R. v. Shallow, 2019 ONSC 403

COURT FILE NO.: CR17900005180000 DATE: 2019/01/10 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – LETRAE PAUL SHALLOW

Counsel: Chris Leafloor, for the Crown Geary Tomlinson, for Letrae Paul Shallow

Heard: September 10, November 23 and December 21, 2018

Before: Spies J.

REASONS FOR SENTENCE

1On June 11, 2018, the defendant, Letrae Paul Shallow, was convicted of possession of cocaine for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (“CDSA”). The facts relevant to this offence are set out in my decision dismissing Mr. Shallow’s application for an order pursuant to s. 24(2) of the Canadian Charter of Rights and Freedoms excluding as evidence from his trial an utterance that he made to police and the cocaine seized by the police, as a result of alleged violations of his rights under ss. 8, 9 and 10 of the Charter and dismissing the Crown’s application to admit an utterance made by Mr. Shallow: R. v. Shallow, 2018 ONSC 3616. After I made these decisions Mr. Shallow did not contest the Crown’s case. Mr. Shallow is now before me for sentencing.

The Facts

(a) Circumstances of the Offence

2On August 19, 2016 Mr. Shallow was found in possession of 21.79 grams of crack cocaine that the police found in a black bag in the vehicle he was driving during a random traffic stop. This was a puck shaped lump of crack cocaine, wrapped in cellophane, and was inside the only inside zippered pouch in the black bag. Mr. Shallow admitted that he was in possession of this quantity of crack cocaine for the purpose of trafficking. Counsel agreed that the value of this quantity of cocaine was between $900.00 and $2,000.00, if sold at street level, based on the value of a comparable amount of crack cocaine set out in R v. Thomas, 2016 ONSC 7792 at para. 6.

(b) Circumstances of Mr. Shallow

3I received both a Pre-Sentence Report and a brief of sentencing materials that provided me with more than the usual amount of information about Mr. Shallow’s background and his circumstances at the time of this offence. Based on that material, the information relevant to his sentencing is as follows.

4Mr. Shallow is of African-Canadian descent. He was 18 years old at the time of his arrest and is now 21. He has no criminal record. He was born in Toronto and his parents separated when he was five years old. Mr. Shallow has maintained a close relationship with his mother and a half-brother. He is not close to his father. Over the years he did not always live with his mother as she frequently changed her address. As a result he lived with his uncle, who was a father figure to him, until he was 14, when his uncle was deported back to England. At the time of sentencing Mr. Shallow was living with his mother.

5Mr. Shallow is in a long time relationship and is the father to a one and a half year old daughter. He is now engaged to the mother of his child who advised the probation officer that Mr. Shallow is very active in their daughter’s life and spends as much time as he can with her and that he supports her emotionally and financially. His fiancée is attending Centennial College in Scarborough in the Social Services Worker program.

6Mr. Shallow’s current employer, a renovation company, confirmed that he has been working with them part-time since January 2017 and a Job Site Runner. I do not know if this employer is aware of this conviction or if they would hold a position for Mr. Shallow should he be incarcerated.

7In a letter from the President of the Durham City Basketball Association (“DCBA”), the President stated that Mr. Shallow has been a volunteer in their program in many capacities since 2016, including coaching and assisting with special events. He stated that Mr. Shallow “has always carried himself in a professional manner and is great working with the kids”. He was surprised to hear of Mr. Shallow’s charges and states that he spoke to him and believes that Mr. Shallow made an error in judgment and is now:

… ready to make amends for his mistake. This situation was very out of character for him and the club will continue to support him working through this error in judgment he made. I have no doubt he will move forward in a positive direction one the situation has concluded.

8In a letter from a Caseworker with Black Youth Jobs Community Services (“BYJ”) the Caseworker stated that Mr. Shallow was referred to him by a teacher and friend of his family. He stated that Mr. Shallow has clear career goals in the areas of business, photography and music and that he completed an admissions test at Centennial College in November 2018 and was admitted to the College’s ACE bridging/upgrading program (“ACE Program”). He also stated that Mr. Shallow will have BYJ’s support throughout his college term as well as assistance with his job search, mentoring and networking. I am advised that even though Mr. Shallow has not completed high school that by successfully completing this program he will be able to transition to the college courses that he wishes to take.

9Mr. Shallow admitted to the probation officer that he was selling crack cocaine when he was 17 to 18 years old. I have no information on why or to what extent Mr. Shallow was trafficking crack cocaine at the time of his arrest. In 2015 his mother was supporting him financially. Mr. Tomlinson submitted that at the time of the offence Mr. Shallow was abusing marijuana in an addicted way although he said that he was not suggesting that Mr. Shallow was selling cocaine to support that addiction.

10The background educational and mental health information I have about Mr. Shallow is as follows. Mr. Shallow was diagnosed with a learning disability in kindergarten which funded an education assistant in his elementary grades. While he was in elementary school he experienced bouts of depression and anxiety and he reported to his mother much later that he was dealing with sexual abuse from a female babysitter when he was a young child.

11The Defence filed records from The Rouge Valley Health System (“The Rouge”) and the East Metro Youth Services (“EMYS”). Based on those records, it appears that in early 2015 Mr. Shallow was a student in the Supervised Alternative Learning (“SAL”) program. He was referred by a social worker to EMYS for the Priority Access for Schools program because of a longstanding history of truancy dating back to the ninth grade resulting in his not moving on from that grade. This truancy apparently coincided with the deportation of Mr. Shallow’s uncle, which was considered to be a major disruptive episode in his emotional development.

