Court File and Parties

COURT FILE NO.: CR-18-117 DATE: 20200302 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – SHELDON CAMPBELL Defendant

Counsel: Amber Meiners for the Crown Kevin Kaczmara for Mr. Campbell

HEARD: February 11, 2020

JUDGMENT ON SENTENCING

Boswell J. (Orally)

Overview

[1] Mr. Campbell was convicted on November 7, 2020 of one count of possession of crack cocaine for the purpose of trafficking and one count of possession of crack cocaine. He is before the court today for sentencing.

[2] The Crown agrees that the conviction for simple possession should be conditionally stayed according to the principles of R. v. Kienapple, [1975], 1 S.C.R. 729 and I make that order accordingly.

[3] Mr. Campbell was found to be in possession of 7.99 grams of crack cocaine in a Barrie hotel room. The full particulars of the circumstances of his arrest are set out in a pre-trial ruling reported as 2019 ONSC 6183. Although I will come back to that ruling, it is enough for now to observe that the jury was satisfied, on all the evidence, that Mr. Campbell was in possession of crack cocaine and that his purpose for possessing it was to traffic in it.

[4] Section 5(3) of the Controlled Drugs and Substances Act, S.C. 1986, c. 19 (“CDSA”), provides for a maximum penalty of life imprisonment on conviction of possession of a Schedule I substance for the purpose of trafficking. Crack cocaine is a Schedule I substance. While the CDSA provides for minimum sentences in certain circumstances, none of them are applicable here.

[5] The Crown seeks a sentence of 6 to 8 months, which is at the low end of the established sentencing range, plus a period of probation, along with a s. 109 weapons prohibition order for ten years, a requirement that Mr. Campbell provide a sample of his DNA and a forfeiture order in relation to items seized at the time of Mr. Campbell’s arrest.

[6] Defence counsel suggests, for reasons I will expand on momentarily, that a more appropriate sentence would be time served.

The Principles of Sentencing

[7] Section 10 of the CDSA provides that the fundamental purpose of any sentence imposed under s. 5(3) of that Act 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 circumstances, of offenders and acknowledging the harm done to victims and to the community.

[8] Section 10 must be read in conjunction with the objectives of sentencing codified in s. 718 of the Criminal Code. They include: the denunciation of unlawful conduct; general and specific deterrence; the separation of the offender from society where necessary; rehabilitation; reparation for harm done to the victims and the community; and the promotion of a sense of responsibility in offenders and acknowledgment of the harm done.

[9] The importance of these individual objectives, and how they interact, varies from case to case. In this case, individual and general deterrence take on a more prominent role as does the court’s need and desire to strongly denounce the trafficking of dangerous and insidious drugs in our communities. At the same time, I am cognizant of the fact that Mr. Campbell has made strides to improve his life. He is a father to two young children. And his prospects for rehabilitation are very good.

[10] In every case, the crafting of a sentence in service of the objectives I have just identified, requires the court to adhere to the fundamental principle of proportionality. More specifically, an overarching principle of sentencing is that any sentence imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender: s. 718.1 Cr. C.

[11] Determining a proportionate sentence requires the court to carefully consider the circumstances of the offender and of the offence in light of sentences previously imposed on other, similar offenders for offences of a similar nature. Any aggravating and mitigating circumstances must be accounted for in the process.

The Circumstances of Mr. Campbell

[12] Mr. Campbell is 36 years old. He was born in Toronto and has one sibling, a brother three years older than him. His biological father has never been a part of his life. He has a step-father and describes their relationship as positive. He has a close and loving relationship with his mother. Despite his positive family relationships, he describes his childhood as unstable. His mother’s relationship with his step-father was turbulent and they moved around frequently. Some of the neighbourhoods they lived in were less than desirable. Some had a culture where guns and drugs were glorified. As Mr. Campbell indicated to the court, as he grew into adulthood, roughly fifty percent of his group of friends were selling drugs.

[13] One aspect of Mr. Campbell’s childhood was particularly traumatic. His biological father rejected him as a child, wrongly contending that Mr. Campbell was not his son. He did not reject Mr. Campbell’s older brother however, which was, of course, impossible for Mr. Campbell, as a young child, to understand.

