COURT FILE NO.: CR:4623/18
DATE: 2023-11-20
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HIS MAJESTY THE KING
D. Anger, for the Public Prosecution Service of Canada
- and -
CHRISTOPHER LANDELL
M. Evans, on behalf of the offender
HEARD: November 7, 2023
REASONS FOR SENTENCE
A.J. GOODMAN J.:
[1] On August 28, 2023, the offender, Christopher Landell (“Landell”), plead guilty to one count of possession of cocaine for the purpose of trafficking, contrary to the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (“CDSA”). The offence occurred on March 1, 2017 in the City of Thorold.
[2] The sentencing hearing was adjourned to allow for the preparation of a Pre-Sentence Report “(PSR”).
[3] Mr. Anger for the Crown seeks a jail sentence of three and a half years for the cocaine count, along with various ancillary orders. The Crown submits that the large amount of cocaine implicated in this case, approximately 257.5 grams of cocaine and 29.5 grams of crack cocaine warrants a penitentiary sentence to reflect the principles of denunciation and deterrence.
[4] Mr. Evans, on behalf of his client, requests a conditional sentence of two years less a day with strict terms, followed by a period of probation. It is conceded that the offender may be a low to mid-level trafficker. While the defence submits that the range of sentence suggested by the Crown may be unassailable, there are significant mitigating factors that warrant a conditional sentence. These include the passage of time since the offence, the changes in his client’s lifestyle, his employment and family obligations, his plea of guilty, along with renewed insight into his conduct and collateral immigration consequences. There is essentially no issue with respect to the ancillary orders requested by the Crown.
Circumstances of the offence:
[5] The circumstances of the offence are brief. In the summer of 2016, Landell was under investigation by police. On March 1, 2017, he was seen leaving his residence in Thorold. As a result of information and surveillance, the offender was arrested. A search incident to arrest revealed two grams of cocaine along with two cell phones and some cash. As a result of a subsequent search warrant executed at Landell’s residence, 257 grams of powder cocaine and 29.5 grams of crack cocaine were discovered, along with $4000 in cash and other related items. Landell admitted control and knowledge of the illicit drugs found in his home.
Circumstances of the offender:
[6] The PSR is generally positive and Landell appears to have family and community support. He has employment. The author of the report also confirms the commercial nature of Landell’s operation as the offender does not have a drug problem and does not use cocaine. The only inference to draw from this information is the offender trafficked cocaine for financial gain. I also note that in the PSR, the offender has apparently minimized his actions for this crime.
[7] Landell also provided character references from an Indigenous Community Connections facilitator and from one of his children and a letter from his employer, Cabcon Contracting Inc.
[8] Landell has a permanent resident status. An email was furnished from Mr. Jurmain, an immigration lawyer, as well as a letter from Recovery Science Corporation in support of the offender’s request for a conditional sentence, with monitoring conditions.
Case Law:
[9] I have been provided with several cases from both Crown and defence counsel on the issue of the appropriate sentence to be imposed. Although the law is clear that each case turns on its own specific facts, a careful review of these cases, to the extent I can find similarities to the case before me, does assist me in determining what an appropriate range is for the sentence to be imposed. As some of the cases relied upon by counsel are distinguishable on the facts or the circumstances of the particular offender, my intention is to briefly set out those cases that are somewhat similar or instructive to the issues in the case at bar.
[10] While this is not a fentanyl case, in the seminal decision of R. v. Parranto, 2021 SCC 46, 411 C.C.C. (3d) 1, the Supreme Court of Canada addressed some of the overriding principles for sentencing of those individuals who participate in drug-related trafficking.
[11] In Parranto, the court affirmed that proportionality is the organizing principle in sentencing, and parity and individualization, while important, are secondary principles: at paras. 9-12. Thus, the majority held, “[a]ll sentencing starts with the principle that sentences must be proportionate to the gravity of the offence and the degree of responsibility of the offender”: at para. 10, citing R. v. Friesen, 2020 SCC 9, at para. 30.
[12] In determining the appropriate sentence, judges are required to balance a multiplicity of factors having regard to the objectives and principles defined in Part XXIII of the Criminal Code. The exercise is discretionary and is “[m]ore of an art than a science”: Parranto, at para. 9.
