Ontario Superior Court of Justice

Court File No.: CR-23-0055-00
Date: 2025-01-15

Between:
His Majesty the King
Applicant
J. McConnell, for the Federal Crown

and
Mark Jeffrey Buckley
Respondent
M. Salih, for the Accused

Heard: October 18, 2024, at Thunder Bay, Ontario
Regional Senior Justice W. D. Newton

Criminal Decision

Overview

[1] On October 18, 2024, Mark Jeffrey Buckley pleaded guilty to possessing cocaine for the purpose of trafficking.

[2] Mr. Buckley is not a Canadian citizen.

[3] The plea inquiry confirmed Mr. Buckley’s understanding of the collateral immigration consequences.

The Facts

Circumstances of the Offence

[4] The following facts were admitted:

On Monday, October 4, 2021, at 8:00 pm, Thunder Bay Police responded to a complaint at 210 Leland Street.

Police officers arrived at 210 Leland Street shortly after 8:00 pm. Police met with Patrick Elvish in the parking lot, who wished to speak to the police privately. Police attended with Mr. Elvish to a plaza nearby to speak with him. Mr. Elvish advised that he had returned home three days ago after a stint of working out of town to find that there were two black males who were staying in his apartment. They informed him that his ex-girlfriend had accrued a $9,000 drug debt that he had now accrued. Mr. Elvish observed the males to have illicit drugs. They requested that he purchase a safe for them, which he did. Mr. Elvish provided the police with a key to the apartment and permission to search the apartment.

Shortly before 9:00 pm, Thunder Bay police officers entered the apartment. Inside, they located Mark-Jeffery Buckley and Glendon Martin. Both males were immediately placed under arrest. Inside the apartment, police located 43g of cocaine and 7g of fentanyl in a satchel. Police also seized a safe from underneath the couch. Inside the safe, police located a further 79g of cocaine. The police also seized $720 and a small amount of prescription pills. A folding knife was located in Mr. Buckley's waistband.

Mr. Buckley was in joint possession of the drugs and accordingly charged with possession for the purpose of trafficking in a schedule 1 substance.

Circumstances of the Offender

[5] Mr. Buckley is a 36-year-old resident of Toronto. He was 33 years old at the time of the offence. He is a permanent resident of Canada, having been born and raised in Jamaica. He came to Canada in 2007. With this conviction he is now inadmissible to Canada, and therefore subject to deportation. He received the advice of an immigration lawyer before pleading guilty to this charge.

[6] Counsel for Mr. Buckley submitted that there are many mitigating factors to consider in sentencing. She described Mr. Buckley as relatively youthful. He has no prior criminal record. He entered a plea of guilty, thereby freeing up court and judicial time for other matters. Counsel submitted that there were “triable issues” to be addressed if the matter proceeded and noted that a co-accused has absconded.

[7] Counsel notes that Mr. Buckley’s letter to the court reflects genuine remorse.

[8] Counsel reports that Mr. Buckley had a difficult upbringing. He was abandoned by his mother and grew up with his siblings in poverty. His three brothers died from gun violence in Jamaica.

[9] According to counsel, Mr. Buckley had several significant setbacks that propelled him into this recent criminal activity. In October of 2019, his construction business partner was killed as an innocent bystander to a “drive by” shooting. Then, Mr. Buckley was involved in a serious car accident that caused a complex open fracture dislocation to his left hand which required multiple surgeries. As a result, Mr. Buckley was unable to work and support his family. More recently, he was injured in a bicycle-car accident for which therapy was required.

[10] Counsel submits that Mr. Buckley has made significant steps towards rehabilitation since his arrest. He has returned to work and incorporated a general construction business which employs two persons.

[11] Mr. Buckley has three daughters: two who reside with their mother, aged 8 and 16 years, and a one-year-old who resides with Mr. Buckley and his current partner. Mr. Buckley provides support for his two older daughters and has parenting time with them every second weekend. He is the sole supporter of his current partner and daughter.

[12] Letters of support were received from a cousin, his father, his sisters, and his current spouse. Mr. Buckley’s elderly father resides with him, and Mr. Buckley assists with his father’s care. The letters describe him as a good father and a hard worker.

[13] Since his last accident he has enrolled in college, pursuing a diploma related to electrical work.

[14] Mr. Buckley has been compliant with his bail conditions for three years.

[15] In his letter to the court, Mr. Buckley reflects on his difficult early years and says that he wants to be able to support his family so that they do not have to go through what he did.

