COURT FILE NO.: CR-19-50000458-0000

DATE: 20210929

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

JERRY BRODRICKS

COUNSEL:

George Lennox and Dean Sgouromitis, for the Crown

Ashley Audet, for Jerry Brodricks

HEARD: September 15, 2021

R.F. GOLDSTEIN J.

1. Overview

[1] On June 25, 2021 I convicted Jerry Brodricks of one count of trafficking in cocaine and one count of conspiracy to traffic in cocaine. He now comes before the court for sentencing.

2. The Facts

(a) Circumstances of the offence

[2] The full facts can be found in my reasons for judgment convicting Mr. Brodricks: R. v. Brodricks, 2021 ONSC 4466. These reasons for sentence should be read in conjunction with my reasons for judgment.

[3] In 2018 Mr. Brodricks was involved in what the Crown characterizes as a cocaine “buy-sell” conspiracy. The case was largely built on intercepted communications. The police also conducted surveillance and seized some cocaine.

[4] In multiple telephone calls, Mr. Brodricks discussed a “nine”; a “Cuban”; and a “half B”. As I found in my reasons for judgment, the use of these terms (and the acknowledgment by Mr. Brodricks when others used those terms) related to the sale of cocaine. According to the expert evidence, which I accepted, a “nine” or a “nine-pack” refers to nine ounces. Nine ounces is also about a quarter of a kilogram, or a quarter-brick. A “Cuban” refers to a quarter ounce of cocaine. A “b” or a “ball” refers to an eight-ball, or an eighth of an ounce of cocaine. Cocaine at the wholesale level is often packaged in bricks of one-kilogram. A nine-pack is a fairly standard unit of measurement for the sale of cocaine. Mr. Brodricks used, or acknowledged, all of these terms when talking to other members of the “program”. The “program” referred to the agreement to purchase cocaine at the kilogram level using pooled funds, possibly “step on” it (or dilute it to increase profit) and then sell it.

[5] I am satisfied beyond a reasonable doubt that Mr. Brodricks was part of the “program”. When the police executed a search warrant at 665 Falconer Drive in Mississauga, they found two quarter bricks of cocaine as well as cash, a scale, and a device to seal packages. I found as a fact in my reasons for judgment that this seizure was circumstantial evidence that the conspiracy to traffic involved cocaine. It is also circumstantial evidence that Mr. Brodricks was aware of the purchase of cocaine at the kilo level (called a “full” in the conversation). It is also circumstantial evidence that cocaine was sold at the quarter-kilo, or nine-pack level. After the execution of the warrant, Mr. Brodricks had the following conversation with Mr. Robinson:

BRODRICKS: What was this? Ahm, wha… wha… wha… wha… fuck man? Fuck, fuck man.

ROBINSON: A full.

BRODRICKS: What?

ROBINSON: A full.

BRODRICKS: You’re joking.

ROBINSON: No.

BRODRICKS: There?

ROBINSON: Huh? Yeah.

[6] Mr. Brodricks himself was not at the very top of the conspiracy, but I am satisfied that he was upper management. He described his involvement in his own words in an intercepted communication on May 17, 2018:

BRODRICKS: All I’m, all I’m gonna tell you is, that you, like I understand you’re saying, yeah, and I’m the superior look over them, but when somebody calls you and tries to complain to you about anyting, bro this (unintelligible) okay… even if its me, you and Slim that’s in the program, dre is not in the program, okay…

ROBINSON: Bro…

BRODRICKS: But…

ROBINSON: … you’re talking, you’re talking, you’re talking about, you’re tralking about a fucking pulling Dre to the side. Regardless, Dre has no parts of whatever we’re doing

BRODRICKS: I, I, I understand that, but like I’m telling you, all I ah, that’s all I’m asking from you. You want me, you want me, you want me to run this program how you want it to run, no problem. All I’m asking you is…

ROBINSON: … I, I, yow fams, I told you that you are their boss. I gave you, I, I, I told you that you are their boss. They basically said you are the boss. Because they said, that what’s it call, anything that they do or whatever they have to report to you, they give you everything. You are their boss. So you know what, you’re gonna have more headaches because you’re there. You are there, present. So you’re the boss, you’re always gonna have headache when you’re a fucking boss…

BRODRICKS: Fam, I, I, I know that, I know when you are on top of management you, there is always gonna be issues…

[7] In addition to being upper management of the “program”, Mr. Brodricks was also supervisor of the Sudbury drug trafficking operation. He was arrested in a vehicle with 130 grams of cocaine. He also had $1700 in cash on him.

