COURT FILE NO.: CR-19-10000646-0000

DATE: 20230215

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

ISABEL CASSENDRA RAMOS

Joe Hanna, for the Crown

Steve Lyon, for Ms. Ramos

HEARD: September 27, November 5, 2021, January 26, February 10, February 28, December 2, 2022, January 31, 2023

R.F. GOLDSTEIN J.

1. Overview

[1] On January 31, 2023, I sentenced Isobel Ramos to a sentence of two years less a day, to be served in the community. At the time I delivered oral reasons for judgment and indicated that in the interests of finality it would be best if I sentenced Ms. Ramos at that point. I stated that my reasons would therefore not be as complete as I would have liked. Given the seriousness of the offences and the unusual sentence imposed, I am releasing more complete reasons to explain my sentencing decision.

2. The Facts

(a) Circumstances of the offence - Background

[2] Ms. Ramos pleaded guilty to possession of cocaine for the purpose of trafficking contrary to s. 5(1) of the Controlled Drugs and Substances Act and possession of a loaded, prohibited firearm contrary to s. 95(1) of Criminal Code.

[3] The following facts were then read in:

On May 14th, 2018, members of the Central North District Major Crime Unit attended the area of Victoria Park Avenue and Sheppard Avenue East, Toronto for the purposes of a drug investigation.

Officers located Dontay Williams operating a Black Nissan Altima bearing Ontario Marker CDRJ356 in the area. He was with a female passenger, the accused, Isabel Ramos. Mr. Williams was the registered owner of this vehicle.

At approximately 4:50 pm, officers observed what they believed to be a drug transaction between Mr. Williams and an unknown male party. Officers followed the Black Nissan to the parking lot of a shopping centre in the city.

At approximately 5:25 pm, officers observed Mr. Williams and Ms. Ramos exit the shopping centre and approach the black Nissan. Mr. Williams attended the driver seat and Ms. Ramos attended the passenger side. Both Mr. Williams and Ms. Ramos were arrested for possession of a controlled substance for the purpose of trafficking.

Mr. Williams and Ms. Ramos were searched incident to their arrests. Police found on Mr. Williams’ person: a bag containing 7.73 grams of fentanyl, and a bundle of cash, totaling $1960 (Canadian). On Ms. Ramos’ person they found: a bag containing 9.45 grams of cocaine, a bundle of cash, totaling $1930 (Canadian), and a digital scale.

The police sought and obtained a warrant to search the vehicle that Mr. Wiliams and Ms. Ramos had occupied earlier and were attempting to enter at the time of arrests.

When executing the warrant, police found a black satchel on the floor of the back-seat area, which contained: 20.27 grams of powdered cocaine, 33.06 grams of crack cocaine, a digital scale and Ziplock bags.

Inside the trunk of the vehicle, police found a backpack, which contained: Ziplock bags, a digital scale, and a loaded Smith and Wesson revolver. The handgun discovered is a prohibited firearm and was found loaded with 6 rounds of ammunition. Ms. Ramos has never possessed either a licence, authorization, or registration certificate for this firearm.

Mr. Ramos acknowledges that she had both knowledge and an element of control relating to the firearm and cocaine seized by police (including the cocaine found in the black satchel). She further acknowledges that her possession of cocaine was for the purposes of trafficking.

[4] Upon reading in the facts, Ms. Ramos refused to acknowledge that the possession of the cocaine was for the purposes of trafficking. I then struck the plea on that count. Counsel then agreed to hold a summary trial on the count of possession of cocaine for the purposes of trafficking. On agreement, the Crown proceeded on the following evidence:

• A preliminary inquiry transcript of the evidence of a police officer, Constable Strilec;

• A drug expert report;

• A package of photographs of the seized items; and,

• An agreed statement of facts.

[5] The Crown’s evidence was that on May 13 and May 14, 2018 the police were targeting Dontay Williams. They had no significant observations on May 13. On May 14, 2018, the police observed Mr. Williams in a Nissan Altima with an unidentified female – who turned out to be Ms. Ramos – in the front passenger seat. At about 16:50 hours Constable Strilec observed what to him appeared to be a drug transaction between Mr. Williams and an unknown male in the car. At 17:25 the police moved in to arrest Mr. Williams and Ms. Ramos.

[6] Constable Strilec arrested Ms. Ramos. He removed her from the car. He did a brief patdown search and cuffed her. She protested and he called for a female officer to search her more thoroughly. Before that happened, Constable Strilec found a wad of cash. The female officer found drugs and a digital scale when she searched Ms. Ramos. Ms. Ramos had 9.45 grams of cocaine, a digital scale, and $1930 in cash on her. Mr. Williams had 7.73 grams of fentanyl and $1960 of cash on him.

