COURT FILE NO.: CR-18-90000223-0000

DATE: 20190919

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

ADRIAN BISSOON Accused

COUNSEL:

Elizabeth Bellerose, for the Crown

James Mencel, for the Accused

HEARD: July 18, 2019

B.A. ALLEN J.

REASONS FOR DECISION ON SENTENCE

BACKGROUND

[1] Adrian Bissoon was arrested on January 19, 2017 on a 14-count indictment in connection with five incidents of trafficking cocaine to an undercover officer between October 2016 and January 2017 contrary to s. 5(1) of the Controlled Drugs and Substances Act (“the CDSA”). He was also charged with offering during the same period to sell to the undercover officer a prohibited firearm contrary to s. 99(1) of the Code. He was further charged with possession of proceeds of crime obtained in association with drug trafficking and the offer to sell the firearm contrary to s. 354(1) of the Code.

[2] On April 8, 2019, Mr. Bissoon pleaded guilty to three counts of trafficking cocaine (counts 7, 9 and 11) and the charge of offering the firearm for sale (count 14).

[3] The drugs sold to the undercover officer were powder cocaine in amounts of 2.36 grams to 7 grams. All transactions were conducted at the same location, 2435 Kipling Ave., except one transaction on January 5, 2017 that was done outside a grocery store but 2435 Kipling Ave. was the initial meeting place. I heard evidence from Officer Greaves who was the undercover officer involved in the investigation. He referred to his memo notes to refresh his memory about his contacts with Mr. Bissoon.

[4] On April 9, 2019 I conducted a Gardiner hearing.

[5] The Crown took the position that inferences could be drawn from the evidence to establish the aggravating factor that Mr. Bissoon was involved in an active drug trafficking operation selling powder and crack cocaine which he hoped to expand to heroin and crystal meth. The Crown took the further position that the circumstantial evidence supports the inference of the further aggravating factor that Mr. Bissoon offered to sell the firearm and that even though he did not sell the firearm to the officer he had the intention to sell it.

[6] I decided to consider Mr. Bissoon’s involvement in a commercial drug trade as an aggravating factor on sentencing. I denied the Crown’s request to accept as an aggravating factor that Mr. Bissoon intended to sell a firearm to the officer.

SENTENCING

Statutory and Common Law Principles on Sentencing

[7] Section 718 of the Criminal Code sets out the principles for sentencing to be considered by the court: denunciation, general and specific deterrence and the separation of the offender from society.

[8] Proportionality is also a guiding principle for sentencing. It requires a sentence to be proportionate to the gravity of the offence, to be determined on the particular facts of the case. The “narrow focus” of the sentencing process is directed to imposing a sentence that reflects the circumstances of the specific offence and the attributes of the specific offender: [Criminal Code, s. 718.1 and R. v. Hamilton (2004), 2004 CanLII 5549 (ON CA), 186 C.C.C. (3d) 129, 72 O.R. (3d) 1 (Ont. C.A.)].

[9] Parity is another governing principle. It requires a sentence be similar to sentences imposed on similar offenders for similar offences committed under similar circumstances. Sentencing is however an individualized process which necessarily means that sentences imposed for similar offences may not be identical: [R. v. Cox, 2011 ONCA 58 (Ont. C.A.) and R. v. L.M., [2008] 2 S.C.R. 163, 2008 SCC 31 (S.C.C.)].

[10] Courts have recognized the particular insidious dangers to people and society created by drugs like cocaine.

[11] The Ontario Court of Appeal confirmed that cocaine, a Schedule I drug under the CDSA, is an “extremely dangerous and insidious drug with a potential to cause a great deal of harm to individuals and to society”. For this reason, trafficking in drugs for a commercial purpose has been viewed as an aggravating factor on sentencing.

[12] Cases involving trafficking in quantities of up to 28 grams of cocaine have attracted sentences of between six months and two years less a day: [R. v. Woolcock, [2002] O.J. No. 4927, at para. 15, (Ont. C.A.). Mr. Bissoon trafficked 25.96 grams of powder cocaine.

[13] The court held that emphasis should be given in sentencing to the principles of denunciation and deterrence in cases involving more dangerous drugs and cautioned that the prospect for rehabilitation should not be neglected: [R. v. Woolcock, at para. 8]. Over-emphasis on the other principles at the expense of regard for the principle of rehabilitation can attract appellate intervention: [R. v. C.A.M. (1996), 1996 CanLII 230 (SCC), 105 C.C.C. (3d) 327 (S.C.C.)].

[14] Lower end trafficking to support an addiction has attracted less restrictive measures on the view that the cause of the commission of the offence is to support a drug addiction which is regarded as a health-related issue: [R. v. Bui, 2004 CanLII 7201, at para. 2, (ONCA) and R. v. Woolcock, , at para. 5].

Mr. Bissoon’s Circumstances

[15] Mr. Bissoon is 27 years of age. He spoke articulately and with passion to the court at the sentencing hearing. He spoke enthusiastically about his life and the changes he has made since he was charged with the offences before the court. Mr. Bissoon spoke about his difficult life while under house arrest where he was required to live with his mother and his abusive stepfather.

