Court File and Parties
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
Barry Keith Matthews
Counsel:
Alex Hardiejowski, for the Crown
Ann Pollack, for the Accused
Released: September 11, 2020
REASONs on Sentencing
Patrick Smith J.
1The charges before the court date back to August 26, 2015, when Barry Keith Matthews was arrested and charged with 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 (the “CDSA”), and of having in his possession a sum of money not exceeding $5,000.00 knowing that it was obtained by commission of an offence punishable by indictment contrary to ss. 354(1)(a) and 355(b)(i) of the Criminal Code, R.S.C., 1985, c. C-46.
2Mr. Matthews brought an application to quash the search warrant the police used to enter and search his house and for an order that the method of forceful entry employed by the police violated his section 8 rights under the Canadian Charter of Rights and Freedoms.
3On September 11, 2019, I dismissed the application in its entirety and found Mr. Matthews guilty on both counts as charged in the indictment. The charges before the court are both serious: contravention of s. 5(2) of the CDSA carries a maximum sentence of life imprisonment (CDSA, s. 5(3)(a)), while contravention of ss. 354(1)(a) and 355(b)(i) of the Criminal Code has a maximum possible sentence of two years imprisonment.
4The facts of the case are fully set out in my written reasons dismissing Mr. Matthews’ Charter application and will not be repeated here, save for a brief summary to provide context to these reasons.
5Sentencing has been delayed by difficulties encountered in receiving a pre-sentence report and by COVID-19, which has caused serious disruption in scheduling cases in the courts.
Summary of the Factual Background
6For approximately one month, members of the Thunder Bay Police Drug Unit and the Gangs and Guns Unit were receiving information that Mr. Matthews was trafficking in cocaine from his residence.
7On August 26, 2015, armed with a search warrant, the police forcibly entered Mr. Matthews’ home at 437 West Arthur Street in the City of Thunder Bay. There, they seized approximately 700 grams of cocaine along with cash in the sum of $2,475.00. The estimated street value of the drugs was $70,800.00.
Personal Circumstances of the Accused
8Mr. Matthews is a 72 year old single male. In 1947, at the age of 15, he came to reside in Canada from Suffolk, England, with his parents and younger brother. He has never obtained Canadian citizenship, although in 1962 he did acquire landed immigrant status (currently referred to as Permanent Resident status).
9Both of his parents are deceased and were gainfully employed: the father as a tool and die maker and the mother as a real estate agent. The couple divorced when Mr. Matthews was 27 years old.
10Mr. Matthews has a brother with whom he is not close and has no contact. He graduated from high school in Toronto in 1964 and began work as a lithographer, eventually becoming self-employed and establishing his own business.
11In 1954, Mr. Matthews relocated to Thunder Bay where he resumed his lithograph business. His business was successful until changes in technology forced him to close his business when he was 60 years of age. Since that time, Mr. Matthews has been receiving Canada Pension Plan and Old Age Security benefits.
12Although married three times, Mr. Matthews has no children or step children, and is currently single, unemployed and living in a room provided by a friend.
13The pre-sentence report that has been prepared by Probation and Parole describes Mr. Matthews’ life growing up as normal, with no evidence of violence, domestic abuse or poverty.
14No collateral sources were identified by Mr. Matthews and none were interviewed, except for one long-time friend, Claire Humphreys, who was able to provide additional personal details of Mr. Matthews’ way of life and upbringing.
15Ms. Humphreys reported that she had lost contact for several years with Mr. Matthews. When recently reconnecting with him, she said she was surprised to learn about the charges that are now before the court, indicating she knew Mr. Matthews as a successful businessman and someone with tremendous personal pride.
16According to Ms. Humphreys, Mr. Matthews is now depressed and is a severe alcoholic who has repeatedly expressed his concern about his withdrawal from alcohol should he be incarcerated.
17Since being evicted from his home, Mr. Matthews has been residing with a friend, Barbara Fraser, for the last several months in a non-intimate relationship. His current net monthly income is stated to consist of CPP and OAS benefits totalling $1,800.00.
