COURT FILE NO.: CR-21-43 (Kingston)
DATE: 20220927
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
KEVIN JOHN HARPELL
Defendant
Michael Mandelcorn and Greg Skerkowski, for the Crown
J. David Crowe, for the Defendant
HEARD at Kingston: 28 February and 28 August 2022
MEW J. (ORALLY):
Reasons for Sentence
[1] Kevin Harpell, you have pleaded guilty to nine charges, including four counts of trafficking in cocaine, one count of possession of a prohibited device (a black drum magazine capable of holding more than five cartridges), possession of prohibited weapons (a baton taser, a garotte, brass knuckles, throwing stars and flick knives), possession of a prohibited weapon (an illegal magazine), use of a firearm (an SKS rifle) while committing the indictable offence of trafficking in a controlled substance, and unauthorised transfer of a prohibited device (a shotgun).
[2] These charges all arise from a police investigation into a cocaine trafficking network that you were associated with.
[3] On 23 January 2019, undercover operators purchased one gram of cocaine from you for $50. During the course of that interaction, you discussed pricing with the undercover operators for the sale of one kilogram of cocaine.
[4] On 6 February 2019, undercover operators purchased 16.5 grams of cocaine from you in exchange for $900.
[5] On 15 February, you sold the undercover operators one gram of cocaine for $80.
[6] In the early hours of 22 February 2019, having agreed to supply the undercover operators with one kilogram of cocaine, you and Angus O’Neil travelled to a pre-arranged location in your vehicle. The two of you met with the undercover operators and showed them a one kilogram brick of cocaine, which was concealed inside a duffel bag in the rear driver’s side seat of your vehicle. You and Mr. O’Neil then proceeded into a nearby restaurant with the undercover operators to discuss payment for the cocaine. A few minutes later you and Mr. O’Neil exited the restaurant, at which time you were both arrested by members of the Kingston Police Emergency Response Unit.
[7] A search of your vehicle yielded a brick containing 998.10 grams of cocaine powder. Also found inside the vehicle was a large calibre SKS assault rifle that was loaded. Attached to the rifle was a large black drum magazine that contained 68 7.62 x 39 mm large calibre bullets. A search warrant executed at your residence led to the seizure of a number of weapons, including twenty firearms, most if not all of which were licensed, three crossbows, Tasers, a garrote, brass knuckles, “Batman” edged cutting brass knuckles, six throwing stars and 36 flick knives.
[8] The charges to which you have pleaded guilty include possession of the blank drum magazine as well as possession of some of the other prohibited weapons, possession of an illegal magazine, and a charge relating to an offer which you had previously made to an undercover officer to transfer a shotgun to him.
[9] The trafficking charges each carry a maximum penalty of life imprisonment. The charge relating to possession of the black drum magazine (weapons dangerous, count 18) carries a ten-year maximum sentence. So does the charge of unauthorised possession of weapons (count 25 on the indictment) and the illegal magazine charge (count 28). The charge relating to the SKS rifle (count 33) carries a maximum penalty of fourteen years’ imprisonment and a minimum penalty of one year (first offence). And the weapons trafficking charge (count 34) carries a maximum penalty of ten years’ imprisonment and a minimum sentence of three years (first offence) – although this mandatory minimum, mandated by s. 99(2)(a) of the Criminal Code, has been declared unconstitutional in a number of decisions of this court (see, for example, R. v. Bajwa, 2020 ONSC 185) and by the Quebec Court of Appeal (Ayotte c. R., 2019 QCCA 1241).
[10] The charges attract mandatory provision by you of a DNA sample and a ten-year weapons prohibition order.
[11] The Crown also seeks forfeiture of all of the items seized, with the exception of your vehicle. The Crown is, however, prepared to make an exception with respect to the legally owned weapons, provided that they are transferred to another individual licensed to own such weapons, within 90 days.
[12] Counsel are agreed that the appropriate sentencing range is from five to seven years’ incarceration. The defence argues for a five-year prison sentence. The Crown submits that a fit sentence would be more than five years because of the weapons charges.
[13] There are a number of aggravating factors in this case. Of particular concern is the involvement of a loaded weapon. Before you were arrested, you had displayed the firearm to the undercover officers, explaining that you had brought it as “insurance”. The Crown submits, and I agree, that by showing the undercover operators a fully loaded weapon, you were demonstrating to them that you meant business.