[16] A support letter written by his mother confirms Mr. Bissoon’s statements about the stepfather being physically and emotionally abusive of both him and his mother. Mr. Bissoon described his house arrest as like being in custody. He would stay in his bedroom even avoiding to come out to eat because of his stepfather’s abusive harassment about everything he did.

[17] Mr. Bissoon described what brought him to commit the offences before the court. He explained that he had been living with his biological father when his father was forced by circumstances to vacate his home. Mr. Bissoon also had to leave. He had nowhere to live and his life fell into financial decline. He said he made a decision he has regretted to sell drugs for a livelihood.

[18] Mr. Bissoon has been employed for over a year in a landscaping construction company. His employer wrote a letter of support. He described Mr. Bissoon as a friendly, enthusiastic and hardworking employee. He confirms Mr. Bissoon’s statement that he loves and is proud of his job and plans to make a career out of it. The employer’s impression is that Mr. Bissoon has changed his life and does not intend to return to a criminal lifestyle.

[19] The property manager of the building where Mr. Bissoon lives with his mother also wrote a letter of support. He has known Mr. Bissoon for three years and confirms the employer’s information that he is friendly and hardworking and dedicated to not returning to a criminal lifestyle.

[20] Mr. Bissoon has stated and his mother confirms in her letter that he has grown very close to her since he has lived with her on bail. His mother has expressed great pride in how Mr. Bissoon seems to have overcome a difficult childhood and a criminal lifestyle to become a productive member of society.

[21] Mr. Bissoon has a criminal record from January 2015 for possession of the Schedule I drugs heroin, oxycodone, cocaine, opium, crystal meth and ecstasy. He was also convicted of possession of property obtained by crime, over $5,000.00. He received a five-month concurrent sentence. In October 2016, a year and ten months after he was convicted of his previous drug charges Mr. Bissoon engaged in relation to the case before the court for several months in trafficking in cocaine to the undercover officer in a commercial enterprise until he was stopped by being arrested. I cannot overlook Mr. Bissoon’s criminal antecedents.

[22] Before the court now is Mr. Bissoon’s offered to sell a firearm to the officer. Drugs and firearms are a known dangerous combination. Although I did not find that he intended to sell the firearm to the officer, he had a firearm on his mind when he was dealing the drugs. He went so far as to take a $1,600.00 partial payment for a firearm he did not intend to deliver to the officer. He intended to rip the officer off. He was found with no firearm but he did have the $1,600.00 in his possession when he was arrested.

Mr. Bissoon’s Bail Circumstances

[23] Mr. Bissoon was arrested and remained in custody for five days until he was released on January 23, 2017. He has been on bail for 30 months without a violation. He started out on very strict conditions, only allowed to leave home under the supervision of his mother for medical emergencies, for court attendances and meetings with his lawyer. Mr. Bissoon spent nine months under those strict bail terms.

[24] On September 7, 2017, Mr. Bissoon’s bail was varied to allow him to be out of the home with his stepfather due to his stepfather’s health issues and to allow him to be alone in the apartment building outside his mother’s apartment unit. When Mr. Bissoon got a job his bail was varied on December 29, 2017 to allow him to be outside the home during the time he went to and from work and while at work. For a brief period in December 2017, his bail was varied temporarily to allow him to live at a different address with his mother because of a domestic problem.

Aggravating and Mitigating Factors

[25] Section 718.2 provides for a sentence to be increased or reduced to take account of any relevant aggravating or mitigating circumstances related to the offence or the offender. This provision contains a non-exhaustive list of examples of aggravating and mitigating factors to consider.

[26] The mitigating factors in this case are:

(a) Mr. Bissoon is young at age 27, age 25 when he committed the offences before the court;

(b) He pleaded guilty to three of 14 charges;

(c) Mr. Bissoon has been employed for a year in a job he enjoys and wants the type of work to become his career and he has the support of his employer;

(d) Mr. Bissoon committed no bail violations over 30 months of varying forms of house arrest;

(e) He has lived a pro-social life since his arrest;

(f) He has a loving and close relationship with his mother with whom he has lived for over two years;

[27] The aggravating factors are:

(a) Mr. Bissoon has been convicted of the serious offence of operating a commercial drug trafficking enterprise involving the sale of cocaine;

(b) He sold a total of 25.96 grams of cocaine to the officer;

(c) He indicated to the undercover officer he intended to expand his operation into other Schedule I drugs and there is evidence he was involved in the production and sale of crack cocaine;

(d) Mr. Bissoon has a criminal record from 2015 for offences related to the offences before the court, possession of a variety of Schedule I drugs, suggesting a commercial drug operation, less than two years before he began the trafficking operation before this court;

(e) Mr. Bissoon introduced the idea of selling a firearm into the drug trafficking operation and though he did not intend to sell the firearm, he took money with the intention of ripping the officer off

THE PARTIES’ POSITIONS AND THE COURT’S DECISION

The Crown

[28] The Crown seeks a global custodial sentence of 2½ years for both the offer to sell a firearm and the drug charges. Based on the global approach the Crown seeks 1 year consecutive on the offer to a sell firearm and 18 months for the drug charges. The Crown believes but for the global approach the sentence for the drug charges should be 2 years based on R. v. Woolcock and cases that followed.

