COURT FILE NO.: CR-15-G54848
DATE: 2020/01/07
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen
– and –
Mark Sealy-Ward
Tim Radcliffe for Her Majesty the Queen
Eric Granger for Mr. Sealy-Ward
HEARD: November 14, 2019 (at Ottawa)
reasons for decision - sentence
o’bonsawin J.
Overview
[1] This is the sentencing decision for Mr. Sealy-Ward.
[2] Mr. Sealy-Ward was charged with the following:
#1 storing a firearm in a careless manner contrary to s. 86(3) of the Criminal Code, R.S.C. 1985, c. C-46 (“Code”);
#2 storing ammunition in a careless manner contrary to s. 86(3) of the Code;
#3 possession of a weapon for a purpose dangerous to the public peace contrary to s. 88(2) of the Code;
#4 possession of a prohibited firearm contrary to s. 91(3) of the Code;
#5 possession of a prohibited firearm contrary to s. 92(3) of the Code;
#6 occupying a motor vehicle knowing there was a prohibited firearm in the motor vehicle contrary to s. 94(2) of the Code;
#7 possession of an unloaded prohibited firearm together with accessible ammunition capable of being discharged contrary to s. 95(2) of the Code;
#8 possession of a firearm knowing that the serial number had been altered, defaced or removed contrary to s. 108(2) of the Code;
#9 possession of a Schedule I substance (cocaine) for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (“CDSA”);
#10 possession of a Schedule I substance, methylenedioxyamphetamine (“MDA”), for the purpose of trafficking contrary to s. 5(2) of the CDSA; and
#11 possession of a Schedule II substance (marijuana) for the purpose of trafficking contrary to s. 5(2) of the CDSA.
[3] On April 29, 2019, I found him guilty of all charges except for Count #7. I provided extensive details of the facts in this matter in my Reasons for Decision. By way of summary, on December 2, 2015, the following items were located within the backpack that was located between Mr. Sealy-Ward’s legs while he was sitting as a passenger in his motor vehicle:
- 2 clear plastic bags of marijuana (each weighing approximately 1 lb);
- a black digital scale with marijuana residue on it;
- multiple individual dime bags (some red, some clear and some with a black design on clear plastic), typically used to package and sell marijuana at the gram level or below;
- a box of plastic Ziploc bags;
- elastics;
- a plastic strawberry yoghurt cup with marijuana residue;
- a green and flashy coloured journal book with a debt list on the first page;
- 3 gold teeth in a plastic bag; and
- 3 Ziploc bags with small amounts of marijuana in each.
[4] Upon searching the trunk, Cst. Lachance located a black cloth grocery bag that contained the following items:
- a clear Ziploc bag with 8 red rifle shells along with 1 rifle bullet;
- a sawed-off break action single shotgun with some army green camouflage tape on the handle and the barrel with the serial number scratched off;
- a black balaclava; and
- a white plastic grocery bag.
[5] The following items were located within the blue duffle bag that was also located inside of the trunk:
- 2 sealed Ziploc bags containing marijuana (approximately 1 lb each);
- a black hoodie;
- 2 pairs of red shorts;
- white and black socks;
- a grey muscle shirt;
- checkered boxers;
- 3 black homemade slings; and
- a black bag that contained a small dime bag of what appeared to be crack cocaine along with 2 small brown balls of what appeared to be heroin.
[6] Lastly, a machete was also located inside of the trunk.
[7] I must sentence Mr. Sealy-Ward on the charges as per the provisions of the Code and the CDSA.
Position of the Parties
[8] With regards to the position of the parties, the Defence argues that an appropriate sentence for Mr. Sealy-Ward is one year. If the court sentences Mr. Sealy-Ward to two years less one day or less, there is the added benefit that a probation order can be made to assist Mr. Sealy-Ward after his release. In addition, the Defence seeks a credit for his pre-sentence custody, the restrictive bail conditions that Mr. Sealy-Ward was subjected to and the Charter infringement.
[9] On the other hand, the Crown seeks a sentence of five years’ imprisonment. In addition, the Crown seeks a mandatory DNA order, a mandatory weapons prohibition order as per s. 109 of the Code, and a Forfeiture Order as per s. 16 of the CDSA.
[10] Lastly, the parties agree that the court should credit Mr. Sealy-Ward for 32 days of pre-sentence custody at 1.5:1 for a total of 48 days. In addition, they agree that a stay should be entered for Count #4 based on the Kienapple principle since it is related to the possession of the same prohibited firearm as Count #5.
Factors to be Considered
[11] I will review the factors to be considered regarding sentencing. The sentencing principles according to s. 718 of the Code are denunciation, deterrence, rehabilitation and the protection of society. More specifically, according to s. 718 of the Code, the purpose and principles of sentencing are to:
- denounce unlawful conduct and the harm done to victims or to the community;
- deter the offender and other persons from committing offences;
- separate offenders from society, where necessary;
- assist in rehabilitating offenders;
- provide reparations for harm done to victims or to the community; and
- to promote a sense of responsibility in offenders and acknowledge the harm done to victims or to the community.