[13] In R. v. Woolcock [2002] O.J. No. 4927, the Court of Appeal set out an appropriate sentencing range of between six months to two years for possession of moderate quantities of cocaine for the purpose of trafficking.
[14] In the case of R. v. Ahmed. 2016 ONCA 831, the offender was sentenced to two years imprisonment for possession of an ounce of cocaine. The trial judge confirmed that the range set out in Woolcock for trafficking cocaine is applicable and that possession of an ounce lends itself to the higher end of that range.
[15] The higher range of sentence of between five to eight years jail for possessing a pound of cocaine for the purpose of trafficking was recently confirmed by the Court of Appeal in R. v. Bryan. 2011 ONCA 273.
[16] In R. v. Bajada, 2003 CanLII 15687, the Ontario Court of Appeal concluded that a sentence of five to five and one half years is not uncommon for possession of a substantial amount of cocaine for the purposes of trafficking, following a guilty plea or where the accused has no prior record. See also, R. v. Radassao 1994 CanLII 779 (ON CA), [1994] O.J. No. 1990 (Ont. C.A.), R. v. Mangal [2009] O.J. No. 1373 (S.C.) at para. 23.
[17] In R. v. Williams, 2023 ONCJ 259, a case provided by the defence, the first time offender plead guilty to a count of possession of fentanyl for the purpose of trafficking. He was in possession of 14.27 grams of fentanyl, 3.1 grams of cocaine and 180 grams of cannabis. The Crown sought a three year sentence, while the defence advanced a position of a two years less a day conditional sentence. In the reasons for sentence, the judge referred to Parrento and some of the other jurisprudence, primarily from the Ontario Court of Justice.
[18] In Williams, in addition to being a young first offender who pleaded guilty, he grew up in a disadvantaged social context that included poverty, racism, witnessing a shooting, and having two friends who were shot and paralysed. Apparently, he became involved in drug trafficking as a “one time event”. Irrespective of the insidious nature of fentanyl, the judge focussed on what the offender did since his arrest on the charge. In my view, the analysis in the judgment, specifically at para. 58, is not persuasive.
General Principles:
[19] The court is guided by the principles of sentencing as set out in the CDSA and ss. 718 to 718.2 of the Criminal Code. As directed by s. 718 of the Criminal Code, the fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society by imposing sanctions that reflect enumerated objectives. Those objectives include denunciation of the unlawful conduct, deterrence and rehabilitation. It is also important to impose a sentence that promotes a sense of responsibility in offenders and an acknowledgement of the harm done to victims and to the community.
[20] Section 718.2 of the Criminal Code addresses the principles of totality, parity and the principle of restraint among other factors. Section 718.2 also addresses specific aggravating and mitigating factors that shall be taken into consideration based on certain enumerated principles. The sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. The circumstances of the offence and of the offender must be analyzed to identify the aggravating and the mitigating factors.
[21] The primary objectives in cases of this nature are general deterrence and denunciation: see e.g. Fuller, at para. 53; R. v. Olvedi, 2021 ONCA 518, 157 O.R. (3d) 583, at para. 57. General deterrence is an established sentencing objective based on the premise that the sentence imposed on an offender will discourage people who may otherwise consider committing a similar offence: see R. v. Bissonnette, 2022 SCC 23, 469 D.L.R. (4th) 387, at para. 47; R. v. B.W.P., 2006 SCC 27, [2006] 1 S.C.R. 941, at paras. 2-3; R. v. Foster, 2020 QCCA 1172, at para. 26; R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at para. 107; R. v. Biancofiore (1997), 1997 CanLII 3420 (ON CA), 119 C.C.C. (3d) 344 (Ont. C.A.), at para. 23. Denunciation requires that a sentence communicate society’s condemnation of the offender’s conduct: see Bissonnette, 2022 SCC 23, at para. 46; Proulx, at para. 102.
Aggravating factors:
[22] The aggravating factors in this case include the nature of the drug and its sheer quantity. Landell possessed a significant amount of cocaine for the purpose of trafficking (288 grams or approximately 10 ounces). He acquired $4,635, the proceeds from his drug trafficking. I accept the Crown’s submission that the circumstances of this offence demonstrate the significant commercial nature of Landell’s illegal enterprise and he was entirely motivated by financial gain.
