 months probation
• 08-27-2010 obstruct police 12 months probation
• 10-02-2012 (1) possession property obtained by crime (2) fail to comply - recognizance (1-2) suspended sentence & 12 months probation (30 days pre-sentence custody)
• 06-19-2013 fail to comply - recognizance 3 days (22 days pre-sentence custody)
• 02-13-2014 (1) forcible confinement (2) dangerous operation of motor vehicle (1) 4 months (63 days pre-sentence custody) (2) 4 months concurrent & 2 years probation
• 02-18-2014 uttering threats suspended sentence & 2 years probation (60 days pre-sentence custody)
• 11-27-2015 breach of probation unknown
• 02-05-2016 (1) criminal harassment (2) fail to attend court 1 day concurrent & 14 months probation (90 days pre-sentence custody)
• 02-05-2016 (1) fraud over $5,000 (2) use forged document (1) 14 days & 14 months probation (106 days pre-sentence custody) (2) 14 days concurrent & 14 months probation (71 days pre-sentence custody)

13The roots of Mr. Alexander’s drug addiction began in high school, when he used alcohol and marijuana. He then graduated to abusing pills, and in his early 20’s began using cocaine. He became addicted and by the time he was arrested, he was using three grams each day. He has abstained from drugs while in detention.

14Mr. Alexander has spent 113 days in pre-sentence custody. Records filed from the Toronto South Detention Centre indicate that between March 7, 2019 and May 5, 2019, the institution was locked down on five occasions. On three occasions, some of the units at the institution were locked down; on two occasions, the entire institution was locked down, once starting at 6:30 p.m. and once starting at 8:30 a.m. Mr. Alexander’s conduct was not the cause of any of the lockdowns. Mr. Kodsy submits that Mr. Alexander should be credited with two days for the five days of lockdowns.

Governing Sentencing Principles

15In determining a fit sentence for Mr. Alexander, I am governed by the sentencing principles set out in the Criminal Code.

16The first is the fundamental purpose of sentencing set out in s. 718 of the Criminal Code, which is to "contribute, along with crime prevention measures, to respect for the law and the maintenance of a just, peaceful and safe society" by imposing sentences that have one or more of the following objectives:

1. denouncing unlawful conduct,
2. deterring the offender and others from committing crimes,
3. separating offenders from society where necessary,
4. assisting in the rehabilitation of the offender,
5. providing reparations for harm done to the victim or to the community,
6. promoting a sense of responsibility in the offender, and
7. acknowledging the harm done to victims and the community.

17The second principle is proportionality as set out in s. 718.1. Any sentence I impose must be proportionate to the gravity of the offence and the responsibility of the offender.

18I am also required by s. 718.2 to take the following matters into consideration when imposing sentence:

• the sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender;
• where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;
• the sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;
• offenders should not be deprived of liberty if less restrictive sanctions may be appropriate; and
• all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders.

Sentences Imposed in Other Cases

19To determine the appropriate disposition, I must consider sentences imposed on similar offenders for similar offences in similar circumstances. I turn to that now.

20I have reviewed the decisions to which Ms. DeFilippis and Mr. Kodsy have referred in support of their positions. A careful review of them demonstrates that sentencing is not an exact science. It is instead a profoundly individualized process driven by the unique facts of every offence and the unique characteristics of every offender. The circumstances of any case, including this one, can be readily distinguished from any other case. Despite this, prior decisions assist in defining the principles that I must apply, and in determining the appropriate range of sentence and the factors that place Mr. Alexander within that range.

21Counsel agree that the range of sentence for the drug offence is between six months and two years less one day in prison. This range is based on a number of decisions of the Court of Appeal. The issue is where Mr. Alexander falls within that range and the role rehabilitation plays in determining the appropriate sentence.

22Ms. DeFilippis referred me to decisions in which the offender was sentenced to periods of incarceration between 15 and 22 months. At the low end is the decision of R. v. Kampe, 2014 ONCA 255. Although the Court of Appeal’s decision does not contain many details related to the offender, I was the sentencing judge and am familiar with them. Following a trial, Mr. Kampe was convicted of possession of 5.06 grams of crack cocaine for the purpose of trafficking. He was 36 years old, and had a criminal record that included at least two related convictions. He was not an addict, but was engaged in drug trafficking for profit. He was sentenced to 15 months in jail.

23At the upper end of the range is the case of R. v. McAnuff, an unreported decision of Justice Conlan. In that case, the offender was found in possession of 21 grams of cocaine, and eight .38 calibre bullets. At the time, he was prohibited from possessing ammunition by a court order. This was his third conviction for a drug-related offence and his fourth for a firearm or ammunition related offence. There is no indication that the offender was an addict. He was sentenced to 22 months in prison. The aggravating factors of the offender’s possession of drugs and ammunition, together with his violation of a weapons prohibition order are features not present in Mr. Alexander’s case.

24In the middle is the decision of Justice Goldstein in R. v. Carelse-Brown, 2013 ONSC 7042. In that case the offender was found guilty following a trial of possession of 25.3 grams of crack cocaine for the purpose of trafficking. He was a 24-year-old first offender. He was a commercial drug trafficker. He was sentenced to 21 months in prison.

25The significant distinguishing feature of Mr. Alexander’s case from the cases relied upon by Ms. DeFilippis is that Mr. Alexander is not a commercial trafficker; he is an addict trafficker, selling drugs to support his own drug habit. The absence of a commercial motive for the sale of drugs is a mitigating feature of Mr. Alexander’s case: R. v. Barkhouse 2017 ONCA 29.