[12] Section 718.1 of the Code provides that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
[13] Section 718.2 of the Code lists other sentencing principles that are relevant in this matter, such as:
- courts should consider the relevant aggravating or mitigating circumstances;
- a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;
- where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;
- an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and
- all available sanctions other than imprisonment that are reasonable in the circumstances and consistent with the harm done to the victims or to the community should be considered for all offenders.
Mitigating and Aggravating Factors
[14] The mitigating factors in Mr. Sealy-Ward’s case are as follows:
- he made a few admissions at trial (see paragraph 4 of my Reasons for Decision dated April 29, 2019);
- he has support from his family and friends;
- he was on pre-trial house arrest; and
- there was a technical infringement of s. 10(b) of the Charter.
[15] The aggravating factors in Mr. Sealy-Ward’s case are as follows:
- the use of the weapons while engaging in criminal conduct;
- the type of drugs seized (methamphetamine, crack cocaine and cannabis);
- the quantities of the drugs seized;
- the commercial nature of drug trafficking; and
- his criminal record.
Caselaw
[16] The Defence refers me to R. v. Downes (2006), 2006 CanLII 3957 (ON CA), 79 O.R. (3d) 321 (C.A.) in which the Court of Appeal provided credit for stringent bail conditions. This case holds that a sentencing judge can give some weight to the restrictive bail conditions when determining the ultimate sentence. In Downes, the Court of Appeal determined as follows: “the lengthy period the appellant spent under pre-sentence house arrest in this case is a relevant mitigating factor and should have been given some weight in his sentence. It is therefore necessary to consider the impact of the house arrest on the appellant. For the following reasons, I would give it relatively little weight” (para. 42). The Court of Appeal provided the accused with a credit of five months for eighteen months of house arrest.
[17] The Defence also relies on the following cases regarding the appropriate sentence to impose on Mr. Sealy-Ward: R. v. Prosser, 2014 ONSC 6466; R. v. James, 2017 ONSC 473; R. v. Chambers, 2017 ONCA 242; R. v. Gerrard, 2017 ONCJ 502; R. v. McAnuff, 2017 ONSC 6175; and R. v. Bokhar, 2018 ONCA 183. The sentences range from fourteen months to three years of imprisonment.
[18] The Crown referred me to the following cases: R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773; R. v. Marshall, 2015 ONCA 692, 340 O.A.C. 201; R. v. Copeland, 2007 CanLII 37232 (Ont. S.C.); R. v. Kempffer-Hossack, 2019 ONSC 3324; R. v. Awad, 2019 ONSC 2065; R. v. Woolcock, [2002] O.J. No. 4927 (S.C.); R. v. Barclay, 2018 ONCA 114, 44 C.R. (7th) 134; R. v. Pham, 2016 ONCA 258; R. v. Hoang, 2013 ONCA 430; R. v. Cavan and Scott (1999), 1999 CanLII 9309 (ON CA), 126 O.A.C. 201 (C.A.); R. v. Rompre, 2015 ONSC 316; and R. v. Herta, 2016 ONSC 3051. The sentences range from six months to six years of imprisonment.
[19] In R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 53-55 and 60, the Supreme Court provided the following helpful guiding points for sentencing judges:
- the inquiry must focus on the fundamental principle of proportionality;
- individualization and parity of sentences must be reconciled for a sentence to be proportionate;
- the trial judge must properly weigh the various principles and objectives of s. 718;
- sentencing is an inherently individualized process;
- sentencing ranges are nothing more than summaries of the minimum and maximum sentences imposed in the past, which serve as guides for the application of all the relevant principles and objectives;
- sentencing ranges should not be considered “averages”, let alone straitjackets, but should instead be seen as historical portraits for the use of sentencing judges, who must still exercise their discretion; and
- sentencing ranges are primarily guidelines, and not hard and fast rules.
Analysis
[20] Mr. Sealy-Ward was twenty-six years old at the time of the offences. He is currently thirty years old. He had a difficult upbringing. There were issues of alcoholism in his home and there was CAS involvement. At times, Mr. Sealy-Ward resided with his mother, his father and in group homes. He has been on his own since the age of sixteen. Mr. Sealy-Ward is currently married and has four children with his wife and one child with Ms. Gado. His wife, Ms. Mollion, is currently on Ontario Disability Support Program. Mr. Sealy-Ward has held intermittent employment in landscaping, construction and manual labour. In 2017, Mr. Sealy-Ward was in a motor vehicle accident. He suffered fairly significant injuries. He is pursuing a claim in civil court. The accident has caused him some challenges in obtaining manual labour positions.
[21] Since his arrest, Mr. Sealy-Ward has been on strict bail conditions for a period of four years and one month. He was on house arrest and had to remain in his residence at all times except for medical emergencies and work unless he was in the presence of his surety.
