COURT FILE NO.: CR-155/18

DATE: 2023-12-22

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

D’SHAWN ROSE

Counsel:

Mr. M. Miller, for the Crown

Ms. A. Cormie-Bowins, for the Accused

HEARD: August 24, 2023

REASONS FOR SENTENCE

Chozik J.

INTRODUCTION:

[1] D’Shawn Rose plead guilty to one count of possession of cocaine for the purpose of trafficking contrary to section 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (“CDSA”).

[2] As part of an extensive investigation, on June 8, 2017, the police obtained a warrant pursuant to s. 11 of the CDSA, authorizing them to search a townhouse in Milton, Ontario for cocaine, currency, digital scales and packaging (specifically plastic wrap). The search resulted in the seizure of a substantial quantity (500 grams) of cocaine and a large quantity of cash.

[3] In August 2022, I heard Mr. Rose’s pre-trial application in respect of that search warrant. The defence argued that the search was conducted in violation of s. 8 of the Charter, and the evidence seized ought to be excluded under s. 24(2) of the Charter.

[4] At the conclusion of the hearing, in a decision cited as R. v. Rose, 2022 ONSC 5556, I dismissed the application.

[5] In pleading guilty, Mr. Rose admitted that he had the cocaine and other items seized from the townhouse in his possession for the purpose of trafficking. He also admitted that the evidence on the pre-trial application apply on the guilty plea.

[6] Mr. Rose is now before the court to be sentenced.

[7] At issue on the sentencing is whether a conditional sentence pursuant to s.742.1 of the Criminal Code, R.S.C., 1985, c. C-46 is an available and appropriate disposition in this case. This determination turns largely on the application of the decision in R. v. Downes (2006), 79 O.R. (3d) 321 (C.A.). That decision permits the sentencing judge to consider the time an offender spends on restrictive pre-trial release as a mitigating factor on sentencing. The question in this case is whether the time spent on pre-trial release, known as a Downes “credit”, is a mitigating factor or an actual credit to be deducted from the overall sentence to be imposed.

POSITIONS OF THE PARTIES:

[8] The Crown and defence agree that, before any credit for pre-sentence custody or pre-trial release is taken into account, a fit sentence for Mr. Rose is three years imprisonment. The Crown and defence agree that ordinarily, a fit sentence for possession with the intent to traffic this much cocaine (500 grams) is punishable by more than three years: R. v. Bryan, 2011 ONCA 273, para. 1; R. v. Kim, 2022 ONSC 4935, para. 31. But in light of the significant mitigating factors, the Crown is prepared to recommend a sentence of three years.

[9] The Crown and defence agree that Mr. Rose spent 138 days in pre-trial custody. For this, they agree, he should receive credit of 7 months: R. v. Summers, 2013 ONCA 147, 114 O.R. (3d) 641; Criminal Code, s.719(3.1). This Summers “credit” is calculated as follows: 138 days served in pre-trial x 1.5 = 207 days, divided by 30 days/month = 6.9 months, rounded up to seven months.

[10] The Crown and defence also agree that Mr. Rose was bound by restrictive bail terms. Those terms included house arrest and a requirement that Mr. Rose live with his surety, who is his mother. This meant that Mr. Rose could not live with his long-term partner and their young children. He was not allowed to leave the house unless he had a letter from his surety. Mr. Rose spent more than six years on this form of release without incident. The Crown and defence agree that Mr. Rose should receive consideration of 12 months for this lengthy period of time.

[11] The Crown argues that credit for pre-trial custody (“Summers” credit) and pre-trial release (Downes “credit”) should be deducted from the three-year sentence. This would see Mr. Rose serving the remaining 17 months of a penitentiary sentence.

[12] The Crown submits that a conditional sentence is not available or appropriate. The Crown relies on the decision in R. v. Fice, 2005 SCC 32, [2005] 1 S.C.R. 742, and argues that it is not appropriate to use the Downes “credit” to reduce the three-year sentence to under two years to make a conditional sentence available. This would be an error in principle. The Crown also argues that, considering the quantity of cocaine seized, a conditional sentence is not appropriate.

[13] Relying on Downes, the defence takes the position that a conditional sentence is an available disposition. The defence argues that the time spent on strict terms of bail is not a “credit” to be deducted from an otherwise fit sentence, but a mitigating factor that is to be considered to determine a fit sentence. The defence argues that a sentence of less than two years is not unreasonable in this case. A conditional sentence is therefore available, and the defence argues that one is appropriate.