[14] Later, as a young man, Mr. Campbell was further impacted by a difficult and at times violent relationship his mother entered into. Mr. Campbell had to physically defend his mother on a number of occasions.

[15] Mr. Campbell now has two children of his own, aged 10 and 3, who reside with their mother, a former girlfriend of Mr. Campbell’s. He has regular access visits with the children and pays support for them.

[16] Mr. Campbell presently lives with his mother in an apartment in Brampton. He has a high school diploma and a college diploma in business communications and human resources. He has worked in the past as a tow truck driver. He now works part-time as a cook at an adult entertainment establishment and expresses an interest in opening his own restaurant. Moreover, as Mr. Kaczmara advised me this morning, he has recently obtained further employment in the tow truck driving industry.

[17] Mr. Campbell has a criminal record with two prior entries, both dated and neither related to the charges now before the court. He was convicted of assault in August 2002 and received a suspended sentence with 18 months probation. He was convicted, as a youth, in 1999 of being unlawfully in a dwelling house and was sentenced to 12 months probation.

The Positions of the Parties

[18] The Crown’s position is that the Court of Appeal decision in R. v. Woolcock, [2002] O.J. No. 4927 establishes the sentencing range for this type of offence – possession of relatively modest amounts of crack cocaine for the purpose of trafficking – at six months to two years less a day.

[19] The Crown situates Mr. Campbell’s culpability at the low end of the range based on the combination of the quantity of drugs involved and a number of mitigating circumstances, which include the fact that Mr. Campbell is a first-time CDSA offender, who is employed full-time, has two small children and was subjected to a number of Charter breaches at the time of his arrest.

[20] Defence counsel does not quarrel with the Crown’s statement of the applicable range. He too situates Mr. Campbell’s culpability at the low end of that range. But he seeks additional deductions as well, including: a credit for pre-sentence time-served; an enhanced credit for time-served on the basis of the difficult conditions at the Central North Correctional Centre (“CNCC”); a credit for the strict bail conditions he has lived with for close to 30 months; a credit for the breaches of his Charter rights by the Barrie Police at the time of his arrest; and mitigation for a number of other factors, including his difficult background.

[21] Defence counsel asserts that, all things considered, Mr. Campbell should be sentenced to time-served.

Discussion

[22] I begin my analysis of what an appropriate sentence might be in the circumstances of this case by observing, as appellate courts have many times, that sentencing is a highly individualized exercise. See for instance, R. v. Lacasse, 2015 SCC 64, at para. 58. In Lacasse the Supreme Court also underscored the importance of the principle of proportionality in the crafting of a fit and just sentence.

[23] Proportionality engages two concepts: censure and restraint. As Lebel J. explained in R. v. Ipeelee, 2012 SCC 13, at para. 37:

Proportionality is the sine qua non of a just sanction. First, the principle ensures that a sentence reflects the gravity of the offence. This is closely tied to the objective of denunciation. It promotes justice for victims and ensures public confidence in the justice system…Second, the principle of proportionality ensures that a sentence does not exceed what is appropriate, given the moral blameworthiness of the offender. In this sense, the principle serves a limiting or restraining function and ensures justice for the offender. In the Canadian criminal justice system, a just sanction is one that reflects both perspectives on proportionality and does not elevate one at the expense of the other.

[24] The search for an ideally proportionate sentence more often than not results in trial judges attempting to define an applicable range of sentences for the index offence and then situating the moral blameworthiness of the accused’s conduct within that range.

[25] Ranges are, of course, helpful, but appellate courts have repeatedly cautioned that they are only guidelines. They are not to be applied rigidly. Given the highly individualized nature of the sentencing process, there will always be cases that fall outside of the usual range – either above or below.

[26] I accept that Woolcock fixes the appropriate range of sentence for the offence in issue here at 6 months to 2 years less a day.

[27] Counsel presented the court with a number of cases that were intended to be of some assistance in situating Mr. Campbell’s conduct within the range. Those cases, while somewhat illustrative, are not especially helpful for two reasons. First, they are almost entirely dependent on their own contexts. Second, in terms of counsel’s positions in this case, the range has been considerably narrowed. In other words, the Crown has not sought more than 8 months. While I may have the discretion to exceed a penalty sought by the Crown, I would do so only in exceptional circumstances. Those circumstances are not present here.

