COURT FILE NO.: CR-21-068
DATE: 20240927
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
JEMAR HOLMES
Defendant
Mr. Andreas Papadopoulos, for the Crown
Mr. Norm Stanford, for the Defendant
HEARD: June 24, 2024
REASONS FOR SENTENCE
CASULLO J.:
Overview
[1] Following an eight day, judge-alone trial, I found Jemar Holmes guilty of one count of possession of cocaine for the purposes of trafficking, and two counts of failure to comply with release conditions.
[2] The sentencing hearing was held on June 24, 2024, and put over to August 8, 2024, for imposition of sentence.
[3] On July 11, 2024, Mr. Holmes advised of his intention to bring an application to reduce any sentence imposed on the grounds that his right to be sentenced within a reasonable time under s. 11(b) of the Charter was infringed.
[4] I informed counsel that I would attend on August 8, 2024 prepared to impose sentence. However, I would first hear submissions on the 11(b) application. While my intention was to consider the 11(b) arguments and render a decision the same day, on consent the imposition of sentence was rescheduled to September 14, 2024. Unfortunately, Mr. Holmes’ brother passed away in early September, and sentencing was adjourned to today, September 27, 2024.
[5] My decision on the 11(b) application will follow my conclusion on sentencing.
Circumstances of the Offence
[6] Project Hammer was a large-scale investigation into drug and firearms trafficking in the GTA that began operating in 2020. The primary targets of Project Hammer were Man Kit Mark Phung and John Carlos Christofilopoulos.
[7] On February 4, 2021, an intercept received in the radio room alerted officers of a possible drug transaction between Mr. Phung and Mr. Holmes. When Mr. Holmes’ cell phone coordinates placed him in the vicinity of Mr. Phung’s home, surveillance officers were dispatched to the area, and instructed to arrest Mr. Holmes if he was seen to transact with Mr. Phung.
[8] The surveillance officers were advised that Mr. Holmes was in breach of a recognizance to remain in his home unless with his surety, and was therefore arrestable for this breach. They were also advised that the prior charges were for attempt murder and assault.
[9] The surveillance officers observed Mr. Holmes interacting with Mr. Phung. The officers followed Mr. Holmes from Mississauga to Toronto, along the QEW, where he was arrested during a high-risk takedown at the Jarvis St. off-ramp. Five officers approached Mr. Holmes’ car to facilitate the arrest, some with their guns drawn.
The Trial
[10] The trial proceeded as a blended voir dire.
[11] Mr. Holmes brought an application to exclude the evidence obtained in violation of his ss. 8 and 10(a) rights under the Charter: the search of his car; the failure to inform him of all the reasons for his detention; and the high-risk takedown.
[12] I held that Mr. Holmes’s. 10(a) Charter rights were infringed. After applying the analysis as directed in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, I determined that the evidence should not be excluded.
Circumstances of the Offender
[13] Mr. Holmes is a black male. He was 28.5 years old when he was arrested, and is now 32. He has no prior criminal record.
[14] I was provided with a pre-sentence report. The author interviewed Mr. Holmes, his mother, his aunt, and his aunt’s boyfriend. The defence did not request a Morris report, but I am confident the pre-sentence report provides me with sufficient information to arrive at a fit sentence.
[15] Mr. Holmes’ background and present circumstances are as follows:
• He is the youngest of two children.
• His mother came to Canada at a young age, and gave birth to him when she was 18.
• They lived in subsidized housing for the first two years of his life.
• His parents were not compatible, and divorced when he was fourteen.
• His father physically disciplined him as a form of punishment.
• His father was mostly absent during his youth, incarcerated for armed robberies and weapons-related offences. Happily, for the last 20 years his father has avoided further criminality, and Mr. Holmes and his father have reconciled.
• His mother put herself through school and is now a social worker.
• His father is an electrician.
• He had a strained relationship with his older brother, who struggled with addiction.
