COURT FILE NO.: CR-19-0024-00
DATE: 2021-08-24
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Mr. A. Hardiejowski, for the Crown
- and -
KYLE MORTON
Ms. A. Herscovitch for Mr. Morton
Accused
HEARD: June 4, 2021, via Zoom at Thunder Bay, Ontario
Mr. Justice W. D. Newton
Reasons on Sentence
Overview
[1] Mr. Morton pleaded guilty to possessing cocaine for the purpose of trafficking following my dismissal of his application to have the evidence from the search subsequent to his arrest excluded.[^1]
[2] Sentencing submissions were received on June 4, 2021. These are my reasons for sentence.
The Facts
a. Circumstances of the Offence
[3] Acting on a tip from a confidential informant that a known “drug house” was “out” and that it would be resupplied by someone matching Mr. Morton’s description with a black laptop case, police officers arrested Mr. Morton. When the black laptop bag carried by Mr. Morton was searched, 520 grams of cocaine was found with an estimated street value of $52,800.
- Circumstances of the Offender
[4] I had the benefit of receiving a comprehensive presentence report with respect to Mr. Morton. The report writer interviewed Mr. Morton, his mother, his sister, and a friend.
[5] Mr. Morton is 28 years old. He does not have a criminal record. He withdrew from high school during grade 12. He has no history of alcohol or drug abuse. No immediate family member has a history of conflict with the law or history of substance abuse. He was raised in what was described as “high risk subsidized housing in Toronto.”
[6] There are few details of his employment history. He said he became interested in Thunder Bay at age 24 and last worked for a few weeks as a retail salesperson at a local shoe store. He said that he liked the job at the store which has been closed for years now.
[7] Mr. Morton told the report writer that he viewed the “drug trade as a financial opportunity.” He is quoted as saying:
I knew there could be consequences, it was quick money, and I was tempted by the quick money. I don’t see myself going back to it. I don’t believe that is what I was meant to do with my whole life. I want to better myself, but at the end of the day there is no one to blame but me for my mistakes. I want to better myself. I want to own a home one day, and I want to go to the cottage with my family like other people do. I’m almost thirty, and it’s nowhere, but downhill for me from here.
[8] The report writer concluded that Mr. Morton would be a suitable candidate for community supervision if deemed appropriate by the court.
[9] Letters of support were received from his sister and his nephew, family friend, and from his girlfriend and her mother. All spoke highly of his personality and I have no reason to doubt the sincerity of their assessments.
- Impact on the Victim and/or Community
[10] There are seldom any direct victims in a case like this, but I take judicial notice of the serious adverse consequences of drug trafficking in this city. Unfortunately, the Thunder Bay courts have seen case after case like this involving persons seeking to profit by preying upon the drug addictions of local people, many of whom are Indigenous and suffering from the well-known effects of inter-generational trauma. The drug use leads to family dysfunction, loss of education and employment, and, often, more crime.
Statement of Mr. Morton
[11] Mr. Morton told me that he was very remorseful, that it was a “wrong decision” to put himself in that position, and that he did not think about consequences.
Positions of the Parties
[12] Counsel for Mr. Morton and counsel for the Crown have very different views as to what an appropriate sentence is in the circumstances. Counsel for Mr. Morton submits that an appropriate sentence would be a conditional sentence of two years less a day. Crown counsel submits that an appropriate sentence would be a penitentiary sentence of five years.
The Law
Purpose and Principles of Sentencing
Purpose
- The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:
(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;
(b) to deter the offender and other persons from committing offences;
(c) to separate offenders from society, where necessary;
(d) to assist in rehabilitating offenders;
(e) to provide reparations for harm done to victims or to the community; and
(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.
Fundamental principle
718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
Other sentencing principles
(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;
(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and
(e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.
Case Law Review
Cases relied upon by the Defence
[13] R. v. Bertrand[^2] was a decision of Fuerst J. who imposed a sentence of 14 months followed by two years of probation for a 25-year-old man who had pleaded guilty to possession of cocaine for the purpose of trafficking. The cocaine he possessed had a street value of approximately $25,000 and he was knowingly acting as a courier for profit. The accused had no criminal record.
