Court File and Parties

COURT FILE NO.: CR-18-9 DATE: 2019/01/18 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – Michael Francis

Counsel: Ronald Turgeon, Counsel for the Federal Crown Lorne Goldstein, Counsel for the Accused

HEARD: November 20, 2018

REASONS on sentencing leroy, j.

Introduction

[1] Mr. Francis pled guilty to possession of cocaine for the purpose of trafficking and simple possession of oxycodone. One of the main individuals subject to a broader police investigation into drug trafficking in South Dundas visited Mr. Francis’ home. The police acted on a warrant search of the Francis home on July 28, 2016 and recovered one baggie containing two chunks of cocaine weighing sixty-six grams, a second baggie containing another thirty-five grams of powdered cocaine, a third baggie containing one hundred and thirteen oxycodone pills, two cell phones, cash and marijuana. At the time, Mr. Francis consumed in the range of ten Oxycodone pills daily.

Sentence Provisions

[2] The maximum sentence under s. 5(3)(a) of the Controlled Drugs and Substances Act is imprisonment for life. The maximum sentence for possession of a Schedule I substance is imprisonment for a term not exceeding seven years. A conviction under s. 5(3)(a) attracts a s. 109(1)(c) mandatory firearms/weapons prohibition; a proceeds of crime forfeiture order on Crown application under s. 462.37(1); a discretionary DNA order on Crown application under s. 487.051 as a secondary-designated offence. Neither of a discharge or conditional sentence are available options.

Positions of Counsel

[3] The Crown seeks imprisonment for nine months, the s. 109 order for ten years, DNA order on the cocaine and a forfeiture order for the money, substances and accoutrements seized, excluding the air gun.

[4] The defence position is that Mr. Francis has already served the equivalent of nine months imprisonment. He dedicated two years to managing addiction issues and twenty-seven and one-half months resident in isolation with his mother. He should be excused from incarceration. Defence does not take issue with the ancillary orders sought by the Crown.

Sentence Principles

[5] Section 718 of the Criminal Code establishes that the fundamental purpose of sentencing 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 just sanctions with one or more of the following objectives:

a. denouncing unlawful conduct; b. deterring the offender and others from committing crimes; c. separating offenders from society where necessary; d. assisting in the rehabilitation of the offender; e. providing reparations for harm done to the victim or to the community; f. promoting a sense of responsibility in the offender; and g. acknowledging the harm done to victims and the community.

[6] The fundamental principle of sentencing is proportionality. A sentence must be proportionate and broadly commensurate with the gravity of the offence and the moral blameworthiness of the offender (s. 718.1 CCC). The two perspectives on proportionality should converge in a sentence that both speaks out against the offence and punishes the offender no more than necessary.

[7] This is achieved by considering:

i. any relevant aggravating or mitigating circumstances relating to the offence or the offender. A sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances. Mitigating and aggravating factors are only those that are related to gravity of the offence or moral blameworthiness of the offender. The absence of a factor is neutral. ii. Similar sentences for similar offenders for similar offences in similar circumstances (s. 718.2 (b) CCC). Attempts at parity will never be precise. iii. all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders. An offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances (s. 718.2(d)).

[8] The principle of restraint is important, especially where the offender is a first-time offender. However, there are circumstances where it is necessary for a first-time offender to be sent to prison. In such cases, the principle of restraint must be kept in mind in determining the length of the sentence imposed.

[9] Rehabilitation is a sentencing objective. Rehabilitation is closely allied with the objective of restraint. Society does not normally need protection from an offender who is completely rehabilitated; accordingly, it is in society's interest to assist an offender with his or her rehabilitation. The potential for rehabilitation varies with the individual offender. Where an offender is a first-time offender who is of previous good character, the rehabilitation potential may be high, and this rehabilitation potential should be an important factor even where the offender has committed a serious criminal offence. Where a potential for rehabilitation exists, a lengthy sentence might crush the hope of rehabilitation: R. v. Brown, [1995] O.J. No. 545 (Ont. C.A.) at para. 11.

