Court File and Parties

COURT FILE NO.: CR-19-90000042-0000 DATE: 2020-03-05

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – LALENDRA DESILVA Accused

Counsel: Amanda Webb, for the Crown Craig Zeeh, for the Accused

HEARD: January 10, 2020

B.A. Allen J.

REASONS FOR DECISION ON SENTENCING

BACKGROUND

[1] Lalendra Desilva was arrested on July 7, 2018 and charged with possession of various drugs for the purpose of trafficking and possession of proceeds of crime. That evening the police were investigating information that a person in possession of a firearm was driving a dark coloured Mercedes Benz in the area. Just before his arrest Mr. Desilva was driving a black Mercedes. The police ran the marker on the Mercedes and found it was registered in Mr. Desilva’s name.

[2] The police discovered Mr. Desilva was under house arrest on bail conditions and appeared to be in non-compliance. The conditions of bail required house arrest and that Mr. Desilva not be outside the surety’s residence without being in the direct company of his surety, except in the case of medical emergencies. He was arrested for non-compliance with bail.

[3] After his arrest the police searched Mr. Desilva’s person and vehicle. From his person the police recovered 2.25 gr. of cocaine and $7,060.00 (CAD). The police seized from his vehicle 477.46 gr. of cocaine, 219.65 gr. of marijuana, 1.22 gr. of hashish, 35.1 gr. of Alprazolam and 655.60 gr. of GHB. He was arrested again for possession of the drugs and the money. Mr. Desilva was charged with possession of cocaine, cannabis, Alprazolam, GHB, and proceeds of crime.

PRINCIPLES OF SENTENCING

[4] Section 718 of the Criminal Code provides the principles to govern determinations on sentencing: to denounce unlawful conduct; to deter the offender and other potential future offenders from committing offences; and to separate offenders from society.

[5] Proportionality is also a guiding principle for sentencing. A sentence must be proportionate to the gravity of the offence, 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), 1986 C.C.C. (3d) 129 (Ont. C.A.)].

[6] Parity, another governing principle, 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. c. M. (L.), 2008 SCC 31, [2008] 2 S.C.R. 163 (S.C.C.)].

[7] The totality principle must be considered for some sentences. Section 718.2 (c) of the Criminal Code provides “where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh.” The principle is engaged where there is a sentence for multiple offences and requires the court to craft a global sentence of all offences that is not excessive: [R. v. M. (C.A.), [1996] 1 S.C.R. 500, at para. 42, (S.C.C.)]. If the cumulative sentence is too harsh, the court must adjust the total sentence so it is not out of proportion to the gravity of the offences.

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

[9] 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”. Trafficking in drugs or possession of that type of drug for a commercial purpose has been viewed as an an aggravating factor on sentencing. Courts have held that emphasis should be given in sentencing to the principles of denunciation and deterrence in cases involving more dangerous drugs: [R. v. Woodcock 2002 CarswellOnt 7683, at para. 8, (Ont. C.A.)].

MR. DESILVA’S LIFE

[10] Mr. Desilva is 42 years of age. He immigrated to Canada with his family when he was 13 years of age. He is a Canadian citizen. He does not have a criminal record. He completed three years of a Business Administration degree at York University. He resides with his mother with whom he has a close relationship. She attended his trial and sentencing in a show of support.

[11] After he left school in 1995, Mr. Desilva and his girlfriend moved together to South Carolina where they resided for 11 years operating a medical supplies business. Their company dissolved in 2009 and in 2011 his relationship with his girlfriend ended. Mr. Desilva moved back to Canada and declined into a state of depression as a result of the loss of his business and girlfriend, with whom he had planned to make a life. He left his more positive friends in Toronto and fell into company with a bad crowd. It was in that context that he found himself in possession of a large quantity of a variety of drugs and money, evidence of involvement in a commercial drug trafficking operation.

[12] On the positive side, Mr. Desilva has been employed and a productive member of society for the greatest part of his life. Mr. Desilva filed three letters of support, one from a past employer, one from an uncle and one from a social worker who had provided him professional services and with whom he has since become a personal friend.

[13] Mr. Desilva’s past employer, Mr. Geoffrey Jones, who is a chartered account and life underwriter for Sun Life Financial, spoke of Mr. Desilva working as his assistant from time to time. He has known Mr. Desilva for seven years. Mr. Jones praises Mr. Desilva for his aptitude in economics and calculations. Mr. Jones is aware of Mr. Desilva’s criminal past and past drug addiction and has expressed faith that he has overcome this and has disassociated from his past bad group of friends.

[14] Mr. Desilva’s uncle, Gerard Wijeyeratne, who has known him since his childhood, describes a nephew with a sharp mind and an aptitude for business, financial markets and entrepreneurship. In his uncle’s eyes, his nephew has a generous heart and a capacity to make friends easily. He indicated Ms. Desilva did not have a father figure in his life which impacted his life. But in spite of his missteps, the uncle feels he has the strength to become a productive member of society.