[23] The offender’s criminal record includes a dated conviction from 2000 for possession of a scheduled substance, along with convictions for assault with a weapon and failing to comply with a recognizance in September 2002. On January 24, 2008, Landell was convicted of aggravated assault and received a six month jail term. While his release terms for this offence have not been onerous, there are no breaches since being placed on a recognizance.
Mitigating factors:
[24] Landell plead guilty. While not an early plea by any stretch of the imagination, his plea of guilt is a mitigating factor as it demonstrates remorse and acceptance of responsibility for the offence. The offender’s current counsel advises that it was always his client’s intention to plead guilty, although this matter remained languishing in the justice system for over six years. At the same time, I observe that the Crown’s case was formidable.
[25] I am advised that Landell took ownership and responsibility for the cocaine from the outset, to avoid other family members in the residence from being implicated or charged. In the PSR, the author noted that the offender took “partial responsibility” for the offence. The PSR author also writes that the offender has positive pro-social supports. He has seven children and supports them financially, albeit I understand that he does not have visitation rights to some of them. It appears that there were allegations of domestic violence in the past. He has the support from some family members.
[26] In his comments to the court, Landell had expressed some degree of regret. Although, I note that the focus was with respect to wanting to be there for his children, and on a continued desire to support his children financially.
Discussion:
[27] The principles of proportionality and totality ought not be lost in the analysis for this offence and circumstances of the offender.
[28] That being said, there is no doubt that the courts recognize the detrimental impacts of cocaine on the community and society at large. Deterrence and denunciation are paramount considerations as there is a continued need for a firm response by the courts for increased sentences for these crimes.
[29] As a part of the defence submissions, counsel argues that there are collateral immigration consequences.
[30] In R. v. Pham 2013 SCC 15, [2013] 1 SCR 739, the Supreme Court addressed the issue of immigration status as a collateral consequence during the sentencing process. In particular, at paras. 11, and 13, Wagner J. (as he then was) explained the appropriate application of the weight to be given to collateral consequences, including immigration status:
In light of these principles, the collateral consequences of a sentence are any consequences for the impact of the sentence on the particular offender. They may be taken into account in sentencing as personal circumstances of the offender. However, they are not, strictly speaking, aggravating or mitigating factors, since such factors are by definition related only to the gravity of the offence or to the degree of responsibility of the offender (s. 718.2(a) of the Criminal Code). Their relevance flows from the application of the principles of individualization and parity. The relevance of collateral consequences may also flow from the sentencing objective of assisting in rehabilitating offenders (s. 718(d) of the Criminal Code). Thus, when two possible sentences are both appropriate as regards the gravity of the offence and the responsibility of the offenders, the most suitable one may be the one that better contributes to the offender’s rehabilitation.
Therefore, collateral consequences related to immigration may be relevant in tailoring the sentence, but their significance depends on and has to be determined in accordance with the facts of the particular case.
[31] At paras. 14, 15 and 16, the court stated:
The general rule continues to be that a sentence must be fit having regard to the particular crime and the particular offender. In other words, a sentencing judge may exercise his or her discretion to take collateral immigration consequences into account, provided that the sentence that is ultimately imposed is proportionate to the gravity of the offence and the degree of responsibility of the offender.
The flexibility of our sentencing process should not be misused by imposing inappropriate and artificial sentences in order to avoid collateral consequences which may flow from a statutory scheme or from other legislation, thus circumventing Parliament’s will.
These consequences must not be allowed to dominate the exercise or skew the process either in favour of or against deportation. Moreover, it must not lead to a separate sentencing scheme with a de facto if not a de jure special range of sentencing options where deportation is a risk.
[32] In Pham, at para. 20, the court held that a sentencing judge is not required to adjust an otherwise appropriate sentence to adjust for the collateral consequence of immigration status:
Accordingly, the sentencing judge is not compelled in all circumstances to adjust a sentence in order to avoid the impact of collateral immigration consequences on the offender. It remains open to the judge to conclude that even a minimal reduction, i.e. from two years’ imprisonment to two years less a day, would render the sentence inappropriate for the particular offence and the particular offender. Collateral immigration consequences are but one relevant factor amongst many others related to the nature and the gravity of the offence, the degree of responsibility of the offender and the offender’s personal circumstances.
