R. v. Whittaker 2021 ONSC 5278

COURT FILE NO.: CR-18-50000636-0000

DATE: 20210729

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Adam Schultz for the Crown

• and -

SHEM WHITTAKER

Nabeel Sheiban for Mr. Whittaker

HEARD: June 23, 2021.

REASONS FOR SENTENCE

CORRICK J.

Introduction

1Mr. Whittaker pleaded guilty before me on November 20, 2020 to one count of possession of cocaine for the purpose of trafficking. The matter was adjourned for a lengthy period of time, on consent of both parties, for the preparation of an Enhanced Pre-Sentence Report. On June 23, 2021, I heard submissions on sentence. Mr. Whittaker appears before me today for sentencing.

2The main issue on the sentencing is whether the imposition of a conditional sentence on Mr. Whittaker would be consistent with the fundamental purpose and principles of sentencing set out in the Criminal Code.

3Mr. Sheiban, on behalf of Mr. Whittaker, argues that a conditional sentence of two years less one day is the appropriate disposition in this case, given the extraordinary efforts Mr. Whittaker has made to turn his life around and become a productive, contributing member of society.

4Mr. Schultz, on behalf of the Crown, argues that the appropriate sentence in this case is 18 months imprisonment less credit for the restrictive bail conditions with which Mr. Whittaker has complied for many years.

Circumstances of the Offence

5In 2017, police intercepted communications that revealed that Terence Johnson and a woman planned to travel to Jamaica to obtain cocaine to import into Canada upon their return. Johnson and the woman travelled to Jamaica on March 21, 2017 and returned to Canada through Pearson Airport on March 27, 2017.

6On March 27, 2017, Mr. Whittaker phoned Johnson at 11:42 p.m. After being told that Johnson was waiting for the woman to clear customs, Mr. Whittaker said that he was on his way. Mr. Whittaker called Johnson again at 11:56 p.m. to advise him that he had arrived at Terminal 3. The two men agreed to meet at a Tim Hortons.

7Johnson called Mr. Whittaker the next morning and they agreed to meet in Brampton. Mr. Whittaker told Johnson that it was the end of the month and he wanted to “push out,” which police believed meant sell his cocaine. Mr. Whittaker asked Johnson to bring a digital scale to their meeting.

8Later the same day, police arrested Mr. Whittaker in his car in a parking lot in Brampton. A search of the car revealed 74.09 grams of cocaine in the trunk. Mr. Whittaker was arrested.

Circumstances of the Offender

Background

9Mr. Whittaker’s personal circumstances and background are set out in a detailed report prepared by Michelle Richards, MSW, RSW. The report examined Mr. Whittaker’s family history and dynamics, the social environment within which he grew up including his economic status, educational experiences and peer influences, his employment history, domestic relationships and the interactions he has had with police.

10Mr. Whittaker is a 39-year-old single man. He was born in Toronto and currently lives and works in Brampton. He has a grade 10 education. He is the father of ten children.

11He has a criminal record, which consists of two entries. In 2006, Mr. Whittaker was sentenced to 24 months in prison, after serving six months in pre-sentence custody, for the unauthorized possession of a firearm, possession of a restricted or prohibited firearm with readily accessible ammunition, possession of a Schedule I substance for the purpose of trafficking and aggravated assault. In 2011, he was sentenced to 30 days, after serving 15 days in pre-sentence custody, for obstructing a peace officer and failing to comply with a recognizance.

12Mr. Whittaker did not grow up in stable or privileged circumstances. There was a great deal of conflict between his parents in his family home. His parents separated when he was six years old. He was raised by his mother in subsidized housing on Driftwood Court in the Jane and Finch area, an impoverished neighbourhood in Toronto. His mother worked long hours outside of the home, leaving Mr. Whittaker and his younger brother in the care of his 10-year-old sister, who took on the role of surrogate parent.

13Mr. Whittaker’s mother remarried and had a fourth child. The marriage was high-conflict and the family home was an unhappy environment. That marriage ended. His mother married again and had a fifth child.

