Court File and Parties
COURT FILE NO.: CR-19-70000766-0000 DATE: 20210205
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
DARRIN PEEVER
Counsel: Emile Carrington, for the Crown Peter Adourian, for the Accused
HEARD: February 3, 2021
REASONS FOR SENTENCE
HIMEL J.
[1] Darrin Peever entered a plea of guilty to the offence of possession for the purpose of trafficking contrary to s.5(2) of the Controlled Drugs and Substances Act. Following the plea, I ordered that a Gladue report be prepared. However, for reasons outlined in a letter from Aboriginal Legal Services, no Gladue report could be done despite the efforts made to determine Mr. Peever’s Aboriginal ancestry. The author of the letter also advised that they were unable to address how being an Aboriginal person has affected Mr. Peever’s life circumstances. Nonetheless, as acknowledged by the author, this does not mean that there are no Gladue related issues that have influenced Mr. Peever. Counsel has provided me with information that I rely on to demonstrate the relationship Mr. Peever has with his Aboriginal heritage. The Crown and defence have made submissions on sentence. The following are my reasons for sentence.
FACTUAL BACKGROUND
[2] Mr. Peever had been a member of the Outlaws Motorcycle Club. On Saturday, August 11, 2018 at 2:21 a.m., Mr. Peever, who was driving an open Harley Davidson motorcycle, stopped the motorcycle and parked at Don Mills Road at the entrance of the Don Valley Parkway. His friend, Brad Rhodes, who was driving a Jeep vehicle, also stopped and parked on the side of the road. They seemed to be lost. Police approached them and the men said they were looking for the Outlaws Motorcycle Clubhouse located at Danforth and Coxwell. Police directed them to the address and left.
[3] Shortly after, police learned that the registered owner of the motorcycle was under suspension. They caught up with the two men at O’Connor Drive, stopped Mr. Peever and pulled him over. Mr. Rhodes stopped as well. Mr. Peever had a valid Ontario driver’s licence showing that he was an M2 class motorcycle operator. However, he produced ownership and insurance that was not his and he said he was test driving the motorcycle. He had a smell of alcohol on his breath which is not permitted for an M2 class driver. Police requested a roadside screen. Mr. Peever’s blood alcohol level was .018. Police noticed that Mr. Peever was wearing a belt with a large hunting knife and a large hatchet.
[4] Police approached Mr. Rhodes and noticed that he had a bottle of gold-coloured liquid on the seat of the vehicle. When he was asked about it, he said it was homemade moonshine. Police could see the bottle and a second partially full bottle in the vehicle. They asked Mr. Rhodes to get out of the car. They observed that he was wearing a hunting knife as well. Police asked if he had any more alcohol or firearms in the vehicle and he said no. Mr. Rhodes walked to the back of the car and opened the trunk. Police observed the butt of a gun to be visible on top of a pile of clothing and bags. Police arrested the two men for possession of a firearm. They also located a shotgun, rounds of ammunition, marijuana, hashish and crystal meth in the vehicle. In another bag, police located marijuana and ecstasy as well as a baton, knives and a baton by the driver’s seat.
[5] When Mr. Peever was arrested and searched, police found 5.7 grams of powder cocaine and 12.09 grams of phenacetin (a cutting agent) on his person. At the police station, police conducted a level 3 search and found another bag with 2.09 grams of powder cocaine. The total amount of cocaine in his possession was 7.79 grams of cocaine which, at a street value of $80 to $110 per gram, would have a value of between $632 and $856.
EVIDENCE LED AT THE SENTENCING HEARING
[6] Crown counsel filed Mr. Peever’s criminal record which dates back to 2001 when he was convicted of assault and received a suspended sentence and probation for one year. In 2002, he was convicted of fail to comply with probation and sentenced to a $250 fine. In 2004, he was convicted of fail to stop at the scene of an accident and was sentenced to a $500 fine and prohibited from driving for 12 months. On February 10, 2020, he was convicted of possession for the purpose of trafficking (3 counts), unlawful possession of a firearm, possession of a Schedule I and II substance, fail to comply with undertaking, tampering with a serial number, carry concealed weapon and possession under. He received his first sentence of imprisonment, a global sentence of three years and four months, which he is now serving in the Federal Penitentiary.