[22] Mr. Sealy-Ward has a limited criminal record which includes a conviction for driving with more than 80 mg of alcohol in his blood (2013) and three convictions for driving while disqualified (2014).
[23] Five individuals provided letters of support for Mr. Sealy-Ward. They consist of his brother, his father-in-law, his sister-in-law and his neighbors. They describe him as being a good brother, a loving and supportive father and parent, a supportive neighbour, good with children, and polite. One letter states that “these mistakes do not define him”. Mr. Elvie, Mr. Sealy-Ward’s father-in-law, owns a stucco company. He advised that Mr. Sealy-Ward worked for him on and off for the last eleven years until his motor vehicle accident. Mr. Elvie described Mr. Sealy-Ward as a reliable and diligent worker.
[24] A letter from Dr. Jabbar, Ms. Mollion’s physician, was provided. Dr. Jabbar advised that Ms. Mollion requires support to assist her with the children due to her illness. She requires the assistance of her husband.
[25] At the time of his arrest, Mr. Sealy-Ward had in his possession three types of drugs: methamphetamine, crack cocaine and cannabis. I agree with the Crown that methamphetamine is a very dangerous and addictive drug, crack cocaine is all too common in Ottawa, and there was a significant quantity of drugs seized. In addition, weapons, including a firearm, were seized from the trunk of Mr. Sealy-Ward’s vehicle. Often, drugs and guns go hand in hand. As I stated in Awad, “cocaine has had a devastating impact on many lives, especially of vulnerable individuals. Drug trafficking cannot be viewed as a victimless crime” (at para. 28).
[26] As per the joint request of the parties, I grant a stay of Count #4 based on the Kienapple principle.
[27] In coming to my decision, I have kept in mind the sentencing principles, the mitigating and aggravating factors and the caselaw. I am mindful that Mr. Sealy-Ward is a youthful offender with an unrelated criminal record. He is described as otherwise having a good character. Consequently, I find that a sentence at the lower end of the range provided in the caselaw is appropriate.
Final Disposition
[28] I proceed with the final disposition. I will begin with Count #5, I sentence Mr. Sealy-Ward to a period of two years less one day of imprisonment.
[29] With regards to Count #1, I sentence him to a period of six months of imprisonment to be served concurrently to Count #5.
[30] For Count #2, I sentence him to a period of six months of imprisonment to be served concurrently to Counts #5 and 1
[31] For Count #3, I sentence him to a period of one year of imprisonment to be served concurrently to Counts #5, 1 and 2.
[32] For Count #6, I sentence him to a period of six months of imprisonment to be served concurrently to Counts #5, 1, 2, and 3.
[33] For Count #8, I sentence him to a period of six months of imprisonment to be served concurrently to Counts #5, 1, 2, 3 and 6.
[34] For Count #9, I sentence him to a period of one year of imprisonment to be served concurrently to Counts #5, 1, 2, 3, 6 and 8.
[35] For Count #10, I sentence him to a period of one year of imprisonment to be served concurrently to Counts #5, 1, 2, 3, 6, 8 and 9.
[36] For Count #11, I sentence him to a period of one year of imprisonment to be served concurrently to Counts #5, 1, 2, 3, 6, 8, 9 and 10.
[37] I also make the following ancillary orders:
- a mandatory DNA order pursuant to s. 487.051(3) of the Code;
- a s. 109(3) weapons prohibition for life; and
- a Forfeiture Order as per s. 16 of the CDSA.
[38] The total sentence is two years less one day. In addition, the sentence is reduced by a credit of forty-eight days for pre-sentence custody. The Defence seeks a credit for Mr. Sealy-Ward’s compliance with the strict terms of his bail. I find that he should be credited for three months for his compliance with his restrictive bail conditions. This recognizes the fact that he was on strict bail conditions for several years but was still able to work intermittently during that period of time. As for the Charter breach, I do not grant any credit.
[39] Mr. Sealy-Ward’s sentence less the credits will be followed by a period of two years’ probation. The terms of Mr. Sealy-Ward’s probation are as follows:
- keep the peace and be of good behaviour;
- report to a Probation Officer within two working days of his release from custody and afterwards at all times and places as directed by the Probation Officer or any person authorised by a Probation Officer to assist in his supervision;
- cooperate with his Probation Officer;
- not possess or consume or purchase any unlawful drugs or substances contrary to the CDSA except with a valid prescription in his own name;
- not associate with anyone with a youth and/or adult conviction unless they are family and/or for a lawful purpose; and
- reside at an address approved by the Probation Officer and not change his address without prior approval from the Probation Officer.
Justice M. O’Bonsawin
Released: January 7, 2020
COURT FILE NO.: CR-15-G54848
DATE: 2020/01/07
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen
– and –
Mark Sealy-Ward
reasons for decision - sentence
O’Bonsawin J.
Released: January 7, 2020