14The family struggled financially, relying alternately on social assistance and the generosity of neighbours and family members. It was occasionally necessary to access the resources of a foodbank.

15Mr. Whittaker’s father was 19 years old when Mr. Whittaker was born. He was not interested in being a parent. He led a criminal lifestyle and focused on drugs, women and money. In 1993, Mr. Whittaker’s father was deported to Trinidad following a conviction for a criminal offence. Mr. Whittaker did not see his father after he was 8 or 9 years old until 2015 when he was 34 years old. His father’s absence and the resulting sense of abandonment are significant issues that Mr. Whittaker is currently addressing in psychotherapy.

16Mr. Whittaker reported to Ms. Richards that it was impossible to avoid drug activity in his neighbourhood when he was growing up. He saw it in his neighbourhood and in his home. When he was a young adolescent, his mother and stepfather hosted weekly parties during which marijuana was openly sold.

17The draw of the drug trade’s financial rewards and status within the community proved to be too much to resist for Mr. Whittaker whose mother was financially unable to provide him with what he thought was necessary to fit in with his peers. He was an eager student when the older youths and men in the neighbourhood offered to teach him the drug business. He began using and selling marijuana when he was in grade 8. By grade 9, he was defiant, refusing to abide by his mother’s rules. He regularly skipped school, disobeyed his curfew and left home. By grade 10, he was well entrenched in a criminal lifestyle, and left school.

18Violence accompanied Mr. Whittaker’s criminal lifestyle. He lost a childhood friend to violence. The murder of his uncle twelve years ago was believed to be in retaliation for the involvement of Mr. Whittaker and his brother in a “neighbourhood war.” Those close to Mr. Whittaker reported that the death of his uncle and the resulting estrangement from his mother’s family have profoundly affected him. More recently, one of the young Black artists he has been mentoring was violently killed.

19Growing up in an impoverished racialized community, Mr. Whittaker often interacted with police, who regularly patrolled his neighbourhood. He and his friends were frequently stopped and questioned by the police. Police officers searched him and required him to produce his identification. He believes that he was targeted because police believed that young Black men in groups were up to no good. As an adult, Mr. Whittaker has been frequently stopped by the police because he is driving a nice car.

20His lifestyle as a youth and young adult has made Mr. Whittaker a hypervigilant man. This together with the loss of his father, uncle, and childhood friend and the negative interactions he has had with police have made it difficult for Mr. Whittaker to trust people. He has no friends. He finds it difficult to express his feelings. He is an angry man.

Present Day

21Since his arrest on March 27, 2017, Mr. Whittaker has worked hard to turn his life in an entirely different direction. He established and is running a very successful music business. He has reconnected with his faith and developed a close relationship with his pastor that involves counselling, guidance and accountability. He is actively engaged in therapy with a registered psychotherapist to change behaviours that he believes have prevented him from being as successful as he could be, both personally and professionally, and to help him become a positive role model for his children.

22The success of Mr. Whittaker’s music business began in 2018. He discovers, develops and promotes young artists. He has lucrative streaming distribution deals and has recently begun designing and producing merchandise to support his music label. Two men who do business with Mr. Whittaker praised his accomplishments and his work ethic when they were interviewed by Ms. Richards. One of them also recognized Mr. Whittaker’s commitment to assisting disadvantaged Black youth interested in the music industry.

23Mr. Whittaker regrets that he had no mentor when he was growing up. He is particularly proud of the fact that he has been able to mentor young Black men from disadvantaged neighbourhoods and provide them with studio time that they would not have otherwise been able to access. One of the young artists from the Jane/Finch community Mr. Whittaker has mentored and developed has recently signed a recording deal with Sony Music Canada. Unfortunately, another young artist Mr. Whittaker was mentoring was killed.

24His financial success allows him to provide for his children and to support his father, who lives in poverty in Trinidad.

25The fact that Mr. Whittaker is seeing a psychotherapist is seen by his mother, siblings and former intimate partner as a necessary and major step forward for him. For years, Mr. Whittaker resisted the suggestion that he seek therapy to address his pain and anger. He has attended biweekly sessions with a psychotherapist since January 2021 and intends to continue them.