[7] The police obtained a search warrant for the car. They seized a black satchel on the floor of the back-seat area of the car. The satchel contained 20.27 grams of powder cocaine, 33.06 grams of crack cocaine, a digital scale, and Ziplock bags. The police also found a backpack in the trunk of the car. The backpack contained Ziplock bags, a ditigal scale, and a Smith and Wesson revolver loaded with 6 rounds of ammunition.

[8] Detective Constable Asner provided an expert report. He distinguished between the crack cocaine and the powder cocaine. He stated that 32.58 grams of crack cocaine is not consistent with personal use, but rather is consistent with possession for the purposes of trafficking. If sold at the gram level at $80-$100 per gram, the crack cocaine was worth $2600 to $3260.

[9] Detective Constable Asner also opined that 20.27 grams of powder cocaine is not consistent with personal use but is consistent with possession for the purposes of trafficking. In 2018 a half-ounce of cocaine sold for $750-$900, which meant that it was worth $1100 to $1300 per ounce. When sold at the gram level at $80-$100 per gram, the powder cocaine in the amount of 20.27 grams was worth $1600 to $2200.

[10] It was an agreed fact that Ms. Ramos acknowledged knowledge and control of all of the cocaine in the car.

[11] Ms. Ramos then testified. She said that all of the drugs in the car were hers. She testified that the cocaine was all for her personal use. She testified that she only met Mr. Willams twice. He was helping her find a place to live. Ms. Ramos had recently escaped from an abusive relationship. She had been with someone she refused to name. She refused to name him out of concerns for her personal safety. That person had put a gun in her mouth twice, beaten her, pimped her out, and gotten her hooked on drugs. She decided to steal his drugs and his gun to escape him. When she got into Mr. Williams’ car, she threw the backpack with the gun and the digital scale in the trunk. She threw the satchel with the cocaine and crack cocaine and the other digital scale in the back seat. Mr. Williams knew nothing about either the gun or the drugs. She kept the drugs for her personal use. When the police came, she swiftly took a bag of fentanyl and planted it on Mr. Williams because she was scared that the police would find it on her. She took the fentanyl rather than the cocaine because fentanyl is worse than cocaine and she didn’t want to be found with it. She explained that she used the scale to measure her fentanyl because it is such a dangerous drug. She did not want to overdose. She could not explain why she had kept the two other digital scales.

[12] I found that it might reasonably be true that Ms. Ramos was in an abusive relationship with a man who pimped her out and got her hooked on drugs. I also found that it might reasonably be true that she was a drug addict at the time and had difficulty remembering names, places, and dates. I also found that it might reasonably be true that her violent pimp put a gun in her mouth and punched her out, as she had bruising on her face. Photographs entered as evidence corroborated the bruising. I later accepted those facts as true after reading a pre-sentence report and hearing from Ms. Ramos in court.

[13] I did not, however, believe her evidence on the main point of her possession of the drugs. Her evidence did not leave me with a reasonable doubt. I found that she possessed the powder and crack cocaine for the purpose of trafficking. I did find that Ms. Ramos was covering for Mr. Williams on the possession of the larger amount of the drugs. I found that it was likely that Mr. Williams was the real owner of the guns and the drugs, and that Ms. Ramos was likely a party.

[14] I had several reasons for determining that Mr. Williams was likely the principal owner of the guns and the drugs.

[15] The Nissan Altima was owned and driven by Mr. Williams. In cross-examination at the preliminary inquiry, Constable Strilec testified as follows regarding Ms. Ramos’s connection to the Nissan Altima:

Q. And so I’m trying to ascertain what my client, Ms. Ramos’ connection is to that car, you can help me with regard to any of these – these pictures. Because you found Mr. Williams’ identification in there and his ownership, and – and that sort of thing, right?

A. Yeah, like a lot was in the car, yeah.

Q. And you – a couple of letters of his, right?

A. Yes.

Q. Addressed to him in any event. Was there anything of that nature, of a personal nature, of my client’s in the car that you recall?

A. Not that I recall, no.

Q. No documentation of hers?

A. No, not that I recall.

Q. Nothing in the trunk that – that belonged to her that you were able to ascertain?

A. Not that I remember, no.

Q. There’s a lot of stuff in the trunk there, right?

A. There is, yeah.

Q. Exhibit 4. So – so that would all have been seized and searched?

A. That would have been searched, if there was anything of importance we would have seized it and photographed it. If it wasn’t photographed, then it wasn’t anything.