• His mother submits that he had a rough childhood. He was suspended from school numerous times and expelled five times between grades 3 to 12. He had to switch schools often, making it difficult to build and maintain friendships.
• He was eventually diagnosed with ADHD.
• He believes that traditional education does not suit him. His mother believes the school system failed him, as he had trouble with his teachers and classmates.
• He had difficulty following directions.
• He was one of the few black students at school, and experienced racial stereotyping.
• His mother believes he is suffering from depression.
• His aunt reports he has low self-esteem and lacks confidence. She believes this stems from the racial profiling he faced at school.
• He reported no substance abuse issues. However, his mother and aunt suspect alcohol and marijuana use.
[16] Mr. Holmes describes himself as an introvert with a positive outlook on life. He loves to read. He hopes to build a career and start a family.
[17] Despite his educational challenges he graduated from high school. While on bail he completed two employment programs and a truck driving program. Upon his release there is a job waiting for him.
[18] For the entirety of his time before me, Mr. Holmes been unfailingly respectful. During the trial, more than one officer referred to him as polite. As I noted in my decision, Mr. Holmes’ compliance with the officers resulted in him being treated reasonably, and not subdued by force during the high-risk takedown.
[19] Mr. Kandawasvika, Mr. Holmes’ case manager at the John Howard Society, provided a letter of support. He advised that Mr. Holmes fully participated in the employment program, frequently giving thoughtful answers to questions asked, and sharing his ideas in a respectful manner. Mr. Kandawasvika described Mr. Holmes as an excellent candidate.
The Legal Parameters
[20] Possession for the purpose of trafficking carries a maximum penalty of life imprisonment.
Positions of the Parties
[21] The Crown and defence have divergent views as to the appropriate sentence for Mr. Holmes.
[22] The Crown submits that the range of sentence for possession of a kilogram of cocaine is between 5 to 8 years. Crown counsel helpfully provided a chart of cases with sentences falling within this range. The Crown submits that in this case, an appropriate sentence is 5 years after pre-sentence custody credits are factored in. The Crown is also seeking a 10-year weapons prohibition and a DNA order.
[23] The defence agrees with the ranges as set out. However, counsel submits that an appropriate sentence for Mr. Holmes is 3.5 years before any credits are factored in. This is so in light of Mr. Holmes’ youthfulness and his potential for rehabilitation.
[24] Defence also submits that Mr. Holmes’ degree of moral blameworthiness is tempered by the circumstances of his formative years, which were shaped by anti-Black racism.
[25] In terms of credits, the defence seeks a 30% Downes reduction for the strict and lengthy 40 month pre-sentence custody endured by Mr. Holmes.
[26] Defence also seeks a further month credit for Duncan pre-trial custody. Mr. Holmes spent 14 days in jail during the pandemic. Institutional policy at the time required new inmates to spend the first 14 days in the intake unit to monitor for COVID symptoms.
[27] Thus, for the first 11 days, Mr. Holmes was not allowed to leave his cell. He could not shower, nor could he call his lawyer. Between day 11 and day 14, Mr. Holmes was permitted one shower and was able to speak with his lawyer. He was also allowed to be out of his cell for one hour per day.
[28] Finally, defence urges the court to find that Mr. Holmes’ moral culpability was lessened in light the fact that he would not profit from the entire kilogram (see paragraph 74 below). I asked counsel to provide further caselaw on this argument. While they are not specifically cited, I have considered the six additional cases provided.
[29] No issue was taken with the ancillary orders sought by the Crown.
Mr. Holmes, Pre-Sentence Custody, and Bail
[30] Mr. Holmes has a complicated backstory in respect of his pre-sentence custody. As noted earlier, at this trial he was found guilty of failing to comply with his release conditions. This warrants a deeper dive.
[31] On May 3, 2019, Mr. Holmes was charged with several offences, including selling and distributing marijuana to youth, attempt murder, aggravated assault and assault with a weapon.
