Court File No. CR-18-00000144-0000
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
v.
STEVEN MCGINN
R E A S O N S F O R S E N T E N C E
BEFORE THE HONOURABLE JUSTICE FUERST,
on June 14, 2019 at Barrie, Ontario
APPEARANCES:
S. Dudani Federal Crown
A. White Counsel for Steven McGinn
REASONS FOR SENTENCE PAGE 1
LEGEND
[sic] Indicates preceding word has been reproduced verbatim and is not a transcription error.
(ph) Indicates preceding word has been spelled phonetically.
Date Transcript Ordered: July 2, 2019
Date Transcript Completed: July 26, 2019
Date Ordering Party Notified: July 26, 2019
FRIDAY, JUNE 14, 2019
R E A S O N S F O R S E N T E N C E
FUERST, J. (Orally):
INTRODUCTION
Steven McGinn pleaded guilty to possession for the purpose of trafficking cocaine, possession for the purpose of trafficking fentanyl and heroin, and possession of a knife for a purpose dangerous to the public peace.
The sentence to be imposed on him is the subject of a joint submission by Crown and defence counsel.
THE CIRCUMSTANCES OF THE OFFENCES
Around 9:50 p.m. on February 28th, 2018, the attention of police officers was drawn to a particular vehicle. It had a loud muffler and bore an expired validation sticker.
The vehicle was driven by Mr. McGinn. He had a front seat passenger.
The police stopped the vehicle.
When Mr. McGinn opened the vehicle’s glove box, a black scale and a piece of tinfoil fell out. The officers noticed a powdery substance on the dashboard, and packets with a powder residue on them in a glasses case.
The police searched the vehicle. They found a black fanny pack that contained $3,130 cash, two ziploc bags of cocaine, two bags with a powdery substance thought to be fentanyl, and a small scale. They also found two cell phones and two knives, one of which was open.
Mr. McGinn was arrested for drugs and weapons offences.
In total, the police found 33 grams of cocaine, 10 grams of a heroin and fentanyl mixture, less than a gram of a heroin and carfentanyl mixture, and about 1 gram of a cocaine and fentanyl mixture.
THE CIRCUMSTANCES OF MR. McGINN
Mr. McGinn is twenty-seven years old. He is an Aboriginal person. A Gladue report indicates that his maternal grandfather had Métis lineage through an adoptive parent.
Mr. McGinn’s parents separated when he was an infant. He lived with his mother, but was raised largely by his paternal grandparents to whom he is close. His mother had problems with alcohol abuse, and his father with drug abuse. Regrettably, his father tried to take his own life when Mr. McGinn was twelve years old. This was very traumatic for Mr. McGinn, as was his mistreatment by an older sibling.
Mr. McGinn left his mother’s home when he was fourteen, and lived on his own. He left school in grade 11, although he completed grade 12 years later while in custody. Unfortunately, he started using drugs and drinking when he was a teenager. He became an alcoholic, and eventually a drug addict as well.
At some point, Mr. McGinn was diagnosed with a variety of mental health conditions, including intermittent explosive behaviour. Apparently, he struggles with his mental health issues.
Mr. McGinn worked at times as a roofer. He lived for a period with a woman by whom he has a four year old son. He is close to his son, but describes his relationship with his son’s mother as unhealthy and one that he does not want to resume.
Not surprisingly Mr. McGinn has a lengthy youth and adult criminal record dating back to 2006. It includes multiple assaults, numerous failures to comply with court orders, and a drug possession offence in 2016.
Mr. McGinn’s been in custody since April 1st, 2018. He has attended various Indigenous programs at the jail. The Gladue report writer recommends that he continue to access such programs.
Mr. McGinn’s paternal grandparents remain supportive of him. They are willing to have him live with them on his release from jail.
POSITIONS OF THE PARTIES
Crown and defence counsel jointly submit that Mr. McGinn should be sentenced to three years and nine months in jail, less pre-sentence custody of 437 days credited at approximately 1-1/2 to one. They agree that the applicable ancillary orders are DNA, a s.109 weapons prohibition order and a forfeiture order.
Mr. McGinn told me that he wishes the remnant of the sentence to be such that he can serve it in the penitentiary, where he believes he will get more help. He recognizes that drug addiction led him down some bad paths.
THE PRINCIPLES OF SENTENCING
The objectives of sentencing long recognized at common law have been codified in s.718 of the Criminal Code. They are the denunciation of unlawful conduct, deterrence both general and specific, the separation of the offender from society where necessary, rehabilitation, reparation for harm done to the victims or the community, and promotion of a sense of responsibility in offenders and acknowledgement of the harm done.