Q. All right. So there was nothing in the trunk then I’m going to suggest to you, that tied my client into the vehicle.

A. Yeah, not that I recall finding.

Q. Or you would have made a note of it, isn’t that fair to say?

A. Yes, absolutely, yeah if we would have found anything I would have photographed it.

[16] Another reason for concluding that Mr. Williams was likely the principal was that the gun was in a bag that was in the trunk of the Nissan Altima. There was no evidence that Ms. Ramos was found in possession of a key or a fob that would have given her access to the trunk. There is no forensic evidence, such as a fingerprint or DNA, that tied Ms. Ramos to the gun. Documents belonging to Mr. Williams were found in the Altima. The Altima was registered in his name. His insurance and ownership documents were found in the car. Constable Strilec, an experienced drug officer, observed what he believed was a drug transaction between Mr. Williams and the unknown male. He testified that he did not see any involvement by Ms. Ramos. He arrested her because she happened to be in the same car as Mr. Williams.

[17] The issue of knowledge and possession of the gun was eminently triable. And yet, Ms. Ramos took responsibility for it and insisted that Mr. Williams – who, on the evidence of an experienced drug officer, was involved in drug trafficking and had fentanyl on him – had no knowledge or control of the trunk in a bag of his own car. That is why I drew the inference that Ms. Ramos was likely covering for him and that he was the principal.

(b) Circumstances of the offender

[18] As I noted in my oral reasons for judgment, a pre-sentence report was filed on behalf of Ms. Ramos. The pre-sentence report was prepared for Madam Justice Pringle of the Ontario Court of Justice. While Ms. Ramos was on bail for this offence, she was charged with trafficking a small amount of fentanyl. She pleaded guilty before Justice Pringle. Justice Pringle suspended the passing of sentence and put Ms. Ramos on probation.

[19] I summarized portions of the PSR when I delivered my oral reasons for judgment. I will go into more detail here. Ms. Ramos is 25 years old. She was born and raised in Toronto. At the time of these offences she had no criminal record. Her only other criminal conviction is the drug trafficking conviction acquired while on bail. She was raised by and lived with her mother until the age of 20. She told the probation officer that her mother began using drugs, leading to them being evicted from their home. She had, and continues to have, a difficult relationship with her father.

[20] Ms. Ramos reported to the probation officer that she became involved in the sex trade through an abusive former partner. This partner acted as her pimp. He took all her earnings. She began using drugs. She admitted to the probation officer that she sold drugs to support her habit. She lived a transient lifestyle but would occasionally stay with Jessica Scrivens, who is her current partner.

[21] Ms. Ramos also reported to the probation officer that she only finished Grade 11. She stated that she was an “angry student”. She argued with teachers, misbehaved, and threw macaroni in the principal’s face. She was eventually expelled from high school. As the PSR was written, she did not have stable employment. She was supporting herself through a mix of odd jobs and government benefits.

[22] Ms. Ramos indicated that she managed to quit her drug addiction on her own and went through a very difficult period of withdrawal. Her partner, Ms. Scrivens, indicated that Ms. Ramos struggles with the temptations of drugs and alcohol. At the time of writing Ms. Ramos was seeking stable employment (which was difficult, as it was during the depths of the Covid pandemic) and considering upgrading her skills and education.

[23] The writer of the PSR assessed Ms. Ramos as follows:

It is the writer’s opinion that the subject would benefit from community supervision. She accepts responsibility for her actions, acknowledges her addiction issues, has severed ties with past negative influences and appears to be taking steps to change her life for the better. Probation services would be able to provide her with additional substance use counselling services and general counselling to deal with past trauma and help build on the successes she has already made.

(c) Sentencing Proceedings In This Court

[24] At the time I reviewed the PSR, and reflecting upon Ms. Ramos’s moral blameworthiness, I was not convinced that a period of incarceration in the penitentiary would satisfy the principles of denunciation, deterrence, and rehabilitation in the particular circumstances of this case. Accordingly, I adjourned sentencing to give Ms. Ramos a further chance at rehabilitation. Ms. Ramos did find a job, although she subsequently lost it when she contracted Covid-19. Most importantly, Ms. Ramos did not re-offend after pleading guilty to this offence. Indeed, she was arrested in 2018 and aside from the sale of fentanyl but she has stayed out of trouble since then.

3. Legal Parameters

[25] As I explained in my oral reasons, a conditional sentence is now available for offences contrary to s. 95(1) of the Criminal Code and s. 5(2) of the Controlled Drugs And Substances Act.

[26] Pursuant to s. 5(2) and s. 5(3)(a) of the Controlled Drugs and Substances Act, possession of a schedule I drug carries a potential sentence of imprisonment for life. Cocaine is a schedule 1 drug. Section 95(1) of the Criminal Code, possession of a loaded restricted or prohibited firearm, or an unloaded prohibited or restricted firearm with readily accessible ammunition, without holding a licence and registration certificate, carries a potential sentence of 10 years.

[27] In my oral reasons, I briefly summarized the complicated history of the applicability of a conditional sentence.