26As Ms. Richards noted in her report, Mr. Whittaker believes that his life may have had a different trajectory if he had not grown up without a father in an impoverished neighbourhood, surrounded by people engaged in the drug trade. Despite this, Mr. Whittaker accepts full responsibility for the poor choices he made to be involved in the drug trade.

27In a statement to the court, Mr. Whittaker indicated his remorse and his sincere desire to live differently, to be a role model for his children and to be a productive member of society who gives back to his community by providing opportunities to young people growing up in the same circumstances that he did.

28Mr. Schultz argued that the sentence imposed by the court should not be mitigated by the contents of the report prepared by Ms. Richards. He submitted that Mr. Whittaker was a successful entrepreneur in 2017 and was not subject to the pressures that young Black men face in racialized impoverished communities. In Mr. Schultz’s submission, in 2017, Mr. Whittaker had escaped the culture he had been born and raised in and had transformed his life.

29I do not agree with this submission. My understanding of the report is that the success of Mr. Whittaker’s business post-dates the commission of this offence and was facilitated by the time he had to focus on his business while on bail and subject to a curfew. The two business associates with whom Mr. Whittaker has collaborated to drive the success of his business were interviewed by Ms. Richards. Mr. Whittaker did not meet them until 2018 and August 2019.

30In addition, I do not agree that Mr. Whittaker has escaped the culture in which he was raised. His background as a Black youth growing up in an impoverished, racialized community without a positive male role model, exposed to domestic conflict, violence and drug trafficking in his home and community has made him the man he is. I cannot ignore Mr. Whittaker’s background and the environment in which he grew up. To do so would be contrary to the requirement that, “sentencing judges engage in an individualized assessment of all of the relevant factors and circumstances, including the status and life experiences, of the person standing before them.”¹

31Mr. Whittaker’s background and personal circumstances are not an excuse for his criminal conduct, as he readily acknowledged to Ms. Richards. They are, however, relevant in determining a proportionate sentence. Proportionality is determined in relation to both the accused person and the offence.²

Legal Parameters

32Possession of cocaine for the purpose of trafficking is punishable by a maximum of life in prison. The maximum penalty reflects the seriousness with which Parliament regards this offence.

Governing Sentencing Principles

33In determining the fit sentence for Mr. Whittaker, I am governed by the sentencing principles set out in the Criminal Code.

34The first is the fundamental purpose of sentencing set out in s. 718 of the Criminal Code, which is to "contribute, along with crime prevention measures, to respect for the law and the maintenance of a just, peaceful and safe society" by imposing sentences that have one or more of the following objectives:

1. denouncing unlawful conduct,

2. deterring the offender and others from committing crimes,

3. separating offenders from society where necessary,

4. assisting in the rehabilitation of the offender,

5. providing reparations for harm done to the victim or to the community,

6. promoting a sense of responsibility in the offender, and

7. acknowledging the harm done to victims and the community.

35The second is the principle of proportionality set out in s. 718.1. Any sentence I impose must reflect the gravity of the offence and the responsibility of the offender.

36I am also required by s. 718.2 to take the following matters into consideration when imposing sentence:

❏ the sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender;

❏ where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;

❏ the sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

❏ offenders should not be deprived of liberty if less restrictive sanctions may be appropriate; and

❏ all available sanctions other than imprisonment that are reasonable in the circumstances and consistent with the harm done to the victim or the community should be considered for all offenders.

Aggravating and Mitigating Circumstances

37I turn now to consider the aggravating and mitigating circumstances.

38First the aggravating circumstances.

1. Mr. Whittaker was in possession of 74 grams of cocaine for the purpose of trafficking. Cocaine is a very dangerous drug. It is a poison that wreaks havoc on the lives of addicts, their families and the community at large. The immeasurable harm cocaine causes to the fabric of our society has been recognized by our courts on numerous occasions.³

2. Mr. Whittaker has a criminal record. Although dated, it includes a prior conviction for possession of a Schedule I substance for the purpose of trafficking. Mr. Schultz fairly submitted that this entry on Mr. Whittaker’s record from 2006 should not play too large a role in the court’s determination of an appropriate sentence since it was 15 years ago.