[28] Crafting a proportionate sentence requires the court to examine any aggravating and mitigating circumstances relating to the offence or the offender.

[29] I consider the following circumstances to be aggravating:

(a) Mr. Campbell was peddling crack cocaine. Crack cocaine is an insidious drug. It may not be as dangerous as some other drugs sold illicitly on the street, fentanyl for instance, but it is highly addictive and destructive. It ruins lives; and, (b) Mr. Campbell was peddling crack cocaine as a business. In this sense he can be distinguished from a drug addict who engages in trafficking as a means of feeding his or her own need to obtain drugs. Mr. Campbell was trading on the misery of others.

[30] The Crown submitted that Mr. Campbell’s criminal record is aggravating. I am not persuaded that it is. I completely discount the youth record. It is dated, and for an odd offence entirely unconnected to the current conviction. I also largely discount the 2002 assault conviction. That conviction is also dated. Though it is an adult record, Mr. Campbell would have barely met the threshold for adulthood at the time. Moreover, it is unconnected in any way to the current conviction. The dated convictions tell me little to nothing about Mr. Campbell’s character or his prospects for rehabilitation.

[31] I am of the view that Mr. Campbell has very good prospects for rehabilitation. His pre-sentence report and his comments to the court reflect a mature perspective on his life, his misdeed and the type of future he wants for himself and his children. He has steady employment and a supportive family. These factors are all mitigating in nature, as are the following:

(a) Mr. Campbell is, in my view, genuinely remorseful about the offence. He has made significant and positive changes in his life since his arrest; (b) The amount of crack found in Mr. Campbell’s possession was, according to the Crown’s expert, Officer Kelk, right on the line between an amount consistent with personal use and an amount consistent with possession for the purposes of trafficking. He had to rely on other indicia of trafficking in order to form his opinion about Mr. Campbell’s purpose for possessing the drugs. All of this is to say, it was a relatively modest amount; and, (c) Mr. Campbell did not have an easy time growing up. He experienced traumas that undoubtedly affected him deeply. He grew up in certain neighbourhoods where drug dealing was de rigueur. These factors do not by any means excuse his behaviour, but they do aid in understanding it.

[32] Defence counsel submitted that Mr. Campbell should not be punished for taking this matter to trial, because there were serious Charter problems and other triable issues. He argued that Mr. Campbell should receive the same mitigating credit that someone would get for early resolution through a guilty plea. In my view, this submission has no merit. There is a big difference between not punishing someone and given them a credit. Mr. Campbell is not being punished, through any sentence imposed, for requiring the Crown to prove its case. At the same time, he cannot expect, at the end of a jury trial, to be credited for an early resolution.

[33] In my view, the seriously insidious nature of crack cocaine and the commercial nature of Mr. Campbell’s business call for a sentence of 8 months. This is at the lower end of the scale, given the impact of the mitigating circumstances I have referred to above.

[34] Defence counsel raised some additional factors that he says should further reduce the sentence I would otherwise impose. The types of factors he raised are sometimes treated as additional mitigators and at other times as credits against the time to be served. Either way, they work to reduce a sentence imposed. The Crown took at least some of these additional factors into account in her proposal of a sentence of 6-8 months. I have not included them in my starting point of 8 months. I will address each one now.

[35] First, Mr. Campbell is entitled to a credit for the time he served in jail between his arrest and when he was released on bail. He spent 14 days at CNCC. He is entitled to a credit of 1.5 days for each of those 14 days according to the principles discussed in R. v. Summers, 2014 SCC 26. In other words, his credit for pre-sentence custody is 21 days.

[36] Second, Mr. Campbell seeks an enhanced credit for his pre-sentence custody based on the harshness of the conditions at CNCC. Credits of this nature were endorsed, where warranted, by the Court of Appeal in R. v. Duncan, 2016 ONCA 754. Mr. Campbell’s position is based on lockdowns he had to endure at CNCC during his two week stay there. His counsel filed a report from CNCC which indicates that he was subjected to 12 hours of lockdowns beyond normal lock down times. While unpleasant, these circumstances do not rise to a level that justifies a credit against any sentence yet to be served by Mr. Campbell.

[37] Third, Mr. Campbell seeks a credit for the strict bail conditions he has been subject to between his judicial interim release on October 17, 2017 and the trial.