[28] When Ms. Ramos was arrested in May 2018, s. 742.1(e) of the Criminal Code prohibited the imposition of a conditional sentence for offences carrying a maximum penalty of 14 years or life imprisonment. Thus, while a conditional sentence was available for the gun possession offence, it was unavailable for the drug possession offence.

[29] On July 24, 2020, the Ontario Court of Appeal issued its decision in R. v. Sharma, 2020 ONCA 478, 152 O.R. (3d) 209, 166 W.C.B. (2d) 340, 390 C.C.C. (3d) 1. In a 2-1 decision (Feldman and Gillese JJ.A. for the majority, Miller J.A. in dissent) the Court struck down s. 742.1(e) for overbreadth. As a result, a conditional sentence became available for Ms. Ramos on the drug possession offence.

[30] Ms. Ramos pleaded guilty before me to possession of the gun and possession of cocaine for the purpose of trafficking on September 27, 2021. As I have explained, I struck the plea on the drug possession count after Ms. Ramos did not agree she had the drugs for the purposes of trafficking. A summary trial was held. On November 5, 2021 I found her guilty of possession for the purpose of trafficking. A pre-sentence report was ordered. I heard sentencing submissions on January 26, 2022 by Zoom, but Ms. Ramos became upset about something, and left the call. I ordered that sentencing resume in person, and it did on February 10, 2022. Ms. Ramos attended in person. I was to sentence Ms. Ramos on February 28, 2022, but I was picking a jury in an unrelated case. I was unable to deliver reasons that day. In the meantime, I contemplated the appropriate penalty given all the circumstances. I decided to put sentencing off to see if Ms. Ramos made progress while on bail. Sentencing was rescheduled to December 2, 2022.

[31] The Ontario Court of Appeal’s decision in Sharma was appealed by the Crown to the Supreme Court of Canada. On November 4, 2022, the Supreme Court of Canada released its decision: R. v. Sharma, 2022 SCC 39, 2022 CSC 39, 2022 W.C.B. 969, 420 C.C.C. (3d) 1. In a 5-4 decision, the Court overturned the Ontario Court of Appeal and restored the constitutionality of s. 742.1(e) of the Criminal Code – but only momentarily.

[32] A conditional sentence was back off the table for Ms. Ramos on the drug charge, but on November 17, 2022 Bill C-5 received Royal Assent. Bill C-5 repealed s. 742.1(e). Pursuant to s. 11(i) of the Canadian Charter of Rights and Freedoms, where the punishment for an offence has been varied between the time of commission and the time of sentencing, an offender is entitled to the benefit of the lesser punishment. As a result, a conditional sentence became available for both of the offences for which Ms. Ramos was convicted.

4. Positions of the Crown and Defense

[33] At the sentencing hearing, Mr. Hanna, Crown counsel, sought a sentence of three years on the possession of the gun and a one year sentence, consecutive, on the possession of the drugs. Mr. Hanna also sought a DNA order, and a s. 109 weapons prohibition.

[34] Mr. Lyon, for Ms. Ramos, suggested that Ms. Ramos, who had been on bail at that point for almost three years, originally suggested that I should sentence Ms. Ramos to something less than two years, her sentence should be served in the community.

5. Range of Sentence

[35] Mr. Hanna submitted several cases in support of his submission that a global sentence of four years was appropriate.

[36] In R. v. Nur, 2015 SCC 15, the Supreme Court of Canada struck down mandatory minimum sentences for possession of firearms contrary to s. 95(1) of the Criminal Code. The Court, however, did find that it remained appropriate for judges to impose “weighty sentences”. The Court upheld the 40 month sentence for a 19 year old first offender.

[37] In R. v. Mansingh, 2017 ONCA 68 (Doherty, Blair, and Lauwers JJ.A.), the offender tossed away a handgun while running from the police in an apartment complex that was plagued by crime and violence. The offender had tossed the handgun away in a public place in a situation that placed the public in extreme danger. He had tossed the handgun in a place where it easily could have been found by a child. The Court of Appeal upheld an effective sentence of 43 months for the offender, who was relatively young and had no criminal record. I was the trial judge on that case.

[38] In R. v. Marshall, 2015 ONCA 692 (Cronk, Epstein, and Brown JJ.A.), the offender was sentenced to 3 ½ years in custody (less pre-sentence custody) for possession of a loaded prohibited handgun. He was a young first offender. He was sentenced at the same time for possession of cocaine for the purpose of trafficking. The Court of Appeal noted that he possessed the gun at the same time that he was dealing in cocaine. The Court upheld the sentence.

