Court File No. CR-23-000000021
Date: 2024 07 23
SUPERIOR COURT OF JUSTICE
HIS MAJESTY THE KING
v.
MICHAEL SWALM
REASONS FOR SENTENCE
BEFORE THE HONOURABLE JUSTICE C. CONLAN
on JULY 23, 2024 at ORANGEVILLE, Ontario
APPEARANCES:
V. Aujla Counsel for the Provincial Crown
A. Stubbs Counsel for the Federal Crown
M. Mirza Counsel for Michael Swalm
SUPERIOR COURT OF JUSTICE
T A B L E O F C O N T E N T S
Reasons for Sentence ...pages 1-15
Transcript Ordered: July 24, 2024
Transcript Completed: July 27, 2024
Ordering Party Notified: July 29, 2024
TUESDAY, JULY 23, 2024
...PROCEEDINGS RECORDED, BUT NOT TRANSCRIBED
(11:17 a.m.)
THE COURT: The court will deliver its oral Reasons for Sentence now.
REASONS FOR SENTENCE
CONLAN J. (Orally):
Mr. Michael Swalm is before the court to be sentenced with respect to two convictions. Today Mr. Swalm pleaded guilty to, was found guilty of and convicted of the following two counts on the indictment.
Count number 12, that he, on or about the 29th day of December in the year 2021 at the Town of Caledon, did possess a restricted firearm together with readily accessible ammunition capable of being discharged in the said firearm and was not the holder of an authorization or licence under which he may possess the said firearm, contrary to s. 95(1) of the Criminal Code.
And further, count 15, that Mr. Swalm, on or about the 29th day of December in the year 2021 at the Town of Caledon, did possess a substance included in schedule 1, namely cocaine for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act.
The facts are as follows. On December 29, 2021 Mr. Swalm was operating a motor vehicle that was involved in a collision. He was ultimately arrested for impaired operation and was searched incidental to the arrest. Live ammunition was found inside the motor vehicle during the search incident to arrest.
The police applied for and obtained a search warrant for the motor vehicle. When police conducted the search they found numerous rounds of ammunition, a nine millimeter firearm, a loaded magazine for the firearm, several different illicit substances, heroine, MDMA, a very sizable quantity of cocaine, more than 400 grams consisting of 381 grams of bulk cocaine and further cocaine in pre-packaged individual amounts for trafficking purposes. Police also found a scale, other drug trafficking paraphernalia and cash in the amount of $3,508.30.
In terms of the circumstances of the offender, Mr. Swalm does have a criminal record. It is rather limited. He has a conviction for over 80 in 2017 for which he received a fine and a driving prohibition order. He also has a related conviction from 2020 for simple possession of a schedule 1 substance. At that time Mr. Swalm, in addition to some pre-sentence custody, received a fine as the sentence.
Mr. Swalm is currently 29 years old. His employment history has been focused in the area of landscaping and general contracting. He has a history of substance abuse including narcotics and alcohol. He has dealt with a long-term addiction problem. He does have employment prospects for when he is released from custody.
Mr. Swalm has put his time in pre-sentence custody to relatively good use. He has completed some 14 programs at Maplehurst Correctional Complex.
I will say more about the conditions of the pre-sentence custody when I deal with the mitigating factors on sentence.
The positions of the Crown and the defence: There is a joint submission before the court. That joint submission is for a global sentence of four-and-a-half years imprisonment less credit for pre-sentence custody. The Provincial Crown is suggesting a sentence of four years on the firearm offence to run concurrent with the sentence imposed by the court on the CDSA matter.
The ancillary orders being sought by the Crown are not being opposed by the defence, subject to Ms. Mirza reserving a further comment about the forfeiture order.
In terms of the principles of sentencing, in my view the paramount principles of sentencing in this case are denunciation, to denounce Mr. Swalm’s serious illegal conduct; general deterrence, to deter other like-minded members of the community from committing these types of offences; specific deterrence or individual deterrence, to impose a sentence that will send a message to Mr. Swalm that he ought not to ever return to court for these types of offences or for any other offences; and finally, rehabilitation because the court acknowledges that Mr. Swalm is certainly not beyond rehabilitation. He has proven during his time in pre-sentence custody that he is capable of taking positive steps to address his underlying issues and to be a more productive member of society.