[8] There is no evidence that Mr. Brodricks personally purchased cocaine at the kilogram level. Rather, Mr. Robinson was responsible for kilogram-level purchases for the “program”. I am satisfied beyond a reasonable doubt, based on the interceptions, that Mr. Brodricks knowingly took part in the pooling of money so that Mr. Robinson could make those purchases. I base that finding on the references to the cost of a brick of cocaine as articulated (in very crude code) on the interceptions. I also base that on the expert evidence of Constable Moxham.

[9] I am also satisfied beyond a reasonable doubt that Mr. Brodricks was involved himself in sales of cocaine at different levels. He sold, or took part in sales, as low as half an eight-ball. He also sold, or took part in sales, at the 9-pack or quarter-kilo level. There are references to 9-packs in interceptions on May 5, May 9, and June 13 involving Mr. Brodricks. There are references to 9-packs in other interceptions that Mr. Brodricks does not take part in. Those interceptions are still admissible against Mr. Brodricks, of course, based on the co-actor’s exception to the hearsay rule. Those interceptions are relevant for the purposes of sentencing because they illustrate the level of cocaine distribution. I agree with counsel that I cannot quantify the number of sales, but it is clear that the conspiracy of which Mr. Brodricks was a member was ongoing, and not simply a one-off.

[10] To sum up, during the period of the conspiracy Mr. Brodricks played a role as a manager of the “program” and a salesperson of cocaine at the nine-pack level and below.

(b) Circumstances of the offender

[11] A pre-sentence report was filed regarding Mr. Brodricks. He is 33 years old. He was lived with his grandmother in Lagos, Nigeria but moved to Toronto when he was very young to be with his mother. He was raised by his mother alone, as his father died when he was young. He is currently in a relationship and has two children with Nicole Wilson. Ms. Wilson has children from another relationship as well. Ms. Wilson reported to the probation officer that she is very supportive of Mr. Brodricks. She reported that he tries to be a good father to the children they have together, and a good stepfather to the children of her previous relationship. Although Mr. Brodricks has a relationship with his mother, it seems clear that his primary relationship and source of domestic stability is his relationship with Ms. Wilson. Ms. Wilson hinted to the probation officer that the motive for Mr. Brodricks’ involvement in this crime was financial instability. She told the officer that he turned to his “brother” – which Ms. Audet clarified seemed to mean Mr. Robinson – for cash. Ms. Wilson indicated that Mr. Brodricks is something of a follower, and that he became involved based on his relationships with others.

[12] Mr. Brodricks has a criminal record. His record commences in 2006 and ends in 2009. He has been convicted of one count of fail to comply with recognizance; one count of assault police; one count of assault with intent to resist arrest; two counts of fail to attend court; one count of obstruct; and one count of assault.

[13] Mr. Brodricks’ education and employment history is spotty. He has not finished high school but is only a few credits short. Apparently, during what Mr. Brodricks describes as a time of not being in control, he was occasionally suspended from high school. His plan is to complete high school at some point in the future. He has worked at various jobs including construction and at a bakery. He did work as a broker with a logistics company. That was confirmed in a letter from Starships Logistics Distribution. Mr. Brodricks hopes to continue working there and is interested in real estate.

[14] Mr. Brodricks does have community support. Ms. Wilson, the mother of his two children, wrote a very heartfelt letter describing Mr. Brodricks in positive terms. Shovante Brown, a friend of Mr. Brodricks’, also wrote a letter supporting him, as did Jennifer Brodricks, Mr. Brodricks’ sister. She noted that Mr. Brodricks did factory work in order to help support her through school, and now she occupies a responsible analyst position at the Bank of Montreal.

[15] I am inclined to agree with Ms. Audet that the Pre-Sentence Report is positive, although it is hardly glowing. Mr. Brodricks’ response to community supervision was “less than satisfactory” in 2006. It was also less than satisfactory in 2009. Nonetheless, as the probation officer noted, Mr. Brodricks appears “motivated to make positive changes and has made plans to live s more pro-social lifestyle.” I conclude that Mr. Brodricks has potential for rehabilitation.

3. Positions of the Crown and Defense

[16] Crown counsel argues that Mr. Brodricks should be sentenced to a term of 4-5 years in the penitentiary, given the significant cocaine distribution conspiracy and Mr. Brodricks’ role in it. The defence position is that Mr. Brodricks should be sentenced to a term of 2 years less a day, to be served in the community, followed by a lengthy period of probation.