3. The proximity of Mr. Whittaker to the importation of the cocaine is an aggravating feature of this case.⁴ Mr. Whittaker was communicating directly with one of the people involved in the importation, arranging to meet that person, as the cocaine was being brought into the country.

4. Mr. Whittaker was not an addict trafficker. He engaged in the drug trade to reap its financial rewards.

39I have also considered the following mitigating circumstances.

1. Mr. Whittaker pleaded guilty. His plea is evidence that he has accepted responsibility for his crime and is remorseful. He also accepted responsibility and indicated that he regretted his actions to Ms. Richards and in a statement to the court. Although his plea was not entered early in the proceedings, it has saved the time and resources that would have been necessary to conduct a trial. This is significant given the backlog of criminal trials in Toronto that has developed over the course of the pandemic. Mr. Whittaker’s guilty plea, acceptance of responsibility and remorse are mitigating circumstances deserving of credit.

2. Mr. Whittaker has support in the community to assist him in his rehabilitation. He is in close and regular contact with his mother and his pastor, both of whom support the efforts he is making to change his life. His children, particularly the eldest two, are interested in Mr. Whittaker’s music business, and Mr. Whittaker’s motivation to be a role model for his children is a significant incentive for his continuing efforts to lead a pro-social life.

3. Mr. Whittaker has used his talent and success in the music industry to give back to his community mentoring Black youth from impoverished neighbourhoods.

4. Mr. Whittaker has been subject to stringent bail conditions since March 27, 2017. Until the fall of 2020, he was required to be in his residence between the hours of 7:00 p.m. to 6:00 a.m. This curfew was relaxed to 11:00 p.m. in the fall of 2020. Mr. Schultz agreed that the curfew condition was restrictive for Mr. Whittaker, particularly given that he works in the music industry. Mr. Whittaker has fully complied with the terms of his release for the past 4½ years. Notwithstanding that Mr. Whittaker’s initial trial date was scheduled almost two years ago, as Mr. Schultz points out, the curfew was a significant restriction on Mr. Whittaker’s liberty at a time when he was presumed innocent. This is a mitigating factor that must be taken into account.⁵

5. While on bail, Mr. Whittaker transformed his life, disassociating himself from his criminal lifestyle, recognizing his need for therapy to address longstanding issues, and building a reputable, successful business.

Sentences Imposed in Other Cases

40To determine the appropriate sentence, I must consider sentences imposed on similar offenders for similar offences in similar circumstances.

41I am satisfied that the duration of sentence proposed by counsel, 18 to 24 months, is within the range of sentence set out in the jurisprudence.⁶ The real issue is whether a conditional sentence is a fit disposition.

42A careful review of the cases submitted by Mr. Schultz and Mr. Sheiban demonstrates that sentencing is not an exact science. It is instead a profoundly individualized process driven by the unique facts of every offence and the unique characteristics of every offender. The circumstances of any case, including this one, can be readily distinguished from any other case. Despite this, prior decisions assist in determining the governing principles that must guide my decision.

43Many of the cases relied upon by Mr. Sheiban in support of a conditional sentence involved first offenders⁷ and addict traffickers,⁸ two distinguishing features from Mr. Whittaker’s situation.

44Some of the cases relied upon by Mr. Schultz were decided before September 3, 1996, when the conditional sentence regime came into force.⁹ Sentencing judges at that time had no alternative to imprisonment to address denunciation and deterrence. In other cases, the mitigating factor of a guilty plea was absent.¹⁰

45Mr. Sheiban provided me with two cases that have been decided since the Ontario Court of Appeal’s decision in R. v. Sharma,¹¹ which struck down ss. 742.1(c) and 742.1(e)(ii) of the Criminal Code as unconstitutional, making a conditional sentence an available disposition for possession of cocaine for the purpose of trafficking.

46Both cases¹² involved mature offenders with criminal records who had pleaded guilty to serious drug charges. Both offenders were drug addicts. Both had made significant strides in changing their lives while on bail. Both were sentenced to a conditional sentence of two years less one day.