18When asked about his use of non-prescriptive drugs, Mr. Matthews admitted to using cocaine in his past, but denied any use since his arrest. He stated that his personal drug use slowed down approximately one year prior to his arrest when he realized that drugs were a lucrative business product and that, to do well in the “business”, he needed to limit his personal use.
19The pre-sentence report indicates that Mr. Matthews may have suffered a stroke approximately five years ago and that, many years ago, he suffered a severe injury to his left arm that has left him without full mobility.
20In the fall of 2019, Dr. Raymond Balec of the NorWest Community Health Centre treated Mr. Matthews and reported that he was suffering from depression, a possible stroke, left shoulder separation, hypertension and insomnia. His offer of assistance to help with alcohol addiction was refused. A referral to therapy and to other community agencies have also been refused or were used only for a short period. Mr. Matthews has stated that he sees no reason to seek further medical or therapeutic help since he sees his life as “over” because of the likelihood of lengthy incarceration and deportation to England.
21The pre-sentence report states that Mr. Matthews “was not remorseful nor did he regret the offence, other than the fact that he was arrested” (Pre-sentence Report, at p. 8). Further, he has commented to Ms. Fraser (with whom he is residing) that he also regrets that he trusted the people to whom he was selling drugs because he was only selling in larger quantities and thought he could trust his buyers. He has also told her that he believed that cocaine was a business with a lot of money to be made and that cocaine use was not harmful in “applied circumstances” such as at social gatherings (Pre-sentence Report, at p. 8).
22Mr. Matthews has one prior conviction dated June 19, 1980, for trafficking in a narcotic for which he received a sentence of 60 days served intermittently, followed by probation for 18 months.
The Positions of the Crown and Defence
23There have been two appearances before this court to present sentencing submissions. At the time of the first appearance, the defence submitted that exceptional and collateral circumstances exist such that a fit and just sentence for Mr. Matthews would be a suspended sentence and three years of probation. At the time this submission was made, a conditional sentence was not an available sentencing option under ss. 742.1(c) and 742.1(e)(ii) of the Criminal Code. [Style: re-write to avoid redundant sentence] In March 2012, the Safe Streets and Communities Act, S.C. 2012, c. 1, received Royal assent. Part 2 of that omnibus bill amended the Criminal Code to eliminate the reference in section 742.1 to apply only to serious personal injury offences and to restrict the availability of conditional sentences for all offences for which the maximum term of imprisonment is 10 years.
24Subsequent to receiving those initial sentencing submissions, both of the Criminal Code provisions set out above were found to be unconstitutional and were struck down as unjustifiably infringing ss. 7 and 15 of the Charter (see R. v. Sharma, 2020 ONCA 478, per Feldman and Gillese JJ.A.). In that case, Ms. Sharma had been convicted of importing a significant quantity of cocaine contrary to s. 6(1) of the CDSA. The Court of Appeal for Ontario allowed the sentence appeal despite the serious nature of the crime that Ms. Sharma had committed. The original sentence of 17 months was set aside and Ms. Sharma was released for time served.
25Notwithstanding the acknowledgment by the defence that the offences for which Mr. Matthews has been convicted are serious and would normally attract a lengthy prison term, they submit that there are mitigating and compelling collateral factors that, once considered, would make either a conditional or a non-custodial sentence fit and just.
26The position of the Crown is that the offences before the court are deemed to be serious given the sanctions that could be imposed and that there is ample case law at all levels of court which state that convictions justify a penitentiary sentence of upwards of three years. The Crown submits that none of the mitigating or collateral circumstances cited by the defence justify the imposition of a conditional or suspended sentence and that any sentence less than a term of imprisonment of at least 3 years would not be a fit and just sentence.
Conditional Sentences
27As stated above, since the release of the decision of the Court of Appeal for Ontario in Sharma, a conditional sentence is a sentencing option available to Mr. Matthews.
28The Supreme Court of Canada has previously considered the proper interpretation of the conditional sentencing regime set out in s. 742.1 of the Criminal Code. Writing for the Court in R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at para. 46, Lamer C.J.C. stated that there are four criteria that a court must consider before deciding to impose a conditional sentence:
i. the offender must be convicted of an offence that is not punishable by a minimum term of imprisonment;
ii. the court must impose a term of imprisonment of less than two years;
iii. the safety of the community would not be endangered by the offender serving the sentence in the community; and
iv. a conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2.