4. Case Law

[17] The Crown brought two cases to my attention. In R. v. Burke and Dinall, 2020 ONSC 29, the two offenders both testified that they were trafficking marijuana, rather than cocaine as alleged by the Crown. A jury convicted them. Akhtar J. found that the two offenders were trafficking exclusively in cocaine. He found that Burke had trafficked about 2.3 kilograms of cocaine and had possessed about $77,000 in proceeds of crime. Burke was a 57-year old offender with a criminal record, including a conviction for trafficking cocaine. After reviewing the cases in some detail, Akhtar J. sentenced Burke to nine years imprisonment. Dinall had trafficked about 300 grams of cocaine and had possession of about $15,000 in proceeds of crime. Akhtar J. found that he was a mid-level cocaine dealer. He reviewed the sentencing cases referencing dealers at that level. I agree with and rely on Akhtar J.’s analysis and review of these cases. Akhtar J. sentenced Dinall to 3 ½ years in prison.

[18] In R. v. Graham, 2018 ONSC 6817 the offender was convicted of both weapons and drug offences. He was in a car that was investigated by the police. Eventually the police seized a satchel containing a handgun, ammunition, three ounces of cocaine, two digital scales, and about $15,000 in cash. The police had seized video from a nearby bar. In the video Graham was walking around with the satchel. He testified that he was holding it for his brother. His brother also testified and supported the story. The jury obviously did not accept that evidence, because they convicted Graham. Graham had a lengthy criminal record including convictions for possession of cocaine for the purpose of trafficking. Code J. identified the range at two to five years, after reviewing the cases. I agree with Code J.’s conclusion. He sentenced Graham to three years consecutive to the other offences, although he reduced the global sentence (which included the gun and proceeds counts) by a year.

[19] I have reviewed the authorities that were summarized by both Code J. and Akhtar J. The range is wide but there is no doubt that trafficking or conspiracy to traffic in large amounts of cocaine usually attracts a significant penitentiary sentence.

[20] Ms. Audet relied on a series of cases to persuade me that Mr. Brodricks should receive a conditional sentence, commencing with R. v. Sharma, 2020 ONCA 478, 152 O.R. (3d) 209. (The Crown appealed Sharma to the Supreme Court of Canada. The Supreme Court has granted leave to appeal. As of the time of writing, the appeal had not been heard). I agree that a conditional sentence is now available for these offences. Whether I should impose a conditional sentence is, of course, a different question.

[21] In R. v. Nguyen, 2016 ONSC 1286, the police executed a search warrant and found a ball of cocaine the size of a softball, weighing 82 grams, as well as 424 grams of marijuana. The defence brought an application to exclude the evidence, and when that was dismissed admitted the Crown’s case. The offender had a minimal criminal record. Woollcombe J. sentenced the offender to two years less a day, although she noted that the sentence was at the low end of the range.

[22] In R. v. Tulloch, 2016 ONSC 5997, the offender tossed a package containing 260 grams of cocaine over a neighbour’s fence as the police executed a search warrant. A jury found him guilty of possession of cocaine for the purpose of trafficking. The offender had received a conditional sentence for a previous offence. Emery J. refused to impose another conditional sentence. He sentenced the offender to two years less a day and two years of probation.

[23] In R. v. Peralta, 2018 ONSC 4505, a jury convicted the offender of possession of 198 grams of cocaine for the purposes of trafficking, conspiracy to possess cocaine for the purpose of trafficking, and conspiracy to import cocaine. The cocaine was imported and the offender received it during a controlled delivery. Lemay J. rejected a constitutional challenge to the provision prohibiting conditional sentences for importing cocaine (the Court of Appeal obviously decided otherwise in R. v. Sharma). As a result, LeMay J. imposed a sentence of two years less a day based on the amount of cocaine.

[24] In R. v. Marshall, 2013 ONSC 5305, the offender was convicted by a jury of possession of cocaine for the purpose of trafficking and possession of oxycodone for the purpose of trafficking. The police executed a search warrant and found 250 grams of cocaine and 189 Percoset pills. The offender had a relatively minor criminal record. At the time of the offence, Parliament had not yet amended the Criminal Code to prohibit conditional sentences for trafficking or importing substances in Schedule I of the Controlled Drugs and Substances Act. The offender had taken great strides to turn his life around. He had dealt with an addiction issue and obtained gainful employment. Seppi J. imposed a conditional sentence of two years less a day.

