COURT FILE NO.: CR-22-90000203-000

DATE: 20220630

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

ANTONY BLACK

S. Malik and V. Rivers, for the Crown

D. Paton, for Mr. Black

HEARD: 30 May 2022

S.A.Q. AKHTAR J.

FACTUAL BACKGROUND AND OVERVIEW

Introduction

[1] Antony Black was convicted by a jury of four counts relating to the possession of cocaine and heroin: two counts of simple possession of cocaine and heroin found in his jacket pocket, and two counts of possession for the purpose of trafficking cocaine and heroin. These drugs were thrown from the window of the bathroom where Mr. Black was found hiding.

[2] He now stands to be sentenced.

Factual Background

[3] On 13 November 2018, police attended Unit 5, 526 Oakwood Drive in Toronto to execute a search warrant.

[4] Their subject of interest was Amman Charley, who was suspected of possessing a firearm and known to have a history of prior convictions for violent offences and the use of guns.

[5] Members of the Emergency Task Force (ETF) were employed to breach the front door of the building. As the ETF began its entry into the residence, a black male wearing a red baseball cap was seen looking out of one of the windows. When ordered by police to remain inside the house, the male was seen to run from room to room.

[6] After breaking through the front door, officers entered the house and made their way to the upper level apartment.

[7] Two ETF officers entered the bathroom and noticed the shower curtain of the bathtub drawn closed. When they pulled it aside, they discovered Mr. Black, who was wearing a red baseball cap, hiding inside the tub.

[8] A struggle ensued and one of the officers deployed a Conducted Energy Weapon (CEW), causing Mr. Black to fall face first into the tub. Fearing for their safety, both officers directed Mr. Black to move off the tub so they could be sure he was not holding any weapons. However, he remained on his stomach with his hands beneath him moving from side to side.

[9] The ETF officers sought to use force to elicit a response, striking Mr. Black with an open hand on the back of his head three to five times. However, they were unsuccessful, leading the officers to again deploy the CEW. Again, Mr. Black did not comply with police instructions.

[10] Eventually, another officer entered the bathroom, pulled Mr. Black from the tub, and dragged him into the apartment living room where he was attended to by paramedics. The ETF then departed the scene.

[11] After they had left, one of the investigating officers, Detective Shawn Mackenzie spoke to the paramedics who expressed their belief that Mr. Black was feigning injury. Notwithstanding this view, it was agreed that Mr. Black should be taken to hospital as a precautionary measure.

[12] Mackenzie conducted a pat down search to determine whether Mr. Black had any weapons. After satisfying himself that this was not the case, Mackenzie continued to search Mr. Black for identification. Reaching into the pocket of the jacket Mr. Black had been wearing, Mackenzie found a bag containing a small amount of cocaine and heroin along with a piece of paper which, along with words of poetry, had the name “Antony Black” written on it.

[13] Mr. Black was taken to hospital where he was diagnosed with a blowout fracture of a right orbital bone and a right nasal fracture.

[14] The police continued their search of the residence. Mackenzie investigated the area in which Mr. Black had been discovered and retrieved another bag which Mr. Black had thrown out of the bathroom window. Upon examination the police found it contained a more substantial quantity of cocaine and heroin.

[15] Mr. Black was charged with two counts of simple possession relating to the cocaine and heroin found in the jacket; and two counts of possession for the purpose of trafficking in relation to the cocaine and heroin found outside the bathroom. The jury convicted him of all of these counts.

[16] Mr. Black was also charged with assaulting a peace officer based on allegations that he had kicked one of the ETF officers when he was discovered in the bathtub. However, the jury found him not guilty of this offence.

Positions of the Parties

[17] The Crown asks that this court imposes a five year sentence (before deduction of pre-sentence custody credit under R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575) for the offences taking into account the circumstances of the offence, Mr. Black’s criminal record, the aggravating and mitigating factors, and the totality principle of sentencing.