[14] Another aggravating factor is that your motivation was financial gain. You saw an opportunity to make some quick money. You took no account at all of the harm caused by the drugs that you were trafficking.
[15] In that regard, the Ontario Court of Appeal has described cocaine as an “extremely dangerous and insidious drug with potential to cause a great deal of harm to individuals and to society”: R. v. Woolcock, [2002] O.J. No. 4927 (C.A.), at para. 8. In R. v. Hamilton (2004), 2004 5549 (ON CA), 72 O.R. (3d) 1 (C.A.), Doherty J.A. wrote, at para. 104:
The immense direct and indirect social and economic harm done throughout the Canadian community by cocaine is well known [references omitted]. 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.
[16] While, unbeknown to you at the time, the cocaine which you trafficked did not end up in the hands of users, for all you know it would have done. Many end users of cocaine become addicts. They are vulnerable people whose lives have been blighted and, in some cases, all but destroyed, or worse, by cocaine, supplied as a result of the activities of people like you.
[17] The most significant mitigating factor is that you have no criminal record. Furthermore, while your personal history shows that you have faced a number of challenges, including a diagnosis of Attention Deficit Hyperactivity Disorder, there is no history of drug or alcohol abuse or of mental health issues.
[18] You also pleaded guilty to multiple charges, thereby relieving society and the justice system of the financial burden and use of court resources of putting you on trial.
[19] By all accounts, you were not the principal target of the undercover police operation. Rather, Angus O’Neil, the man from whom you obtained the drugs that you then sold to the operatives, was. As your counsel put it, you were mainly a “go-between”. The initial transactions involved small amounts of cocaine which the undercover operatives bought from you in order to assist them in finding your supplier.
[20] Your lawyer described you as a contributing member of society. Your mother says that you wanted to be a “big wheel”.
[21] You have Indigenous heritage through your father. In particular, you have membership with the community of Shabot Obaadjiwan. But you did not grow up with your father, being brought up primarily by your mother and grandmother and your father was, to use your words, “pretty adamant on…anti-exposure to everything”. As a result, you have been largely disconnected from your Indigenous heritage. Since you were charged, you have connected with some of the resources that are available to you through the Tyendinaga Justice Circle. You have expressed an interest in opportunities to become more deeply connected to your Indigenous heritage. While you were on remand at Quinte Detention Centre, you accessed services through the Native Inmate Liaison Officer.
[22] You have family support from your mother and your partner. A number of letters of reference were filed in your support, including from former employers, neighbours, and members of your family. My impression is that your prospects for rehabilitation are good.
[23] The evidence suggests that you have expressed remorse, not only through the formal channels of the pre-sentence report and Gladue report that were filed, but also to and through members of your family.
[24] Section 10 of the Controlled Drugs and Substances Act provides as follows:
Purpose of sentencing
10 (1) Without restricting the generality of the Criminal Code, the fundamental purpose of any sentence for an offence under this Part is to contribute to the respect for the law and the maintenance of a just, peaceful and safe society while encouraging rehabilitation, and treatment in appropriate circumstances, of offenders and acknowledging the harm done to victims and to the community.
[25] The general principles of sentencing are set out in s. 718 of the Criminal Code. Judges passing sentence are required by law to impose a just sanction that has one or more of the following six objectives:
to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;
to deter the offender and other persons from committing offences;
to separate offenders from society, where necessary;
to assist in rehabilitating offenders;
to provide reparations for harm done to victims or to the community; and
to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.
[26] Furthermore, the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. It must also be similar to those imposed on similar offenders, for similar offences committed in similar circumstances. And, pursuant to s. 718.2 (e) of the Criminal Code, all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.
[27] As was pointed out during the course of submissions, Mr. O’Neil received a five-year sentence. While it may well be that his role in the chain of supply of illicit drugs was deeper than yours, there were no convictions registered against him for weapons offences.
[28] The involvement of weapons in your case is, as I have already indicated, a significant aggravating factor.