12Mr. Shallow was assessed by a social worker from EMYS who prepared an assessment report in April 2015. At that time Mr. Shallow expressed a desire to work on anger management and he wanted to find meaningful employment through the SAL program. His mother also attended one of the sessions with the social worker and she shared that she wanted Mr. Shallow to feel that he was worth something and hoped the SAL program would increase his hopefulness and happiness, decrease his substance use, help him learn to cope with distress and begin to work. She was clearly a very positive support for her son at that time, which appears to be the case to the present.

13The social worker reported that after Mr. Shallow’s uncle left he felt lost and abandoned and this is when he got involved in using marijuana, which according to his mother “turned him into a different person”. Around this time Mr. Shallow decreased his pro-social activities such as skateboarding with friends and began spending time with peers who he described as negatively influencing him. Mr. Shallow told the social worker that he was arrested as a result of peer involvement in suspected illegal activities. The charges were dropped but Mr. Shallow recalled this as a frightening and hostile experience as he alleged that the police used brute force to restrain him and were verbally abusive. Mr. Shallow also reported that he had frequently been a victim of carding and had developed a deep mistrust for police and a fear that he would be targeted again. At this time Mr. Shallow was isolating himself and decreasing social contact, had feeling of hopelessness and was fearful that something bad was going to happen to him. He had finally agreed to a psychiatric assessment. The social worker noted that while seeing Mr. Shallow “it has become clear that Letrae values truthfulness, personal freedom, respect for others, and justice. These strengths will be useful in treatment in accessing and incorporating Letrae’s core belief into motivation for change.” She goes on to state that:

Precipitating factors for Letrae’s current challenges with emotion regulation, depression-like symptoms and challenges with attaining success in education and workplace endeavours include his learning disorder, early childhood experiences with abandonment and family conflict, and his uncle’s deportation which was a turning point in this life. […] the relationships that Letrae has with his girlfriend, mother, and brother all serve as protective factors. He has numerous personal strengths, of which his determination, desire to succeed and willingness to develop insight into self are all important and relevant to treatment. [Emphasis in the original]

14The goals that were established in this assessment included improving Mr. Shallow’s mood, helping him find meaningful employment, and developing strategies for coping with his anger, with a target date of September 2015. This process ended in the middle of November 2015. The final report noted that Mr. Shallow did not attend sessions scheduled for May, June, September and October, 2015 and his attendance for treatment was noted as sporadic and minimal and that his motivation to change was very low. Nevertheless improvements were noted; namely a positive shifts in mood. The final report states that Mr. Shallow lost his spot in a paid Jobs for Youth program because of a failure to attend but with the help of his mother he was admitted to the Access Alternative School Program. I have no information as to what this program is or was meant to do.

15In June 2015, Mr. Shallow was seen at The Rouge by a psychiatrist because of the concern about depression and anxiety. He was diagnosed with a depressive disorder, an anxiety disorder and possibly with oppositional defiant disorder and his learning disability and substance abuse – cannabis were noted. The psychiatrist made a number of recommendations and a follow up appointment was scheduled. I have no information about further psychiatric treatment.

16Mr. Shallow informed the probation officer that he is not feeling anxious or depressed at this time and that he feels he has a good grip on any learning disability. He is excited to commence college in January 2019. He is not on any medication at this time and advised that he is not using any illicit drugs.

17Mr. Shallow, his fiancé and family members all report that he has changed since the birth of his daughter. He has become focused on his new family and not on friends and old circles. The probation officer observed that it appears that Mr. Shallow has a pro-social network of family and sustaining this path will merely be up to his ability to stay focused. Mr. Shallow’s mother wrote that her son values her guidance today more than ever and understands the importance of her direction as she wants the best for him. She states that his goal is to complete an entrepreneur course so he can open up a skateboarding business, which he has been passionate about for years. Mr. Shallow’s fiancé writes of the huge role Mr. Shallow plays in their daughter’s life, especially as she is going to school full time. She worries about the negative impact on her daughter if he is incarcerated and states that she does not have support from her own family.

18Mr. Shallow chose to speak to me once submissions from counsel were completed. He began by stating that he was sorry for wasting the Court's time and that he hoped that I understood that when he was younger, he was not making the best decisions. He made no other comment about his offence nor did he express any remorse for his actions. Mr. Shallow advised me that his daughter is a big part of his life and that when he got into college he was actually excited about this and that this was the first time that he had been excited about something in a while. Mr. Shallow gave me more information about the ACE Program he was admitted to. He told me that within a certain period of time he will be put right into actual college classes. He intends to take general business and accounting courses although he also mentioned film as a possibility.

19Mr. Shallow also advised me that he wasn't sure if he could pass that admission test for the ACE Program and that when he did he was proud of himself. He told me that: “I honestly just want to be here just to be here mostly for my family and myself obviously, of course, but it is mostly for my family as well, I want to make sure I am actually doing what I am supposed to be doing, and I personally don't think jail will help me, because this is the most progress I have ever done in my life. I have never been on such a good path and my mom is actually proud of me and stuff and we have been getting along better. So I just really think that doing that is probably not going to help, not because of me, I wake up and get my daughter ready for day care. I help my fiancée out. I just really think that me being here and even if I have to have like certain restrictions I can't do, I'm willing to do that, as long as I can just be here with my family and continue to go on.”

20In my questions of Mr. Shallow I confirmed that he knew that if I accepted the submission of Mr. Tomlinson and he breached a term of the probation that he would come back before me and that the consequences would most likely be pretty severe. He also advised me that he would be living with his mother who wants him to stay on track and helps him by making sure he is keeping up and following up to see if he has done what he needs to do.

Legal Parameters

21The maximum sentence for this offence is life pursuant to s. 5(3) of the CDSA. There is no minimum sentence in the circumstances of the commission of the offence in this case.