Circumstances of the Offender

[10] Mr. Francis is thirty-seven, residing with his mother. He does not drive. He has been attached to the workforce. He suffered a badly broken leg on July 1, 2012. He became addicted to prescribed pain medication. By the time the prescription ended, he became ill unless he could replenish the medication. By July 2016, he was all in.

[11] Individual deterrence is not an issue for Mr. Francis. He embarked on the long road back. He is enrolled in the methadone program and attends drug counselling. Mr. Francis concluded his narrative with: “The officers who arrested me will never know how grateful I am. They may have busted me for another reason but little did I know they saved my life.”

[12] Mr. Francis earned take-home doses within the methadone treatment program and is at the maximum level. He is on a weaning dose. Part of the program included treatment for depression. The treatment program observed that “it would be detrimental to interrupt his treatment program and incarceration would pose a high risk for relapse to addictive substances with resultant bad outcomes both for the patient and society at large.”

[13] Mr. Francis depicted the stash house role as one coerced under duress. Mr. Francis was not involved in sales. He stored the product at the behest of others.

[14] After the arrest, Mr. Francis was released on bail into the care of his mother, subject to curfew between 9:00 p.m. and 6:00 a.m. The residence is rurally situated. Mr. Goldstein likened the residential situation to operative house arrest. Without a license to drive, the distances extended the curfew into the domain of house arrest.

Aggravating and Mitigating Circumstances

[15] Three ounces of cocaine for the purpose of trafficking together with possession of oxycodone, in the context of a stash house is aggravating. The stash house is a layer in enforcement obfuscation. It complicates investigations. This large quantity of cocaine can, in slightly different circumstances, attract penitentiary time, even with a guilty plea – see R. v. Lecompte, 2012 ONSC 2170.

[16] The gravity of offence is what it is. Cocaine is a dangerous and insidious drug with potential to cause great harm to individuals and society – R. v. Woolcock, [2002] O.J. No. 4927 – para 8. Possession of cocaine for the purposes of trafficking warrants an emphasis on the objectives of deterrence and denunciation.

[17] The principle of denunciation is an expression of society’s attitude towards the offence committed. It focuses on the aspect of conduct, not on the personal characteristics of the offender. In R v. M. (C.A.), [1996] O.J. No. 500 at 81, Justice Lamer of the Supreme Court of Canada wrote that, “In short, a sentence with a denunciatory element represents a symbolic, collective statement that the offender’s conduct should be punished for encroaching on our society’s basic code of values as enshrined within our substantive criminal law.”

[18] The Crown did not contest the coercion/duress context for stashing the product.

[19] The sentencing materials depict Mr. Francis as a good person who got lost in an addiction resulting from consumption of prescribed oxycodone pain medication. Mr. Francis acknowledges the impact these offences have brought on his family and community. These are his first offences.

[20] Mr. Francis engaged for personal use as opposed to pure financial gain. Mr. Francis achieved recovery, no small feat. There is concern that imprisonment will jeopardize his recovery, not because he cannot acquire methadone in prison, rather it is the dearth of counselling and concern he might be muscled for the methadone.

[21] He expresses appreciation for the arrest, acknowledging it as life-saving. He entered a plea of guilt.

[22] The Crown states there is no basis for a reduction for Downes credit. Curfew is not house arrest and Mr. Francis did not apply to change the release conditions to those that accommodated the intended liberty interest. That the offender’s personal circumstances exceptionally compromised Mr. Francis’ accessibility to the community is not related to the moral blameworthiness of the offender.

[23] In R. v. Downes, [2006] O.J. No. 321, the Court of Appeal wrote:

Time spent under stringent bail conditions, especially under house arrest, must be taken into account as a relevant mitigating circumstance. However, like any potential mitigating circumstance, there will be variations in its potential impact on the sentence, and the circumstances may dictate that little or no credit should be given for pre-trial house arrest. The jurisprudence eschews a rigid formula for calculating the amount of credit to be given because there can be such a wide variation in bail conditions, and even house arrest conditions. The amount of credit will depend upon a number of factors, including the length of time spent on bail 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. In the end, the amount of credit and the manner in which it is taken into account as a mitigating factor is a matter for the trial judge. Where the offender asks the trial judge to take pre-trial bail conditions into account, the offender should supply the judge with information as to the impact of the conditions.