[18] Mr. Black suggests that in light of the mitigating circumstances, including a lengthy series of lockdowns in the Toronto South Detention Centre (TSDC), the appropriate sentence would be three and a half years. However, due to the harsh conditions suffered as part of his pre-sentence custody, he submits that a period of two years would be the correct sentence.

Personal Circumstances of the Offender

[19] Mr. Black is now 36 years old. He came to Canada from Jamaica at the age of 17. Both his father and sister reside in this country. Mr. Black is the subject of a deportation order and is currently on an “immigration hold” pending the expiry of any custodial sentence.

[20] After his arrival into the country, he graduated from high school and found work in the construction industry and various warehouse jobs.

[21] Mr. Black suffers from schizophrenia and takes Seroquel, an anti-psychotic medication to help treat his illness.

Aggravating and Mitigating Circumstances

[22] The most serious aggravating factor in this case is the amount of heroin found outside the bathroom window. Both parties agree that 14.22 g of heroin was found in one of the baggies that police located along with 29.72 g of cocaine. It is also agreed that in 2018, the sale value of heroin was between $100-$130 per gram making the amount of heroin seized from Mr. Black worth approximately between $1422 and $1848. The value of the cocaine is estimated as being between $2377 and $3269 at 2018 prices.

[23] There is also Mr. Black’s lengthy criminal record containing convictions for dishonesty offences, failing to comply with court orders and obstructing police.

[24] The most serious convictions, however, relate to possession of drugs and assault.

[25] In January 2009, Mr. Black was convicted of sexual assault and forcible confinement and was given a further 10 days in prison after serving 70 days of pre-sentence custody.

[26] In January 2014, Mr. Black was ordered to serve an additional 30 days imprisonment in addition to pre-sentence custody of 30 days. Six months later, Mr. Black was convicted of possession of a Schedule II substance and given a 1 day jail sentence on top of 14 days already served. In October 2020, he was further convicted of possession of a Schedule 1 substance for the purposes of trafficking along with simple possession of a controlled substance and obstructing a peace officer. The drug in question was 1.59 grams of heroin packaged in 30 bags. He received a sentence of 2 years 3 months.

[27] Mr. Black’s most recent conviction is dated 25 March 2022 when he pleaded guilty to aggravated assault before Goldstein J. and 4 years of pre-sentence custody was noted on his record.

[28] There are also mitigating features in this case. As previously described Mr. Black suffers from significant mental health issues.

[29] Counsel for Mr. Black relies on R. v. Suter, 2018 SCC 34, [2018] 2 S.C.R. 496, to argue that the injuries suffered by Mr. Black during his arrest must be considered collateral consequences of the offence and taken into account when imposing sentence. I agree these injuries are relevant and have some bearing on sentence. However, their impact is limited as a mitigating factor: they were sustained as a result of Mr. Black refusing to obey explicit directions from the police upon finding him trying to hide from them. His failure to co-operate resulted in his being tasered and sustaining his facial injuries when he fell in the bathtub.

[30] Counsel for Mr. Black also produced records from the TSDC indicating that Mr. Black was subject to 509 days of either full or partial lockdown during his time in custody. Mr. Black provided an affidavit detailing his difficulties whilst detained and living through both the lockdowns and pandemic in custody. His affidavit was not challenged by the Crown and described being quarantined a number of times during the pandemic. The affidavit contains evidence of his health issues and being assaulted by other inmates at the TSDC.

[31] Clearly Mr. Black’s experiences in pre-sentence custody must be taken into account when arriving at a final sentence.

[32] On the other hand, I also take note of the occurrence reports produced by the Crown which show that Mr. Black was an instigator in damaging property at the TSDC and, on occasion, was involved in assaulting other inmates. One incident in December 2021 records an attack by Mr. Black causing an inmate to suffer several orbital fractures to his left cheek. These incidents speak to the lack of rehabilitative prospects for Mr. Black.

The Jurisprudence

[33] There is no doubt that convictions for the sale and trafficking of heroin are treated very seriously by Canadian courts.