Positions of Crown and Defence

22Mr. Leafloor, counsel for the Crown, requested that a sentence of 15 months in jail be imposed. He also requested a ten-year weapons’ prohibition order pursuant to s. 109 of the Criminal Code. Mr. Shallow spent one overnight in jail, so Mr. Leafloor agreed that he is entitled to a pre-sentence credit of two days. Mr. Leafloor did not seek a DNA order which is discretionary in this case.

23Mr. Tomlinson, counsel for Mr. Shallow, takes the position that I should impose a suspended sentence and three years’ probation that would include terms of a curfew, community service hours and counselling because of what he submits are exceptional circumstances. He also submitted that the Charter violation that I found warrants a reduction in sentence below the established range for this type of offence. He took no issue with the s. 109 order.

Case Law

24As Mr. Leafloor submitted, the usual starting point for sentencing in cases where an offender is convicted of possession of cocaine for the purpose of trafficking is the Court of Appeal decision of R. v. Woolcock, [2002] O.J. No. 4927. In that case for this offence, where the amount of cocaine involved was 5.3 grams, the court substituted a 15-month sentence on appeal. There was a prior record for drug related offences, but they were not noted to include trafficking. The court held that the range of sentence for this type of conviction is six months to two years less a day. The court noted at para. 8, that crack cocaine is an extremely dangerous and insidious drug with the potential to cause a great deal of harm to individuals and to society and that as a result deterrence is a key principle of sentencing, although not to the exclusion of the other sentencing principles. The court also noted that many of the cases that fall at the higher end of the range involve either larger quantities of narcotics or offences committed while the defendant is still on probation for a similar offence.

25Woolcock was re-affirmed in R. v. Ahmed, 2016 ONCA 831 where the Court of Appeal upheld a sentence of two years’ imprisonment less a credit for pre-sentence custody. In that case the amount of the cocaine was more than the case at bar; 28 grams which the court stated at para. 4, “places the offence at the high end of the range” set out in Woolcock. In that case the offender also had a criminal record that included other drug convictions and the sentencing judge had found that there was a link between the offender and a “larger semi-organized commercial enterprise.” There was only a “glimmer of rehabilitative potential” of the offender; at paras. 4-5.

26Mr. Leafloor also relied on the Thomas decision, which he submitted is a case that has reasonably similar circumstances to the case at bar. In that case the offender was convicted of possession of cocaine for purposes of trafficking and was found in possession of 188.2 grams of powder cocaine and 20.75 grams of crack cocaine; what Justice Goldstein described as “the smaller, although not insignificant, amount of crack cocaine”. Justice Goldstein sentenced the offender to two years less a day in a reformatory and two years’ probation. The offender was a single young man who was 25 years old with no dependents. Goldstein J. found that the mitigating factors included the fact that the offender had good rehabilitative prospects because he had steady employment at the time of sentencing and he had attended the Centre for Addiction and Mental Health for counselling. He also noted that the offender reported anxiety issues and might have some undiagnosed mental health issues. In terms of remorse, the offender did not plead guilty but he did not insist on a trial beyond his s. 8 Charter challenge. The probation officer who completed the pre-sentence report also noted that the offender took responsibility for the offence. The offender reported that his mother had a series of abusive relationships when he was younger, he experienced violence and left home at the age of 15 and dropped out of school at the age of 18. He had no family support. In terms of aggravating factors Justice Goldstein found that the offender was not an addict trafficker; he was trafficking at a commercial level. In reaching that conclusion, he considered - in addition to the crack cocaine- the powder cocaine which totaled almost 189 grams which, if sold at the street level, would yield between $15,000.00 to just under $19,000.00.

27Justice Goldstein considered similar arguments to the ones that Mr. Tomlinson has made in the case at bar. He was provided with a number of cases from the Ontario Court of Justice involving various amounts of cocaine where the judges found exceptional circumstances existed to warrant a reduced sentence including R. v. Duncan, 2016 ONCJ 25, [2016] O.J. No. 25, (OCJ), which Mr. Tomlinson also relies upon before me. In none of those cases was the quantity of cocaine as much as it is in this case. Furthermore, in some of the cases the offender was addicted to cocaine and as Goldstein J. observed at para. 22, sentencing addict traffickers usually requires that more emphasis be placed on the principle of rehabilitation than in cases of commercial drug trafficking.

28In coming to his decision, Justice Goldstein found that there were no exceptional circumstances; there was no evidence that the offender was addicted to cocaine or that he sold cocaine to support a drug habit. The evidence was unambiguous that the offender engaged in trafficking at the commercial level (at para. 36). He found that the crack cocaine on its own would support a sentence in the range of 18 months to two years less a day and that when combined with the powder cocaine the Crown’s position of three to three and a half years was well within the range (at para. 37). He decided to give more weight to rehabilitation since the offender had made some steps towards rehabilitation (at para. 38).

29In Duncan the offender pleaded guilty to one count of trafficking 1.69 grams of cocaine and she admitted that she had also sold similar amounts to the undercover officer on two subsequent occasions. In that case, the offender was 19 at the time of the offence, a first offender, and the pre-sentence report set out a history of abuse (both physical and sexual) from family members, and other hardships she had endured, including that she was a refugee claimant, a foster child and suffered from severe anxiety. Rehabilitative prospects included the fact that the offender had secured stable housing, employment, and permanent resident status; she had completed high school and had plans to study massage therapy; and was willing to attend counselling. The sentencing judge found that exceptional circumstances existed and that a suspended sentence with a two year period of probation was appropriate (at para. 6). She also found at para. 7 that an intermittent sentence was not reasonable as the offender had already spent three days in jail which, in her view, for a young offender, would satisfy the need for denunciation and deterrence. The sentencing judge also found that jail would most likely jeopardize the steps the offender had already taken toward rehabilitation as she would be placed in an environment with other convicted offenders.