[25] In R. v. Dudhi, 2017 ONSC, the police arrested the offender as he ran from an apartment. The police found $2000 in cash, as well as 112 grams of cocaine, scales, baggies, and surveillance cameras in the apartment. He was convicted by a jury after a trial. As with the Marshall case, the offence occurred before the amendments to the Criminal Code prohibiting a conditional sentence. The accused was a first offender. He was married and had children. Arrell J. decided that a conditional sentence could still satisfy the principles of denunciation and deterrence. Given the offender’s pro-social antecedents, he was satisfied that a conditional sentence was appropriate. He sentenced the offender to 2 years less a day, followed by probation.

5. Mitigating and Aggravating Factors

[26] There are a number of aggravating and mitigating factors in this matter. The most important aggravating factor is the nature of the crime. I am satisfied beyond a reasonable doubt that this was a commercial cocaine trafficking conspiracy that purchased cocaine at the kilogram level and sold it at the quarter-brick, or nine-pack level or less. As I have explained, I am satisfied beyond a reasonable doubt that Mr. Brodricks played a supervisory role although he was not at the very top of the conspiracy.

[27] Mr. Brodricks’ criminal record is also aggravating. It is not lengthy, and his last conviction was 9 years prior to these offences. It is certainly not the kind of record that is of the worst variety that is sometimes seen in our courts, but there are troubling aspects to it, especially the convictions for assaulting a police officer and assault with intent to resist arrest.

[28] The nature of the substance is, of course, highly aggravating. As Code J. put it in R. v. Graham at para. 45 (I case I have previously mentioned), relying on R. v. Hamilton (2004), 2004 ONCA 5549, 186 C.C.C. (3d) 129, 72 O.R. (3d) 1 (C.A.):

An additional feature of cocaine trafficking that is well-known in the courts, and that increases the gravity of the offence, is that it is associated with violence. That is because it is an unlawful but lucrative business and so it spawns collateral violent crime, either to protect territory, to protect and enforce unlawful transactions, or simply to steal an unlawful product or its unlawful proceeds. As Doherty J.A. put it in R. v. Hamilton, supra at 161:

The use and sale of cocaine kills and harms both directly and indirectly. The direct adverse health effects on those who use the drug are enormous and disastrous. Cocaine sale and use is closely and strongly associated with violent crime. Cocaine importation begets a multiplicity of violent acts. Viewed in isolation from the conduct which inevitably follows the importation of cocaine, the act itself is not a violent one in the strict sense. It cannot, however, be dissociated from its inevitable consequences. Unlike the trial judge, I characterize cocaine importation [and possession for the purpose of trafficking, in this case] as both a violent and serious offence…

[29] There are mitigating factors. As I noted, the pre-sentence report is largely positive. Mr. Brodricks has community support. I accept Ms. Wilson’s letter that Mr. Brodricks has tried to be a good stepfather and father to her children. It is certainly possible that Mr. Brodricks is a dedicated family man who cares deeply about his partner, children, and stepchildren while at the same time being a commercial drug dealer. People are complicated. The best and worst impulses are found in each of us. Mr. Brodricks is an example of that – except that his worst impulses have resulted in convictions for drug trafficking.

[30] Mr. Brodricks apologized for his involvement in these crimes. He stated that he made a bad decision to get involved which has impacted on him as father and a family man. He said that he was not excusing his decision to become involved, but wanted the court to see him as a father, a person, and a friend who has made mistakes and wants a second chance.

[31] It is rare for a person who has had a contested trial to apologize for committing the crime for which he is to be sentenced. In this case, it is not inconsistent with the manner in which Ms. Audet defended the charges on his behalf. Ms. Audet tried to demonstrate that the Crown had not proven that Mr. Brodricks had trafficked the substance particularized in the indictment. She did not attempt to show that Mr. Brodricks was innocent of any illicit activity. Although unsuccessful, it was a reasonable strategy. Mr. Brodricks did not testify. This is one of those rare cases where an apology after a contested trial is not inconsistent.

[32] Was Mr. Brodricks’ expression of remorse sincere? Judges hear many offenders purport to apologize when it comes time for sentencing. Sometimes the offenders mean it; sometimes they mean it but can’t help themselves and get into trouble again; and sometimes offenders don’t mean it at all. I listened carefully to Mr. Brodricks. In this case, I believe that Mr. Brodricks was sincere, mostly because it is consistent with the expressions of support. I think Mr. Brodricks probably is genuinely sorry for what happened and wants to do better. I accept that it is a mitigating factor.