[39] In R. v. Reid, [2021] O.J. No. 4132, 2021 ONSC 5174, the offender had possession of a loaded handgun with an overcapacity magazine. He was arrested in a parking lot while carrying the handgun in a concealed manner. Like the offender in Mansingh he was carrying the handgun in a public place, creating a situation of danger to public safety. The offender had a criminal record including drug convictions. My colleague Akhtar J. imposed a global sentence of three years.

[40] In R. v. Graham, [2018] O.J. No. 5993, 2018 ONSC 6817, the offender was in a car that was stopped by police for a Highway Traffic Act offence. The police found a satchel in the trunk of the car. The police obtained video surveillance obtained from a bar where the offender had been socializing prior to getting in the car. The satchel contained a handgun, a box of ammunition, about three ounces of cocaine, two digital scales, and $14,880 in Canadian cash. The jury convicted the offender of possession of the gun, possession of cocaine for the purpose of trafficking, and possession of proceeds of crime. The offender was on probation. He was also on two separate weapons prohibitions. He had a criminal record that included multiple convictions for possession of drugs for the purpose of trafficking and possession of weapons, including a sawed off shotgun. My colleague Code J., after an extensive review of the cases relating to both first gun offenders, and recidivist gun and drug offenders, imposed a global sentence of 11 years.

6. Mitigating and Aggravating Factors

[41] As I noted in my oral reasons, there are several aggravating factors in this case. The most important is the nature of the offence. Possession of a loaded handgun is always a serious offence and requires an exemplary sentence. Possession of a loaded handgun in conjunction with drugs for the purposes of trafficking is especially aggravating. Firearms are a curse, and this city has suffered a rash of tragic shootings that have snuffed out lives, and ruined others. Firefights over drug turf happen from time to time. Innocents are frequently wounded and killed. There is nothing positive that can be said about the possession of an illegal handgun.

[42] There are, however, several mitigating factors. Ms. Ramos pleaded guilty. Although a Gardiner hearing was required in relation to the powder and crack cocaine, it was conducted efficiently. Possession was not contested – only the purpose of that possession. Ms. Ramos expressed remorse, both through her plea and through her communication to the court. I accept her expression of remorse as sincere.

[43] I accept as well that Ms. Ramos was suffering from a serious drug addiction at that time, and that she has managed to end her drug dependency. Ms. Ramos indicated that she was abused while in the sex trade and accept that as well. I am aware, as Mr. Hanna has pointed out, there is no evidence on this point other than Ms. Ramos’s say-so, and that there are some significant contradictions between what she told the Court and what she told the pre-sentence report writer. However, I find that the presence of bruising, Ms. Ramos’s presence in “the lifestyle”, and her drug use are consistent with her explanation.

7. Principles of Sentencing

[44] The key principle of sentencing is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Sentences should be increased or decreased to account for aggravating and mitigating factors. In cases involving handguns, the principles of denunciation and deterrence are central. Of some importance in this case is the principle of rehabilitation, and the principle that sentencing judges should consider sanctions other than jail.

8. Ancillary Orders

[45] As I noted in my oral reasons for judgment, there will be a DNA order and a s. 109 order for ten years.

9. Sentence Imposed

[46] A person who possesses a loaded prohibited firearm should go to the penitentiary for a significant period of time. Cases involving loaded prohibited firearms require exemplary sentences. Sentences in the range of 3 years for a first offender are the norm. When found in conjunction with drugs for the purposes of trafficking, firearms are particularly pernicious. Sentences for first offenders who possess a loaded prohibited firearm along with serious drugs at the ounce level for the purposes of trafficking should receive global sentences in the range of 3 to 5 years.

[47] Mr. Hanna’s submission that a global sentence of 4 years (a 3 year sentence for the firearm, with a further year consecutive on the drugs) is appropriate is well within the range. It is the usual sentence that should be imposed. Absent exceptional circumstances it is the sentence I would have imposed on Ms. Ramos.

[48] In Marshall, the Court of Appeal stated at paras. 47-48:

In R. v. Nur, 2013 ONCA 677, 117 O.R. (3d) 401 (Doherty, Goudge, Cronk, Blair, JJ.A. and Tulloch J.A. [as he then was]) at para. 206, this court held that, the s. 95 statutory mandatory minimum aside, offenders who engage in s. 95 offences at the "true crime end of the s. 95 spectrum of offences" should continue to receive exemplary sentences that emphasize deterrence and denunciation. Nur provides, at para. 206, that: "[i]ndividuals who have loaded, restricted or prohibited firearms that they have no business possessing anywhere or at any time, and who are engaged in criminal conduct or conduct that poses a danger to others" will still attract such sentences, regardless of the constitutionality of the three-year minimum penalty.

The appellant falls within this category of offenders. By the appellant's own admission, he was present in Sudbury at Gagan's apartment on October 6, 2011 for the express purpose of trafficking in drugs. He sold at least 15 grams of cocaine that day…

[49] Again, absent exceptional circumstances, Ms. Ramos falls into the category of offenders described by the Court of Appeal in Marshall.