[7] As mentioned above, Aboriginal Legal Services made efforts to prepare a Gladue Report and in their letter dated December 15, 2020, they outline that through his father, Mr. Peever is Metis originally from Northern Manitoba.
POSITIONS OF THE PARTIES
[8] The Crown and defence jointly submit that the range of sentence in this case should be between 12 and 15 months’ imprisonment consecutive to the sentence that Mr. Peever is now serving. Crown counsel also seeks an order prohibiting Mr. Peever from possessing a weapon for life and a forfeiture order for the items found in the motor vehicle on the night of the arrest.
[9] The Crown points out the circumstances of the offence namely, that Mr. Peever had been a member of the Outlaws Motorcycle Club and was riding in tandem with Mr. Rhodes who had a shotgun in his trunk at the time. Mr. Peever was in possession of cocaine that was in separate packages with a cutting agent in his possession. The value of the cocaine was between approximately $600 and $800 at the time. Mr. Carrington submits that the offences for which Mr. Peever is serving a sentence in penitentiary occurred after this offence. The Crown argues that the objectives for this sentence should be general deterrence and denunciation. However, Crown counsel also points to the mitigating factor which is Mr. Peever’s plea of guilty as an expression of remorse.
[10] The defence asks that this court to impose a sentence in the lowest end of the range proposed, that is, 12 months’ imprisonment. The defence does not oppose the forfeiture order and does not oppose the s. 109 order. Mr. Adourian provided the court with Mr. Peever’s background and his relationship to his Aboriginal ancestry. He argues that although Mr. Peever has no credit for pre-trial custody for this offence, he asks the court to impose the low end of the range taking into account the effects of COVID-19 pandemic in the jails and the effect of the pandemic on his ability to practise his religion and heritage. His plan is to return to his community upon his release from prison.
THE LAW
[11] The sentences imposed for the offence of possession for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act vary according to the particular circumstances of the accused and the circumstances of the offence. Crown counsel points to the case of R. v. Woolcock [2002] O.J. No. 4927 (C.A.), where the Court of Appeal reduced a sentence of two years less a day for possession of cocaine for the purpose of trafficking, possession of proceeds of crime and possession of marijuana and sentenced the appellant to 15 months in prison, holding that the trial judge failed to give sufficient weight to the possibility of rehabilitation. At the time of the offences, the appellant was 53 years old, was not addicted to drugs and had two prior convictions for drug related offences in 1998 for which he received a sentence of 30 days.
[12] While acknowledging that crack cocaine is an extremely dangerous and insidious drug with potential to cause a great deal of harm to individuals and to society and that the offence warrants emphasis on deterrence and denunciation, the court said that it is also appropriate to consider the objective of rehabilitation. The Court of Appeal found that the trial judge erred in not considering the principle of rehabilitation and that the prospect of rehabilitation in this case was significant. The court also noted that the range of sentence for possession of cocaine for the purpose of trafficking was between six months and two years less a day: see R. v. Madeiros, [2001] O.J. No. 5664 (Ont. S.C.J.) and R. v. Radassao, 1994 CanLII 779 (ON CA), [1994] O.J. No. 1990 (Ont. C.A.) but that cases in the higher end of the range involve either larger quantities of narcotics or offences committed while the accused was still on probation for a similar offence.