6. Principles of Sentencing

[33] The fundamental principle of sentencing is that sentences must be proportionate to the gravity of the offence and the degree of responsibility of the offender. In serious drug trafficking cases, where the offender is not an addict or user, general deterrence assumes an important role. In this case, I see rehabilitative potential for Mr. Brodricks and so that principle also plays a role.

7. Ancillary Orders

[34] There will be a DNA order as trafficking in cocaine is a primary designated offence. There will also be a s. 109 order for life.

[35] Sentence Imposed

[36] Although Mr. Brodricks is hardly a first offender, this is by far the most serious matter he has ever faced. His longest previous sentence was 30 days for assault and fail to attend court (concurrent) along with 18 months of probation.

[37] Although as I indicated I accept that Mr. Brodricks’ apology was sincere, it cannot be ignored that Mr. Brodricks, by his own words, was part of upper management of the “program” to buy and sell cocaine in significant commercial quantities. He was not a mere drug mule or a street-level trafficker. There is no evidence of any addiction issues. Mr. Brodricks became involved purely to make money.

[38] In R. v. Proulx, 2000 SCC 5 at paras. 58-59, Lamer C.J.C. set out the proper approach to be taken by a sentencing judge in deciding whether a conditional sentence is appropriate:

… Hence, a purposive interpretation of s. 742.1 does not dictate a rigid two-step approach in which the judge would first have to impose a term of imprisonment of a fixed duration and then decide if that fixed term of imprisonment can be served in the community. In my view, the requirement that the court must impose a sentence of imprisonment of less than two years can be fulfilled by a preliminary determination of the appropriate range of available sentences. Thus, the approach I suggest still requires the judge to proceed in two stages. However, the judge need not impose a term of imprisonment of a fixed duration at the first stage of the analysis. Rather, at this stage, the judge simply has to exclude two possibilities: (a) probationary measures; and (b) a penitentiary term. If either of these sentences is appropriate, then a conditional sentence should not be imposed.

In making this preliminary determination, the judge need only consider the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2 to the extent necessary to narrow the range of sentence for the offender. The submissions of the parties, although not binding, may prove helpful in this regard. For example, both parties may agree that the appropriate range of sentence is a term of imprisonment of less than two years.

[39] In my view, the appropriate range of sentence for a member of a conspiracy to purchase cocaine at the kilogram level and traffic in it at the quarter-kilogram level and below starts at 3-4 years. Thus, I must regrettably exclude a conditional sentence from consideration. Although there are mitigating factors here, I think exceptional circumstances would be required in this type of case to impose a conditional sentence. I see no exceptional circumstances that would justify departing from the range. With great respect to the defence position, all of the cases cited in support of a conditional sentence or a sentence of less than two years involved quantities of cocaine that were smaller than the quantities at issue here. As well, those cases involved single seizures as opposed to the ongoing “program” in this case. In my view, a reformatory sentence would be unfit for this case and this offender.

[40] Cocaine is a dangerous drug. It usually engenders petty crime, serious violence, and broken lives. Crimes involving significant amounts of cocaine call for a strong denunciatory sentence. The paramount, although not exclusive sentencing consideration is general deterrence.

[41] But for Mr. Brodricks’ real potential for rehabilitation, I would have imposed a sentence in the range of 4 to 5 years. In my view, when I weigh all of the aggravating and mitigating factors, including Mr. Brodricks’ apology as well as his place in the “program”, an appropriate sentence in this case is a global sentence of 3 years or 36 months in the penitentiary. This is a sentence at the low end of the range for conspiracy to traffic in cocaine at Mr. Brodricks’ level, but it reflects his family support and potential. It also reflects the principles of denunciation and deterrence for a person who is in management. I also impose a sentence of 2 ½ years on the cocaine trafficking count, concurrent to the conspiracy count. Consecutive sentences would offend the principle of totality.

[42] Thus, Mr. Brodricks is sentenced to 3 years in the penitentiary for conspiracy to traffic cocaine. He is sentenced to 2 ½ years concurrent for trafficking cocaine.

Released: September 29, 2021

COURT FILE NO.: CR-19-50000458-0000

DATE: 20210929

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

JERRY BRODRICKS

REASONS FOR SENTENCE

R.F. Goldstein J.