30Mr. Tomlinson also relies on R v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, a case where the court considered in what circumstances a sentencing judge might grant a sentence reduction under s. 24(1) of the Charter because of Charter breaches by police; in that case excessive force was used on arrest. The court held that where the state misconduct relates to the circumstances of the offence or the offender, the sentencing judge may properly take the relevant facts into account in crafting a fit sentence, without having to resort to s. 24(1) of the Charter. This includes state misconduct which does not amount to a Charter breach but which impacts the offender (at para. 3). Where the state misconduct does not relate to the circumstances of the offence or the offender, however, the defendant must seek his or her remedy in another forum (at para. 4). Accordingly, as a general rule, the court held that it is neither necessary nor useful to invoke s. 24(1) of the Charter to effect an appropriate reduction of sentence to account for any harm flowing from the unconstitutional acts of state agents consequent to the offence charged (at para. 5).

31The court in Nasogaluak held, at para. 43, that the language in ss. 718 - 718.2 of the Criminal Code is sufficiently general to ensure that the sentencing judge enjoys a broad discretion to craft a sentence that is tailored to the nature of the offence and the circumstances of the offender. The court went on to say, at para. 43, that: “no one sentencing objective trumps the others and it falls to the sentencing judge to determine which objective or objectives merit the greatest weight, given the particulars of the case”. At para. 44 the court noted that the wide discretion granted to sentencing judges has limits and in some circumstances is fettered by general ranges of sentences for particular offences which is important to encourage greater consistency between sentencing decisions in accordance with the principle of parity. The court held however that while courts should pay heed to these ranges, they are guidelines rather than hard and fast rules and that a judge can impose a sentence outside the range as long as it is in accordance with the principles and objectives of sentencing. A sentence falling outside the regular range of appropriate sentence is not necessarily unfit and regard must be had to all of the circumstance of the offence and the offender and to the needs of the community in which the offence occurred.

32Mr. Tomlinson also referred to the well-known decision of R. v. Priest, [1996] O.J. No. 3369, where the Court of Appeal held at para. 17 that the primary objectives in sentencing a youthful first offender, save for very serious offences and offences involving violence, are individual deterrence and rehabilitation and that these objective are not only paramount but best achieved by either a suspended sentence and probation or a very short term of imprisonment followed by a term of probation, and that the court should explore all other dispositions before imposing a custodial sentence. At para. 22 the court held that: "[t]he rule laid down by this court is that ordinarily for youthful offenders, as for first offenders, the objectives of individual deterrence and rehabilitation are paramount. At para. 23 the court went on to find that if a custodial sentence is appropriate for a youthful first offender, that such sentence is required to be as short as possible and tailored to the individual circumstances of the offender.

33Mr. Tomlinson submitted that although the goals of deterrence and denunciation are paramount in this case that I must still have regard to rehabilitation. He placed heavy reliance on a case from the British Columbia Court of Appeal; R. v. Voong, 2015 BCCA 285, [2015] B.C.J. No. 1335, where four offenders pleaded guilty to dial-a-dope trafficking offences. They were all given a suspended sentence and probation order which was upheld on appeal save the period of probation was increased and for one of them a jail sentence was substituted. One of the offenders, Mr. Galang, pleaded guilty at an early opportunity and was convicted of one count of trafficking 1.04 grams of cocaine to an undercover police officer. This 22 year old offender was a first-time offender and he received a suspended sentence which was upheld on appeal but increased to three years’ probation and with a curfew. Mitigating factors included the fact the offender was at the low end of the drug trafficking chain, he sold drugs to help a friend satisfy a drug debt, and the fact that there were positive rehabilitative prospects including good character, steady employment history, running a legitimate business at time of sentencing, and being at the "low end" of the drug-trafficking chain. Suspended sentences for two other offenders were also upheld as a result of exceptional circumstances.

[34] The Voong decision sets out a number of principles relied upon by the Defence as follows: a. at para. 21 the court held that a suspended sentence is still a sentencing option as there is no minimum sentence for the offences at issue; b. the court went on to note at para. 22, however, that where suspended sentences were imposed in drug trafficking cases prior to the availability of a conditional sentence order, which is no longer available, there was always an indication of exceptional mitigating circumstances; c. at para. 24 the court referred to R. v. Proulx, 2000 SCC 5 where Chief Justice Lamer noted that the penalty for breach of a probation order could be more severe that a breach of a conditional sentence order. In the case of a breach of probation, the suspended sentence can be revoked and the offender mat be sentenced for the original offence; d. the court noted at paras. 39 and 61 that a suspended sentence can achieve a deterrent and denunciatory effect in some cases because a breach of the probation order can result in a revocation and sentencing on the original offence; sometimes referred to as the “Sword of Damocles” hanging over the offender’s head; e. at para. 43 the court found that the public is protected when a former criminal is rehabilitated and deterred from committing more crimes; f. at para. 45 the court held that the “exceptional circumstances must engage principles of sentencing to a degree sufficient to overcome the application of the main principles of deterrence and denunciation by way of a prison sentence; g. at para. 59 the court found that exceptional circumstances may include a combination of no criminal record, significant and objectively identifiable steps towards rehabilitation for the drug addict, gainful employment, remorse and acknowledgement of the harm done to society as a result of the offences as opposed to the harm done to the offender as a result of being caught. The court went on to say that this is a non-exhaustive list but that there must be circumstances that are above and beyond the norm to justify a non-custodial sentence. h. there must be something that would lead a sentencing judge to conclude that the offender had truly turned his or her life around, and that the protection of the public was subsequently better served by a non-custodial sentence. However, Parliament, while not removing a non-custodial sentence for this type of offence, has concluded that CSO [conditional sentence orders] sentences are not available. Thus it will be the rare case where the standard of exceptional circumstances is met; and i. at para. 61 the court stated that a suspended sentence can achieve a deterrent effect as well as a denunciatory effect.