29The first three criteria are prerequisites necessary for any conditional sentence to be considered and answer the question of whether or not a conditional sentence is possible in the circumstances of the case and of the offender. Once these conditions are met, the next question is whether a conditional sentence is appropriate. This decision turns upon a consideration of the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2 of the Criminal Code (Proulx, at para. 47).
30The Supreme Court in Proulx also prescribed a methodology for a sentencing judge to employ in determining whether a conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in ss 718 to 718.2.
31The methodology to be adopted requires a judge to engage in a two-stage process. In the first stage, a judge must exclude two possibilities: (1) probationary measures; and (2) a penitentiary term. If either of these two sentences is appropriate, then a conditional sentence should not be considered or imposed (Proulx, at para. 58).
32A stage one analysis requires a judge to only generally consider the fundamental purpose and principles of sentencing to the extent necessary to narrow the range of sentence for the offender (Proulx, at para. 59).
33At stage two of the analysis, a judge must engage in a full and comprehensive analysis of whether a conditional sentence would be consistent with the fundamental purposes of sentencing and the statutory principles set out in s. 718 of the Criminal Code. At this stage, the duration and venue of the sentence should be determined, and if a conditional sentence is considered, the conditions to be imposed (Proulx, at para. 60).
34The final stage of this analysis is reached once the sentencing judge has found the offender guilty of an offence for which there is no minimum term of imprisonment, has found both a probationary sentence and a penitentiary term to be inappropriate, and is satisfied that the offender would not endanger the community. At this point, the judge must then consider whether a conditional sentence would be consistent with the fundamental principles of sentencing.
General Principles of Sentencing
35Section 718 of the Criminal Code sets out a list of principles and objectives that applies when a court must determine a fair and just sentence. That section states that any sentence must reflect one or more of the following objectives:
- To denounce unlawful conduct;
- To deter the offender and other persons from committing crimes;
- To separate offenders from society where necessary;
- To assist in rehabilitating offenders;
- To provide reparations for harm done to victims or to the community; and
- To promote a sense of responsibility in offenders and an acknowledgement of the harm done to victims and to the community.
36The principle of denunciation is an expression of society’s attitude towards the offence committed. It focuses on the aspect of conduct, not on the personal characteristics of the offender. In R. v. M.(C.A.), 1996 CanLII 230 (SCC), 1996 SCC 230, [1996] 1 S.C.R. 500, at para. 81, Chief Justice Lamer wrote for the Court that “[i]n short, a sentence with a denunciatory element represents a symbolic, collective statement that the offender’s conduct should be punished for encroaching on our society’s basic code of values as enshrined within our substantive criminal law”.
37The principle of deterrence is set out in s. 718(b) of the Criminal Code. Deterrence seeks to provide a threat or example to the offender (specific deterrence), or to others (general deterrence), in order to discourage crime by making it clear that criminal behaviour of this nature will result in the imposition of severe punishment.
38In any given case, there may be one or several sentencing principles at play. Sometimes they conflict with each other. The court must attempt to balance all relevant sentencing principles with the aggravating and mitigating circumstances and the personal background and history particular to each accused.
39It is the task of the sentencing judge to assign the relative weight to the particular aspects of each case so that the sentence is shaped in a way that is specific to the accused, but which also follows a uniform approach.
Mitigating and Aggravating Factors
40To assist a trial judge in arriving at a just and fit sentence, Parliament has enacted s. 718.2 of the Criminal Code which sets out a number of aggravating or mitigating factors that a judge may consider to increase or decrease a sentence. These factors are to be applied by sentencing judges, particularly when assessing whether the imposition of a conditional sentence is appropriate.
41While there is a difference between mitigating circumstances and exceptional collateral factors, they are both important considerations in fashioning a fit sentence.
42In addition to statutory mitigating factors, a judge may take into consideration any collateral factors or exceptional circumstances that are relevant notwithstanding that they are not considered a statutory sentencing principle as set out in the Criminal Code. Each case may have unique collateral factors particular to the individual before the court.