[34] In R. v. Farizeh (1994), 78 O.A.C. 399 (C.A.), at para. 5, the Court of Appeal for Ontario made clear that the sale of heroin, even in small amounts by first offenders who are addicts, “will call for a penitentiary sentence unless exceptional circumstances exist and the present case does not fall within the exception”.

[35] In R. v. Banovec, 2016 ONSC 7166, the offender was convicted of possession for the purpose of trafficking heroin after being found in possession of 21.9 grams of the substance divided into four “8 ball” 3.5 gram packages. After reviewing the precedents, and taking into account the offender’s criminal record, the sentencing judge imposed a three and a half year sentence rejecting the defence position of two years less one day. That sentence was upheld on appeal with the Court of Appeal remarking that “the sentence imposed was fit and well within the range for other offenders, even those with no previous record, unlike the appellant and with significantly smaller amounts of heroin”: Banovec, 2018 ONCA 737, at para. 5.

[36] Here, as noted Mr. Black was also convicted of possession for the purpose of trafficking cocaine after police found 29.72 g of cocaine in the bags outside the window. Again, there is no doubting the seriousness of this offence: R. v. Woolcock, [2002] O.J. No. 4927 (C.A.), at para. 8.

[37] The range of sentence for trafficking heroin can be anywhere from 3-6 years as evidenced by the following cases:

• R. v. Bahari (1994), 1994 CanLII 1425 (ON CA), 78 O.A.C. 397 (C.A.), conviction for trafficking 6.71 g of heroin – 6 years imprisonment (four consecutive 18 month sentences)

• R. v. Pimentel, [2004] O.J. No. 5780 (S.C.), conviction for possession for the purpose of trafficking of 5.1 g of heroin – three and a half years on top of one year’s pre-sentence custody

• R. v. Hakim (1997), 1997 CanLII 6318 (ON CA), 103 O.A.C. 237 (C.A.), conviction for possession for the purpose of trafficking of 1.8 g of heroin – 3 years imprisonment

• R. v. DaSilva, [2004] O.J. No. 4808 (S.C.), guilty plea for possession for the purpose of trafficking of 2.08 g heroin - 3 years imprisonment

• R. v. Pham, [2004] O.J. No. 1858 (S.C.), guilty plea for possession for the purpose of trafficking of 5.49 g of heroin - 3 years imprisonment

• R. v. Filli, 2015 ONSC 3652, conviction for trafficking 34.1 g of heroin - 4 years imprisonment

• R. v. Bedi, 2019 ONSC 1612, conviction for trafficking 32 g of heroin - 4 years imprisonment

What is the Appropriate Sentence in this Case?

[38] I have reviewed the case law cited above and also weighed up the various aggravating and mitigating factors in this case. I am aware of the totality principle described in R. v. Parry, 2012 ONCA 171, 289 O.A.C. 201, at paras. 17-18, where the court affirmed that totality in sentencing includes a pre-existing sentence.

[39] As previously described, Goldstein J. imposed what was effectively a four year prison sentence for the offences of aggravated assault. That was a time served offence and Mr. Black does not have further time in custody other than the offence for which he is now being sentenced.

[40] As I have already noted, possession for the purpose of trafficking in heroin is a very serious offence warranting significant jail time. Here there was a significant amount of both heroin and cocaine found by the police after Mr. Black had been arrested. Such amounts and their value warrant a higher sentence.

[41] Taking into account the aggravating and mitigating factors described in the preceding paragraphs, I find that the proper sentence to be one of four years on Count 4, and the same sentence on the remaining counts to run concurrently.

[42] The Summers deduction of 338 days to the date of sentence amounts to 507 days when calculated at 1.5:1. That would mean that Mr. Black has 953 days left to serve which I would round down to 2 years and 7 months for clarity’s sake.

[43] I would impose a DNA order under the secondary ground in s. 487.04 of the Criminal Code and a lifetime prohibition order pursuant to s. 109 of the Code.

S.A.Q. Akhtar J.

Released: 30 June 2022

COURT FILE NO.: CR-22-90000203-000

DATE: 20220630

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

ANTONY BLACK

REASONS FOR SENTENCE

S.A.Q. Akhtar J.