[32] On June 18, 2019, he was released on house arrest to his aunt and her partner. There was an exception for court, school, work, or while he was in the presence of both sureties.
[33] At that time Mr. Holmes had a job as a shipper and receiver at Jubilee Candy, where he worked until his arrest on the present charges – February 4, 2021.
[34] On February 17, 2021, Mr. Holmes was released on bail, representing 14 days of pre-trial custody.
[35] After his release, the Crown brought a s. 524 application, cancelling Mr. Holmes’ first recognizance, and putting a global bail in place. He was under strict house arrest on the following terms:
• His own recognizance of $50,000
• His sureties’ recognizance of $75,000
• He could only leave the house for court, medical emergencies, or the presence of one of his sureties (his aunts). There was no exception for employment.
• GPS monitoring
[36] On November 15, 2021, the 2019 charges were stayed.
[37] On December 7, 2021, a new release order was issued. Mr. Holmes’ mother was substituted for one of his aunts, the ankle monitor was removed, and he was permitted to leave the house for work or school. This iteration of bail remained in place until March 6, 2022.
[38] From March 6, 2022 to November 15, 2022, bail was varied from house arrest to curfew from 8:00 p.m. to 6:00 a.m.
[39] From November 15, 2022 to June 24, 2024, Mr. Holmes’ curfew was extended to 11:00 p.m. to 8:00 a.m.
[40] Thus, Mr. Holmes spent 13 months subject to restrictive house arrest, followed by bail with curfew for 27.5 months, for a total of 40.3 months, or 3.33 years.
[41] This equates to the Crown’s calculation of bail for 1,227 days, or 3.36 years, broken down as follows:
• 294 days of house arrest with ankle monitor (February 17, 2021 to December 7, 2021
• 90 days of house arrest with ankle monitor removed and an 8:00 p.m. to 6:00 a.m. curfew (December 7, 2021 to March 6, 2022)
• 843 days of house arrest with an 11:00 p.m. to 6:00 a.m. curfew (March 6, 2022 to June 24, 2024)
Principles of Sentencing
[42] The fundamental principles and purposes to be considered by courts in sentencing are set out in ss. 718 to 718.2 of the Criminal Code.
[43] Section 718 of the Criminal Code provides that the fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful, and safe society.
[44] As set out in s. 718, the objectives of sentencing include: the denunciation of unlawful conduct; deterrence of the offender and others from committing further offences; separation of the offender from society where necessary; rehabilitation of the offender; reparation for harm done; and the promotion of a sense of responsibility in the offender, including acknowledgment of the harm done.
[45] Section 718.1 of the Criminal Code speaks to the overarching principle of sentencing, namely that the sentence imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
[46] In its discussion of proportionality, the Supreme Court of Canada stated in R. v. Bissonnette, 2022 SCC 23, [2022] S.C.J. No. 23, at para. 50, that “sentencing must in all circumstances be guided by the cardinal principle of proportionality. The sentence must be severe enough to denounce the offence but must not exceed ‘what is just and appropriate, given the moral blameworthiness of the offender and the gravity of the offence’”.
[47] Section 718 of the Criminal Code sets out a number of specific principles that a court must consider when imposing sentence, including:
(a) the principle that a sentence should be increased or reduced to take account of any mitigating or aggravating circumstances the court finds to exist in respect of the matter before it;
(b) the parity principle, which requires that a sentence should be similar to sentences imposed on similar offenders for similar offences in similar circumstances;
(c) the restraint principle, which requires that an offender should not be deprived of liberty if a less restrictive sanction is appropriate; and
(d) the principle that all available sanctions other than imprisonment should be considered if they are reasonable and consistent with the harm done to the victim and the community.
[48] Rehabilitation and restraint are also relevant considerations.
[49] Finally, the Court of Appeal in R. v. Morris, 2021 ONCA 680, at para. 13, recognized that an accused’s moral responsibility may be impacted by race and systemic discrimination:
Social context evidence relating to the offender’s life experiences may be used where relevant to mitigate the offender’s degree of responsibility for the offence and/or to assist in the blending of the principles and objectives of sentencing to achieve a sentence which best serves the purposes of sentencing as described in s. 718.