In terms of the aggravating and mitigating factors on sentence, I agree with both the Federal and the Provincial Crown that the chief aggravating factor in this case are the actual facts of the offences and the “Toxic combination” of hard drugs and a firearm. This toxic combination has been spoken about in countless decisions from appellate courts in Canada, including the Supreme Court of Canada, and recently in a decision that I imposed out of Milton in a case called Aguiar, 2024 ONSC 3372, I spoke about this toxic combination of hard drugs and firearms. In the Aguiar case at paragraph 35 I commented that the court must remember to keep in mind the “Toxic combination” of drugs and guns in arriving at the global sentence to be imposed on the offender, citing the decision of the Court of Appeal for Ontario in Delchev, 2014, ONCA 448 at paragraphs 33 to 35.
This case, however, is uniquely situated. The facts are even more aggravating than simply the toxic combination of hard drugs and a firearm because in this particular case we have several hard drugs. We have a firearm and we have multiple rounds of ammunition readily accessible for the firearm. So the facts of this case are very serious - highly aggravating in my view. This is a dangerous cocktail of narcotics. Each one of these narcotics is inherently dangerous. The combination of all of these narcotics being possessed by Mr. Swalm is very serious, and on top of that we have the firearm and the multiple rounds of ammunition ready to be used with the firearm.
In terms of the mitigating factors I agree with all counsel that there are some important mitigating factors in this case. The guilty pleas are mitigating. The guilty pleas are, in and of themselves, expressions of remorse on the part of Mr. Swalm. They are indicators of his acceptance of responsibility for having committed the offences. The guilty pleas do avoid the necessity of a trial. Trials take up valuable court resources. Trials can be lengthy, especially on multi-count indictments such as this one, and so Mr. Swalm must be given significant credit for his guilty pleas.
The other major mitigating factor in this case are the conditions experienced by Mr. Swalm in terms of his pre-sentence custody. The court accepts that at a minimum Mr. Swalm experienced 389 lockdown days while at Maplehurst Correctional Complex. That is a minimum number. Mr. Swalm’s own records reveal a higher number, but the institution’s records themselves reveal 389 lockdown days.
Mr. Swalm’s experience in pre-sentence custody, particularly at Maplehurst, has been miserable to say the least. Very poor hygiene conditions at the jail. Relatively unsanitary conditions at the jail. COVID restrictions at the jail for at least part of the time that Mr. Swalm has been at Maplehurst. Delayed medical treatment at the jail. Mr. Swalm has experienced that with regard to his severe cystic acne problem that he has developed while in pre-sentence custody and as well Mr. Swalm experienced much delayed medical care when he was severely beaten in his cell by a fellow inmate on August 11, 2023, causing serious injuries to Mr. Swalm. So this court considers the pre-sentence custody conditions to be a significant mitigating factor on sentence.
I want to close this section of the oral reasons for sentence dealing with aggravating and mitigating factors by saying something directly to Mr. Swalm that I said to a similarly situated offender recently in a case called Banton, 2024 ONSC 3431.
In the Banton case Mr. Banton was just 20 years old at the time that I sentenced him in Milton. He had spent considerable time in pre-sentence custody at Maplehurst. Mr. Banton had no criminal record of any kind. He entered a guilty plea and was found guilty of possession of a loaded prohibited firearm, contrary to s. 95(a) of the Criminal Code. The facts in the Banton case were that the offender was involved with other individuals in a robbery attempt at a pharmacy. When police caught up to the vehicle containing the suspects Mr. Banton was arrested and searched. Concealed in his underwear was a Gen4 Glock 40 calibre handgun loaded with 13 rounds of ammunition. There were some stolen pills found in the motor vehicle and this is one of the things that I said to Mr. Banton when imposing the sentence:
“This type of criminal conduct must be sufficiently denounced by the court and the court has to send a message to all like-minded people in the community that they should not take their chances with serious business like this - [hard narcotics and firearms] - because if they do, even if there are mitigating factors in play, they will go to jail and they will almost certainly go to the penitentiary [for a significant period of time]. Even first-time offenders, even young first-time offenders, even young first-time offenders with relatively good characters otherwise [and strong mitigating factors], like you, Mr. Banton.”
That comment applies to you as well, Mr. Swalm. You are not as young as Mr. Banton and, in fact, you have a criminal record, a limited one. Mr. Banton had no criminal record.
But I repeat here for members of this community that if you are found guilty of possessing a firearm in combination with hard narcotics you will go to the penitentiary. The only question is for how long.