[24] The restrictions on freedom inherent in the offender’s residential circumstances is mitigating. I have to disagree with Mr. Turgeon’s submissions regarding the Downes mitigative effect that the bail restrictions had on Mr. Francis. The evidence is that after Mr. Francis achieved stable recovery, he resided with his parents subject to curfew. I expect that anyone who resides in a rural setting will recognize travel limitations when an individual does not drive. An island without a boat. House arrest by another name. His ability to carry on normal relationships, employment and activity was constrained by bail and living circumstances.

[25] The freedom intended by the imposition of a curfew to have a social or work life was thwarted and having been so constrained for over two years mitigates. That said, the isolating effect would have inhibited temptation.

Jurisprudence

[26] As Mr. Turgeon said, the range of sentence for the cocaine offence is between one half year and six years imprisonment. I have for consideration the Crown summary of cases establishing this range.

[27] As comparison, Mr. Lecompte was twenty-five without a prior record. He pled guilty to one count of possession of 133 grams of crack cocaine for the purpose of trafficking. Crack cocaine elevates the gravity of offence. That Mr. Lacompte was engaged solely for the purpose of financial gain was an aggravating factor, not present here. He was sentenced to three years imprisonment.

[28] As noted, possession of cocaine for the purposes of trafficking warrants regard to the purposes of deterrence and denunciation, although not to the exclusion of the other principles and purposes of sentencing. Rehabilitation as purpose is an important factor.

Conclusion and Disposition

[29] Crown and defense are of the same view save for the effect of pre-trial bail as a mitigating factor. The gravity of offence is pushed by a dangerous and insidious drug with potential to cause great harm to individuals and society, the quantity involved and the necessary service Mr. Francis provided to the chain of operation.

[30] They agree that the guilty plea, absence of record, significant commitment to rehabilitation, the reality that Mr. Francis was engaged in this criminal activity to support a habit and under some duress exerted by the more central operatives moves the proportionality needle in the direction of a sentence of nine month’s imprisonment.

[31] But for the impact of pre-trial bail release circumstances Mr. Francis endured over a period of over two years, I accept the Crown properly factored all of the purposes and principles of sentencing into what was a fair and just proposal for resolution.

[32] The Crown position of imprisonment for nine months satisfies the objectives of denunciation, deterrence, rehabilitation, reparation and the principles of restraint, proportionality and parity.

[33] The Crown declined to factor an evaluation of the mitigating effect of the pre-trial bail circumstances. Mr. Turgeon submitted that the circumstances depicted by Mr. Francis did not merit Downes credit.

[34] Mr. Goldberg advocated a credit equivalent to one half day for each day of the two plus years. The Downes Court eschewed a rigid formula for calculating the amount of credit to be given because there can be such a wide variation in bail conditions and circumstances.

[35] I appreciate that the stigma of the charges, the delay, inconvenience and strain of outstanding charges may, in some circumstances, warrant the formula advocated. In this case, a sentence that allows Mr. Francis to escape imprisonment would distort harmonization of gravity of offence and moral blameworthiness of the offender and denude the denunciatory effect of this sentence. By exercising restraint in sentence the debilitative effect of incarceration on Mr. Francis’ rehabilitation is assuaged.

[36] The bail circumstances in the case at bar merit a credit of four months.

[37] The offence requires imprisonment. The fit sentence is nine months imprisonment. After credit for four months Mr. Francis is sentenced to imprisonment for a period of five months on the cocaine count and one month concurrent for possession of oxycodone to be followed by probation for six months, reporting required to include statutory terms and that he follow the direction of the supervisor. I cannot but have sympathy for an offender who became addicted to opioids as the result of medical prescription. I recommend that Mr. Francis be considered for TAP and expedited parole. He will require ongoing access to his methadone regimen. No carries to avoid inmate coercion. If counselling is available as part of the treatment program in the prison, I urge that he be considered as a suitable candidate.

[38] The ancillary orders to issue:

i. s. 109 weapons prohibition for ten years; ii. DNA warrant on the cocaine conviction; iii. Forfeiture order for all seized articles, save the air gun.

The Honourable Mr. Justice Rick Leroy Released: January 18, 2019