Her Majesty the Queen v. Devonte Shaquelle Long

COURT FILE NO.: CR-20-15429 DATE: 20210705 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

DEVONTE SHAQUELLE LONG Defendant

Counsel: Paul T. Murray for the Crown Hussein Aly for the Defendant

HEARD: Sentencing Submissions May 21, 2021

SENTENCING REASONS

C. Boswell J.

OVERVIEW

The Circumstances of the Offence

[1] Mr. Long was one of four occupants in a car pulled over by Durham police on February 4, 2020. The officer conducting the traffic stop had observed the car striking the passenger side curb twice and he suspected the driver may be impaired.

[2] At the side of the vehicle, the officer noticed a strong smell of marijuana. He asked if there was marijuana in the vehicle and the front passenger advised that she had some at her feet. The officer advised that he was going to conduct a search of the vehicle under the Cannabis Act. He asked all four of the occupants to exit the vehicle. Other officers arrived on scene to assist with the search.

[3] During the course of their search, officers located a loaded Glock handgun with an overcapacity magazine of 12 rounds and the serial number removed. It was found under the rear of the driver's seat. All four occupants were arrested.

[4] Mr. Long had been observed in the rear of the vehicle on the passenger side. His cousin, Jay Alexander, had been sitting behind the driver’s seat where the gun was located.

[5] When asked to identify himself by the police, Mr. Long advised that his name was Eric Brown. He gave a birth date of July 8, 1999 and said he was from Buffalo. A search of his person led to the discovery of a ziplock bag containing crack cocaine, located in his waistband. A more thorough search conducted at the police station led to the discovery of additional cocaine. In total, Mr. Long was found to be in possession of 22 grams of crack cocaine and 3 grams of powder cocaine.

[6] The police followed up on Mr. Long’s claim that he was Eric Brown from Buffalo. They contacted the Canada Border Services and were advised that no one by that name had recently entered Canada. Further investigation led the police to identify Eric Brown as Devonte Long. Mr. Long was determined to be on a recognizance that included a curfew. He was in breach of the curfew at the time of his arrest.

[7] Mr. Long appeared in this court, on a joint indictment with the other occupants of the vehicle. He faced charges of possessing a loaded, prohibited handgun; occupying a motor vehicle, knowing that there was a prohibited weapon in the vehicle; possessing a restricted weapon without a license to do so; possessing a prohibited device, namely an over-capacity magazine; possession of cocaine; obstructing a police officer; and breach of recognizance.

[8] On March 12, 2021, Mr. Long entered pleas of guilt on counts 6, 7 and 8 on the indictment. Those counts relate specifically to the charges of possession of cocaine, obstruction and breach.

[9] The Crown appears to have concluded that it was Mr. Long’s cousin, Jay Alexander, who possessed the gun. Or at least that the prospect of convicting Mr. Long for the weapons offences was poor. Mr. Alexander, in the meantime, was murdered in Niagara Falls in October 2020.

[10] Following a voluntariness inquiry, I accepted Mr. Long’s pleas and entered convictions on counts 6, 7 and 8. He was remanded to April 23, 2021 for sentencing submissions.

[11] The sentencing hearing was unable to proceed on April 23, 2021 due to pandemic-related restrictions. It was put over to May 21, 2021, at which time I heard from both Crown and defence counsel in terms of their positions on sentence. Before I set out those positions, I will take a moment to describe Mr. Long’s circumstances.

The Circumstances of Mr. Long

[12] Devonte Long is 26 years old. He is a father to a three year old son. He actively participates in his son’s life, exercising visitation with him three times per week.

[13] His own childhood was rough. He was essentially kicked out of his family home at age 13 and did not reconnect with his family until age 17. He managed to finish high school and commenced post-secondary studies at York University, though he has yet to finish those studies.

[14] He has by-and-large managed to stay clear of the criminal justice system until now. Crown counsel advised that he has a minor criminal record, but not for drug-related offences. The Crown is not relying on his record as an aggravating factor.

[15] At some point Mr. Long developed a drug habit, if not addiction. He struggled with drugs until he was arrested. After his arrest he spent 57 days in detention until being released on restrictive bail conditions. He managed to get clean of drugs while in custody. Several months later, his cousin was murdered. That experience has been traumatic and eye-opening for Mr. Long. He wants something better for his own life. He has plans for his future and the support of his family.

The Parties’ Positions

[16] The Crown seeks a custodial sentence of ten months, followed by two years of probation. The principle driver behind the Crown’s position is the conviction for drug possession. Crown counsel submits cocaine is an insidious drug that causes great harm to the community. Twenty-five grams is a significant amount of that drug. On top of that, Mr. Long put the police to significant time and effort to identify him. He maintained the “Eric Brown” ruse for a considerable period of time.

[17] The Crown contends that, in the circumstances, a significant sentence is required to denounce Mr. Long’s conduct and to deter him and others from engaging in similar conduct in the future.

[18] Mr. Long’s counsel takes the position that Mr. Long has sufficient time served to satisfy any reasonable sentence to be imposed on this first-time drug offender. In addition to his 57 days of pre-trial custody, Mr. Long has been subject to restrictive bail conditions for 15 months and is entitled to significant credit for that time, in accordance with the principles of R. v. Downes, 2006 3957 (ON CA), [2006] O.J. No. 555.

[19] Defence counsel concedes that the amount of cocaine seized was in the high range for simple possession, but nevertheless simple possession is what Mr. Long was charged with and what he entered a plea to. He must not be sentenced as though he was convicted for possession for the purpose of trafficking.