26The cases referred to by Mr. Kodsy emphasize the importance of imposing a proportionate sentence tailored to the individual needs of the offender, and the gravity of the offences.

27As I have already indicated, no two offences or offenders are the same, and it is difficult to compare this case to any other.

Aggravating and Mitigating Factors

28I turn now to the aggravating and mitigating factors of this case, which I am required to consider.

29First the aggravating features.

1. Mr. Alexander was in possession of almost an ounce of cocaine for the purpose of trafficking. Cocaine is a very serious drug. It is a poison that wreaks havoc on the lives of addicts, their families and the community at large. Our courts have recognized on numerous occasions the immeasurable harm cocaine does to the fabric of our society.
2. Mr. Alexander has a criminal record, including a prior conviction for failing to attend court and five convictions for breaching a court order, including a probation order. It appears from Mr. Alexander’s criminal record that the leniency he has been shown in the past has not had the desired rehabilitative and deterrent effects.

30I have also considered the following mitigating factors.

1. Mr. Alexander has taken responsibility for these offences. He has pleaded guilty. He told me that he regretted his actions, and the pain and grief he has caused his family. He is anxious to put this behind him, and move on with his life. He told me in his address to the court that he needs and wants help to fight his addiction. I take him at his word. The fact that he has pleaded guilty, taken responsibility, and shown remorse, are hopeful signs for his rehabilitation.
2. He has the support of his parents and others in his community, which will assist him to reintegrate into the community.
3. Mr. Alexander is an addict trafficker. His possession of cocaine was not part of a commercial enterprise.

What is the Fit Sentence?

31The paramount sentencing objectives in cases involving possession of cocaine for the purpose of trafficking are denunciation and deterrence. In this case, rehabilitation cannot be overlooked, for protection of the public is best achieved by Mr. Alexander’s rehabilitation.

32After considering all of the relevant factors, the personal circumstances of Mr. Alexander, and the principle of totality, I am of the view that a further custodial sentence for the drug offence is necessary to satisfy the objectives of denunciation and deterrence, both general and specific. I am also of the view that Mr. Alexander will benefit from strict supervision that will guarantee that he will at least begin to receive treatment for his drug addiction.

33It appears that Mr. Alexander is unable to take control of his drug addiction on his own. Treatment was made available to him following his guilty plea before me in January 2018. He did not avail himself of it. Although Mr. Kodsy submitted that Mr. Alexander did not attend court in October for sentencing because he was expecting a child in January 2019, I suspect it had less to do with that and more to do with him falling into old patterns of cocaine abuse.

34To accomplish these two important goals, I am imposing the following sentence. Before giving him credit for pre-sentence custody, Mr. Alexander will be sentenced to 10 months or 304 days in prison for the drug offence, to be followed by a six-month conditional sentence for the fail to attend court offence.

35I have considered Mr. Kodsy’s submission that the appropriate disposition is a further 90 day sentence to be served intermittently. In my view, that sentence is disproportionate to the gravity of the offence, particularly given the amount of cocaine involved, and the circumstances of Mr. Alexander.

36Mr. Alexander will be given credit for the time he has spent in pre-trial custody, pursuant to s. 719.3 of the Criminal Code. He has served 113 days. Enhanced at 1.5 days for each day he has spent in pre-trial custody, he will be credited with 170 days.

37Mr. Kodsy has submitted that Mr. Alexander ought to receive two days credit for the time he spent in custody subject to lockdowns. In certain circumstances, the court may consider harsh pre-sentence incarceration conditions when determining the appropriate sentence. However, there is no evidence before me about the effect of the lockdowns on Mr. Alexander. Three of the lockdowns were partial and there is no evidence that they affected the unit where Mr. Alexander was housed. Two lockdowns lasted less than two hours. In the absence of evidence, I am not prepared to give Mr. Alexander any further credit.

38On the fail to attend court offence, Mr. Alexander is sentenced to a six-month conditional sentence. The goal of this sentence is to ensure that Mr. Alexander receives treatment for his drug addiction. I am hopeful that the incentive of avoiding further jail time will motivate Mr. Alexander.

39The conditions of the conditional sentence are as follows:

1. Keep the peace and be of good behaviour.
2. Appear before the court when required to do so.
3. Report in person to your conditional sentence supervisor within one working day of your release from custody, and thereafter as your supervisor requires.
4. Remain in Ontario unless you have prior written permission from your supervisor to leave the province.
5. Reside at an address approved of by your supervisor and do not change that address without the prior consent of your supervisor.
6. Be in your place of residence every night between 11:00 p.m. and 6:00 a.m. unless you have prior written permission from your supervisor or are in a residential drug treatment program.
7. Attend and actively participate in all assessment and counselling programs for substance abuse as directed by your supervisor, and sign any release forms necessary for your supervisor to monitor your compliance with this condition.

40In conclusion, on the drug charge, Mr. Alexander is sentenced to a total sentence of 304 days less 170 days for the time he has spent in pre-sentence custody. Once the credit is deducted, Mr. Alexander is required to serve a further 134 days. On the fail to attend court charge, he is sentenced to a consecutive six-month conditional sentence.

Ancillary Orders

41I also make the following additional orders.

42Pursuant to s. 109 of the Criminal Code, Mr. Alexander is prohibited from possessing any weapon described in that section for ten years.

43Pursuant to s. 487.051(3), Mr. Alexander will provide a sample of a bodily substance for the purpose of forensic DNA analysis.

Corrick J.