43The Supreme Court of Canada has stated that sentencing is very much an individual process (see R. v. Ipeelee, 2012 SCC 13, [2012 1 S.C.R. 433, at para. 38, per LeBel J. for the majority). In R. v. Pham, 2013 SCC 15, [2013] 1 S.C.R. 739, at para. 8, Wagner J. (as he then was), writing for the Court, held that a fit sentence contemplates “any relevant aggravating or mitigating circumstances, as well as the objective and subjective factors related to the offender’s personal characteristics” (citations omitted).
44A sentencing judge must not simply look at the length of a sentence, but also to the conditions under which it is served and what effect the sentence will have on the offender in order to assess whether the sentence would have a more significant impact on the offender because of his or her unique circumstances.
45Where the personal circumstances of the offender are different, different sentences may be justified. In the final analysis, where it comes down to a choice between two appropriate sentences, the more suitable one may be the one that better contributes to the offender’s rehabilitation (Pham, at para. 11).
46The mitigating and/or collateral factors present in this case include:
- Mr. Matthews is 72 years old and has issues with his health.
- Imprisonment could seriously jeopardize the health and/or life of Mr. Matthews because of the high incidence of COVID-19 in the prison system.
- Sections 36(1) and 5(3) of the Immigration and Refugee Protection Act, S.C. 2001, c.27 (“IRPA”) would make Mr. Matthews inadmissible to Canada and subject to removal to England. Mr Matthews has no connection to England, no employment opportunities and no medical or social benefits.
- Mr. Matthews has only one prior criminal conviction dated June 1980 for trafficking in a narcotic for which he received a 17 month intermittent sentence.
- Mr. Matthews was arrested in August of 2015 and released into the community subject to conditions to which he has complied for over five years.
- Mr. Matthews has not been in the business of selling drugs since his arrest.
- Mr. Matthews poses no risk to society should he receive a conditional sentence or a short suspended sentence.
47The aggravating factors present include:
- The drug trafficked is of a dangerous nature and the quantity recovered was significant (658 grams of cocaine were found in Mr. Matthews’ residence, along with $2,475.00 in cash).
- Mr. Matthews has not demonstrated any remorse for his actions. The pre-sentence report states that “[t]he subject was not remorseful nor did he regret the offence, other than the fact that he was arrested and is facing possible deportation and a possible custodial sentence” (Pre-sentence Report, at p. 8).
- Mr. Matthews admitted to the author of the pre-sentence report that he was selling large quantities of cocaine because it was lucrative, that there was a lot of money to be made, that he did not have a moral dilemma selling cocaine, and that he did not believe cocaine use to be harmful in “applied circumstances” such as social gatherings (Pre-sentence Report, at p. 8).
The Age and Health of Mr. Matthews
48Dr. Balec met with Mr. Matthews in May, August and October 2019 for matters related to depression, a possible stroke, left shoulder separation, hypertension and insomnia.
49An MRI has not confirmed that Mr. Matthews suffered a stroke 4-5 years ago. However, Dr. Balec notes that there is evidence of a mild cerebral and cerebellar atrophy and some associated memory loss, leaving a question of whether he suffered a stroke or has long term deficits from a head trauma suffered when Mr. Matthews was 8 years of age.
50Dr. Balec found no evidence of mental health issues, but he did find that Mr. Matthews was depressed. He reported that Mr. Matthews accepted a referral to a therapist but refused help for his alcohol addiction. However, according to Dr. Balec, Mr. Matthews attended only three therapy sessions. Although offered medications, Mr. Matthews refused them, maintaining that he prefers not to take prescription medications.
The Presence of COVID-19
51Judicial notice has been taken that the presence of COVID-19 worldwide and its increased prevalence in the prison population is a collateral factor that must be considered in fashioning a fit and just sentence. In R. v. Morgan, 2020 ONCA 279, [2020] O.J. No. 1978, at para. 8, the court opined that “it falls within the accepted bounds of judicial notice for us to take into account the fact of the COVID-19 pandemic, its impact on Canadians generally, and the current state of medical knowledge of the virus, including its mode of transmission and recommended methods to avoid its transmission”.