[13] In this case, a Gladue report was not able to be prepared. However, I will consider Mr. Peever’s Aboriginal heritage in accordance with some of the principles outlined R. v. Gladue, 1999 CanLII 679 (SCC), [1999] 1 S.C.R. 688. Sentencing judges must apply s. 718.2(e) of the Code and Gladue says at para. 82: “There is no discretion as to whether to consider the unique situation of the aboriginal offender; the only discretion concerns the determination of a just and appropriate sentence.”: see also: R. v. Wells, 2000 SCC 10 at para. 50. In R. v. Ipeelee, 2012 SCC 13, the Supreme Court clarified that Gladue principles apply to sentencing decisions for violent or serious offences. In R. v. Brown, 2020 ONCA 657, Justice Trotter wrote at para. 45:
…Put another way, the impact of Gladue factors may vary in any given case but the method of analysis does not. The application of Gladue factors is always necessary to achieve a proportionate sentence for indigenous offenders, and a failure to do so warrants appellate intervention: R. v. Swampy, 2017 ABCA 134, 347 C.C.C. (3d) 105, at paras. 26 and 36; Ipeelee, at para. 44.
[14] In R. v. Radcliffe, 2017 ONCA 176, 347 C.C.C. (3d) 3, leave to appeal refused, [2017] S.C.C.A. No. 274, Watt J.A. outlined how to approach the impact and relevance of Aboriginal status and the offences for which the accused is being sentenced. He wrote at paras. 54-55:
Courts are required to take judicial notice of the systemic and background factors affecting Aboriginal people in Canadian society. But, on their own, these matters about which judicial notice must be taken do not necessarily justify a different sentence for Aboriginal offenders. They provide the necessary context for understanding and evaluating the case-specific information which counsel have a duty to present, absent express informed waiver of the right to have it presented: Ipeelee, at para. 60.
Although systemic and background factors provide the necessary context to enable a judge to determine an appropriate sentence, rather than to excuse or justify the underlying conduct, it is only where the unique circumstances of an offender bear on culpability, or indicate which sentencing objective can and should be actualized, that they will influence the ultimate sentence: Ipeelee, at para. 83.
DECISION
[15] Before I review the specific circumstances of this case, I turn to some of the general principles of sentencing set out in section 718 of the Criminal Code. The purpose of sentencing is to ensure respect for the law and to promote a just, peaceful, and safe society. The imposition of just sanctions requires that I consider the sentencing objectives referred to in this section. They are: denunciation of unlawful conduct, deterrence of the offender and other persons from committing offences, separating offenders from society where necessary, rehabilitation of offenders, providing reparation for harm done to victims or to the community, promoting a sense of responsibility in offenders, and acknowledgement of the harm done to victims and the community.
[16] A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. When imposing sentence, I am to take into account certain factors which may increase or reduce the sentence because of aggravating or mitigating circumstances. The sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; where consecutive sentences are imposed, the combined sentences should not be unduly long or harsh; the offender should not be deprived of liberty if less restrictive sanctions are appropriate; and all available sanctions, other than imprisonment, that are reasonable in the circumstances should be considered for all offenders, particularly Aboriginal offenders.
[17] A proper sentence must take into account the circumstances of the offender and the circumstances of the offence. I first look at the circumstances of the offender and consider Mr. Peever’s background.
[18] Mr. Peever is 46 years of age and was born on December 4, 1974. I am advised that he has a spouse, Sarah McCormack and a family: an adult son who works as a bricklayer, a daughter who graduated from university and a daughter who is in high school. Mr. Peever had another son who died in 2016 when he was 18 years old. His son’s death was, understandably, a very traumatic event in Mr. Peever’s life. Mr. Peever has a degree as a community worker and did that type of work for some time. After his son’s death, he began to drink alcohol heavily and he became involved with the Outlaws Motorcycle Club. Counsel advises the court that he has no contact with the people in the motorcycle club any longer and he does not suffer from any addictions or mental health problems.