[29] That having been said, the mitigating factors which I have made reference to are also significant. Your father was largely absent from your life as you grew up. Only later did you reconnect with him, even looking after him for a period of time when he was injured as a result of an accident. Your father had gone through numerous Crown wardship phases and actively discouraged you from connecting with his family and, hence, your Indigenous heritage. These environmental and familial factors are part of the background that inform a determination of what an appropriate punishment is for the crimes that you have committed.
[30] Since you were arrested, it has been said that you have matured. Not only have you become involved in learning about your culture, but you have also supported your mother and neighbours and they, in turn, are very supportive of you. You also have a positive relationship with your current girlfriend.
[31] While I have considered the objective of restorative justice embodied in s. 718.2 (e) of the Criminal Code and, in particular, the principles of sentencing of Indigenous offenders set out by the Supreme Court of Canada in its decision in R. v. Wells 2000 SCC 10, [2000], 1 S.C.R. 207, I am nevertheless of the view that the nature of your crimes and in particular the involvement of a loaded firearm mean that denunciation and deterrence need to be significant elements of my sentencing decision, your Indigenous background and the effect of the intergenerational trauma in your family history notwithstanding.
[32] At the end of the sentencing hearing, I indicated to you that you should anticipate stepping into custody today. The nature of the charges that you have pleaded guilty to necessarily attract a penitentiary sentence. However, you are entitled to credit for the time that you spent in pre-trial custody, which was 183 days. Although this time was served before the Covid-19 pandemic, I accept the submission made by Mr. Crowe that in all of the circumstances, you should receive credit against the sentence which I am about to impose of two days for each day of pre-trial custody served.
[33] I am also required to consider time spent under stringent bail terms: R. v. Downes 2006 3957 (ON CA), [2006], 79 O.R. (3d) 321 (C.A.); R. v. Daley, 2016 ONSC 3513. Stringent bail conditions, especially house arrest, represent an infringement on liberty and are, to that extent, inconsistent with the fundamental principle of the presumption of innocence: Downes, at para. 29. House arrest is a form of punishment, albeit of a different character than actual incarceration, yet a defendant receives no credit towards parole eligibility for time spent on house arrest: Downes, at para. 29. Accordingly, time spent under stringent bail terms can be regarded as a mitigating factor.
[34] Having taken all of these things into consideration, I have concluded that you should be sentenced to a five-year term of imprisonment in a federal penitentiary.
[35] Mr. Harpell, please stand.
[36] On count nine of the indictment, I sentence you to a term of imprisonment of five years.
[37] On counts two, four and seven (the other trafficking counts), I sentence you to a term of imprisonment of two years on each count.
[38] On counts 18 (possession of a prohibited device), 25 and 28 (weapons dangerous), I sentence you to a term of imprisonment of one year on each count.
[39] On count 33 (use of a weapon while committing an indictable offence), I sentence you to three years’ imprisonment.
[40] On count 34 (transfer weapon), I sentence you to eighteen months’ imprisonment.
[41] All of the terms of imprisonment which I have sentenced you to are to be served concurrently with the five-year term on count nine.
[42] You are to be given credit against the five-year concurrent sentence for the 183 days that you spent in pre-trial custody, on the basis of two days’ credit for each day served, namely 366 days which, for the sake of expedience, will be rounded to one year. In other words, you will have four years of your sentence left to serve.
[43] In addition, there will be a weapons prohibition order under s. 109 of the Criminal Code for ten years, and a DNA order pursuant to s. 487.04 of the Criminal Code.
[44] With the exception of the Dodge Charger vehicle which was seized at the time of your arrest and the guns for which you held valid firearms licences at the time of your arrest, all of the other property seized at the time of and following your arrest shall be forfeited. For up to the next 90 days, the licensed guns which were seized shall continue to be held by the Kingston Police and may be released to an individual or individuals designated by you, provided that they hold appropriate permits or licences to possess such weapons. Should this not occur within the next 90 days, the weapons are to be destroyed.
[45] I would encourage you while incarcerated to take full advantage of such culturally-relevant Indigenous programmes as may be made available to you.
Mew J.
Handed down (orally): 27 September 2022
COURT FILE NO.: CR-21-43 (Kingston)
DATE: 20220927
ONTARIO
SUPERIOR COURT OF JUSTICE
HIS MAJESTY THE KING
– and –
KEVIN JOHN HARPELL
Defendant
REASONS FOR Sentence
Mew J.
Handed down (orally): 27 September 2022