47Mr. Colton was trafficking in several substances, including cocaine, psilocybin, ecstasy and marijuana. He was found in possession of six ounces of cocaine (three times as much as Mr. Whittaker), 3.4 pounds of psilocybin and 14 pounds of marijuana. He had a prior conviction for trafficking for which he received a conditional sentence and probation. He was trafficking in drugs to support his own drug habit but also to support a struggling business and maintain his lifestyle.

48Mr. Mori pleaded guilty to possession of a mixture of fentanyl and heroin. The trial judge sentenced him on the basis that he believed that he possessed heroin, not fentanyl. Heroin is a drug that is generally treated more harshly than cocaine by the courts. He was found in possession of 38.66 grams of heroin/fentanyl, seven grams of crystal methamphetamine and a small amount of cocaine.

49There were mitigating and aggravating features in those cases that are not present in Mr. Whittaker’s case. In both cases, the sentencing judges found that a conditional sentence adequately addressed the objectives of denunciation and deterrence and at the same time supported the rehabilitation of the offender, which was the best protection for society.

50No matter what the particular aggravating or mitigating factors are in any one case, the jurisprudence is clear that possession of cocaine for the purpose of trafficking is a serious offence meriting a sentence that emphasizes deterrence and denunciation.

Determination of a Fit Sentence

51A conditional sentence is an available disposition if the four criteria listed in s. 742.1 are satisfied. If the court imposes a sentence of imprisonment of less than two years, and the statutory conditions set out in s. 742.1 are met, the court may order that an offender serve the sentence in the community if it is satisfied that the community’s safety would not be endangered and that a conditional sentence is consistent with the fundamental purpose and principles of sentencing.

52The Crown is seeking a sentence of less than two years for Mr. Whittaker, and the conditions listed in s. 742.1 are met. Mr. Whittaker has demonstrated by his strict adherence to the conditions of his judicial interim release order and the pro-social life he has been living since 2017 that the safety of the community would not be endangered if he were permitted to serve his sentence in the community. The challenging issue is whether a conditional sentence is consistent with the fundamental purpose and principles of sentencing.

53Imprisonment is not the only means to achieve the sentencing objectives of general deterrence and denunciation. A conditional sentence of the appropriate duration and with strict conditions can deter and denounce.¹³ Indeed, the Supreme Court of Canada has held that conditional sentences may be available even where deterrence and denunciation are the paramount sentencing objectives.¹⁴

54Conditional sentences are punitive. House arrest is a significant restriction on an offender’s liberty. An offender serving a sentence of imprisonment in the community is not eligible to earn remission, which could lead to a reduction in the sentence.

55In describing the nature of a conditional sentence in R. v. Proulx, Lamer C.J.C. wrote at para. 22, “it will generally be more effective than incarceration at achieving the restorative objectives of rehabilitation, reparations to the victim and community, and the promotion of a sense of responsibility in the offender. However, it is also a punitive sanction capable of achieving the objectives of denunciation and deterrence."¹⁵

56Mr. Whittaker has real rehabilitative potential. I am not basing this on his statement to the court or his promises. I base it on the evidence of what he has accomplished in the past 4½ years. He also has the ability to repair some of the harm he has done to the community by continuing to mentor Black youth if he is permitted to serve his sentence in the community. The imposition of a conditional sentence strikes a balance of punitive measures to address denunciation and deterrence and restorative measures to achieve rehabilitation and reparations. It is also consistent with the principle of restraint set out in ss. 718.2 (d) and (e) of the Criminal Code.

57In my view, to incarcerate Mr. Whittaker now would jeopardize the progress he has made while on bail and would serve no genuine societal purpose. A conditional sentence of maximum duration recognizes the seriousness of this offence and its aggravating features while at the same time promoting the real prospect of his rehabilitation.

Disposition

58Mr. Whittaker, you are sentenced to a conditional sentence of two years less one day; a jail sentence that is to be served in the community.

