COURT FILE NO.: CR-22-492 DATE: 2024-04-19 ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HIS MAJESTY THE KING J. Little, for the Public Prosecution Service of Canada
- and -
LEVAN HAMILTON J. Wilton, on behalf of the offender
HEARD: March 7, 2024
Reasons for Sentence
1On January 18, 2023, after trial, the accused, Levan Hamilton (“Hamilton”) was found guilty of several drug offences including possession of cocaine and fentanyl, for the purpose of trafficking, contrary to the provisions of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (“CDSA”). He was also convicted of proceeds of crime. The offences are alleged to have occurred on September 15, 2021 in the City of Hamilton.
2The sentencing hearing was adjourned for an extensive and quite inordinate period of time in order for the preparation of an Enhanced Pre-Sentence Report (“EPSR”), on behalf of the defence.
3The Crown seeks a jail sentence of nine years for the drug-related counts after conviction from trial less pre-sentence custody, along with various ancillary orders. The Crown submits that trafficking in approximately 78.5 grams of fentanyl along with 115 g. of cocaine, and his prior related record, warrants serious denunciation and deterrence.
4Mr. Wilton, on behalf of his client, seeks a global sentence of five years, less pre-sentence custody credit. While it is conceded that the offender is a mid-level trafficker, the defence submits that the range of sentence suggested by the Crown is excessive. The defence says that Hamilton presents with significant mitigating factors, including family support, remorse and his documented efforts to take ownership and address these issues. When reduced for the requisite mitigation and other credits, Mr. Wilton submits that the remaining time to serve is in the mid reformatory range. There is essentially no issue with respect to the ancillary orders requested by the Crown.
Circumstances of the offence:
5As mentioned, a significant quantity of various illicit drugs were seized, 78.5 grams of fentanyl, and 115 grams of cocaine. When stopped by police, he ran away tossing his fanny pack onto a roof. At the time of his arrest, he was on several judicial inter release orders for similar offences. He had a cell phone, yet was prohibited from owing one.
Circumstances of the offender:
6An EPSR was completed. I have also received information from the various institutions where the offender was housed.
Enhanced Pre-Sentence Report (“EPSR”):
7While I have reviewed the entire report, I can only refer to a few segments of the EPSR. The author of the EPSR writes, inter alia:
Mr. Hamilton is 31 years old and was born in Toronto on September 6, 1992 to Stephanie Hamilton and a man whose identity has been unknown to him all of his life. Mr. Hamilton is a heterosexual, able-bodied Black man of Jamaican descent. He is the middle child of six children, single, and a father to a 10-year-old son, Javon.
Mr. Hamilton disclosed that he enjoyed a typical childhood that involved play with his siblings and friends, family outings and his involvement in a soccer league. The also attended church with his maternal grandmother and an after-school program at a Christian centre.
Stephanie described her son as an active child, “he was very active, very rambunctious loud, outspoken, always curious, full of questions, quiet”.
Mr. Hamilton reported that his parents were together for 15 years and had a relationship that involved “some toxicity”, characterized as frequent yelling and his father being “kicked out” on occasion.
Mr. Hamilton reported that he and his mother have had a distant relationship for many years, while Frank has consistently remained present. Mr. Fedeli acknowledged the estranged relationship between Stephanie and Levan. He explained that their once close relationship changed when Levan began getting into trouble, “him and his mom were close, but she stopped dealing with him in the courts after second or third charge because of the stress of dealing with the older brother”.
Stephanie affirmed that when it became difficult to cope with Levan’s ongoing conflicts with the law, she asked Frank to step in.
Mr. Hamilton reported that his parents’ relationship ended when he was about 14 or 15 years old, and he believes that his actions were the cause. He explained that he had stolen a bicycle and the older men who had a connection to it found him, followed him in a vehicle, caught him and assaulted him, cutting him with a razor blade in the process. They told him that they were making a “citizen’s arrest” and brought him back to their place where they called police who arrived and detained him.