[38] In R. v. Downes, [2006] O.J. No. 555, the Court of Appeal held that time spent under stringent bail conditions, such as house arrest, may be taken into account as a relevant mitigating circumstance on sentence. The amount of credit to be given is in the discretion of the trial judge and there is no formula that must be followed. It will vary depending on a number of factors including the length of time spent on bail, the stringency of the conditions, the impact on the offender’s liberty and the ability of the offender to carry on normal relationships, employment and activity.

[39] Mr. Campbell’s bail conditions included the following:

(i) Reside with his surety (his mother) at 20 Strathaven Drive, Mississauga; (ii) Remain in his residence between 12 a.m. and 6 a.m. daily unless accompanied by his surety; (iii) Stay out of the LCBO at 74 Caplan Avenue, Barrie. This is a very curious and seemingly random restriction; (iv) Do not communicate with Amanda Giles; (v) Do not possess any weapon as defined by the Criminal Code; and, (vi) Do not possess or consume any unlawful drugs.

[40] Mr. Campbell has been subject to his bail conditions for about 28 ½ months. That is a considerable period of time to live under liberty-restricting conditions. Having said that, Mr. Campbell’s liberty was only moderately restricted. He could still work, participate in recreational and religious activities and engage in almost every other lawful activity. At the same time, he was compelled to live with his mother for 3 years and he could not be out overnight except in her presence. I am certain that his mother is a lovely person, but make no mistake, these have been restrictions on Mr. Campbell’s liberty. They would have affected, in a significant way, how he lived his life.

[41] In my view, Mr. Campbell is entitled to some credit for his bail conditions. An appropriate credit is, in my view, two months.

[42] Fourth, Mr. Campbell seeks a credit to reflect the fact that his Charter rights were breached in a number of serious ways when he was arrested. Specifically, I found in a pre-trial ruling that Barrie Police officers failed to advised Mr. Campbell of his right to counsel at the time of his arrest. Indeed, it was some thirty minutes before he was advised of his right to counsel. Upon being so advised, he indicated to the police that he wished to speak to his lawyer, Mr. Butler. The Barrie Police were unable to locate a phone number for Mr. Butler and so they put him in touch with duty counsel instead. I found that they failed to try hard enough to locate Mr. Butler’s number. I also found that they asked Mr. Campbell for potentially inculpatory information prior to the facilitation of his right to counsel, which is a breach of the well-established duty to hold off such questioning until counsel has been consulted. Finally, I found that the police conducted a search of Mr. Campbell’s hotel room that breached his s. 8 Charter right to be free of unreasonable search and seizure.

[43] Defence counsel relies on the Supreme Court’s decision in R. v. Nasogaluak, 2010 SCC 6 in support of his request for a sentence reduction based on Charter breaches. In Nasogaluak, LeBel J. held that a sentencing judge may take police misconduct, including Charter breaches, into account in the sentencing process, provided the incidents giving rise to the breach are relevant to the usual sentencing regime. They must, in other words, be rationally connected to the circumstances of the offence or of the offender.

[44] In this instance, Mr. Campbell was left sitting in his underwear on a bed in his hotel room with his hands bound behind his back while police officers rummaged through his things. He testified that he felt belittled and degraded by the experience. He was initially denied the right to counsel and later denied the right to contact counsel of his choice.

[45] These were, as I noted in a prior ruling, serious Charter breaches. The right to counsel has been described by the Court of Appeal as offering significant psychological value. It is a “lifeline” that gives detained persons a sense that they are “not entirely at the mercy of the police while detained.” See R. v. Rover, 2018 ONCA 745, at para. 45.

[46] The breaches in this instance are directly connected to the circumstances of the offence and of the offender. They may be properly taken into account in the sentencing process. The question is, how, if at all, should they be reflected in any sentence imposed?

[47] In a prior evidentiary ruling, I determined that, although the breaches were serious, they did not support the exclusion, under s. 24(2) of the Charter, of certain evidence obtained by the police from Mr. Campbell’s hotel room. I found that the evidence in issue – drugs and brass knuckles – was real and reliable and that the public had a very strong interest in seeing the charges against Mr. Campbell resolved on their merits. In my view, the exclusion of the evidence would have done more harm to the reputation of the administration of justice than its inclusion.