[14] In R. v. Majnoon[^3], the Court of Appeal imposed a sentence of 5 years for an accused who was involved in transporting kilograms of cocaine between cities and who was described as not “simply a courier[^4].” Doherty J.A. stated that he would not have interfered with the sentencing Judge’s sentence of two years less a day if the accused was a courier.
[15] Counsel for Mr. Morton cited R. v. Priest[^5] for the following proposition for sentencing first offenders:
17 The primary objectives in sentencing a first offender are individual deterrence and rehabilitation. Except for very serious offences and offences involving violence, this court has held that these objectives are not only paramount but best achieved by either a suspended sentence and probation or a very short term of imprisonment followed by a term of probation. In R. v. Stein (1974), 1974 CanLII 1615 (ON CA), 15 C.C.C. (2d) 376 (Ont. C.A.) at page 377, Martin J.A. made it clear that in the case of a first offender, the court should explore all other dispositions before imposing a custodial sentence:
[16] In R. v. Salazar[^6] the 28-year-old accused pleaded guilty to possession of 8 ounces (about 227 grams) of cocaine for the purpose of trafficking and received a conditional sentence of eight months. Mr. Salazar had a criminal record and committed offences when he had difficulties with alcohol and substance abuse. These difficulties were no longer present.
[17] In R. v. Schneider[^7] the accused pleaded guilty to trafficking in cocaine. He was found with approximately 143 grams of crack cocaine worth an estimated street value of between $14,000 and $19,000 and $4,750 of cash. He was described as a “mid-level” trafficker. The British Columbia Court of Appeal overturned the sentence of one year and imposed a conditional sentence order followed by probation. In doing so, the Court stated:
21 In my opinion, the judge failed to adequately consider whether a conditional sentence could meet the objectives of sentencing. As the Supreme Court stated in Proulx, a properly crafted conditional sentence can have a deterrent effect sufficient to deter other like-minded individuals. Similarly, the public can be satisfied that the risk posed by an individual offender serving his sentence in the community can be minimized if stringent conditions are imposed.
22 In my opinion, the judge failed to adequately consider the circumstances of this offender and this offence: a 46 year old offender convicted of a single count of trafficking; who has a minor unrelated criminal record; who has expressed remorse; who has good prospects of rehabilitation; and who, on the evidence, does not appear to pose a risk of re-offending.
[18] The Ontario Court of Appeal in R. v. Sharma[^8] dealt with a sentence appeal for a young Indigenous woman who had pleaded guilty to importing a significant quantity of cocaine. The majority of the Court concluded that a conditional sentence served in the community would have been an appropriate sentence given her personal circumstances, her guilty plea, her lack of criminal record and the Gladue factors present in that case.
[19] In R. v. Tulloch[^9] a sentence of two years less a day and two years of probation was imposed for a 37-year-old convicted of possession of cocaine for the purpose of trafficking. Mr. Tulloch had a positive presentence report and the family with young children. He had been previously convicted of a similar offence in 2010 and received a conditional sentence. The court noted that Mr. Tulloch’s “entitlement to a conditional sentence upon conviction on a similar charge is now spent[^10].” In considering sentence the court noted:
37 The cases make it clear that the courts consider drug trafficking as an insidious force on the well-being of society. The same can be said of possession of a drug or controlled substance in a sufficient quantity to be considered possession for the purpose of trafficking. The sentence for such offences must address the objectives of denunciation of the offence, and general deterrence to reinforce the message that criminal behavior of this nature will be punished.
38 It is equally clear from the authorities that a conviction on the charge of possession for the purpose of trafficking shall result in serious consequences, generally in the form of a period of incarceration. A conditional sentence will be considered only in a case where the charges are brought against a first offender or where there are clear and unqualified mitigating circumstances. Even then, a conditional sentence may only be available if a smaller amount of the unlawful substance has been found.
Cases relied upon by the Crown
[20] In R. v. Bajada[^11] the Court of Appeal reduced a sentence from eight years to six years for Mr. Bajada who was convicted of possession of cocaine for the purpose of trafficking. Upon his arrest, police discovered approximately 500 grams of cocaine with an estimated value of $62,500. Mr. Bajada had a serious criminal record including robbery and escaping lawful custody in Australia and two convictions for trafficking in Canada.