[50] The Court of Appeal made it clear, at para. 97, that there must be some link between anti-Black racism and how it affects the offender:
Absent some connection, mitigation of sentence based simply on the existence of overt or institutional racism in the community becomes a discount based on the offender’s colour. Everyone agrees there can be no such discount.
Range of Sentences
[51] In R. v. Brown, 2021 ONCA 35, Mr. Brown was sentenced to 4 years, 7 months for possession of 2 kgs. of cocaine; his co-accused Mr. Johnson was sentenced to 6 years, 5 months for possession of 4 kgs. Both accused had their sentences reduced by 5 months and 7 months, respectively, to account for strict bail conditions.
[52] The Crown also points to R. v. Pileggi, 2019 ONSC 4182, where I sentenced the accused to 4.4 years for possession of a kilogram of cocaine. Mitigating factors included a guilty plea once I dismissed the Charter application, no criminal record, strong family support, and 26 months of bail without incident.
[53] In drafting the within reasons, I happened upon a decision not referenced by either counsel, R. v. Johnston, 2022 ONCJ 442. There the accused pleaded guilty to one count of trafficking in cocaine (1 kg), one count of trafficking in crystal methamphetamine (1 kg), and one count of possession of proceeds of crime. Both a pre-sentence report and a Gladue report were prepared for the sentencing hearing.
[54] The Crown in Johnston sought a six-year sentence after considering the mitigating factors, including Mr. Johnston’s guilty plea and the strong Gladue factors.
[55] The court imposed a three-year sentence after accounting for Mr. Johnston’s particular circumstances. The sentence was then further reduced pursuant to Downes to account for 12 months bail, and 10 days for time spent in pre-trial custody. This left a sentence of just under two years, which was made conditional, followed by three years’ probation.
[56] On appeal, the three-year sentence was upheld. The Court of Appeal acknowledged the sentence fell outside of the established range for trafficking in drugs at the kilogram level. The Court also confirmed that “sentencing ranges are primarily guidelines. They are not hard and fast rules. A judge can order a sentence outside an applicable range if it accords with the principles and objectives of sentencing”: see R. v. Johnston, 2023 ONCA 808, at para. 8.
[57] The conditional sentence in Johnston was set aside on other grounds.
[58] The Supreme Court of Canada has observed that the principle underlying the notion of a sentencing “range” is to ensure parity of sentences between offenders who have committed similar crimes in similar circumstances: R. v. Lacasse, 2015 SCC 64, [2015] S.C.J. No. 64, at para. 57.
[59] The Supreme Court also emphasized that a sentencing range is simply a guide for the application of the relevant sentencing principles and objectives. A sentencing range should be seen as a historical portrait for the use of the sentencing judge, who must still exercise her discretion in each case. This reflects the individualized nature of the sentencing process: the consideration and balancing of the factors related to the offences, the personal circumstances of the offender and the applicable principles set out by Parliament in the Criminal Code. Sentencing has thus been described as a process that is “far from being an exact science or an inflexible predetermined procedure”: R. v. L.M., 2008 SCC 31, [2008] 2 S.C.R. 163, at para. 17.
Mitigating and Aggravating Factors
[60] Section 718.2(a) of the Code provides that a sentence should be reduced or increased for any relevant aggravating or mitigating circumstances.
Mitigating Factors
[61] Mr. Holmes had a difficult childhood. There was considerable instability in the family home during his formative years. This was compounded by his father’s incarceration for serious offences.
[62] Mr. Holmes struggled in school. He was diagnosed with ADHD. He was a slow learner. He was expelled countless times. When his behaviour became unmanageable, he was expelled and pawned off on another school. It became a cycle of failures. I accept that the system let him down. This has led to a string of low-paying, menial jobs. Mr. Holmes did not learn the skills that would propel him on a track toward a career and meaningful employment.