59The conditions of the sentence are as follows:

1. Keep the peace and be of good behaviour.

2. Appear before the court when required to do so.

3. Report to your conditional sentence supervisor within 2 working days and thereafter as required by your conditional sentence supervisor.

4. Remain in Ontario unless you have the prior written permission from the court or the supervisor to leave the province.

5. Notify the court or supervisor in advance of any change of name or address and promptly notify the court or supervisor of any change in employment or occupation.

6. Co-operate with your supervisor. You must sign any releases necessary to permit the supervisor to monitor your compliance and you must provide proof of compliance with any condition of this order to your supervisor on request.

7. For the first fifteen months you will be under house arrest. You must remain in your residence at all times except:

i. for medical emergencies involving you or any member of your immediate family;

ii. for going directly to and from or being at your place of business, court attendances, religious services and legal or medical or dental appointments;

iii. for going directly to and from and being at counselling sessions approved of by your conditional sentence supervisor;

iv. with the prior written approval of your supervisor, which must be carried with you during these times;

v. for four hours once per week on a day approved of by your supervisor for acquiring the necessities of life; and

vi. for carrying out any legal obligations regarding compliance with this order.

8. You must confirm your schedule in advance with your supervisor setting out the times for the activities in paragraph 7.

9. During your house arrest, you must present yourself at your doorway upon the request of your supervisor or a peace officer for the purpose of verifying your compliance with your house arrest condition.

10. Following your house arrest, for the balance of this order, you shall obey a curfew and remain in your residence or on the property of your residence daily between the hours of 9:00 p.m. and 6:00 a.m. except for medical emergencies involving you or a member of your immediate family or with the prior written approval of your supervisor, which must be carried with you.

11. Attend and actively participate in all assessment, counselling or rehabilitative programs as directed by your supervisor and complete them to the satisfaction of your supervisor.

12. Sign any release of information forms necessary to enable your supervisor to monitor your attendance and completion of any assessments, counselling or rehabilitative programs.

13. Do not possess any weapons as defined by the Criminal Code.

60Following the conditional sentence, you will be placed on probation for 1 year. The terms and conditions of the probation order will be the same as the conditional sentence order except there will no longer be house arrest or a curfew.

Ancillary Order

61I also make the following ancillary order.

62Mr. Whittaker is prohibited from possessing any firearm, cross-bow, restricted weapon, ammunition or explosive substance for life pursuant to s. 109(3) of the Criminal Code.

Corrick J.

Footnotes

1. 1R. v. Ipeelee 2012 SCC 13, at para. 75
2. 2R. v. Lacasse 2015 SCC 64, at para. 53
3. 3See for example, R. v. Cunningham (1996), 1996 CanLII 1311 (ON CA), 104 C.C.C. 542 (Ont. C.A.); R. v. Hamilton (2004), 2004 CanLII 5549 (ON CA), 186 C.C.C. (3d) 129 (Ont. C. A.); R. v. Woolcock, [2002] O.J. No. 4927 (C.A.)
4. 4R. v. D’Onofrio 2013 ONCA 145
5. 5R. v. Downes, 2006 CanLII 3957 (ON CA), [2006] O.J. No. 555, at para. 37. (C.A.)
6. 6See R. v. Woolcock, supra.; R. v. Opoku 2019 ONCA 500.
7. 7R. v. Kebede 2021 ONCA 283; R. v. Johnson 2021 ONCA 257
8. 8R. v. Mori 2020 ONCJ 620; R. v. Colton 2021 ONCJ 249
9. 9R. v. Radassao (1994), 1994 CanLII 779 (ON CA), 74 O.A.C. 78 (C.A.); R. v. Jalonikou, [1995] O.J. No. 2473 (C.A.)
10. 10R. v. Grant, 1997 CanLII 1727 (ON CA), [1997] O.J. No. 3173 (C.A.); R. v. Woolcock, supra.
11. 112020 ONCA 478
12. 12Mori, supra. and Colton, supra.
13. 13R. v. Proulx 2000 SCC 5, at para. 22
14. 14R. v. Wells 2000 SCC 10, at para. 35
15. 15Proulx, supra. at para. 22. Emphasis in original.