[14] The defence takes no issue with the ancillary orders sought by the Crown. Those orders are a weapons prohibition pursuant to s. 109 for 10 years and a DNA order pursuant to s. 487.051(3) of the Criminal Code.

GOVERNING SENTENCING PRINCIPLES:

[15] The purpose of sentencing is set out in s. 718 of the Criminal Code:

718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.

[16] All sentencing starts with the principle that sentences must be proportionate to the gravity of the offence and the moral blameworthiness of the offender: Criminal Code, s. 718.1. Proportionality of a sentence is key to maintaining respect for the law and a just, peaceful, and safe society.

[17] Disproportionate sentences diminish public confidence in the administration of justice by undermining the rational connection between the crime and the punishment. In R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at para. 37, LeBel J. explained proportionality as follows:

Proportionality is the sine qua non of a just sanction. First, the principle ensures that a sentence reflects the gravity of the offence. This is closely tied to the objective of denunciation. It promotes justice for victims and ensures public confidence in the justice system.

Second, the principle of proportionality ensures that a sentence does not exceed what is appropriate, given the moral blameworthiness of the offender. In this sense, the principle serves a limiting or restraining function and ensures justice for the offender. In the Canadian criminal justice system, a just sanction is one that reflects both perspectives on proportionality and does not elevate one at the expense of the other.

[18] Crafting a fair and appropriate punishment is a highly individualized exercise that involves a variety of factors: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 58. To determine a fit sentence, a sentencing judge must consider any relevant aggravating or mitigating circumstances, as per Criminal Code, s. 718.2(a), as well as objective and subjective factors related to the offender’s personal circumstances. The parity principle requires that a sentence imposed be similar to those imposed on similar offenders for similar offences committed in similar circumstances: Criminal Code, s. 718.2(b), R. v. Pham, 2013 SCC 15, [2013] 1 S.C.R. 739, at para. 9.

[19] A fit sentence must aim to denounce unlawful conduct and deter others by sending a message that certain conduct will not be tolerated. Where necessary, the sentence must also deter a particular offender from repeating the conduct. A fit sentence must aim to rehabilitate the offender, promote in him a sense of responsibility for the offence, and provide some acknowledgement of and reparations to victims for harm done to them and to the community.

[20] Sentencing is always an individual exercise, and each sentence must be tailored to the individual offender and the specific circumstances of the offence. Restraint in sentencing is important.

Legal Principles Governing Conditional Sentences

[21] In some circumstances, an offender may be permitted to serve a term of imprisonment in the community as a conditional sentence. Section 742.1 of the Criminal Code provides that a sentence of imprisonment less than two years must be imposed before a conditional sentence can be authorized.

[22] In R. v. Fice, the Supreme Court of Canada held that a conditional sentence cannot become available to an offender who otherwise deserves a penitentiary term solely because of the time the offender spent in pre-sentence custody: para. 4. The conditional sentence regime was not designed for those offenders for whom a penitentiary term is appropriate: Fice, para. 39.

[23] There is a two-step process to determine if a conditional sentence should be imposed. First, the sentencing judge must determine if a conditional sentence is available. The judge need not decide the fixed duration of the sentence, but merely exclude two possibilities: probationary terms and a penitentiary sentence (R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61; Fice). If those two possibilities are excluded, a conditional sentence is available.

[24] At the second stage, the judge must determine if a conditional sentence is appropriate having regard to the factors set out in s.742.1. In Fice, the court held that time spent in pre-trial custody is to be taken into account at the second stage of analysis, not the first: para. 31. Credit for pre-sentence custody is not a mitigating factor that can affect the range of sentence available: Fice, para. 18.

ANALYSIS:

[25] The issue before me is whether the time spent on strict bail is to be treated the same as credit for pre-trial custody for the purpose of s. 742.1, which does not impact range of sentence, or as a mitigation factor that can affect the range. In my view, credit for pre-trial custody and time spent on restrictive bail are not the same. Time spent on restrictive bail is not defined with mathematical precision. It is a mitigation factor to be taken into account in determining a fit sentence. It is not a “credit” to be deducted from an otherwise fit sentence, but a factor to be balanced and weighed in the sentencing process. I find support for this view in Downes.