Positions of the Crown and Defence

[16] Mr. Buckley’s counsel asks the court to impose a two-year conditional sentence order, with strict house arrest terms for the first eight months followed by eight months of less restrictive house arrest conditions, followed by eight months of the general terms. This would be followed by two years of probation.

[17] Counsel seeks this sentence as Mr. Buckley is now subject to deportation, and a term of incarceration would remove his right to appeal a deportation order. Counsel relies on several cases in which conditional sentence orders were imposed in similar circumstances: see R. v. Burnett; R. v. Luu; and R. v. Schneider.

[18] The Crown seeks a term of imprisonment of two years, noting that the drug trafficking was in conjunction with a home takeover. The Crown submits that these circumstances require incarceration to deter others from this activity. The Crown relies upon a recent local decision of R. v. Parker in support of this position.

The Law

[19] The Criminal Code provides as follows:

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.

718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[20] The following additional principles are also relevant to Mr. Buckley’s sentence:

718.2 A court that imposes a sentence shall also take into consideration the following principles:

(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,

(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and

(e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.

[21] I note that Mr. Buckley is a black immigrant.

Cases Relied Upon by Counsel

[22] In Burnett, Mr. Burnett had prior convictions for trafficking and possessed about 25 g of crack cocaine. Spies J. imposed a conditional sentence of two years less a day with a lengthy period of house arrest and probation in the “hope” that “there is a greater likelihood that he will appreciate what he has… and not put it all at risk by breaching any of the terms…”.

[23] In Luu, Forestell J., recognizing “the damage to the community from drug trafficking”, also imposed a lengthy conditional sentence with strict terms as “consistent with the purpose and principles of sentencing”, noting that the sentence “also advances the objectives of rehabilitation by allowing Mr. Luu to continue his employment.” Mr. Luu had been compliant while on bail for three and one-half years.

[24] In Schneider, the British Columbia Court of Appeal substituted a conditional sentence order for a term of imprisonment for a 46-year-old offender convicted of a single count of trafficking, with a minor unrelated criminal record, who had good prospects of rehabilitation and did not appear to pose a risk of re-offending.

[25] In Parker, the offender was convicted with possession of 450 g of cocaine for the purpose of trafficking. Approximately $500,000 was found in the residence. Mr. Parker told his probation officer that he did not want to do this but needed “to make ends meet quickly.” In rejecting a conditional sentence, Pierce J. observed the following:

[66] The courts have commented repeatedly on the harm that comes from drug trafficking, to the extent that I take judicial notice of these harms.

[67] In Parranto, the Supreme Court of Canada observed the following at para. 70:

While not raised by the parties or the court below, this appeal provides an opportunity to emphasize that, when assessing the gravity of the offence, it is open to both the sentencing judge and the Court of Appeal to take into account the offender’s willingness to exploit at-risk populations and communities. In this regard, choices which demonstrate a reckless disregard for human life increase not only the gravity of the offence but the moral culpability of the offender and may amount to an aggravating factor in sentencing.

[68] There are no victim impact statements from individuals standing before me complaining that Mr. Parker’s supply of drugs got them addicted to cocaine, interfered with their schooling, got them fired, or deprived them of opportunities or relationships they would otherwise have enjoyed with the partners, parents and children.

[69] There is no one to complain that their physical and mental health has been affected, their income misappropriated, leaving them marginalized or homeless. And yet I see them.

[70] There are no victim impact statements from families standing before me, from parents without their children or children without their parents, describing the pain they feel in having lost a loved one to a drug overdose, their grief on each succeeding anniversary of their death, or their birthdays. And yet I hear them.

[71] These are the voices of the sufferers, and yet the community harm does not end there.

[72] The emergency department of the Thunder Bay Regional Hospital is strained on a daily basis by people seeking care because they suffer the consequences of drug addictions. Sometimes they are brought to the hospital by first responders called out to save lives.

[73] Daily, police officers investigate, document, and arrest suspected drug traffickers, and attend at court to give evidence about it.

Disposition

[26] In deciding whether a conditional sentence order or incarceration is appropriate, I note the following facts.

[27] Mr. Buckley is a relatively youthful first-time offender. Up until 2021, for the 14 years he has been in Canada, he has not been involved with the criminal justice system.

[28] He has pleaded guilty, although not at the earliest opportunity. His guilty plea was before trial but after his Charter application was dismissed. (See R. v. Buckley, 2024 ONSC 3948.)

[29] He has been compliant while on bail for over three years.