Mr. Hamilton reported that he and his mother experience increased conflict due to some of his behaviours which included cannabis and alcohol consumption, skipping school, stealing candy and liquor, fighting and school expulsions.
Mr. Hamilton stated that the cycle of incarceration has made it difficult to maintain stability in his adulthood. He has either lived transiently or relied upon living with partners or his mother with short-lived experiences of renting accommodations for himself.
Mr. Hamilton is the father of a 10-year-old son, Javon. He disclosed that Javon was diagnosed with autism a few months following his birth, and is also hearing impaired and non-verbal.
Mr. Hamilton expressed that when Javon was diagnosed with autism and hearing impairment, he was concerned about how his son would experience the world.
Mr. Hamilton is conscious of the fact that his son needs a parent who is present.
Mr. Hamilton had a brief memory of living in an apartment located on Tandridge Crescent in Rexdale, but disclosed that he spent his formative years in the Jane and Finch corridor. “Sometimes it’s your friends getting shot”. He explained that living under these circumstances required a level of hypervigilance to remain safe, “always having to look over your shoulder….you learn from a young age to move a certain kind of way to protect yourself self and others…you may not want to move that kind of way or do certain things, but it’s them or you”.
Mr. Fedeli also disclosed that at the time, Jane and Finch was “gang-infested” which made it hard to Levan and his siblings to attend school without encountering others who were involved in criminal activity.
Mr. Hamilton reported that he did not make the best peer choices.
Mr. Hamilton expressed that his family did not have the best financial circumstances and they managed with what they had “we made do”. As an adult, some of the criminal activity that he engaged in assisted him in supporting himself in the absence of legal employment.
Mr. Hamilton involuntary contacts with police began when he was about nine years old. He reported that police presence was constant in Jane and Finch and he was frequently stopped and carded while walking, playing sports or jaywalking. Mr. Hamilton found police condescending in their approach and communication to him and other Black people, but he kept quiet as he understood that police had the power to act as they did.
Mr. Hamilton attended Shoreham Public School from Kindergarten to Grade 5. He enjoyed school and did not have any remarkable experiences. He attended Brookview Middle School (Brookview) for Grades 6 and 7 where there were a number of racialized staff and students. He considered school to be a fun experience, but his mother began to grow concerned about his fighting. Mr. Hamilton reported that he graduated from Grade 8 without incident.
Mr. Hamilton reported that his mother sent him to Chaminade College School (Chaminade) for Grade 9, an all-boys, Catholic institution that she hoped would set him on the right path. He was expelled for punching a Grade 12 student who tried to prevent him from butting into a line.
Stephanie advised that when Levan was expelled from Chaminade, he attended an alternative school for a period of time. Stephanie believes that some of Levan’s behaviours were an outcome of the trauma he experienced from the assault and the impact on the family, but he did not verbally communicate those thoughts, “he was playing tough, like nothing happened”.
Stephanie described her son as a considerate and intelligent man who would benefits from counselling and anger management. She explained that Levan can be quick to anger for no reason, which has led to conflict between them.
Mr. Fedeli has not seen Levan live a stable life in his adulthood. He believes that Levan needs to “straighten out his life, find a job” and also assume responsibility for son. He hopes that this will be the final time that Levan is incarcerated, and will always be there to support him. “He was screaming at people, had outbursts towards me, his sister, aggressive…he was paranoid, always thought people were following him…people were terrified of him.”
Summary: Mr. Hamilton is facing sentencing for a number of drug-related offences and is considering an appeal. Given his intention, the index offences were not discussed in this EPSR. However, Mr. Hamilton acknowledged that in general, his criminal history has not provided any long-term positive outcomes to his life. He expressed that exploring his lived experiences throughout this process has made him feel “worthless” and question his life choices, “makes me wonder what to do with myself”.
Mr. Hamilton’s parents made strong efforts to distract him from the influences of the environment when he was a youth, however, he succumbed to negative influences and disconnected from the positive activities such as school and sports.