[26] In Downes, the Court of Appeal held that time spent on restrictive release can be a mitigating factor. In paragraphs 26 to 28, the Court specifically held that the rationales that apply to credit for pre-trial custody do not apply to restrictive pre-trial release. This is because:

1. Unlike credit for pre-trial custody, there is no statutory provision that addresses credit for pre-trial release.

2. The rehabilitative and treatment options denied those in pre-trial custody are usually available to those on even the most restricted forms of release. These options may include the opportunity to work, attend school, attend medical appointments, conduct religious worship and address other personal needs.

3. Unlike pre-trial custody, the impact of bail conditions cannot be assumed and varies greatly.

[27] At the same time, some of the same considerations may apply when an offender has spent a long-time under house arrest as one who spent time in pre-trial custody. This is because stringent bail conditions are an infringement on liberty and have punitive aspects for which an offender receives no credit towards parole eligibility.

[28] The court held that each case is to be decided on its own merits and that the weight for time spent on strict bail is within the discretion of the trial judge. In this way, the Downes “credit” is very different from the credit an offender gets for time spent in pre-trial custody.

[29] At paragraph 33 of Downes, the Court concludes that the “time spent under stringent bail conditions, especially under house arrest, must be taken into account as a relevant mitigating circumstance.” There will be variations in its potential impact on the sentence, and it may or may not warrant any significant change in the sentence.

[30] Although the Court uses the word “credit” in Downes, I take it to mean “weight”. It impacts the ultimate determination of the range of sentence, rather than an actual credit capable of mathematical calculation to be deducted from an otherwise fit sentence.

[31] I agree with the observations made by Dunphy J. in R. v. Sanchez, 2018 ONSC 1294 that “bail is not jail”, but that time spent on restrictive bail is a form of punishment which must be considered. It is a mitigating factor, which can be given effect either by giving a specific credit similar to the credit for pre-sentence custody or as part of the overall balance of factors. I agree that it is not always helpful or possible to “ascribe an artificial air of mathematical certainty to the process with x months ascribed to this factor and y months to that any more than it would be helpful to do the same with aggravating factors” Sanchez, at para. 32. The fact that an offender has spent a lengthy period of time on a strict form of bail is a factor to be taken into account with all of the other factors to determine a fit and just sentence in the result.

Mitigating and Aggravating Factors:

[32] The Crown and defence agree to the following:

a. The guilty plea is a significant mitigating factor;

b. Mr. Rose has no prior criminal record;

c. Mr. Rose has not incurred any other criminal charges since his arrest;

d. Mr. Rose has admitted to possession of the cocaine with the intent to traffic;

e. Mr. Rose spent 138 calendar days in pre-trial custody;

f. Mr. Rose is entitled to credit for pre-trial custody of 207 days (138 x 1.5), or 7 months;

g. No Duncan credit need to be applied in this case;

h. Mr. Rose spent 6 years on strict pre-trial terms of release for which he is entitled to 12 months Downes credit.

[33] The six years that Mr. Rose spent on pre-trial release is a significant mitigating factor. Six years is a very long time to be subject to restrictive bail conditions.

[34] Counsel submit that these six years should count for about 12 months towards a sentence that I would otherwise impose. I am reluctant to assign a number for this time: it would be somewhat artificial to say that six years of restrictive bail conditions is worth 12 months of incarceration. I agree that Mr. Rose should get significant consideration for the long time he spent on restrictive bail. When I consider those six years, and that a sentence of 3 years is otherwise fit, I cannot rule out a sentence of less than two years as a sentence within an appropriate range.

Is a Conditional Sentence Appropriate?

[35] A conditional sentence may be appropriate when the court imposes a sentence of less than two years, and the court is satisfied that:

1. Serving the sentence in the community would not endanger the safety of the community, and

2. It would be consistent with the fundamental purpose and principles of sentencing (s.742.1(b)), which I have set out above.

[36] In this case, I am satisfied that Mr. Rose poses no danger to the community. He has proven this by not reoffending and otherwise complying with the terms of his bail for six years. He has demonstrated through his conduct that he is an excellent candidate for community supervision.

[37] I am also satisfied that allowing Mr. Rose to serve the sentence in the community is consistent with the fundamental purpose and principles of sentencing. It is proportionate to the gravity of the offence and the degree of his responsibility.

[38] Mr. Rose has pled guilty: he has accepted responsibility for the crime and, by pleading guilty, he has expressed remorse for his wrongdoing. The offence was in 2017 when he was only 24 years old. Mr. Rose is now 32 years old, a mature man with four children for whom he is responsible.

[39] I accept that as a young man of 24, in committing this offence, Mr. Rose made a bad decision. Since then he has consistently chosen to take a different path. He has proven himself in this regard over the last six years. I give this significant weight because it could easily have turned out otherwise.