[15] Jennifer Nicholls, a social worker, has known Mr. Desilva for about five years. She met Mr. Desilva when she was volunteering at an outreach centre. She learned of his feelings of betrayal with the break up of his relationship with his girlfriend who had ended the relationship. He stated that she felt his mental state led him into the anti-social lifestyle that got him into trouble. Ms. Nicholls learned about the difficulty with his father abandoning the family for another relationship and the abuse he received from him as a child. Ms. Nicholls learned about Mr. Desilva’s detention and his arrest and in conversations with him she found Mr. Desilva remorseful about his criminal lifestyle and she became hopeful that he will be able to turn his life around.

[16] Mr. Desilva spoke to the court at his sentencing hearing. He expressed remorse about what he had put his family and others through because of his criminal lifestyle. He said he recognized the poor choices he had made in his life and that he had allowed his emotional state to drive him into the company with bad friends. He expressed shame about what he had brought on his family. Mr. Desilva stated that he has had a lot of time in pre-trial custody to think about and regret what brought him to criminal court.

AGGRAVATING AND MITIGATING FACTORS

[17] Section 718.2 of the Criminal Code provides that a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender.

[18] The aggravating factors are:

• Mr. Desilva was found in possession of large quantities of a variety of drugs including 477 gr. of cocaine, a pernicious and addictive drug which he had ready for sale;
• The drugs were found in association with a large quantity of money which indicates a higher than street-level profit-driven commercial operation;
• Mr. Desilva was outside a nightclub, a public entertainment area, at 2:00 a.m. about to enter the club with the likely prospect of selling drugs to patrons;
• He was found in non-compliance with bail conditions for which he had been arrested on similar charges.

[19] The mitigating factors are:

• Mr. Desilva is 42 years of age, a first offender with no criminal record;
• He has support from his mother and uncle and pro-social supportive friends who say he has good prospects for turning his life around;
• He has a marketable education in business which would allow him to get gainful employment;
• He has been a productive member of the workforce and business community running his own business in the U.S. for many years;
• Mr. Desilva expressed what I found to be genuine remorse and shame for his crimes and for the effect his crimes have had on his family;
• He entered into an agreed statement of facts which saved time and judicial resources.

[20] Mr. Desilva did not plead guilty which cannot be considered an aggravating factor since offenders are entitled to maintain their innocence. However, such an offender will not enjoy the benefit as a mitigating factor that a guilty plea would offer.

THE PARTIES’ POSITIONS

[21] The Crown seeks a global sentence of 5 to 6 years. The Crown relies principally on two Ontario Court of Appeal cases:

• R. v. Bajada, [2003] O.J. No. 721, (Ont. C.A.): the offender, age 51, with an extensive criminal record, was arrested in possession of ½ km. (455 gr.) of cocaine and $62,500; C.A. reduced the 8-year custodial sentence given by the trial judge to 6 years.
• R. v. Bryan, 2011 ONCA 273, [2011] O.J. No. 1581(Ont. C.A.): the offender, with no criminal record, who pleaded guilty, possessed more than a half-pound of cocaine for the purpose of trafficking; C.A. held sentences of from to 8 years custody would reflect the proper range, which would have been appropriate in this case, but for exceptional circumstances in relation to the offender being improperly persuaded to plead guilty.

[22] The Crown also seeks a DNA order for the secondary designated drug offences, a Criminal Code, s. 109 firearm prohibition for life and a forfeiture order for the proceeds seized. The defence does not oppose the ancillary orders.

[23] The defence seeks a global sentence of 3½ years. He relies on Ontario Superior Court of Justice cases and one Ontario Court of Appeal case that gave sentences of 2½ years to 4 years for possession of cocaine.

2 ½ -Year Sentences

• R. v. Ceballos, 2015 ONSC 720: offender age 40; 326 gr. cocaine found in car; first offender, no criminal record; community family support; good rehabilitation prospects.
• R. v. Brewster, [2003] O.J. No. 2305; offender age 46; cash and 321 gr. of cocaine seized at his home; dated, unrelated criminal record; guilty plea; family and community support;

3 ½ – 3 ¾ -Year Sentences

• R. v. Labelle 2016 ONCA 110: offender involved in broader drug operation under police investigation; 2.6 gr. marijuana, 166 gr. cocaine found in van; 3½-year sentence.
• R. v. Rebelo, 2017 ONSC 1036: offender age 33; first offence; no criminal record; search warrant on home 407.82 gr. of cocaine and 717.73 gr. of marijuana and cash seized; drugs accessible to children; offender had ongoing stable employment; family community support; good rehabilitation prospects; 3¾ years sentence.

4 – 4½-Year Sentences

• R. v. Andrews, 2016 ONSC 5474: offender age 35; police found variety of drugs in his truck and storage locker; total 813 gr. marijuana, 676.5 gr. cocaine, 56 gr. psilocybin; criminal record dated and unrelated; supportive family and community; responsible for primary care to mother; sentence, 4 years.
• R. v. Ovid, 2017 ONSC 2974: offender age 46; search warrant on home located 304 gr. powder cocaine and crack in his room; prior related criminal record; mid-level not street level dealer; consistent employment history; supportive family and community; supports infirm mother; 4½-year sentence.