35Mr. Tomlinson also relied on [R. v. Orr and Lai, 2015 CarswellBC 2065], a judgment of the British Columbia Provincial Court, which applied the Voong decision and was referred to in Duncan. In that case exceptional circumstances were found to be the fact that the offender was 22 at the time of the offence, had no criminal record, was gainfully employed, his prospects for ongoing full-time employment remained positive, two years had passed without any criminal activity, he had changed his peer associations and become closer to his family. He was found guilty following a trial but the sentencing judge found the offence was accepting responsibility for his actions and his prospects for rehabilitation were also deemed to be good.

36I appreciate that these cases from British Columbia are not binding upon me but I agree with the comments of the judges that I have referred to. The concept of considering exceptional circumstances which might take the sentence imposed on an offender outside the usual range is not new. As the British Columbia Court of Appeal stated in Voong, however, it is rare.

37Mr. Tomlinson also made submissions based on the fact that Mr. Shallow is of African-Canadian descent. I was referred to a couple of cases where the relevance of this fact was discussed.

38In R. v. Borde, [2003] O.J. No. 354 (C.A.), a case where the offender pled guilty and was convicted of aggravated assault and a number of firearms offences, Rosenberg J.A., speaking for the court, stated at para. 2 that “[s]ystemic racism and the background factors faced by black youths in Toronto are important matters and in another case I believe that they could affect the sentence” [emphasis added]. In that case he found, however, that the crimes were so serious that the systemic and background factors could not affect the length of the sentence. Although Justice Rosenberg dismissed the application to introduce fresh evidence of the systemic and background factors relied upon on the appeal, he did summarize the material filed. At para. 18 he stated that:

One clear finding of the Commission [the Commission on Systemic Racism in the Ontario Criminal Justice System] is that there has been a dramatic increase in prison admission for black offenders in Ontario in recent years. This increase is especially apparent with regard to drug offences.

39In addition, in Borde, at para. 36, Rosenberg J.A. held that the length of a first penitentiary sentence for a youthful offender should rarely be determined solely by the objectives of denunciation and general deterrence. Where an offender has never been to the penitentiary before or served a long adult sentence the courts ought to proceed on the basis that the shortest possible sentence will achieve the relevant objectives.

40Mr. Tomlinson referred to the recent decision of Justice Nakatsuru in R. v. Jackson, 2018 ONSC 2527, [2018] O.J. No. 2136. In that case Nakatsuru J. considered evidence of racism and background factors in his sentencing of an African Canadian offender for a firearms offence. At para. 3 he stated that “[w]hen it is right to do so, a sentencing judge must take into account discrimination, both systemic and blatant”. At paras. 40-41 he noted that the problem of the disproportionate incarceration of African Canadians is not getting better. Nakatsuru J. dealt with the Borde decision, which he recognized was binding on him, but found that this decision did not prevent him from considering the arguments raised by the Defence and that in his view Rosenberg J.A. was inviting a sentencing judge in the right case to address the problems raised by the proposed fresh evidence through a “more innovative sentencing approach to African Canadian offenders”; at para. 67. Nakatsuru J. also dealt with the Court of Appeal’s decision in R. v. Hamilton and Mason, (2004) 72 O.R. (3d) 1 (C.A.), a case dealing with single African Canadian females, where were being sentenced for importing cocaine. As Doherty J.A. held in Hamilton, at paras. 134 to 135, a sentencing judge is required to take into account all factors that are germane to the gravity of the offence and the personal culpability of the offender and that inquiry can encompass systemic racial and gender bias.

41Nakatsuru J. concluded at para. 73 that as a result of these decisions it was inappropriate and unnecessary to unthinkingly apply a Gladue type analysis to an African Canadian but he concluded that “[w]ithin the sentencing principles that currently exist, I believe there is room to build a framework of analysis that can begin to address the issue of disproportionate incarceration of African Canadians.” At para. 79 he went on to consider how the remedial nature of s. 718.2 (e) of the Criminal Code provides the authority for the court to address the disproportionate imprisonment of African Canadians and at para. 82 he gave judicial notice to the history of colonialism, slavery, segregation, intergenerational trauma, and racism, and how it has translated to socio-economic ills and higher levels of incarceration. He held that this does not in and of itself justify a different sentence, but it is an important first step in providing the necessary context in which to understand the case-specific information in sentencing.

42The real question is how is this information is to be taken into account in terms of sentencing. At para. 110 Justice Nakatsuru noted that these factors must have played a role and at para. 111 he dealt with the link that needs to be shown between the systemic and background factors and the specific circumstances of the offender. He found that notwithstanding that Doherty J.A. in Hamilton held that the evidence of difficult socio-economic circumstances of the offender have to be a “direct” result of systemic racial and gender bias in his view this should not be required in sentencing because a direct causal connection could seldom be proven. He concluded at para. 115 that there was nothing wrong in paying particular attention to the circumstances of the African Canadian offender to achieve a truly proportionate sentence.

43Justice Nakatsuru then went on to find that the history of enslavement, segregation, and struggle had touched the offender’s life, had shaped his family’s history in this country and had shaped his own experience in this society and that he had suffered from racism because he is a Black man. In this case Nakatsuru J. had information as to how the offender’s experiences with racism and socio-economic disadvantage in his community may have affected his conduct (at paras. 119 and 123). He also noted the absence of the offender/s father which can be bad for African-American boys (at para. 133) and his mother’s mental illness (at par. 138).