[19] Mr. Peever’s Aboriginal heritage comes from his father’s side of the family. However, he was not raised by his father, he lost contact with him and then his father passed away in 2001. In the letter sent by Aboriginal Legal Services, after extensive efforts, they were not able to connect Mr. Peever to his paternal Metis ancestry and therefore, could not provide a Gladue Report. They did not say that he was not an Aboriginal person nor that there are no Gladue related issues.
[20] Counsel for Mr. Peever provided me with information concerning his connection to his Aboriginal heritage. Mr. Peever lives in Alderville, Ontario in a community which is on the Ojibway Reserve. Mr. Peever had been operating a sawmill in that community and was hunting and fishing with other families on the reserve. He used to participate in a yearly cleanse and did a daily smudging ceremony.
[21] Since his incarceration in February 2020, he was able to do the smudging exercise at Joyceville Penitentiary but because this charge was outstanding, he was transferred to various Provincial institutions where he is not allowed to participate in smudging exercises due to the COVID-19 pandemic. Once he is sentenced on this charge, he hopes to return to the penitentiary where he can participate in the smudging ceremonies and where he can also be involved in training and courses which will assist in his rehabilitation.
[22] I now turn to the circumstances of the offence. Mr. Peever was found guilty of one count of possession for the purpose of trafficking. I am advised that Brad Rhodes pleaded guilty to possession of the gun located in the trunk of the vehicle. The amounts of the cocaine, the packaging and the presence of the cutting agent demonstrate that the possession was for the purpose of trafficking. However, the amounts are at the low end. Nonetheless, cocaine is highly addictive and can cause devastating consequences for the offender, for drug users, families and society generally.
[23] In summary, I consider the sentencing principles and the circumstances of the offender and the offence. I consider that deterrence and denunciation are extremely important objectives but I recognize that a sentence must take into account Mr. Peever’s circumstances including his background, family, his prior employment and his Aboriginal heritage. I note that his criminal record at the time of this offence was such that he had never been sentenced to imprisonment.
[24] Another important mitigating factor is that he has entered a plea of guilty which demonstrates remorse.
[25] In light of all the sentencing objectives set out in s. 718 of the Code, the circumstances of the offence and of the offender, I am of the view that a sentence of twelve months’ imprisonment is an appropriate sentence for this offence. It takes into account the principles of deterrence and denunciation while balancing the other objectives outlined in s. 718 of the Code which include rehabilitation. I note the words of the Court of Appeal in Woolcock where the court wrote at para. 17:
This shorter sentence is not intended, in any way, to minimize the seriousness of the offence or the need for general deterrence and denunciation of this serious offence. Rather, it is to provide the accused with an opportunity to be rehabilitated while simultaneously learning that this type of crime will not be tolerated. Both the community and the appellant would be better served if the appellant were given the opportunity to re-enter society, deal with his drug use problems and attempt to re-establish himself as a productive member of his community.
[26] Finally, this sentence recognizes the harsh effects of being incarcerated during the COVID-19 pandemic including loss of privileges, programming and visiting with family. It also takes into account the impact upon Mr. Peever who has not been able to engage in Aboriginal ceremonies and practices.
RESULT
[27] Taking all of these considerations into account, I find that a sentence of twelve months’ imprisonment is a sentence that recognizes the need for denunciation and deterrence for a serious offence but acknowledges the principle of rehabilitation and Mr. Peever’s Aboriginal heritage. Because his pre-trial custody has been credited to other offences, no credit is given to this offence. This sentence is to be served consecutive to the sentence being served by Mr. Peever in the Federal Penitentiary.
[28] In addition to the period of imprisonment, I make an order under s. 109 prohibiting Mr. Peever from possessing weapons as defined by the Criminal Code for life.
[29] There will be an order of forfeiture of the items found in the motor vehicle when Mr. Peever was arrested.
February 5, 2021 Himel J.
COURT FILE NO.: CR-19-70000766-0000 DATE: 20210205
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
DARRIN PEEVER
REASONS for sentence Himel J.
Released: February 5, 2021