[21] The Crown cites R. v. Bryan[^12], another decision of the Court of Appeal, for the proposition that “sentences of 5 to 8 years would reflect the proper range for someone, without a record, convicted of possession for the purpose of trafficking in slightly more than a pound of cocaine[^13].”
[22] R. v. Maone[^14] involved in an appeal by drug trafficker from a sentence of seven years for trafficking in cocaine. The accused had sold large quantities of cocaine totaling 3.5 kg on four occasions. He was described as “an active participant in the cocaine trafficking enterprise, ‘making important decisions and sharing directly in the profits’[^15].” The Court of Appeal distinguished Bajada as involving a far lower amount of cocaine and only one incident. The sentence appeal was dismissed.
The Sentence
[23] Following his arrest Mr. Morton was in custody for 30 days which equals, with enhanced credit at 1.5 days per day in custody, 45 days of presentence custody.
[24] I am mindful that Mr. Morton has no prior criminal record and that I should consider whether a conditional sentence served within the community would be an appropriate sentence in the circumstances. I note also that Mr. Morton pleaded guilty although only after I dismissed his application to exclude evidence. I note his expressions of remorse and the positive letters of support.
[25] However, Mr. Morton acknowledged his motivation. He stated;
I knew there could be consequences, it was quick money, and I was tempted by the quick money.
[26] I am guided by the fundamental principle that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Trafficking in this quantity of cocaine is a very serious offence. I have already alluded to the serious drug problem in this district with persons seeking to profit by preying upon those with addictions. Mr. Morton chose to participate for profit knowing that there would be consequences.
[27] A custodial sentence is necessary to reflect the objectives of denunciation, deterrence and the gravity of the offence. Although I have considered a conditional sentence, I have concluded that a conditional sentence served within the community will not sufficiently address the objectives of denunciation and deterrence which are required in this case. The message needs to be sent to Mr. Morton and others like him who traffic drugs that, to put it colloquially, “Crime does not pay.” Consequently, I determine that a term of imprisonment is required.
[28] I find the cases cited by the Crown distinguishable from this case. Although the quantity of cocaine is similar, I am unable to gauge Mr. Morton’s role as more than a courier. That said, the amount of cocaine, 520 grams in two packages, with the street value of roughly $52,000 suggests he is part of a high-level operation.
[29] Mr. Morton, please stand.
[30] I conclude that the appropriate sentence is imprisonment for two years less one day. With credit for presentence custody of 45 days (30 days at 1.5 days per day in custody) the effective sentence will be a further 684 days imprisonment. This is to be followed by probation for three years subject only to the conditions that you report as required and that you keep the peace and be of good behaviour.
[31] As a further consequence of your conviction, ancillary orders are mandated by the Criminal Code. Pursuant to s. 109(1)(a), you are prohibited from possessing any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, and explosive substances for a period of 10 years. Further, you are required to submit a sample of your DNA to the DNA Data Bank. I order that the cocaine, black lap top bag and black cell phone are forfeited to the Crown.
“Original signed by”
The Hon. Mr. Justice W.D. Newton
Released: August 24, 2021
COURT FILE NO.: CR-19-0024-00
DATE: 2021-08-24
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN Crown
- and –
KYLE MORTON Accused
REASONS ON SENTENCE
Newton J.
Released: August 24, 2021
/lvp
[^1]: R. v. Morton, 2019 ONSC 7040 [^2]: 2012 ONSC 7519 [^3]: 2009 ONCA 876 [^4]: 2009 ONCA 876, at para. 8. [^5]: 1996 CanLII 1381 (ON CA), 1996, 30 O.R. (3d) 538 [^6]: [2000] O.J. No. 4974 [^7]: 2007 BCCA 560 [^8]: 2020 ONCA 478 [^9]: 2016 ONSC 5997 [^10]: 2016 ONSC 5997 at para. 39. [^11]: 2003 CanLII 15687 (ON CA), [2003] O.J. No. 721 [^12]: 2011 ONCA 273, [2011] O.J. No. 1581 [^13]: 2011 ONCA 273, [2011] O.J. No. 1581 at para. 1. [^14]: 2020 ONCA 461 [^15]: 2021 ONCA 461 at para. 4.