[50] As I explained in my oral reasons for judgment, however, I found exceptional circumstances in this case. Those exceptional circumstances take it out of the penitentiary range, and within the range of a conditional sentence. I will explain my reasoning.

What are the exceptional circumstances in this case?

[51] The chief exceptional circumstance in this case is the mitigating factor of the unusual nature of Ms. Ramos’s possession of the drugs and the gun. As I will explain, I find that her level of moral blameworthiness is relatively low.

[52] Ms. Ramos was not the principal owner of the gun and the drugs. As I noted, I specifically disbelieved her when she asserted that Mr. Williams knew nothing of the gun and the drugs. Indeed, it is my view that Mr. Williams was the true owner of the gun and that he was the principal drug dealer. Ms. Ramos pleaded to knowing of the gun. She was clearly involved in drug dealing. I find that her control over the gun and the bulk of the cocaine was limited. Her story of how she came to be in possession of the gun and the drugs was implausible. Again, as I noted, I find that it is likely that she was covering for Mr. Williams. While the lie to cover for him is certainly not mitigating, it is understandable. The obvious inference to be drawn is that Ms. Ramos was either afraid of Mr. Williams or did not want to be seen as a “rat”. More importantly, there is no evidence that it was Ms. Ramos who possessed the gun in connection with drug trafficking. Given the placement of the gun in the trunk of Mr. Williams’s car, and the drugs found on him, I find that it is much more likely that it was Mr. Williams who owned the gun in connection with drug trafficking although Ms. Ramos was aware of it. The low level of Ms. Ramos’s moral blameworthiness alone takes this case out of the range of a penitentiary sentence.

[53] I accept Ms. Ramos’s evidence (and her confession to the writer of the pre-sentence report) that at the time she was with Mr. Williams she was significantly addicted to hard drugs. I also accept her assertion that she sold drugs and was involved in the sex trade to maintain her addiction. In other words, like so many young women who find themselves in this situation, I infer that she was an addict trafficker and abused by a partner who “pimped” her out. I am aware that she told this court and the probation officer different things about the amount of time she was abused. That is a problem for her credibility and reliability, but I accept the thrust of her evidence that she was addicted to drugs, in the sex trade, and abused. These are also mitigating factors that contribute to exceptional circumstances. On their own I may not have accepted that these factors were sufficient to take this sentence out of the penitentiary range, but they do go into the mix, especially when I consider whether a conditional sentence is appropriate.

[54] Ms. Ramos has made strides towards rehabilitation, although those strides have been uneven and not as successful as one would hope. some others. Her main accomplishment has been freeing herself from her dependency on hard drugs and staying free. Another accomplishment, although a lesser one, is staying on bail for five years and remaining – almost, but not quite – trouble free. She did find a job and was working but lost it due to contracting Covid-19. It is disappointing that she has not been able to find another job or go back to school to upgrade her skills. I accept that she intends to. Ms. Ramos still struggles with anger. She showed some rather inappropriate flashes of it during the sentencing process. While her anger is understandable, she must find a way to manage it if she wants to make progress and become fully rehabilitated. On its own, the mitigating factor of rehabilitation is important but would not be enough to take this sentence out of the range of a penitentiary sentence. Again, it goes into the mix of factors that ultimately do take this sentence out of the penitentiary range. It also goes into the mix of factors to be considered on a penitentiary sentence.

[55] Ultimately, I find that a penitentiary sentence would be proportionate to the gravity of the offence but disproportionate to the degree of responsibility of the offender. The mitigating factors, especially Ms. Ramos’s lower moral blameworthiness for possession of the gun and the drugs, is at the lower end of the spectrum. A significant amount of mitigation exists such that it amounts to exceptional circumstances. Ms. Ramos is eligible for a sentence of less than two years.

Is a conditional sentence appropriate?

[56] As I noted in my oral reasons for judgment, and have also mentioned in these reasons, Parliament recently amended the Criminal Code in the immediate wake of the Supreme Court’s decision in Sharma (although that legislation had been working its way through Parliament for some time). Parliament obviously did not intend to exclude possession of schedule 1 drugs for the purpose of trafficking and possession of a loaded prohibited or restricted firearm from consideration for a conditional sentence.

[57] As Lamer C.J.C. pointed out in the seminal conditional sentencing decision, R. v. Proulx, 2000 SCC 5, [2001] 1 S.C.R. 61, 140 C.C.C. (3d) 449, no offences are precluded from consideration for a conditional sentence unless statutorily prohibited.

[58] Courts have imposed conditional sentences for cases involving firearms, although I want to stress that these cases are unusual.