Prior to his interaction with the youth criminal system, Mr. Hamilton experienced racial profiling by police, which often occurs as a result of the systemic discrimination and anti-Black racism that exists within policing.
8In his comments to the court, Hamilton stated he recognized that his actions were not only hurting himself but were also affecting his son. He remarked that he has very few positive supports in the community at this time and this was confirmed by collateral sources.
9Hamilton possesses a criminal record which commenced in as a youth in 2008 and continued until 2017.
Case Law:
10I have been provided with cases from both 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 to the issues in the case at bar.
11In R. v. Campbell, 2022 ONCA 666, the appellant was found guilty after trial of possession for the purpose and trafficking in heroin. The appellant was sentenced to five years and eight months jail. The appellant was 41 years of age, had a lengthy criminal record and was married with four children. He was found to be in possession of 14.33 g. of heroin laced with fentanyl. The Crown sought a sentence of eight years, and the court imposed a sentence of six years less applicable pre-sentence custody. The aggravating factors were the nature of the substance, it was a “for profit” operation and the appellant was a mid-level trafficker.
12In R. v. Lynch, 2022 ONCA 109, Crown sought leave to appeal the sentence imposed for various drug offences including fentanyl. The trial judge had imposed a sentence of four years jail. The appeal was granted, and the sentence increased to six years. The appellant trafficked drugs to an undercover officer on six occasions and was in possession of 149.28g. of MDMA, 965.01g. of cocaine and 41.37g. of fentanyl. The court held that the trial judge erred in drawing the conclusion that mid-level cocaine and mid-level fentanyl traffickers should share the same range of sentence. The Court of Appeal noted that fentanyl convictions should garner a much more significant sentence. The appropriate range of sentence in that case was six to eight years.
13In R. v. Disher, 2020 ONCA 710 The accused sought an appeal of his sentence after entering a guilty plea to numerous offences. The appellant was in possession of 42.6g. of mixed powder substances including heroin, fentanyl and carfentanyl. Additionally, police seized two spring loaded knives and drug packaging. The Crown sought a sentence of 12 years and the defence sought five to seven years. The appellant was sentenced to 12 years and the Court of Appeal reduced the sentence to eight years jail.
14In R. v. Sidhu, 2019 ONCA 880 The appellant had entered a guilty plea for various drug offences. The Court of Appeal upheld the sentence of eight years and two months for trafficking in fentanyl. The appellant was 25 years of age however, had a prior related conviction and was engaged in commercial trafficking. He was trafficking 89g. of fentanyl. The appellant also returned to trafficking shortly after released from custody on parole. There were many aggravating factors. He was sentenced to eight years.
15In R. v. Dymkowski, 2022 ONSC 6821, the offender was being sentenced on two distinct matters so the principle of proportionality was a primary consideration. In total, the matter involved 94.45g. of fentanyl. He suffered from addiction and attended residential treatment while on bail. I found the PSR to be positive and that the accused had been actively attempting to address his substance abuse. Further, that he had positive prospects for rehabilitation. I took note of the insidious impact of fentanyl in the community. The Crown sought a global sentence of 11 years, which I indicated I would not have hesitated to impose but for the Duncan credit, the PSR, and the mitigating materials provided. The sentence was reduced to reflect those considerations.
16In R. v. Cinelli, 2018 ONSC 449, the accused plead guilty to two counts of CDSA 5 (2) heroin and fentanyl. The Crown sought a sentence of seven years and the defence sought a sentence of three years. The accused was in possession of 63g. of heroin, 20g. of fentanyl, and $3,260 in currency. The court noted the fact that fentanyl is inherently dangerous and highlighted the statistics related to opioid overdoses from 2017. The accused was 38 years of age, his criminal record was unrelated to drug matters. He has a supportive family and was suffering from a significant substance abuse disorder. He was sentenced to seven years jail.