52The issue is not whether collateral consequences diminish Mr. Matthews’ moral culpability or render the offence less serious, but whether the effect of those consequences would make a sentence have a more significant impact on him (R. v. Suter, 2018 SCC 34, [2018] 2 S.C.R. 496, at para. 48). However, the Supreme Court of Canada in Pham, at paras. 15 and 18, also held that it would be inappropriate for a sentencing judge to remove a sentence from its fit range mainly to avoid collateral consequences.
53Whether a reduced sentence is inappropriate depends on how near or how far it departs from the range. In the words of Wagner J. (as he then was) in Pham, at para. 18:
It follows that where a sentence is varied to avoid collateral consequences, the further the varied sentence is from the range of otherwise appropriate sentences, the less likely it will remain proportionate to the gravity of the offence and the responsibility of the offender. Conversely, the closer the varied sentence is to the range of otherwise appropriate sentences, the more probable it is that the reduced sentence will remain proportionate, and thus reasonable and appropriate.
54I understand the concern that Mr. Matthews has for his health and his fear of contracting COVID-19 if he is incarcerated. He is 72 years of age and has health issues as described above. Because of his circumstances, his counsel has argued that a conditional sentence combined with stringent terms and conditions would constitute a fit and just sentence and would not be so far out of the normal range of sentence as to be considered inappropriate. Such a sentence would not be unduly lenient, would address Mr. Matthews’ health issues and would protect society.
The Risk of Deportation
55The defence submits that the risk or probability of Mr. Matthews being deported from Canada upon conviction should be considered as a collateral factor in determining his sentence. Conviction under s. 5(2) of the CDSA renders Mr. Matthews inadmissible to Canada and liable to deportation pursuant to s. 36(1) of the IRPA. Should he receive a carceral sentence of six months or more, he will have no chance of appealing a removal order. Defence counsel submits that imposing a carceral sentence of six months or more will have a more significant impact than if the same sentence were to be imposed on another offender (see, for example, R. v. Ignacio, 2019 ONSC 2832).
56In the past, persons liable to inadmissibility and deportation under s. 36(1) of the IRPA could appeal if their sentence was less than two years. This appeal interest drove the development of our jurisprudence on the relationship between deportation and sentencing. In many cases, judges would reduce sentences to two years less a day, where appropriate, to protect the appeal interest.
57It is clear from case law that a judge should not be indifferent to the immigration consequences of a sentence. While it does not amount to an exceptional circumstance, the risk of deportation is a collateral consequence of a sentence which bears on the proportionality, parity, individuality, and rehabilitative dimensions of the sentence. Accordingly, judges should consider this risk in crafting a fit sentence: Pham, at paras. 11-14.
58Proportionality requires that a sentence not exceed what is appropriate considering the gravity of the offence and the moral blameworthiness of the offender. Where the risk of deportation results from the sentence, it heightens the magnitude of the sentence and is therefore a collateral factor that a sentencing judge must assess and consider.
Analysis
59Cocaine, particularly crack cocaine, is an extremely dangerous and insidious drug which has the potential to cause a great deal of harm to individuals and to society. Our courts have repeatedly commented that offences involving the trafficking of cocaine or possession of cocaine for the purpose of trafficking are a “scourge and an epidemic and a cancer in our society” and pose serious dangers to the life of our society (see R. v. Harris, [2008] O.J. No. 1976 (Sup. Ct.), at para. 21; see also R. v. Woolcock, [2002] O.J. No. 4927 (C.A.)).
60Further, our courts have determined that the seriousness of the offence of possession of cocaine for the purpose of trafficking warrants an emphasis on the sentencing principles of deterrence and denunciation, with particular weight given to general and specific deterrence to denounce criminal activity. At the same time, a sentencing judge must take into account all sentencing objectives, including the objective of assisting in the rehabilitation of the offender (Woolcock, at para. 8).
61A review of the case law supplied by both Crown and defence counsel indicates that fit sentences for trafficking in cocaine range from 6 months to in excess of 6 years incarceration. The range of sentence is dependent upon the criminal history of the accused as it relates to drug offences, the quantity of cocaine recovered, and whether the accused is also addicted to cocaine or was trafficking for purely financial gain. Accused persons who have a history of drug related convictions, who are found with large quantities of cocaine in their possession, and who are not themselves addicted but are trafficking for their personal financial gain will typically receive longer sentences.