[30] I accept that he is genuinely remorseful. He appreciates the jeopardy that he currently faces, as he risks deportation to Jamaica, and risks losing access to his daughters, his spouse, his father, and his siblings here in Canada. He also risks losing the opportunities he has had while in Canada. I accept that he appreciates his life in Canada, and that he would not do anything to further jeopardize his Canadian residency.

[31] As the Crown has noted, the drug trafficking was coupled with a home takeover, and this is a very aggravating circumstance. My colleague Justice Pierce has clearly set out the impact of the drug trade upon this community.

[32] But for the immigration consequences in this case, I would have imposed a sentence of incarceration, as suggested by the Crown, to denounce and deter this conduct. However, I must also consider rehabilitation, and I am satisfied that the threat of deportation will deter Mr. Buckley from further criminal activity.

[33] Therefore, I accept the submissions of counsel for Mr. Buckley that a two-year less a day conditional sentence order with the following terms, followed by two years of probation, meets the sentencing objective of denunciation, deterrence, and rehabilitation:

General Terms

• Keep the peace and be of good behavior;
• Appear before the court when required to do so;
• Notify the Court or your CSO supervisor in advance of any change of name or address;
• Do not possess any weapons as defined by the Criminal Code. This includes any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance;
• Do not possess any controlled substance except with a valid prescription in your name;
• Do not contact directly or indirectly Patrick Elvish by any physical, electronic, or other means; and
• Do not be within 100 metres of anywhere you know Patrick Elvish to live, work, or otherwise be.

Reporting Terms

Report by telephone to a conditional sentence supervisor: within 2 working days; and thereafter at all times and places as directed by the conditional sentence supervisor or any person authorized by a conditional sentence supervisor to assist in your supervision.

First Eight Months of Conditional Sentence Order Term

For the first eight months of your conditional sentence order you will remain in your residence or on the property of your residence at all times except:

• on Saturdays between the hours of 1 p.m. to 4 p.m. in order to acquire the necessities of life;
• for any medical emergency involving you or any member of your immediate family (e.g., parent, partner, sibling, or child);
• while travelling directly to, directly from and while attending at your pre-scheduled legal, medical, physiotherapy, or dental appointments;
• while travelling directly to, directly from and while attending at any prescheduled assessments, counselling sessions or treatment programs;
• while travelling directly to, directly from and during the course of your employment, only if you have provided proof of employment in advance to your conditional sentence supervisor;
• while travelling directly to, directly from and while attending at your place of education only if you have provided proof of enrollment in education in advance to your conditional sentence supervisor;
• for the purpose of picking up and dropping off your children at daycare or school, only if you have provided proof of enrollment of your children in daycare or school to your conditional sentence supervisor;
• For any other reason with the prior dated written approval of your conditional sentence supervisor to be carried with you at all times while out of your residence during house arrest hours;
• for carrying out any legal obligations regarding compliance with this conditional sentence order; and
• for the purpose of attending court when required to do so.

Months Nine to Sixteen of Your Conditional Sentence Order Term

For months nine to sixteen of your conditional sentence order, you will remain in your residence or on the property of your residence between the hours of 11 p.m. to 6 a.m. daily, except:

• for any medical emergency involving you or any member of your immediate family (e.g., parent, partner, sibling, or child);
• while travelling directly to, directly from and during the course of your employment if you have provided proof of employment in advance to your conditional sentence supervisor;
• with the prior dated written approval of your conditional sentence supervisor to be carried with you at all times while out of your residence during curfew hours; and
• for carrying out any legal obligations regarding compliance with this conditional sentence order.

Probation Terms

Duration: 2 years

Statutory terms:

• Do not contact directly or indirectly Patrick Elvish by any physical, electronic, or other means.
• Do not be within 100 metres of anywhere you know Patrick Elvish to live, work, or otherwise be.
• Do not possess any controlled substance except with a valid prescription in your name.

[34] The following ancillary orders are mandated: there will be a weapons prohibition under s. 109 of the Criminal Code for 10 years, and an order that Mr. Buckley provide a DNA sample. A forfeiture order will issue for the controlled substances and cash.

W. D. Newton

Released: January 15, 2025

References

1. R. v. Burnett, 2013 ONSC 5536.
2. R. v. Luu, 2015 ONSC 4616.
3. R. v. Schneider, 2007 BCCA 560.
4. R. v. Parker, 2024 ONSC 3964.
5. Criminal Code, R.S.C., 1985, c. C-46.
6. Burnett, at para 47.
7. Luu, at para. 24.
8. Luu, at para. 32.
9. Schneider, at paras. 22–23.
10. R. v. Buckley, 2024 ONSC 3948.