[59] In R. v. Desmond-Robinson, 2022 ONCA 369 (Doherty J.A., Tulloch J.A. [as he then was] and Favreau J.A.), the offender was convicted after trial of possession of a sawed-off shotgun along with ammunition, and possession of cocaine and marijuana. The trial judge found that the offender had knowledge of and control of the firearm. The trial judge also found that the offender was not using the firearm in any in connection with criminal activity, including drug trafficking. The trial judge found that a sentence of less than two years was appropriate but declined to order a conditional sentence. She found that a conditional sentence was outside the range set out by the Court of Appeal. The Court of Appeal disagreed, stating at para.13:

We understand the trial judge to be saying that, even where the appropriate sentence is under two years imprisonment, making the conditional sentencing provisions potentially applicable, this court has held that the seriousness of gun offences precludes resort to a conditional sentence. With respect, this court has not made that pronouncement. In fact, in R. v. Morris, 2021 ONCA 680 (released after the trial judge’s reasons for sentence), this court recognized that conditional sentences may well be appropriate in cases like this one…

[60] The Court of Appeal then noted some significant mitigating factors. The offender had made great strides towards rehabilitation. The Court noted that “Circumstances beyond his control, some of which no doubt reflect systemic racism, diminish his moral culpability. On the record before the trial judge, he was a candidate for a conditional sentence.” The Court of Appeal imposed one.

[61] I find the case of R. v. Mohamed, 2020 ONCA 163 (Miller J.A., Fairburn J.A. (as she then was) and Thorburn J.A.) particularly helpful. The offender pleaded guilty to ten offences, including weapons possession and drug trafficking. The police arrested him while he was driving. He had a loaded gun in his vehicle and ammunition in his pocket. He also had a large amount of cash. The police executed search warrants at his home. They seized 40 grams of cocaine, marijuana, hashish, drug paraphernalia, brass knuckles, and more ammunition. The trial judge imposed a sentence of two years less a day. The trial judge credited the offender with 437 days in custody (291 real days credited at 1.5:1).

[62] The sentencing judge imposed a conditional sentence on the remainder of the sentence. A conditional sentence was not available for possession of cocaine for the purpose of trafficking– this decision was released a few months prior to the Court of Appeal’s decision in Sharma. Although this amounted to an illegal sentence, Fairburn J.A., for the Court, found that it made no difference to the overall sentence.

[63] The Crown appealed. The Crown argued that the sentence was demonstrably unfit. Fairburn J.A. disagreed, writing at paras. 26-27:

The appellant points to numerous aggravating factors in this case that render the sentence unfit. The appellant stresses the inherently and indisputably dangerous nature of loaded firearms and the need for exemplary sentences. The appellant also correctly points to the “toxic combination” of guns and drug trafficking: R. v. Wong, 2012 ONCA 767 (Ont. C.A.), at paras. 11-13. The appellant further points to the fact of a death threat in this case, the presence of multiple drugs, the victim impact, the drug paraphernalia and the fact that the respondent’s young child was living in the home where he kept his drugs and where his firearm had been seen… These are undoubtedly serious aggravating factors that would normally attract a much higher sentence than the one imposed in this case, certainly into the penitentiary range. Indeed, in my view, when all of the respondent’s conduct is considered as a whole, the sentence imposed in this case falls below the range. Even so, I would not interfere with the sentence imposed.

[64] Fairburn J.A. noted that the sentencing judge wrote detailed and lengthy reasons indicating that a sentence in the range of 3-5 years would normally be called for. The sentencing judge noted the many factors that contributed to the offender’s rehabilitative prospects. The sentencing judge went to great lengths to explain the reasons for a conditional sentence. Fairburn J.A. found that the sentence was not manifestly unfit.

[65] In R. v. Lacroix, 2018 ONCA 842 (Sharpe, Lauwers, and Van Rensburg JJ.A.), the police executed a search warrant at the offender’s home and found a handgun and ammunition. He was found guilty after a jury trial. The trial judge imposed a 12-month conditional sentence. On appeal (demonstrating remarkable chutzpah) the offender argued that the trial judge erred and should have imposed a discharge. The Court of Appeal disagreed, stating at para. 18:

We see no merit in the appellant’s submission that the trial judge erred by imposing a conditional sentence rather than a conditional discharge. The trial judge provided careful reasons considering the mitigating factors, including the significant rehabilitation of the appellant since the commission of the offence. He concluded that given the serious nature of the offence, the considerations of general deterrence and denunciation made a discharge an unfit sentence. That decision attracts deference in this court and we see no basis upon which we could interfere and substitute an even more lenient sentence.