Enhanced Duncan and Summers Credits

[24] Mr. Desilva swore an affidavit. He has served pre-trial custody at the Toronto South Detention Centre (“the TSDC”). The records from TSDC obtained by the defence indicate that Mr. Desilva served 144 days in lockdown, from July 7, 2018 to October 24, 2019. Other inmates advised him to keep track of the number of lockdowns. Mr. Desilva filed pages from his phone book calendar as evidence. In his notebook he noted 37 more days than the records show which amounts to 181 days. The defence asks that I accept Mr. Desilva’s calculation. The Crown did not oppose this and I see no reason why I should not accept his evidence of the number of days he was in lockdown.

[25] The defence cited cases that allowed deductions for various lengths of time in lockdown. It is not a secret that conditions at the TSDC are deplorable and despite criticism from inmates and the courts, conditions have not improved over time.

[26] The defence cites the Ontario Court of Appeal in R. v. Duncan that provides the criteria for enhanced credit. Sentencing judges can allow credit for especially harsh conditions as a mitigating factor on sentencing. In considering whether any enhanced credit should be given, the court will consider both: (a) the conditions of the pre-sentence incarceration; and (b) the adverse effect of those conditions on the accused: [R v. Duncan, 2016 ONCA 754, [2016] O.J. No. 5255, at para. 6, (Ont. C. A.)]

[27] Mr. Desilva attests in his affidavit to the great stress he suffered being confined in his cell with his cellmate sometimes for multiple days with no privacy. During lockdowns the inmates were allowed a brief period to take showers and to use the limited number of phones which meant having to choose between showers and phone calls. That resulted in isolation from Mr. Desilva’s family.

[28] Mr. Desilva speaks of the increased violence among inmates during lockdowns due to the stress created by inmates being in close isolating quarters in unhygienic conditions. He describes a situation where he sustained a broken nose from a punch in the face by another inmate for Mr. Desilva inquiring about the other inmate removing something from his cell.

[29] There is no defined formula for setting the amount of credit. Judges determine credit based on the particular circumstances the offender faced. The credit is more or less dependent on the number of lockdowns, the reason for the lockdowns, whether there were a multiplicity of consecutive days and other factors that contribute to the harshness of the offender’s experience.

[30] Mr. Desilva requests a 1:1 ratio on the 181 days in lockdown which amounts to 181 days’ credit. The Crown did not challenge this. I see no reason not to accept the defence’s proposal. Mr. Desilva served a total of 475 days in pre-trial custody. The parties agree that he is entitled to Summers credit of 1.5:1 which amounts to 713 days: [R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575 (S.C.C.)]

[31] I accept the global 3½ year period of incarceration. The sentence is broken down as follows: a total of 3½ years for the drug charges at count 1, count 2, count 3 and count 4. A total of 1 year for the proceeds of crime charge at count 5, to run concurrently to the drug charge sentence.

[32] The sentence of 3½ years amounts to 1,278 days. Taking the Duncan credit into account, the sentence is 1,278 days – 181 days which amounts to 1,097 days or 3 years. Taking the Summers credits into account Mr. Desilva is left to serve 379 days in prison,

[33] I find the sentence accords with the objectives of denunciation, deterrence of others and Mr. Desilva from crime and the separation of Mr. Desilva from society. The sentence also meets the parity principle as it is within the range of sentences for similar offenders who committed similar crimes in similar circumstances.

[34] Mr. Desilva is a 42-year-old first offender. The cases considered that have greater sentences involve larger quantities of drugs and offenders with criminal antecedents, some with related criminal records. There is no evidence with the other offenders that they had the benefits of Mr. Desilva’s education, and business and employment experience. Mr. Desilva’s background makes him exceptionally amenable to rehabilitation and a promising life style change. This view is supported by his pro-social references.

SENTENCE

[35] I will now pass sentence. Lalendra Desilva, will you please stand?

[36] I have sentenced you to a total of 3½ years’ imprisonment broken down as follows:

• a total of 3½ years for the drug charges at count 1, count 2, count 3 and count 4.
• a total of 1 year for the proceeds of crime charge at count 5 to be served concurrently to the sentence for the drug charges.

[37] You have served 181 days in lockdown in pre-trial custody, enhanced by 1:1, equals 181 days. I allow you 181 days’ credit for conditions on pre-trial custody.

[38] You have served a total of 475 days in pre-trial custody, enhanced by 1.5:1 equals 713 days’ credit for time served in pre-trial custody.

[39] Your remaining sentence to be served in a federal penitentiary is therefore 379 days.

[40] I impose the following ancillary orders:

• a DNA order;
• a s. 109 firearm prohibition for life effective after release from prison; and
• a forfeiture order for the total proceeds seized of $9,180.00.

B.A. Allen J.

**Released:** March 5, 2020