[63] The employment programs he completed while on bail have paid off. In full knowledge of the trafficking offence, the director of operations at an HVAC company has offered Mr. Holmes a job upon his release.
[64] I also accept that, as one of the only black children at school, Mr. Holmes experienced direct and indirect racism. He was stereotyped as a troublemaker and subject to various disciplinary actions. This led to struggles with identity and belonging. As the report filed in the Morris case, “Expert Report on Crime, Criminal Justice and the Experience of Black Canadians in Toronto, Ontario” sets out, the negative consequences of anti-Black racism foster the school-to-prison pipeline.
[65] Mr. Holmes has no criminal record and no addiction issues.
[66] None of the aggravating factors set out in s. 10(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 are present here. For example, no weapon was used in the commission of the offence, there was no violence or threat thereof, and Mr. Holmes’ did not possess drugs near a school or any other public place frequented by persons under the age of 18.
[67] I acknowledge that Mr. Holmes was out on bail when he was arrested on the possession charges. However, since his release into the care of his sureties on February 17, 2021, he has complied with his bail conditions which, for the first 13 months, were the strictest available.
[68] Mr. Holmes also spent 18 months on bail for charges which were ultimately stayed by the Crown. There is no credit available for this time, but I agree with defence that it provides some colour to Mr. Holmes’ breach on February 4, 2021, after being subject to house arrest for so long.
[69] Mr. Holmes has strong family support. His mother was present every day during trial. His aunt, her partner, and Mr. Holmes’ father attended the sentencing hearing.
[70] I believe Mr. Holmes has excellent rehabilitation prospects. He has demonstrated that he is motivated to improve himself. He was deemed a good candidate for community supervision by the author of the pre-sentence report.
Aggravating Factors
[71] Mr. Holmes was on bail when he was arrested on these charges, although I have explained why I believe this factor is somewhat attenuated in this particular case.
[72] A kilogram of cocaine is a large quantity of drug to traffic for profit. However, this too is somewhat attenuated by my finding of fact that ¾ of the kilogram was intended for others – only ¼ was earmarked for Mr. Holmes.
[73] Mr. Holmes was part of a sophisticated commercial organization. However, his position appears to have been that of a courier or foot soldier for the group, rather than a principal player in the hierarchy’s enterprise.
Appropriate Sentence
[74] When I weigh the sentencing objectives of denunciation, deterrence and rehabilitation, I find that a sentence of three years and four months, or 40 months, strikes an appropriate balance in the particular circumstance of Mr. Holmes. This is a sentence that will not crush Mr. Holmes’ potential for rehabilitation.
[75] While this is at the low end of the range, it reflects the mitigating factors set out above, as well as the challenges Mr. Holmes has faced as a racialized male, while still holding him accountable for his actions. There is no denying the havoc that drugs and drug trafficking wreak on society. “Drug trafficking cannot be viewed as a victimless crime”: R. v. Awad, 2019 ONSC 2065, at para. 28.
[76] For the two breaches, I sentence Mr. Holmes to 30 days each.
Pre-Trial Custody Credit
[77] Mr. Holmes was in pre-trial custody for 14 days during COVID, and faced harsh conditions as set out above. At 1.5, the Summers’ credit equates to 21 days.
[78] In light of the harsh, COVID-based restrictions placed on Mr. Holmes during his 14 days in custody, I am adding a further nine days’ Duncan credit, bringing the pre-trial custody credit to 30 days.
Downes Credit
[79] Mr. Holmes spent 40 months, or 3.4 years, on bail, one-third under restrictive house-arrest conditions which limited his liberty.
[80] Relying on R. v. Downes (2006), 2006 CanLII 3957 (ON CA), 79 O.R. (3d) 321 (C.A.), Mr. Holmes asks that his sentence be reduced to mitigate the impact of the bail conditions. I am satisfied I have the discretion to give credit where an accused’s liberty was significantly impacted by onerous release conditions. Long-term house arrest is but one example.