62The defence initially argued for the imposition of a suspended sentence of three years duration, relying on R. v. McGill, 2016 ONCJ 138, [2016] O.J. No. 1346, as their authority. The McGill case involved a young Aboriginal offender convicted of possession for the purpose of trafficking in 300 grams of cocaine. He had prior convictions and was an admitted addict at the time of his arrest.
63The circumstances that existed in the McGill case are very different from those that are present here. By the time of sentencing, Mr. McGill had overcome his addiction, expressed his remorse for his conduct and explained to the court that his upbringing had contributed significantly to his criminality. In suspending Mr. McGill’s sentence, Mr. Justice Green gave effect to the principles now known as the Gladue factors, to the provisions of s. 718(2)(e) of the Criminal Code, and to Parliament’s direction that sentencing judges give attention to the circumstances of Aboriginal offenders.
64While I am sensitive to and have considered the individual circumstances of Mr. Matthews, including the prospect of his rehabilitation, there are compelling circumstances that justify the imposition of a period of incarceration.
65Mr. Matthews was not a first offender albeit his previous conviction for trafficking in a narcotic occurred in June 1980. By his own admission, Mr. Matthews had been commercially trafficking in large quantities of cocaine for some time because it was lucrative. It is significant that he has not expressed any remorse or awareness of the serious consequences that cocaine has had in our society and community, and to those who use the drug.
66The pre-sentence report indicates that Mr. Matthews refused offers from his physician to obtain help with his addiction to alcohol and to receive counselling. Rehabilitation cannot occur unless an individual is prepared to acknowledge that they need help and cooperate when it is available. Mr. Matthews has shown that the prospects for his rehabilitation are poor.
67Cocaine is highly addictive and dependence can begin after only a few uses. The effects of dependence are well documented: this drug can destroy an individual’s life and health, and it can often lead them into a life of crime and misery. Publicly available data from Health Canada states that in 2013, 16% of all police reported drug offences in Canada involved cocaine.
68The commercial trafficking in cocaine, especially large quantities of cocaine, is a serious problem in our society requiring sentences that strongly denunciate and deter such behavior. While specific deterrence may not apply in this case, general deterrence and denunciation certainly do.
Disposition
69It is my finding that neither a suspended sentence nor a conditional sentence would be a fit and just sentence in this case.
70I have considered whether any of the mitigating and collateral factors set out above are sufficient to justify mitigation or reduction of a normal range of sentences for the offences before the court. It is my finding that they do not.
71A sentence of anything less than six months for the crimes of which Mr. Matthews now stands convicted would not be within the appropriate range of sentence. Such a sentence would be inappropriate, artificial and too far from what a fit and just sentence should be in order to be considered proportionate to the gravity of the offences and the responsibility taken by Mr. Matthews.
72Mr. Matthews, I therefore sentence you to a period of incarceration of 2 years plus 1 day to be served in a Federal penitentiary institution.
Ancillary Orders
73Pursuant to s. 109(1)(c) of the Criminal Code, a lifetime order shall issue prohibiting Mr. Matthews from owning or possessing any form of weapon, including, but not limited to, any firearm, prohibited or restricted weapon, ammunition or explosive device.
74Pursuant to s. 487.051 of the Criminal Code, an order shall issue requiring Mr. Matthews to provide a sample of his DNA that is satisfactory for analysis.
75An order shall issue that the sum of money seized ($2,475.00) from the residence of Mr. Matthews is to be forfeited to the Crown.
76In concluding my remarks, I would like to say that, while I have sympathy for Mr. Matthews given his age and personal circumstances, the protection of society requires that general deterrence and denunciation be the paramount principles that must be applied in serious cases which involve the commercial trafficking and sale of cocaine and other dangerous drugs.
“original signed by” Mr. Justice Patrick Smith
Released: September 11, 2020
COURT FILE NO.: CR-16-0030-00
DATE: 2020-09-11
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
– and –
BARRY KEITH MATTHEWS
Accused
reasons on sentencing
P. Smith J.
Released: September 11, 2020
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