[29] The Crown submits the following aggravating factors should be a focus: Mr. Bissoon’s commercial drug operation with the sale of 25.96 grams of cocaine; his intention to increase his drug operation to other drugs; his not too distant criminal conviction for a related drug offence; the involvement of a firearm through Mr. Bissoon’s offer to sell; and the fact he attempted to rip off the officer for the money he gave for the firearm.

The Defence

[30] The defence seeks a 90-day intermittent sentence with a period of 3 years’ probation. He arrives at that position based on the following considerations.

[31] On the charge of offer to sell a firearm, the defence seeks as a starting point a 3 to 4-month sentence consecutive to the drug charges. On the drug charges the defence seeks a starting point of 6 to 8 weeks. The defence submits the total consecutive sentence starting point for the offer to sell a firearm and the drug charges is 9 to 12 months.

[32] The defence seeks 6 to 9 months’ credit for strict bail based on the Court of Appeal decision in R. v. Downes.

[33] The court in Downes held that time spent under stringent bail conditions, especially under house arrest, must be taken into account as a relevant mitigating circumstance. The court recognized that there will be variations in the potential impact on sentence of this factor and it could be that little or no credit should be given for pre-trial house arrest. Discretion rests with the sentencing judge to grant credit, giving reasons for or against granting credit. The Court of Appeal allowed five months’ credit for 18 months’ house arrest: [R. v. Downes, 2006 CanLII 3957 (ON CA), 79 O.R. (3d) 321 (Ont. C.A.)].

[34] The defence also seeks 8 days’ credit on a 1.5:1 basis for the 5 days’ time served in pre-trial custody. The defence does not dispute the DNA or the forfeiture orders or the lifetime firearm prohibition sought by the Crown.

CONCLUSION

[35] I balanced the mitigating and aggravating circumstances. I considered the changes in Mr. Bissoon’s life that he spoke about and that his supporters wrote about. He is a young man who has a lot of life ahead of him that he could make positive use of. He has a job he loves with a supportive employer. He has a career objective in mind. Mr. Bissoon has a loving mutually supportive relationship with his mother who wrote a heartfelt letter detailing both the challenges he has faced and the improvements she has observed in his life.

[36] Mr. Bissoon was on house arrest for 30 months without a breach under strict terms for 9 months under domestically challenging circumstances. This tends to bode well for him going forward in life.

[37] Mr. Bissoon took responsibility for his crimes by pleading guilty and he appeared to express genuine remorse when he addressed the court.

[38] However, I am concerned about the extent of his drug operation and the lengths he was prepared to go to expand his operation had he not been caught. The reason I find he might have been serious about expanding is because he had experience with other drugs. His previous charge from two years before found him in possession of a broad panoply of serious drugs. Also augmenting the potential danger of his operation was the introduction of the idea of firearms for protection.

[39] Considering the factors that favour and disfavour Mr. Bissoon, the parties’ submissions and case authorities, I am prepared to order a global sentence of 18 months, a 12-month sentence for the offer to sell a firearm charge consecutive to a 6-month sentence for the drug charges.

[40] As far as Downes credit is concerned, Mr. Bissoon spent 9 months of the 30 months under very strict bail conditions. On a bail variation he was allowed to leave home to work for about 19 of the 30 months to go to work without the supervision of his surety. I am prepared to give 6 months’ credit. In allowing this credit I did take account of the domestic strife he lived through in the home with his abusive stepfather.

[41] Mr. Bissoon is entitled to 8 days’ credit for pre-trial custody. I impose a firearm prohibition for life and a DNA order. I also order a probationary period of two years.

[42] Mr. Bissoon’s total global custodial sentence is 12 months minus 8 days for pre-trial time.

SENTENCE

[43] Adrian Bissoon, will you please stand. I will now impose sentence.

[44] I order you to serve a total custodial sentence of 12 months minus 8 days’ for time served in pre-trial custody:

[45] I also impose a two-year probationary period pursuant the compulsory terms of probation provided at s. 732.1(2) of the Criminal Code. I order that you shall:

(a) Keep the peace and be of good behaviour;

(b) Appear before the court when required to do so by the court; and

(c) Notify the court or the probation officer in advance of any change of name or address, and promptly notify the court or the probation officer of any change of employment or occupation.

[46] I further impose the following mandatory ancillary orders:

(a) an order under s. 109 of the Criminal Code for life prohibiting the possession of any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive substance;

(b) a DNA order pursuant to s 487.051 (1) of the Criminal Code; and

(c) a forfeiture order in relation to property and proceeds seized pursuant to s. 490.1 of the Criminal Code.

B.A. Allen J.

Released: September 19, 2019

COURT FILE NO.: CR-18-90000223-0000

DATE: 20190919

ONTARIO SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN – and – ADRIAN BISSOON Accused

REASONS FOR DECISION ON SENTENCE

B.A. Allen J.

Released: September 19, 2019