For Mr. Banton the sentence imposed by the court was 30 months in custody because of his lack of any criminal record whatsoever, the fact that he was found guilty of only one offence, the firearm offence, the fact that he was only 20 years of age, and that he had strong mitigating factors in his favour. Mr. Banton, as well, had experienced entirely intolerable conditions at Maplehurst Correctional Complex, which the court took into account.
So there is no question that Mr. Swalm has to receive a sentence more severe than the sentence imposed on Mr. Banton, but this joint submission is a sentence that is considerably more severe than the sentence imposed on Mr. Banton, and I commend all three counsel for putting forward what I perceive to be a very reasonable, entirely fit sentence for Mr. Swalm. So this court will be accepting the joint submission. The only question is how the court deals with the pre-sentence custody.
So I will now move to the imposition of the sentence itself.
The victim fine surcharges on the two convictions are waived.
There is a primary DNA order issued by the court.
There is a s. 109 Criminal Code of Canada firearms and weapons prohibition order issued by the court. The duration of that order is for life for all items mentioned in 109 in the two subsections.
I will deal with the forfeiture order in a moment once Ms. Mirza tells me if there is any objection to the specifics of the forfeiture order.
MS. MIRZA: No, there’s no issues, Your Honour, if you want to deal with it now.
THE COURT: Okay. Thank you.
The forfeiture order shall issue in the form presented by the Crown.
So those are the ancillary matters. To repeat, the victim fine surcharges are waived given Mr. Swalm’s considerable period in pre-sentence custody. A primary DNA order, a s. 109 order for life and the forfeiture order as presented.
In terms of the sentence of imprisonment it is as follows.
The net sentence is one of time served. To be clear, there is no further time in custody for Mr. Swalm. The net sentence is time served, but the specific calculation and the breakdown of the sentence is as follows.
On the CDSA conviction for possession of cocaine for the purpose of trafficking the sentence of the court is 1,642 days imprisonment, 4-and-a-half years. 1,642 days imprisonment.
The warrant of committal, Madam Registrar, shall express the sentence in days.
COURTROOM REGISTRAR: Yes, Your Honour.
THE COURT: 1,642 days imprisonment on the cocaine conviction.
On the firearm conviction the sentence of the court is 1,460 days imprisonment concurrent with the sentence imposed on the cocaine. That is four years, but again it will be expressed in days on the warrant of committal. 1,460 days imprisonment on the firearm conviction.
On the warrant of committal, Madam Registrar, the pre-sentence custody shall be attached to the cocaine conviction and it shall be expressed as follows. 928 days of pre-sentence custody. The time credited is expressed as 1,642 days, which is why the net sentence is time served. I will say that again. 928 days of pre-sentence custody. Where it says on the warrant of committal, “Time credited”, that is 1,642 days, leaving a net sentence of zero.
The court arrives at the credit of 1,642 days in the following manner. In terms of the Summers credit the 928 days is grossed up at the rate of 1.5 to 1, which equals 1,392 days. Although the court does not have to give a calculation of Duncan credit, in this case the court will so that the warrant of committal is easier to understand. The enhanced Duncan credit is 250 days for the conditions in pre-sentence custody. 1,392 days plus 250 days equals the time credited, 1,642 days. So that is how the court arrives at the 1,642 days time credited. It is the Summers credit at 1,392 days plus consideration of the additional mitigating factor, sometimes we call it Duncan credit, of the overly hard conditions at Maplehurst, and on account of that I have applied an additional credit of 250 days to get up to the 1,642 days.
So before I ask Mr. Swalm if he understands the various orders that have been made, did I leave anything out?
MR. STUBBS: No, not on my behalf.
MR. AUJLA: Nothing from the Provincial Crown, no.
MS. MIRZA: No, nothing for the defence.
THE COURT: Okay. Mr. Swalm, stand up. Do you understand the sentence of the court in terms of the imprisonment? There is no further jail being imposed by the court. Do you understand that?
MICHAEL SWALM: Yes, Your Honour.
THE COURT: There has been a primary DNA order issued by the court. The DNA sample is usually taken by way of a blood sample. You must cooperate with the police in providing the sample. Do you understand?
MICHAEL SWALM: Yes, Your Honour.
THE COURT: If you do not cooperate with the police you may be charged with a further criminal offence and if found guilty you would likely go to jail. Do you understand?
MICHAEL SWALM: Yes, Your Honour.
THE COURT: The s. 109 Criminal Code firearms and weapons prohibition order lasts for life. You will receive a copy of the order. Do you understand that order?
MICHAEL SWALM: Yes, Your Honour.