17In R. v. Vezina, 2017 ONCJ 775, [2017] O.J. No. 6027, the accused entered a guilty plea. He had a positive PSR, a long standing substance abuse disorder, and positive prospects for rehabilitation. The accused was employed and provided an inculpatory statement to police. He possessed 204g. of a fentanyl/heroin mixture, a loaded handgun and other related substances. There were serious aggravating factors and the court imposed a nine year sentence in relation to the fentanyl count.
18In R. v. Troung, 2023 ONSC 7518, the accused entered a guilty plea. He was in possession of 94.72g. of fentanyl, 117.52g. of cocaine, 64.09g. of heroin and $905.00. The accused had a previous CDSA related record. The Crown sought a sentence of seven years jail, while defence requested a sentence of four years. The court imposed sentence of six years while taking into account harsh pre-sentence custody conditions, that the accused was able to comply with very restrictive bail condition for two years, along with his substance abuse mental health issues.
19In R v. Loor, 2017 ONCA 69, the offender was a participant in a sophisticated drug trafficking ring with no prior criminal record. He was sentenced to six years. In R v. Jolly, 2022 ONSC 10, a case involving 170g. of fentanyl. The offender had a limited criminal record and nine years in jail was imposed.
20I observe that in R. v. Abdelgadir, the court relied upon the Ontario Court of Appeal’s decision in R. v. Haye, 2013 ONCA 6493, at para. 11, which had developed the hierarchy of drug traffickers, which I adopt: Street level seller – small hand-to-hand transactions, often an addict trafficker; Street level supplier – transactions up to an “eight-ball” or one ounce; Supplier to street level supplier – multi-ounce transactions, Distributor to supplier – one half kilo to multi kilo transactions; and Importer to distributor.
21The cases proffered by the defence are noted but not referenced in my decision.
General Principles:
22The court is guided by the principles of sentencing as set out in ss. 718 to 718.2 of the Criminal Code.
23As 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.
24Section 10 of the CDSA states: 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.
25Section 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.
26The 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.
Aggravating factors:
27The aggravating factors in this case include the nature of the drugs, their quantity, and the purpose was for monetary gain. His past misconducts appear to have been ignored, while dealing here in fentanyl as a mid-level trafficker. There was flight from police. He was on several release orders when committing these offences. I note his rampant failure to abide by court orders and judicial interim releases. He appears to have continually disregarded court orders.
28I accept Mr. Little’s comments about the nature of these breaches as a serious aggravating factor.
29The sheer amount of drugs in this case: 115.91g. of cocaine and 78.5g. of fentanyl.
30The offender’s criminal record includes various findings of guilt as a youth. For example, assault, theft, fail to comply, possession of scheduled substance, and robbery with violence x2. As an adult, his record continues with convictions in 2011; namely, possession of scheduled substance for the purpose of trafficking x 3. In 2014, he was convicted of possession of scheduled substance for the purpose of trafficking x2, as well as numerous failure to comply with recognizances or court orders. He was incarcerated. In February 2017, he was convicted with possession of firearm with ammunition and fail to comply, contrary to ss. 95 and 117.01, where he received a global penitentiary term equivalent to 42 months.
Mitigating factors:
31Hamilton cannot be penalized for insisting on his right to a trial, as he is fully entitled to his day in court. While it is not an aggravating factor, he does not gain the benefit of the mitigation of a guilty plea. However, the offender did conduct the trial in an efficient and reasonable manner, conceding much of the evidence, admitting possession of the drugs and only focusing on the Charter issues.
32Hamilton expressed some remorse by virtue of his comments to the court. He has the backing and support of some family members, and has a challenge ahead of him with the care of his son, who suffers from certain ailments.
33Hamilton has completed a number of programs or sessions while incarcerated awaiting disposition: Mr. Hamilton has completed a number of programs since his incarceration: These include; Anger Management, Looking for work, Managing Stress, Thoughts to Action, Understanding Feelings, Supportive relationships, Healthy relationships, Changing habits, Goal setting, Planning for Discharge, Problem solving, and Use of Leisure Time.