44Counsel did not refer to this decision but in reviewing other cases where I have sentenced offenders for the same offence I found a reference to R. v. Reid, 2016 ONSC 954, a decision of this court by Justice Morgan. In that case Justice Morgan took societal considerations into account and in particular the fact that the offender was black and that racial disparity in imprisonment is especially problematic with respect to street level drug dealing. I agree with his analysis and his view that as the Supreme Court of Canada stated in R. v. Proulx, 2000 SCC 5, [2000] 1 SCR 61, at para. 16 that incarceration in many cases can equate to "a finishing school for criminals." With the lack of programing in provincial jails, there is little one can expect Mr. Shallow to be able to do while incarcerated to improve his ability to earn an honest living and rehabilitate himself.

Principles of Sentencing

45The fundamental purpose of sentencing, as set out in s. 718 of the Criminal Code, is to ensure respect for the law and the maintenance of a just, peaceful and safe society. The imposition of just sanctions requires me to consider the sentencing objectives referred to in that section, which the sentence I impose should attempt to achieve. These are denunciation, deterrence; both specific and general, separation of offenders from society when necessary, rehabilitation, reparation for harm done and the promotion of a sense of responsibility in offenders and acknowledgment of the harm which criminal activity brings to our community. In addition, in imposing sentence I must take into account the principle of proportionality and the applicable aggravating and mitigating circumstances relating to the offences as set out in s. 718.2.

46Section 10(1) of the CDSA provides that without restricting the generality of the Criminal Code, the fundamental purpose of any sentence for this offence is to “contribute to the respect for the law and the maintenance of a just, peaceful and safe society while encouraging rehabilitation, and treatment in appropriate circumstance, of offenders and acknowledging the hard done to victims and to the community. Section 10(2) goes on to set out the aggravating factors that I should consider but none apply in this case.

Analysis

Mitigating Circumstances

[47] I turn now to the mitigating circumstances relevant to sentence: a. Mr. Shallow was very young at the time he committed this offence-only 18; b. this is Mr. Shallow’s first conviction; c. although Mr. Shallow did not plead guilty and is therefore not entitled to the full reduction in sentence that he would have had he done so, it was reasonable for him to bring his Charter application and he did not contest the Crown’s case once I dismissed that application. He never challenged the fact that the black bag where the cocaine was found was his, that the substance found was crack cocaine or that by virtue of the quantity it was in his possession for the purpose of trafficking. d. he also took responsibility for the offence when he spoke to the probation officer; e. he has not engaged in any criminal activity while on bail following his arrest on August 19, 2016; a period of almost two and one half years; f. Mr. Shallow has taken serious and positive steps towards his rehabilitation including the fact that the has been working 25 to 30 hours per week since January 2017 and he has taken steps to further his education by completing an admissions test and being admitted to the ACE Program which started this week. Even though he has not completed high school, by successfully completing this program Mr. Shallow will be able to transition to the college courses that he wishes to take; g. there is evidence that Mr. Shallow is of good character. When he was assessed by the social worker from EMYS, she found that his strengths included that he valued truthfulness, personal freedom, respect for others and justice. The President of the DCBA, where Mr. Shallow has been a volunteer since 2016, provided a very positive character reference and is of the view that this offence was very out of character for Mr. Shallow and that he believes Mr. Shallow is ready to make amends for his mistake; h. Mr. Shallow has strong family support from his mother and fiancé; i. he has strong support in the community. In particular Mr. Shallow will have the support from BYJ throughout his college term as well as assistance with his job search, mentoring and networking In addition the President of the DCBA has advised that the club will continue to support him working through what he characterizes as an error in judgment and that he has “no doubt he [Mr. Shallow] will move forward in a positive direction one the situation has concluded”; j. Mr. Shallow has matured significantly in the last three years with the birth of his daughter. He has become focused on his new family and not on friends and old circles. Simply put, Mr. Shallow at 18 is not the man before me at 21; k. Mr. Shallow informed the probation officer that he is not feeling anxious or depressed at this time and that he feels he has a good grip on any learning disability but I have no information to suggest that he received any formal treatment for depression and anxiety. The fact that he may still need such treatment could be considered a mitigating factor on sentence since the provincial jails do not have much if any resources for this kind of treatment; l. finally, Mr. Shallow was subject to a curfew condition from 10 p.m. to 6 a.m. as a term of his release which does warrant a reduction from the sentence he would otherwise be subject to.

48As for the fact that Mr. Shallow is of African-Canadian descent, although I take judicial notice of the kind of information that was put before the court in Jackson, I have no information as to why Mr. Shallow was in possession of a large quantity of crack cocaine for the purpose of trafficking. He did not have the support of his father but that seems due to the fact that his parents separated. His uncle became his father figure. He was diagnosed with a learning disability at a young age but educational supports were put in place. Perhaps the most disruptive factor was when at the age of 14 his uncle was deported. This apparently led to his truancy and was considered to be a major disruptive episode in his emotional development, but again I cannot say that this is due to race discrimination. His mother has always been supportive of her son. In sum, I have no information to suggest that Mr. Shallow selling crack cocaine was due to his African Canadian background, due to poverty or pressure from peers.