[33] In R. v. Lu, 2013 ONCA 324, at para. 45, the Court of Appeal confirmed that confirmed that immigration status and collateral immigration consequences must not dominate the sentencing process and affirms it is only one factor to be considered. See also R. v. Vu, 2015 ONCJ 432, at para. 23.
[34] As I opined in a judicial pretrial held between the Crown and Mr. Evans back in November 2022, it was the offender who, perhaps facing immigration consequences, had delayed having this matter dealt with for years. Although I noted at that time, there was an intention to resolve the case.[^1]
[35] The bottom line is that a fit sentence cannot be converted to an unfit sentence by virtue of immigration consequences.
[36] In referring to the immigration counsel’s email, a sentence of less than six months, even by one day, would be grossly disproportionate to the severity and nature of the offence, the culpability of this accused and would give undue weight to the collateral consequences. According to the materials filed, and with no guarantee of success, there may be another route for the right to appeal to the Immigration Appeal Division. The question remains whether a conditional sentence may a viable option in this case.
[37] In R. v. Whittaker, 2021 ONSC 5278, the Crown sought a sentence of 18 months, less credit for restrictive bail conditions, for possession of 74.09 grams cocaine for the purpose of trafficking. The issue before the trial judge was whether a conditional sentence was appropriate. An enhanced PSR was obtained. Amongst other mitigating factors, (as listed at para. 39 of the decision), the offender used his talents in the music industry to give back to the community. The offender was on stringent bail terms for over four years. The offender fundamentally transformed his life and was deemed to be “a role model”. Aside from Whittaker’s guilty plea, which was a significant mitigating factor in the context of the post-pandemic backlog, Corrick J. stressed additional mitigating factors. The offender grew up in a “high conflict” family in subsidized housing in the Jane and Finch neighbourhood. His own father led “a criminal lifestyle” and “it was impossible to avoid drug activity” in his own family. In addition, there was a “neighbourhood war” that led to the murder of Whittaker’s uncle. Whittaker was “profoundly affected” by these events and he became “an angry man” who had difficulty expressing feelings.
[38] The other important mitigating factor was the efforts that the offender had made to “transform his life” during the four years that he was on bail. The judge concluded that Whittaker had real rehabilitative potential and continued to mentor Black youth. At para. 40, the judge stated: “In my view, to incarcerate Mr. Whittaker now would jeopardize the progress he has made while on bail and would serve no genuine societal purpose.” I find that Whittaker is distinguishable, both on the facts here and the circumstances of the offender. It is clear that there were exceptional circumstances arising in the Whittaker case.
[39] In R. v. Ramos, 2023 ONSC 1094, the accused was a young first offender who pleaded guilty to possession of a loaded firearm and possession for the purpose of trafficking of 7.7 grams of fentanyl and amounts of both powder and crack cocaine. However, the offender was not the principal in these offences and she had minimal control over the gun and the drugs. In addition, she was “significantly addicted” and suffered abuse from her pimp. The offender had been on bail for almost five years and had made significant rehabilitative progress by the time of sentencing. She had been able to end “her dependency on hard drugs” and the judge found exceptional mitigating circumstances in that case.
[40] In another case provided by the defence, namely, R. v. Collins, 2023 ONSC 5768, I am guided by my colleague’s instructive analysis of the relevant sentencing principles. In Collins, Code J. sentenced the offender to a conditional sentence after the offender had plead guilty to numerous charges of cocaine trafficking and weapons-related offences. This was as a result of an extensive police project and investigation into a large number of accused persons. Collins was arrested on one occasion with 24.2 grams of cocaine and other drugs, yet continued to traffic illicit drugs on Manitoulin Island. On another occasion, he was arrested after a search warrant was executed. Police located 42.89 grams of cocaine and a loaded firearm with associated drug paraphernalia.
[41] Clearly, the facts in Collins are much more serious. Collins had an extensive criminal record. He was in possession of a loaded handgun. However, in Collins, there were significant mitigating factors. The judge found that the offender’s moral culpability was reduced by his extraordinary challenges growing up. Collins’ mother was murdered when he was 13, and a year later. his best friend was shot and killed. Collins was diagnosed with PTSD. Importantly, the offender turned around his life in a significant manner: at para. 68.