[20] In defence counsel’s position the offences here are not serious enough to warrant a further custodial sentence. If the court disagrees, counsel urges the court to order that any further custodial term be served in the community.

[21] I note that some time ago Mr. Long was charged with drug and firearms offences in Toronto. He was detained for a period of time on those charges, which were subsequently stayed by the Crown. Defence counsel asserts that the court can, and should, take Mr. Long’s pre-trial detention on the Toronto charges into account as a credit for time served on any sentence imposed here. Counsel relies on the decision of Justice Hill in R. v. K.G., 2012 ONSC 3523, [2012] O.J. No. 2785 in support of his position. For reasons that will become clear momentarily, I need not address this aspect of the defence position.

THE GOVERNING PRINCIPLES

The Legal Parameters

[22] Pursuant to s. 4(1) of the Controlled Drugs and Substances Act, the maximum penalty for possession of cocaine, which is a Schedule I substance, is seven years imprisonment.

[23] Pursuant to s. 129(a) of the Criminal Code, the maximum penalty for obstructing a police officer is two years imprisonment.

[24] Pursuant to s. 145(5)(a) of the Criminal Code, the maximum penalty for breach of recognizance is two years imprisonment.

The Fundamental Principles of Sentencing

[25] Section 718 of the Criminal Code codifies the fundamental purposes of sentencing. Those purposes include the denunciation of unlawful conduct, deterrence - both general and specific, 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.

[26] Section 718.1 expresses the fundamental principle of sentencing: a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. In pursuit of the recognized objectives, the court is guided by the overarching principle of proportionality.

[27] Proportionality engages two distinct concepts: censure and restraint. See R. v. Ipeelee, 2012 SCC 13, at para. 37. It ensures that a sentence reflects the gravity of the offence, promotes justice for victims and ensures public confidence in the justice system. At the same time, it ensures that a sentence does not exceed what is appropriate, in light of the moral blameworthiness of the offender.

[28] The concept of proportionality compels courts to treat like cases alike and to recognize where there are material differences between different offenders and different offences. Section 718(2)(b) Cr. C. specifically provides that “a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances”.

[29] At the same time, the court must recognize that sentencing is an acutely individualized exercise. The court must carefully consider the particular circumstances of the offence and of the offender. Any aggravating and mitigating circumstances must be taken into account.

[30] No one sentencing principle or purpose trumps the others. In each case, the weight to be put on the individual objectives varies depending on the facts and circumstances of the offence and of the offender. In this instance, there is no dispute that deterrence and denunciation are of particular importance. Having said that, given Mr. Long’s age, rehabilitation remains a significant concern as well.

DISCUSSION

[31] In my view, the sentence suggested by Crown counsel falls within the lower end of the range for a conviction for possession of cocaine for the purpose of trafficking. The Court of Appeal set that range at between six months and two years less a day, where relatively modest amounts of cocaine are involved, in R. v. Woolcock, [2002] O.J. No. 4927.

[32] The range for simple possession is lower and, in my view, falls between a discharge on the low end and six months in custody on the high end. See, for instance, R. v. Park, 2020 ONSC 3941, R. v. Nuttal, 2017 ONSC 970 and R. v. Lake, [2004] O.J. No. 6273.

[33] Sentencing ranges are, of course, not written in stone, but certainly tend to be helpful yardsticks when the aspiration is to impose similar sentences upon similar offenders in similar circumstances.

[34] Where Mr. Long might fall within the identified range is largely a function of the aggravating and mitigating circumstances of the case.

[35] By way of aggravation:

(a) Cocaine is an insidious drug. It is addictive and destructive and a scourge in our community;

(b) Mr. Long possessed a significant amount of cocaine. Twenty-five grams is typically sufficient to infer an intent to traffic; and,

(c) Mr. Long maintained his “Eric Brown” ruse for a considerable period of time, causing significant additional investigative resources simply to identify him.

[36] By way of mitigation:

(a) Mr. Long has taken responsibility for the offences and I am satisfied that he has insight into them and the circumstances that led him to commit them. I believe he is committed to turning his life around;

(b) Mr. Long’s guilty plea reflects his taking responsibility for the offences and it saves the administration of justice significant time and resources; and,

(c) Mr. Long was suffering from an addiction to cocaine at the time of the offences, which may explain the amount in his possession.

[37] In my view, an appropriate sentence, in all the circumstances, is four months in custody for the possession conviction, two months for the obstruction conviction and one month for the breach, all concurrent. In addition to the custodial sentence, I impose a period of 12 months probation, non-reporting, on the statutory terms only.

[38] Mr. Long has 57 days of pre-trial custody. He is entitled to a credit of 1.5 days for each of those 57 days in accordance with the principles enunciated by the Supreme Court in R. v. Summers, 2014 SCC 26, for a net of 86 days. On July 2, 2021 I received correspondence from the Central East Correction Centre detailing the number of days that Mr. Long was subject to lockdowns while he was in remand at that facility. He may be entitled to some additional credit for the harshness the conditions in which he served his pre-sentence custody. It is not necessary that I consider that additional credit, however, for reasons that will become immediately apparent.

[39] Mr. Long was released on a recognizance of bail on April 1, 2020. He was subject to stringent conditions including house arrest. On March 22, 2021 I varied those conditions, on consent, to significantly ease them. Nevertheless, Mr. Long was subject to a house arrest condition for essentially one year. In the circumstances, I would be inclined to credit him another 3 months or so by way of a Downes credit. As it stands, he needs only another 34 days of Downes credits to get to four months, when added to his Summers credit.

[40] In the result, I credit him with four months pre-sentence custody and impose a sentence of time served plus the one-year probationary period.

Boswell J.

Released: July 5, 2021