49Turning to Mr. Tomlinson’s argument that Mr. Shallow should receive a credit given I found a Charter breach, there was some confusion during the sentencing submissions as to whether or not I had found a breach of both ss. 10(a) and 10(b) of the Charter. I have reviewed my s. 8 decision again and it appears that I made an error in para. 98 where I stated that I had found a breach of ss. 8, 10(a) and 10(b). In fact as I stated in para. 93, I did not fault PC Best for failing to advise Mr. Shallow that he was now investigating him for possession of marijuana, given how quickly this serious of events must have unfolded. I went on to say that I did not find a s. 10(a) breach of the Charter. I did however find a breach of s. 10(b) and s. 8 of the Charter at para. 93 of my decision as follows:

There is, however, one issue that I must address and that is the question PC Best asked of Mr. Shallow when he caught a glimpse of the Ziploc bag. … PC Best clearly asked a question of Mr. Shallow: “what’s that” or “what’s in the bag” and he was not entitled to as he had not told Mr. Shallow that he was investigating him for possession of marihuana or given him his RTC and cautioned him. … I, therefore, find that PC Best did violate Mr. Shallow’s s. 10(b) Charter rights when he commenced his investigation by asking questions about the existence of marihuana in the car; … In addition, the question asked by PC Best could be considered a search and one that was unreasonable in contravention of s. 8 of Charter … . I find that this question was also a s. 8 breach of the Charter, in the circumstances.

50Mr. Leafloor agreed that a Charter breach can result in a reduced sentence and I have already referred to Nasogaluak. Mr. Tomlinson’s argument was that even though I found that Mr. Shallow was stopped pursuant to a lawful HTA stop, given what I now know about his background I can find that this was very difficult for him. He argued that the officer’s advice was confusing because he initially told Mr. Shallow that he was detained but was not being charged, which could have led to negative consequences with Mr. Shallow not understanding his rights. Mr. Tomlinson essentially argued that because of Mr. Shallow’s past circumstances and the fact that the officer gave him some confusing information, that Mr. Shallow did not understand his rights. It was also a very hot day. Given Mr. Shallow’s past anxiety in dealing with police, that increased his anxiety. Mr. Tomlinson argued that the police need to repair the relationship with the black community and have to explain things “to a tee” and that any variance can cause anxiety. Although he did not submit this, I understand that what Mr. Tomlinson was arguing was that police have to be more aware of what they are saying and how they are behaving when dealing with a black person because of the likelihood that they will have had negative experiences before, such as carding by police.

51I do have evidence as to how Mr. Shallow felt following earlier interactions with police. However, I have no evidence from Mr. Shallow as to how his interaction with police at the time he was stopped impacted him. This is not a case where for example excessive force was used. The closest thing to evidence that I have as to how Mr. Shallow was feeling is the in-car video but that is unremarkable. Given the nature of the Charter breach in this case I have concluded that it does not warrant a reduction in sentence.

52Mr. Tomlinson submitted that at the time of the offence Mr. Shallow was abusing marijuana in an addicted way although he said that he was not suggesting that he was selling cocaine to support that addiction. I therefor see no connection between Mr. Shallow’s consumption of marijuana and this offence. Furthermore, Mr. Tomlinson reports that he is no longer addicted to marijuana.

Aggravating Factors

53As for aggravating factors, the most significant one is the amount of cocaine. None of the cases I was referred to, where exceptional circumstances were found, are comparable in terms of the quantity of cocaine. Mr. Shallow was selling crack cocaine for profit-although I do not know what level of drug trafficker he was, giving him the benefit of doubt I assume he was cutting off pieces and selling at the street level.

What is an Appropriate Sentence in this Case?

54I turn then to what is an appropriate sentence in this case. The sentence of 15 months requested by the Crown is very reasonable. It is lower than the sentence imposed in Thomas. In light of Ahmed, Mr. Leafloor could have reasonably asked for more. The question I must consider is whether or not there are sufficient exceptional circumstances in this case to justify going outside the usual range as established in Woolcock, particularly given the amount of crack cocaine Mr. Shallow was found in possession of.

55Although I find that there are some exceptional circumstances, particularly with respect to Mr. Shallow’s prospects for rehabilitation and the adverse impact a jail sentence would have on that, I am concerned that given the quantity of crack cocaine; almost 22 grams, and given that Mr. Shallow was not supporting a drug habit and was selling on the street for profit, that those circumstances cannot support a sentence outside a range that is otherwise reasonable for this offence.

56Ordinarily in a drug case like this, denunciation and deterrence, both general and specific, given the harm to the community that comes from the consumption of cocaine, would be paramount in determining a fit sentence. However, as Justice Rosenberg noted in Borde, at para. 36, the length of a first penitentiary sentence for a youthful offender should rarely be determined solely by the objectives of denunciation and general deterrence. Where an offender has never been to the penitentiary before or served a long adult sentence the courts ought to proceed on the basis that the shortest possible sentence will achieve the relevant objectives. I appreciate that the Crown is not asking for a penitentiary sentence but regardless of the sentence I impose, Mr. Shallow's time in jail will be considerably longer than what he has experienced in the past.

57I am sure it was clear to both counsel during the course of submissions that I was seriously considering imposing a suspended sentence. I asked counsel what their position was with respect to an intermittent sentence should I accept Mr. Tomlinson’s submissions. Mr. Leafloor submitted that if I were to accept the Defence submissions that I consider an intermittent sentence and probation which he submitted would have more of a deterrent effect. Mr. Tomlinson however disagreed and submitted that as found by the court in Duncan, at para. 7, a return to jail could jeopardize Mr. Shallow’s rehabilitation.

58As for Mr. Shallow’s prospects of rehabilitation, I am concerned that when he was assessed in the summer and fall of 2015, his motivation to change was low and he did not show up to some sessions. I am also concerned that he did not acknowledge the serious harm to society that results from trafficking in cocaine or express any remorse for having done so. However, I accept that Mr. Shallow is now a different person; a more mature young man who now has not only his mother and brother in his life but also a fiancé and a young daughter.