[66] I note that some judges of this court have recently imposed conditional sentences for gun offences, although I want to stress that such sentences continue to be exceptional. In those cases Morris factors exist and there was great rehabilitative potential. See: R. v. Beharry, 2022 ONSC 4370; R. v. Orrin-Moses, 2022 ONSC 332; and R. v. Stewart, 2022 ONSC 6997.

[67] Pursuant to s. 742.1(a) of the Criminal Code a sentencing judge must be satisfied that a conditional sentence would not endanger the safety of the community; and that a conditional sentence would be consistent with the fundamental purposes and principles of sentencing.

[68] I am satisfied that a conditional sentence would not endanger the community. Ms. Ramos has never been convicted of a crime involving violence or weapons (this case excepted). In her almost five years on bail, she was largely stayed out of trouble with the law. Her one breach – involving drug trafficking – did not involve weapons or violence. She is, in essence, a first offender.

[69] I am also satisfied that a conditional sentence would be consistent with the principles and purposes of sentencing. Denunciation and deterrence remain the key principles of sentencing where guns, drugs, and especially guns and drugs together are involved. A conditional sentence can achieve denunciation and deterrence, as Lamer CJC stated in Proulx at para. 22:

The conditional sentence incorporates some elements of non-custodial measures and some others of incarceration. Because it is served in the community, it will generally be more effective than incarceration at achieving the restorative objectives of rehabilitation, reparations to the victim and community, and the promotion of a sense of responsibility in the offender. However, it is also a punitive sanction capable of achieving the objectives of denunciation and deterrence. It is this punitive aspect that distinguishes the conditional sentence from probation, and it is to this issue that I now turn.

[70] Lamer CJC further stated at paras. 35-36 of Proulx:

In light of the foregoing, it is clear that Parliament intended a conditional sentence to be more punitive than a suspended sentence with probation, notwithstanding the similarities between the two sanctions in respect of their rehabilitative purposes. I agree wholeheartedly with Vancise J.A., who, dissenting in R. v. McDonald (1997), 1997 CanLII 9710 (SK CA), 113 C.C.C. (3d) 418 (Sask. C.A.), stated, at p. 443, that conditional sentences were designed to “permit the defendant to avoid imprisonment but not to avoid punishment”.

Accordingly, conditional sentences should generally include punitive conditions that are restrictive of the offender’s liberty. Conditions such as house arrest or strict curfews should be the norm, not the exception. As the Minister of Justice said during the second reading of Bill C-41 (House of Commons Debates, supra, at p. 5873), ”[t]his sanction is obviously aimed at offenders who would otherwise be in J.A.il but who could be in the community under tight controls.”

[71] Rehabilitation is also, of course, an important principle of sentencing. I find that a conditional sentence would satisfy this principle. As mentioned, I find that Ms. Ramos has made strides toward rehabilitation. After a difficult upbringing, and a disastrous start to young adulthood, Ms. Ramos quit hard drugs. That is an exceptionally difficult thing to do. Ms. Ramos was on bail for almost five years. During that time period she re-offended once by trafficking drugs. Justice Pringle, who was aware of these charges during the sentencing process – as I was aware of the charge before Justice Pringle during this sentencing process – sentenced Ms. Ramos to a period of probation. There have been no other breaches. Ms. Ramos committed these crimes at a time when she was either in the sex trade, or had just left the sex trade, while at the hands of an abusive partner.

10. Disposition

[72] As I set out in my oral reasons for judgment, Ms. Ramos was sentenced to two years less a day concurrent on all counts. In addition to any statutory conditions Ms. Ramos was required to:

• Keep the peace and be of good behaviour;

• Not be in possession of any non-medically prescribed drugs;

• Not to be in possession of any firearms;

• Report to a conditional sentence supervisor within three business days and thereafter as required;

• Take counselling as directed by her conditional sentence supervisor, including employment counselling;

• Reside at an address approved of by her conditional sentence supervisor and notify that supervisor of any change of address;

• Seek and maintain employment or go to school and provide proof thereof to the conditional sentence supervisor as required;

• For the first eight months (or one third) of the conditional sentence be under house arrest. Not to leave the house with the following exceptions: for work if she obtains employment in person; to go to school in person; for medical appointments or emergencies; for counselling appointments; and for one three hour period once a week on a date agreed to with her conditional sentence supervisor to obtain necessities;

• For the second eight months (or one third) of the conditional sentence be under curfew from 11:00 pm to 6:00 am, with the following exceptions: for work if she finds a job that requires her to work or for school; or for medical emergencies;

• For the last eight months less a day (or one third) of the conditional sentence not to be on a house arrest of a curfew.

R.F. Goldstein J.

Released: February 15, 2023

COURT FILE NO.: CR-19-10000646-0000

DATE: 20230215

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

ISABEL CASSENDRA RAMOS

REASONS FOR SENTENCE

R.F. Goldstein J.