34The EPSR provides extensive details with some support that the offender had grown up in Toronto and had experienced some form of anti-Black racism.
35I have some evidence about his overall positive prospects for rehabilitation.
Analysis:
36In the seminal case of R. v. Parranto, 2021 SCC 46, Moldaver J. for the concurring minority stated at para. 87:
The dangers posed by trafficking hard drugs such as heroin and cocaine have long been recognized in Canada. Over the past few decades however society’s awareness of the true gravity of trafficking in such drugs has grown to the point that we are reminded on a daily basis of the death, destruction [and] havoc it causes in communities across Canada…Trafficking in such substances causes both direct and indirect harms to society.
37While Moldaver J. is referencing large-scale commercial trafficking operations in fentanyl, (which is not the case here), I observe that at para. 96 of Parranto, he refers to the fact that “beyond its mere potential to cause harm however, fentanyl has had and continues to have, a real and deadly impact on the lives of Canadians.” Indeed, trafficking in fentanyl has been described as a national crisis reflective of the increasing understanding of the gravity of the harm it causes.
38I am mindful that the conclusions in Parranto may be distinguishable by virtue of the large scale operation in that case, and may not necessarily apply to street level trafficking or those who are motivated by a need to support their own addictions. While recognizing that this case involves significant quantities of fentanyl, it cannot be termed as a commercial enterprise. However, the general principles arising from the case including the statement that fentanyl has changed the landscape of substance abuse and sentencing in Canada.
39Returning to the case of Loor, at para. 50, the Court of Appeal noted that “Few fentanyl cases have reached this court. It is thus perhaps too early in our jurisprudence to establish a range. But I think fair to say generally, offenders – even first offenders—who traffic significant amounts of fentanyl should expect to receive significant penitentiary sentences”.
40In the current case, the accused is not a first-time offender, in fact, he has a lengthy and continuous criminal record with offences of violence, possession of weapons, property related offences and failing to comply with court orders. Most significantly, he has numerous related convictions for possession for the purpose of trafficking in illicit drugs.
41I agree with the Crown that the accused is a drug trafficker that is motivated by greed and financial gain and that any sentence for such an offence requires a substantial penitentiary sentence. This is the third conviction for possession for the purpose of trafficking. Notwithstanding the previous significant sentences imposed for related offences, the offender continues to engage in the drug subculture.
42It is not necessary that an offender live a life of luxury and excess, rather, this was an offence motivated by simple financial gain. The actions of the offender here represent a reckless disregard or indifference to the manner in which his actions negatively impact not only the most vulnerable members of our community but also our community as a whole.
43As is indicated in the EPSR, the offender is an “intelligent and considerate man”. He is an individual who has both the mental and physical capacity to obtain and maintain full time legitimate employment yet, has willingly chosen to engage in the drug trade.
44The nature and quantity of the drug possessed by the offender is a further significant aggravating factor. As noted above, he was in possession of 78.5g. of fentanyl and 115.91g of cocaine. As the courts throughout Canada have noted, fentanyl is the most insidious drug known to our communities. It causes great devastation throughout society and has a life altering impact on its users.
45It bears repeating what I noted in Dymkowski, at para. 50: “Deterrence and denunciation are paramount considerations as there is a need for a response by the courts for increased sentences for fentanyl-related crimes.” While rehabilitation is always to be present in the mind of the Court, this offence requires that a strong message be sent to the community and the accused that such conduct will garner a significant penitentiary sentence in particular, in the case of habitual drug offender.
46It is now a well-established principle that different drugs vary in the degree of danger that they represent to those who consume them. Consequently, the more dangerous the drug being trafficked, the lengthier the penalty that will be imposed. Fentanyl is now known to be a much more dangerous drug than almost any other. That reality directs that a sentence imposed for trafficking in fentanyl should be as long or longer than a corresponding sentence for trafficking in cocaine or other substances.