59There is no doubt that if I impose a 15 month sentence on Mr. Shallow that serving that sentence will seriously jeopardize his rehabilitation because it will force him to leave the ACE Program at Centennial College. I do not know if his admission could be deferred or if he could pass the admissions test again, nor do I know how a jail sentence would impact on his desire to even try.

60Even though Mr. Shallow had a lot of support in the past in an effort to try to help him with his learning issues and his mental health issues he failed to follow through with what was required of him. He was younger of course but in terms of his following through with the ACE Program, Mr. Shallow told me that this is the first time in a while that he is excited about something, that this is the most progress that he has made in his life and that he has never been on such a good path before. He is proud of what he has accomplished as is his mother.

61I have decided in the circumstances to give considerable weight to Mr. Shallow’s rehabilitation. I accept his statements to me and that he has made the most progress that he has made in his life. He appears to be a man who fundamentally is of good character and he has strong support from family and the community and now good reason to turn his life around; his fiancé and young daughter. If I impose a sentence of incarceration I am very concerned that Mr. Shallow will come out after serving his sentence and fall back to old ways. His fiancé will also be negatively impacted as she is trying to get a full time education and would be left to raise their daughter on her own while Mr. Shallow was incarcerated.

62Of course I must be concerned about specific and general deterrence. Hopefully Mr. Shallow will appreciate that I could very easily impose the 15 month sentence that the Crown has requested and that that sentence would very likely be considered reasonable by any appeal court. As part of any period of probation, in addition to his supervision by a probation officer, I could also have Mr. Shallow report periodically to me and provide me with proof of attendance and his grades, so that I could be satisfied that he is going to class and see how well he is doing. Probation would also make it easier to ensure that any remaining issues with Mr. Shallow’s mental health and former addiction to marijuana are properly addressed. If of course Mr. Shallow failed to comply with the terms of probation, then he would be sentenced for that breach and at that time would likely go to jail; something he has told me he appreciates. This should be sufficient specific deterrence to ensure that Mr. Shallow does not re-offend or breach probation.

63As for general deterrence, in my view if I impose a lengthy period of probation with terms that would make it punitive, such as house arrest or strict curfews, that would also send a message. Furthermore, as I have stated, the sentence requested by the Crown is very reasonable and without the concerns about rehabilitation I have in this case, I would have had no hesitation in imposing it.

64Balancing all of the sentencing goals as I must, I have come to the conclusion that the most appropriate sentence in this case is a 90 day intermittent sentence and three years’ probation. This will give Mr. Shallow a taste for what would likely be in store for him should he fail to follow through on his promises to improve himself and will not make those promises impossible to keep at this time. In my view the public will be better protected if Mr. Shallow is able to continue the ACE Program and obtain a college education than incarcerating him now resulting in his expulsion from that program.

Final Disposition

65With respect to your conviction on Count #1 - having cocaine in your possession for the purpose of trafficking, I sentence you to 90 days, less two days for pre-sentence custody credit, leaving 88 days, to be served intermittently. The sentence will be served today for processing and thereafter on consecutive weekends until the sentence is complete, commencing this Friday, January 11th at 6:00 p.m. until Monday morning, January 14th at 7:00 a.m. and every weekend thereafter until the sentence is complete.

[66] I also sentence you to 36 months’ probation. I order that subject to the times you are incarcerated as a result of your conviction, that you be released upon the terms of your probation order of 36 months on the following conditions: (1) The compulsory statutory conditions as set out in s. 732.1(2) of the Criminal Code; (2) In addition to the compulsory conditions, it is ordered that you comply with the following optional terms and conditions as permitted by s. 732.1(3) of the Code: a) Report to a probation officer within four working days of today and thereafter, when required by the probation officer and in the manner directed by the probation officer; b) Remain within the jurisdiction of this Court unless written permission to go outside this jurisdiction is obtained from the Court or the probation officer; c) Continue to reside with your mother at a residence approved of in writing by your probation officer and obey the rules of her household; d) Abstain from the purchase, possession or consumption of any drugs or other substances prohibited by law except in accordance with a medical prescription; e) Abstain from the purchase, possession or consumption of cannabis; f) Attend and actively participate in any treatment program(s) for anger management and/or mental health, including depression and anxiety, as recommended by your probation officer and sign consents to release such information as may be required to monitor your compliance with this condition when requested by the probation officer; g) Continue to attend the ACE Program at Centennial College in Scarborough. You must attend all of your classes unless you are able to provide a note from your doctor explaining why you cannot due to illness to your probation officer. Once you complete the ACE Program you shall either carry on taking college courses or make reasonable best efforts to gain employment; h) Perform 200 hours of community service work of a type that is approved of by your probation officer. This may be continuing to volunteer with the Durham City Basketball Association. This work is to commence within 30 days of the date of completion of your intermittent sentence and shall be completed at a rate of not less than seven hours per month in consecutive months and shall be completed to the satisfaction of your probation officer within thirty two months of this Order. You shall provide your probation officer with proof of attendance and completion of community service assignments; i) Do not have any contact with, or be in the company of, or associate with, anyone known to have a criminal record or who is the subject of criminal charges, except for members of your family; j) For the first 18 months of your sentence, save for when you are incarcerated, you shall obey a curfew and be in your place of residence each and every night between the hours of 10:00 p.m. and 6:00 a.m., subject to any special variation granted by your probation officer, unless you are dealing with a medical emergency involving yourself or a family member; k) Attend before me on April 26, 2019 at 10:00 a.m., and thereafter as I order, so that I can ensure that you are in compliance with this Order.

67In addition there will be a mandatory weapons prohibition order pursuant to s. 109(1) of the Criminal Code for ten years.

68There will be an order directing the forfeiture of the cocaine that was seized by the police when they arrested you, pursuant to section 491(1) of the Criminal Code.

Spies J.