[81] I have considered R. v. Ash, 2015 ONSC 4536, where Forestell J. gave the accused 16 months credit for 4.5 years on bail. Although Mr. Ash could still work, go to school, and socialize, the Court found he was constrained in his ability to do so.
[82] Mr. Holmes is entitled to a credit of 11 months to reflect his time on bail.
[83] The global sentence without credits would have been forty months. With credit for one month for pre-trial custody and 11 months for bail, there remains a sentence of 28 months imprisonment, or two years, four months.
11(b) Charter Application
[84] As noted at the outset, Mr. Holmes submits that his right to be sentenced within a reasonable time under s. 11(b) of the Charter was infringed.
[85] In support of his application, Mr. Holmes relies upon the Court of Appeal’s decision in R. v. Charley, 2019 ONCA 726, 147 O.R. (3d) 497, which fixed a presumptive five-month post-verdict ceiling. In other words, if an accused is not sentenced within five months, or 150 days, of a verdict being entered, the onus falls on the Crown to establish there are exceptional circumstances justifying the delay.
[86] My verdict was rendered on February 13, 2024. Sentencing submissions were heard June 24, 2024. The imposition of sentence was scheduled to take place on August 8, 2024, for a total of 177 days. This is 27 days beyond the presumptive ceiling set out in Charley.
Positions of the Parties
[87] Defence submits that the Crown has failed to rebut the presumption that the delay is reasonable. There are no exceptional circumstances in this case. The pre-sentence report was ordered in the normal course, and the time necessary to obtain these reports is already factored into the five-month ceiling.
[88] Neither was the sentencing of sufficient complexity to warrant any delay. The impact of systemic anti-Black racism is within the ken of all justice system participants in the aftermath of R. v. Morris, 2021 ONCA 680, as are the considerations the trial judge should take into account at the sentencing stage. Finally, calculating restrictive bail conditions is neither unique nor complex.
[89] Pre-verdict delay may also be brought to bear on post-verdict delay. In this case, by Mr. Sanford’s calculations, the trial was completed one day shy of the 30-month Jordan ceiling.
[90] In these particular circumstances, defence submits that the appropriate remedy is a reduction of Mr. Holmes’ sentence by 10 months.
[91] The Crown submits that sentencing in this case was complex for the following reasons:
a. A pre-sentence report was required;
b. There were Morris considerations;
c. The calculations concerning restrictive bail conditions were complicated; and
d. The late-breaking defence argument, that Mr. Holmes’ moral blameworthiness was attenuated by the fact that he was a courier for the criminal organisation, added to the factors the court was to take into consideration.
[92] Finally, the Crown submits that the 5-month ceiling set out in Charley has been displaced by the Supreme Court of Canada’s ruling in R. v. K.G.K., [2020] 1 S.C.R.
Analysis
[93] In Jordan, the mischief sought to be remedied was the culture of complacency in shepherding criminal matters from conviction to trial completion. The Supreme Court held that an accused’s right to be tried within a reasonable time was breached where it took longer than 30 months from arrest to completion of trial.
[94] K.G.K. concerned judicial deliberation time from the completion of trial to verdict. The Supreme Court held that judicial deliberation time did not factor into the 30-month calculation. However, unlike in Jordan, the majority in K.G.K. chose not to impose a timeframe within which verdict deliberation should be completed. Instead, in order to establish that one’s 11(b) Charter rights were breached as a result of verdict deliberation time, an accused will have to establish that “deliberations took markedly longer than they reasonably should have in all the circumstances.”: K.G.K., at para. 65.
[95] In so doing, the Supreme Court upheld the presumption of judicial integrity. In other words, the presumption that the trial judge took into consideration the need for timeliness, including the practical constraints they faced, and took only as much time as was necessary to render a verdict.