[40] As a young Black man, Mr. Rose had a difficult beginning in life. Mr. Rose grew up without a father. When he was 13 or 14 years old, his mother placed him in a group home. He ‘aged-out’ of that facility at the age of 18 years and was then on his own. His mother re-engaged with Mr. Rose after this offence. She has been his surety for the past six years he was on bail. But while he was developing, Mr. Rose did not have a stable, supportive parental figure. At 24, he was clearly headed down a dangerous path in life. He then turned himself around. This could not have been easy. Change is hard. Mr. Rose’s change in direction is indicative of self-reflection, personal growth and a commitment to a different set of values. This speaks well of his prospects for rehabilitation. Specific deterrence is no longer a concern.

[41] I am advised that Mr. Rose has three biological children with his long-term partner. Those children are ages 11, 6 and 3 years. There is a fourth child, age 12, to whom Mr. Rose stands in place of a parent. Two of his children were born after this offence, while he was on bail. As a condition of his bail, Mr. Rose was required to live with his mother, rather than his long-term partner and their children. However, he has continued to be involved with them.

[42] For the last year, Mr. Rose he has been working as an insurance adjuster. He also assists his partner with her bakery and catering business when he is able. He looks after the children and helps with deliveries and set ups.

[43] I find that Mr. Rose has maintained a productive and pro-social life. Most significantly, he has not incurred any charges since his arrest for this offence in 2017.

[44] The law is clear that denunciation and deterrence are the primary consideration when the offence involves possession of a large amount of a drug like cocaine for the purpose of trafficking. There are very few options other than imprisonment to achieve the objectives of denunciation and general deterrence in such cases. A penitentiary sentence is usually appropriate.

[45] It is well established that sentences of 5 to 8 years are ordinarily imposed in cases involving possession of substantial amounts of cocaine for the purpose of trafficking even in cases where the offender plead guilty and had no prior criminal record: Bryan; R. v. Bajada (2003), 169 O.A.C. 226 (C.A.). Sentencing, however, is an imprecise science and requires the balancing of a number of factors that often pull in opposite directions: Sanchez, at para. 26. The question for me in this case is what length of imprisonment is necessary, keeping in mind the principle of restraint.

[46] A sentence of two years less a day is a very lenient sentence. However, I am of the view that the principles of deterrence and denunciation can be met in the unique circumstances of this case through the imposition of a conditional sentence: R. v. Proulx.

[47] In my view, the principles of proportionality, rehabilitation, and restraint weigh in favour of a conditional sentence.

[48] It is also in society’s interest, in my view, to prevent intergenerational trauma occasioned by the over-incarceration of black men, leaving young black children growing up and black communities without fathers. Mr. Rose has four young children. His continued presence and involvement in their lives will serve society more than his incarceration at this stage: R. v. Morris, 2021 ONCA 680, 159 O.R. (3d) 641.

[49] I find that the principles of deterrence and denunciation can be met with the imposition of a conditional sentence in the unique circumstances of this case. I recognize that it is a very lenient sentence. But sometimes, a lenient sentence is the fit one.

CONCLUSION:

[50] In conclusion, I am of the view that a fit sentence is two years less a day, to be served in the community as a conditional sentence. From this sentence of two years less a day, I deduct the Summers credit of 7 months. Therefore, Mr. Rose shall serve the remaining sentence of 17 months imprisonment in the community as a conditional sentence.

[51] The terms of the conditional sentence shall be the statutory terms set out in section 742.3(1)(a) to (e) of the Criminal Code; in addition, Mr. Rose shall:

a. Abstain from the consumption of drugs except in accordance with a medical prescription;

b. Provide for the support and care of his dependants;

c. Abstain from owning, possessing or carrying a weapon;

d. For the first 7 months of the sentence, live on house arrest with his partner at an address to be approved by the conditional sentence supervisor and be in his residence at all times except:

i. to go directly to and from work,

ii. for emergencies,

iii. childcare needs as approved by the conditional sentence supervisor, and

iv. on Sundays from 8 am to 4 pm for necessities of life.

e. For the second 7 months of the sentence, obey a curfew and remain in his residence between the hours of 6 pm and 6 am, except for emergencies and urgent childcare needs.

[52] Orders shall also issue under s.109 of the Criminal Code for 10 years and s. 487.051(3) for a DNA order.

Justice E. Chozik

Released: December 22, 2023