THE COURT: You must obey that order. If you do not you would likely be charged with breaching the order and probably go to jail if found guilty. Do you understand?
MICHAEL SWALM: Yes, Your Honour.
THE COURT: The forfeiture order, there are several items that you will be forfeiting to the Crown. You are not getting them back. Do you understand that?
MICHAEL SWALM: My I.D., I can’t get it back?
THE COURT: Let me see the forfeiture order, please. So I will read to you the following items that are being forfeited.
MICHAEL SWALM: Okay.
THE COURT: These are the items you are not getting back. The 9 millimetre Luger ammunition round, the firearm with the tag T-Z-L-6-8-3-8-7, the pro-9 millimetre magazine and the 9 millimetre ammunition, the black digital scale, the $3,508.30 in cash, something referred to as a Dr. Ho box and leather satchel, the cash bundle, a black Puma satchel, a gold falcon switchblade, a brown leather wallet, packaging materials and a suspected cutting agent. Those are the items you are not getting back.
MICHAEL SWALM: Okay. I understand, Your Honour.
THE COURT: You understand that? The victim fine surcharges were waived. I do not need to tell you anything about that. Do you have any questions, Mr. Swalm, about the sentence that has been imposed, any aspect of the sentence?
MICHAEL SWALM: No, Your Honour and thank you, Your Honour.
THE COURT: Okay. So, Mr. Swalm, I want to be clear with you that this joint submission that was put forward by three very experienced counsel was an entirely fit sentence, but it took into account some specific mitigating factors in your favour - your guilty pleas, the lost or missing disclosure that the Provincial Crown spoke about, your very limited criminal record, and so on. If it were not for those mitigating factors you would have received a sentence much harsher than four-and-a-half years in the penitentiary. Do you understand that?
MICHAEL SWALM: Yes, Your Honour.
THE COURT: And in fact, if you had gone to trial and been convicted after trial if I was the trial judge I would have given you a double-digit penitentiary sentence, 10 years plus.
MICHAEL SWALM: I understand, Your Honour.
THE COURT: And if you come back to court, whether you plead guilty or not, whether you have completed 200 programs in pre-sentence custody or not, no matter what your mitigating factors are the sentence is only going to go up from that imposed today. You understand?
MICHAEL SWALM: Yeah, I understand, Your Honour.
THE COURT: So I do wish you well, Mr. Swalm, and I give you credit for the progress that you’ve made during your time in pre-sentence custody. I hope that it continues.
MICHAEL SWALM: Yeah. I won’t be back, Your Honour. Thank you, Your Honour.
THE COURT: Okay. Thank you very much, counsel. And the remaining counts on the indictment?
MR. AUJLA: If those could please be marked withdrawn, Your Honour?
THE COURT: The remaining counts on the indictment are marked withdrawn at the request of the Crown.
MS. MIRZA: And just one logistical question, Your Honour. Will...
THE COURT: Yes.
MS. MIRZA: ...Mr. Swalm be released from the courthouse or be taken back to the jail?
THE COURT: How does it normally work here in Orangeville for time served dispositions?
SPECIAL CONSTABLE GRAY: He can be released here today in court or he can be released at the jail. It’s up to him. If he wants to go back and get his property he can be released there, but from what I understand your property’s probably in Hamilton right now.
MICHAEL SWALM: Yeah. Can I just be released here?
THE COURT: Do you have any reason to go back to the correctional facilities or anything there you need to get?
MICHAEL SWALM: No.
THE COURT: Okay. You will be released from here.
MS. MIRZA: Thank you, Your Honour.
MR. AUJLA: The, Your Honour, the, the court officer was kind enough to remind me. Given that he is getting released out of custody the DNA order, I believe, would need a date or a timeframe in which it....
THE COURT: The DNA sample shall be provided today, July 23, 2024, some time between 11:54 a.m. and one o’clock p.m.
MICHAEL SWALM: Thank you, Your Honour.
...WHEREUPON THESE PROCEEDINGS WERE ADJOURNED
Certification
FORM 2
Certificate of Transcript
Evidence Act, Subsection 5(2)
I, Kendra Kelly certify that this document is a true and accurate transcription of the recording of Rex. v. Michael Swalm in the Superior Court of Justice held at 10 Louisa Street, Orangeville, ON. taken from Recording No. 0611_203_20240723_094227_10_CONLANC.dcr, which has been certified in Form 1.
July 29, 2024 Kendra Kelly
(Date) (Electronic signature of authorized person)