[42] I find that Collins is unique and distinguishable from the case at bar. The judge conducted a number of judicial pretrials with counsel. Notwithstanding the guilty plea, and aside from the other mitigating factors, the judge also determined that there were numerous Charter violations: at paras. 69-70.[^2] At para. 71, Code J. emphasized that the two Charter violations had some mitigating effect on sentence. In support, he applied the decision from the Supreme Court in R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206.
[43] In the end, Code J. agreed with the defence that there were exceptional circumstances in the case warranting a conditional sentence.
[44] Indeed, in the case of R. v. Ly, 1997 CanLII 2983, the Ontario Court of Appeal held that “a conditional sentence under s. 742.1 will rarely be appropriate in cases of drug trafficking”. The sentencing principle set down in Ly has since been followed by multiple courts across Canada: See, for example, R. v. Otchere-Badu, 2010 ONSC 5271, at para. 41, R. v. Shusterman, 2012 BCSC 362 at para. 30.
[45] Conditional sentence order should only be granted in rare or exceptional circumstances for drug traffickers of “hard drugs” such as cocaine. While Mr. Evan’s arguments in support of a conditional sentence is within the oft-referred-to range, it is clearly not reflective of the principles of denunciation and deterrence arising in this case, when considering the circumstances of this offence and of the offender.
[46] In my view, the collateral immigration consequences are offset by the significant amount of cocaine possessed by Landell for the purpose of trafficking. Given his prior involvement in the criminal justice system, I agree with Mr. Anger that the offender’s immigration status was a reasonably foreseeable consequence of his actions, when he decided to participate in possessing a significant amount of cocaine to sustain its commercial trafficking.
[47] With respect, I must reject the defence’s proposed sentence. There is nothing in the evidence to suggest Landell’s personal circumstances or antecedents put him anywhere close to being “rare” or “exceptional”, which would justify such a sentence.
[48] Overall, I accept the Crown’s submissions regarding the general sentencing ranges for this type of offence and the circumstances in this case. I am persuaded that the offender before me is at the “low mid-level” hierarchy of traffickers with all of the attendant circumstances. He had in his possession a large amount of cocaine and crack cocaine with other indicia of trafficking. He chose to traffic a substantial amount of cocaine for his own financial gain. This was clearly a commercial crime of opportunity and avarice. His insight into his conduct is tempered. I do not find that there are exceptional circumstances warranting a reformatory or conditional sentence.
[49] Returning to Ahmed, recall that the offender was sentenced to two years imprisonment for possession of an ounce of cocaine. In this case, the quantity seized is almost 10x the amount possessed by Mr. Ahmed.
[50] The Crown’s three and a half year term of incarceration is well-reasoned and reflects the level of sentence suggested by the authorities with respect to offenders who traffic or otherwise distribute significant amounts of cocaine. That being said, I am not prepared to go as high as Mr. Anger ably suggests. I am influenced by Mr. Evan’s persuasive arguments in relation to some of the mitigating factors to reduce the ultimate disposition, while maintaining the principles of deterrence and denunciation for the offence.
Disposition:
[51] I impose a s. 109 weapons prohibition order for life. The offender will provide a DNA sample pursuant to s. 487.051 of the Criminal Code. A forfeiture order was granted.
[52] With respect to the one count related to the possession for the purpose of trafficking in cocaine, Landell is sentenced to serve a term of imprisonment of two years in a federal penitentiary.
A.J. Goodman J.
Date: November 20, 2023
COURT FILE NO.: CR: 4623/18
DATE: 2023-11-20
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HIS MAJESTY THE KING
- and -
CHRISTOPHER LANDELL
REASONS FOR SENTENCE
A. J. GOODMAN J.
Released: November 20, 2023
[^1]: Notwithstanding that I was the JPT judge, on June 13, 2023, both Crown and defence counsel contacted the Trial Coordinator and requested that I conduct the plea and sentence.
[^2]: The Charter violations were of such magnitude and significance that Code J. also ordered a strong institutional remedy to prevent a similar wiretap violation of solicitor and client privilege in the future.