[48] The fact that I did not consider the seriousness of the breaches and their impact on Mr. Campbell sufficient to warrant exclusion of evidence, does not, in my view, preclude me from considering the breaches as a mitigating factor on sentence. Different principles are in play. Returning to R. v. Nasogaluak, LeBel J. observed that sentencing serves a communicative function. Citing R. v. M.(C.A.), [1996] 1 S.C.R. 500, he noted that fit sentences serve to express a basic set of communal values shared by all Canadians. The Constitution – and in particular the Charter – is the ultimate expression of shared values in Canadian society. A sentence that takes into account Charter violations connected to the offence or the offender communicates respect for those shared values.

[49] Moreover, the fundamental purpose of sentencing includes contributing to respect for the law. Simply put, the police did not, in this instance, respect the law when they arrested Mr. Campbell.

[50] In my view, the actions of the police that violated Mr. Campbell’s Charter rights and failed to respect the communal values reflected in the Constitution, must be reflected by way of mitigation of Mr. Campbell’s sentence.

[51] There is no formula or guide for determining an appropriate level of mitigation. Obviously the more serious the breach and its impact on the offender, the greater the mitigation. In the circumstances of this case, I am of the view that a further two months reduction in Mr. Campbell’s sentence is sufficient to account for the seriousness of the police conduct and its impact on Mr. Campbell.

[52] Finally, Mr. Campbell sought additional mitigation of his sentence based on conduct of the police that was arguably racist. To understand this submission, a brief review of the police investigation that led to Mr. Campbell is required.

[53] The investigation initially had nothing to do with drugs. A man stole some alcohol from an LCBO nearby to the hotel where Mr. Campbell was staying. The suspect in the LCBO theft was described as a black male, about 5’9” tall with an athletic build. Mr. Campbell is much taller than 5’9” and does not have an athletic build. He did not match the description of the LCBO thief, except by being a black male.

[54] One of the officers who responded to the LCBO theft testified that he would have detained any black man he saw on the street following the theft. In his view, the fact that the male was black would be sufficient to connect the person on the street to the suspect.

[55] Later, when the police attended at the hotel where Mr. Campbell was staying – which was across a parking lot from the LCBO where the theft occurred – they asked if there was anyone staying in the hotel who matched the description of the suspect. It was never made clear what description was provided to the desk clerk, but one of the attending officers testified that the information they received was that there was only one black male staying in the hotel. That was enough to send the police to his door.

[56] Mr. Campbell had nothing to do with the LCBO theft and did not match the description of the suspect. But he was investigated because he was black.

[57] To be clear, evidence that a black man has stolen from an LCBO does not provide articulable cause to detain every other black man on the street for questioning.

[58] I was disturbed by some of what I heard in this case. That said, while the evidentiary record may disclose racist attitudes on the part of one or more member of the Barrie Police Service, I am unable to conclude that those attitudes are sufficiently connected to the offence or the offender in this instance to take them into account in the sentencing process.

Conclusion

[59] By way of summary, I have found that an appropriate starting point in terms of a sentence in this case is 8 months in custody. From that I have deducted a Downes credit of 2 months and a further 2 months to reflect Charter breaches that occurred at the time of Mr. Campbell’s arrest. Mr. Campbell has already served the equivalent of 21 days in pre-sentence custody. The net sentence is therefore 3 months and 9 days, which I round down to 3 months so that Mr. Campbell may serve the sentence intermittently.

[60] In addition, Mr. Campbell will be subject to 2 years probation, non-reporting, on the following terms:

(a) To keep the peace and be of good behaviour; (b) To appear before the court when required to do so by the court; (c) To 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; and, (d) Not to possess any weapon as defined in the Criminal Code.

[61] The terms of probation will apply at any time that Mr. Campbell is not in confinement during the period that the sentence is being served and thereafter when on release from prison after completing the intermittent sentence.

[62] In addition, I impose the following ancillary orders:

(a) A s. 109 weapons prohibition for 10 years; (b) An order that Mr. Campbell provide a sample of his DNA; and (c) A forfeiture order on the terms provided to me in draft.

[63] I will hear counsel’s submissions on the most suitable terms for the intermittent sentence.

Boswell J. Released: March 2, 2020