47I also accept the analysis in Troung, wherein Himel J. noted the following as it relates to fentanyl related sentences (94.72g of fentanyl): “Further, the jurisprudence involving sentences for offences of possession of fentanyl for the purpose of trafficking in similar quantities places the sentences in the six to nine and half year range. A sentence must recognize that Mr. Truong had possession of a number of Schedule I substances and the amounts in his possession were substantial.”
48Of course, the principles of proportionality and totality ought not be lost in the analysis of this offence and circumstances of the offender.
49Deterrence and denunciation are paramount considerations as there is a need for a response by the courts for increased sentences for fentanyl-related crimes.
50Having reviewed the nature of the offence and the quantity of drugs, in this case, in conjunction with the prevailing jurisprudence, I prefer the Crown’s requested range of sentence. The prevailing jurisprudence provides support for the Crown’s position. I am entitled to take judicial notice of the insidious impact of fentanyl in the community. In this case, there was a significant amount of fentanyl and cocaine for the possession for the purpose of trafficking in fentanyl. The Crown’s position reflects the general range or level of sentence suggested by the Supreme Court of Canada and various appellate courts to offenders who traffic significant amounts of fentanyl at the street level. There is no doubt in my mind that such a sentence for the amounts of drugs seized in this case, along with the underlying facts in this case, ought to attract a significant penitentiary sentence.
51I reject the defence position for five years as that does not reflect the need for deterrence and denunciation in relation to the nature of this offence, its quantum, as well as this offender’s significant criminal antecedents.
52Indeed, at the conclusion of the sentencing hearing, there were expressive and powerful words in what the offender expressed in court. He voiced his regret and remorse for his actions. I accept that the offender has demonstrated some insight, albeit I must not be so naïve as to his willingness to be there for son and to turn over a new leaf. I note that his son was alive in his life when he committed prior serious criminal offences. Yet, frankly, with his record and repeated conduct, his words tend to ring a bit hollow. While he has claimed some insight into his related conduct but his career is drug dealing.
53I am not prepared to offer any substantial mitigation of sentence due to social context. In my view, the nexus to these offences and his lived experiences is tenuous. The report does not persuade me that the conduct is linked or even explains his behaviour to his upbring or social context prior record and his choices to deal in drugs. His criminal record is replete with similar offences, profiteering and commercial gain for drug selling. I remain unconvinced that anti-Black racism has played a part in the commission of this offence. Thus the enhanced report adds little to the mix.
54The choices he made were his choices, over and over again.
55However, and notwithstanding the expression of remorse, the accused may not have learned from his prior involvement in dealing in drugs. Specific and general deterrence are required at a high level.
56That being said, I would not hesitate to impose the Crown’s suggested total sentence of nine years for the fentanyl offence. This is clearly in the range of sentence for this offence and offender. However I will afford some mitigation in sentence in order to reflect the manner in which the defence counsel conducted the trial, narrowing the issues, and focussing the litigation. I do take into account some of the offender’s efforts at rehabilitation while in jail, and to a very limited degree, his expression of remorse and to even a lesser extent, the EPSR.
57In my opinion, there is the fundamental requirement to impart the need to specifically deter this offender from the continued career path he has chosen. In this regard, the overall sentence is to be reflected as eight years.
Pre-sentence detention:
58In addition to the offender’s affidavit, there were extensive records filed by the defence. This includes letters from various institution within the Ministry of Solicitor General Correctional Services along with some spreadsheets. Some of the information includes references to dates of confinement, lock downs due to COVID or other reasons, minimal or no yard time, lack of showers, double or triple bunking and the like.
59Hamilton was incarcerated at Central East Correctional Centre on the following dates: September 14, 2022, to October 20, 2022 and October 21, 2023, to March 6, 2023. As such, he was incarcerated at this facility for a period of 175 days to date. On 132 occasions the unit was locked down for less than 6 hours. On 34 occasions the unit was locked down for six hours or more. The total lockdown time for this period was 656.5 hours. While incarcerated at CECC, Hamilton was triple bunked, on the following dates: February 26, 2024, to March 5, 2024, November 7, 2023, to November 26, 2023 and October 21, 2023, to October 22, 2023.