Section 718.1 provides that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
Section 718.2 provides that a sentence should be increased or decreased to account for any aggravating and mitigating circumstances. It sets out various aggravating factors, including that the offences involved a breach of trust. It also requires that a sentence be similar to those imposed on similar offenders in similar circumstances, that the combined duration of consecutive sentences not be unduly long, that an offender not be deprived of liberty if less restrictive sanctions may be appropriate, and that all available sanctions other than imprisonment that are reasonable in the circumstances be considered.
Section 718.2(e) provides that in considering the latter factor, particular attention should be given to the circumstances of Aboriginal offenders. The Supreme Court of Canada explained in R. v. Gladue, [1991] 1 S.C.R. 688, and again in R. v. Ipeelee, 2012 SCC 13, that this requires a sentencing judge to consider the unique systemic or background factors that may have played a role in bringing the Aboriginal offender before the courts, and the types of sentencing procedures and sanctions that may be appropriate in the circumstances for the offender because of his Aboriginal heritage or connection.
ANALYSIS
The nature of the drugs involved in this case, heroin, fentanyl and cocaine, is an aggravating factor. They are all highly addictive substances. That Mr. McGinn has a lengthy criminal record, while reflective of an individual with a substance abuse problem, also is aggravating.
In mitigation, Mr. McGinn pleaded guilty, which is a sign of his remorse and willingness to accept responsibility for his actions. He expressed insight into his problems. There is no doubt that his childhood and adolescence were traumatic for reasons that were not of his making. The drug abuse that he fell into has contributed to his involvement with the criminal justice system.
I also consider Mr. McGinn’s Aboriginal background. I take judicial notice of the history of colonialism, displacement and residential schools that impacted Aboriginal persons, and how that history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and higher levels of incarceration for Aboriginal offenders: see Ipeelee at paragraph 60. That background has no doubt had an impact on Mr. McGinn. That said, he appears to have benefitted from involvement in programs for Aboriginal offenders while in custody.
In all of the circumstances of Mr. McGinn and the offences, I accept the joint submission, modified slightly to accord with his own request, as an appropriate sentence.
CONCLUSION
Mr. McGinn, please stand.
I sentence you on count four to three years and nine months in jail. At your request, I credit your 437 days of pre-sentence custody as the equivalent of one year and nine months in jail, so that there is a sentence left to be served of two years in jail. Again, I emphasize that I do this at your express request that you be able to serve the remainder of the sentence in the penitentiary.
On count five I sentence you to two years in jail to be served concurrently.
On count seven I sentence you to one year in jail to be served concurrently.
On each of counts four and five I impose a DNA order.
On counts four, five and seven I impose a s.109(2)(a) order for 10 years, a s.109(2)(b) order for life, and a forfeiture order. You may be seated.
Is there anything that needs to be clarified?
MR. DUDANI: Nothing further, Your Honour. I can provide you with the forfeiture order.
THE COURT: Yes. I just need a moment to endorse the indictment.
MR. DUDANI: Of course. Thank you Your Honour.
THE COURT: So, I’ve endorsed the indictment as follows. Mr. McGinn is sentenced on count four to three years and nine months in jail, less the equivalent of one year and nine months for pre-sentence custody, leaving a sentence to be served of two years; on count five to two years in jail concurrent; and on count seven to one year in jail concurrent. On all counts there is a s.109(2)(a) order for ten years, a s.109(2)(b) order for life, and a forfeiture order. On counts four and five there is DNA order. So all other counts then are withdrawn at the request of the Crown?
MR. DUDANI: Yes, Your Honour. Thank you.
THE COURT: Thank you very much.
E N D O F E X C E R P T O F P R O C E E D I N G S
Form 2
CERTIFICATE OF TRANSCRIPT (SUBSECTION 5 (2))
Evidence Act
I,
Donna Sells
(Name of Authorized Person)
certify that this document is a true and accurate transcript of the recording of
Regina v. McGinn
in the
Superior Court of Justice
(Name of Case)
(Name of Court)
held at
Barrie, Ontario
(Court Address)
taken from Recording
3811_01_20190614_081952__30_FUERSTM.dcr
, which has been certified in Form 1.
July 26, 2019
(Date)
(Signature of Authorized Person(s))
This certification does not apply to the (Ruling(s), Reasons for Judgment, Reasons for Sentence, or Charge to the Jury) which was/were judicially edited.