[96] The Crown submits that the five-month presumptive ceiling in Charley has given way to K.G.K.’s more nuanced and purposive approach. In other words, instead of calculating whether it took longer than five months to render sentence, the more appropriate test is “whether the deliberation time took markedly longer than it reasonably should have in all of the circumstances.” K.G.K., at para. 54.
[97] The Crown points to two recent cases from other jurisdictions which seem to suggest that Charley has been overruled. The first, from the Supreme Court of Nova Scotia, considered the issue of sentencing delay and the interplay between Charley and K.G.K. In R. v. SPP, 2024 NSSC 42, Rosinski J. held, at para. 93:
With all due respect to the Ontario Court of Appeal, but in light of the wording in s. 720 CC and the reasoning in K.G.K., sentencing-process delay is more appropriately assessed using a qualitative rather than a numerical standard of what is “within a reasonable time” – particularly where presumption of judicial integrity remains relevant.
[98] The second decision hails from Quebec. In Deblois c. R., 2021 QCCA 1093, at para. 141, the Quebec Court of Appeal confirmed that Ontario’s Court of Appeal has established a 5-month ceiling from verdict to pronouncement of sentence. Quebec, however, has adopted the approach set out in K.G.K. In other words, an accused will only be able to establish a section 11(b) Charter breach “if the sentencing proceedings…drag on unduly, regardless of the issue of ceilings.” Deblois, at para. 134.
[99] I do not find favour with the Crown’s position in this regard. I find that the 5-month ceiling is alive and well in Ontario. There are a number of decisions post-Charley which support this conclusion, including R. v. Mushamuka, 2024 ONSC 2635, and R. v. Amdurksi, 2023 ONSC 5772.
[100] It took five months and 27 days to pronounce sentence on Mr. Holmes. That is 27 days beyond the Charley ceiling. There is no defence delay to deduct from the 177 days. I concur with defence counsel’s submissions. In this case, there was nothing overly complicated about sentencing. To be frank, the reason for the delay lay at the feet of my personal workload. There was simply no time to fit this matter into my schedule any earlier than June 24, 2024 for submissions, and August 8, 2024 for imposition of sentence. All told, it took only six weeks to draft my reasons.
[101] Accordingly, the only question remaining is what is an appropriate reduction in sentence based on a 27-day delay from verdict to imposition of sentence?
[102] There is simply no principled basis upon which defence counsel seeks a ten-month reduction for a 27-day delay. In R. v. Hartling, 2020 ONCA 243, the Court of Appeal held that a post-verdict delay of 14 months before sentencing was presumptively unreasonable. The accused’s sentence was reduced by five months.
[103] In these particular circumstances,[^1] I find a suitable reduction to Mr. Holmes’ sentence to be two months.
Conclusion
[104] Mr. Holmes, would you please stand. For the foregoing reasons, I sentence you as follows:
• On Count One, possession of cocaine for the purpose of trafficking, 26 months, or two years and two months.
• On Count Two, failing to comply with release order, one month concurrent.
• On Count Three, failing to comply with release order, one month concurrent.
Ancillary Orders
[105] The following ancillary orders are also issued:
• DNA Order.
• Section 109 Weapons Prohibition for 10 years.
[106] Finally, it is my strong and sincere hope and preference that Mr. Holmes be permitted to serve his sentence at the St. Lawrence Valley Correctional Centre, where I am confident that he will receive the psychological and mental health assessments and treatment that I believe will be of tremendous assistance once Mr. Holmes is returned to the community upon his release.
CASULLO J.
Released: September 27, 2024
NOTE: The written version of these Reasons released this day is to be considered the official version and takes precedence over the oral Reasons read into the record. If there are any discrepancies between the oral version and the written version, it is the written version that is the official record to be relied upon.
[^1]: Including the fact that Mr. Holmes’ was mentally prepared to surrender into custody on August 8, 2024, only to be sent home to allow the court time to consider the 11(b) Charter application. This added a further month onto his pre-sentence bail period, although I note Mr. Holmes’ waived any requests for a further reduction.