60He was at the Toronto East Detention Centre (“TEDC”) from October 21, 2021 through September 08, 2022. He was housed alone for 171 nights, housed with one inmate for 87 nights, and housed with two inmates for 39 nights for a total of 297 nights. Hamilton was housed in the “Supportive Care Unit” for the above noted periods due to his behaviour. From December 13, 2021 through to January 25, 2022, February 05, 2022 through to March 18, 2022, March 19, 2022 through to April 25, 2022 and July 05, 2022 through to August 16, 2022. Hamilton did not receive the full two hours out of his cell on 63 occasions. From November 29, 2021 through December 9, 2021, Hamilton’s unit was placed under a COVID droplet protocol for the periods noted above. During this time, the inmates housed in the unit were let out of their cells for 30 minutes a day to provide access to showers, telephone and television. Once the quarantine period was completed, the unit then resumed normal procedures. General Population Lockdown Periods for a total of 46 days.
61At the Toronto South Detention Centre the total number of lockdowns was seven.
62Hamilton was housed at the Hamilton Wentworth Detention Centre (“HWDC”) from September 16, 2021, to October 21, 2021, September 8, 2022, to September 14, 2022, October 20, 2022, to October 6, 2023 and October 16, 2023, to October 21, 2023. The dates of February 18, 25, 2023; March 9, 30, 2023; April 8, 2023; June 9, 11, 16, 29, 2023; July 3, 4, 5, 6, 2023; August 3, 11, 18, 19, 20, 21, 22, 25, 2023; September 2, 3, 14, 16, 22, 23, 2023; October 2, 8, 18, 20, 2023, the institution was full lock down at 1800 hours, after dayroom time was completed. The dates of October 21, 22, 23, 2022; January 22, 29, 2023; February 23, 26, 2023; March 5, 21, 22, 2023; April 1, 2, 9, 16, 17, 2023; May 6, 7, 14, 19, 2023; June 2, 2023; August 13, 2023; September 10, 2023, the institution was on full lockdown restricting movement from their assigned cells.
63Hamilton asserts, inter alia, that at HWDC the living conditions on the range are very difficult. There are approximately 42 people on the range, the majority of whom are Black. The cells are overcrowded, which means that he slept by the toilet. He alleged that there had been some implicit racial discrimination.
64It is not lost on me that Hamilton was subjected to misconducts while housed at TEDC. However, in relation to the Duncan or so-called COVID credit, as a mitigating factor in the overall global sentence, and as directed by the Court of Appeal in R. v. Marshall, 2021 ONCA 341, I am prepared to provide a reduction in the overall sentence to reflect the overall harsh jail conditions endured by the offender during the latter part of the COVID-19 pandemic and with the materials filed regarding lockdowns. However, the quantum from the defence reflects both partial and full lockdowns and are somewhat inflated.
65I have only considered the full lockdown days and triple bunking in my analysis. In my consideration of the evidence adduced at this sentencing hearing, and applying the specific Duncan mitigating factors, the overall sentence is to be mitigated further by 12 months.
Disposition:
66I 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 is granted.
67With respect to the counts related to the possession for the purpose of trafficking in cocaine and possession for the purpose in trafficking in fentanyl, and for all of the aforementioned reasons, the nine year global sentence is reduced to seven years, concurrent on each count. I impose a three year sentence, concurrent for count 3, possession of proceeds of crime.
68The offender has a total of 946 days of pre-sentence custody or approximately 32 months actual time in pre-sentence custody. With the usual Summers credit at 1.5:1, that is the equivalent of 1419 days, or approximately rounded up to 48 months.
69Therefore the net disposition is as follows: Mr. Hamilton is sentenced to serve three years in a federal penitentiary.
70The victim surcharge is waived.
A.J. Goodman J.
Released: April 19, 2024
