Court File and Parties

Court File No.: CR-24-20000677-0000
Date: 2025-05-13
Ontario Superior Court of Justice

Between:
His Majesty the King – and – O’Neil Freeman

Appearances:

• Sonya Andersen, for the Crown
• Susanna Chung-Alvarez, Counsel for O’Neil Freeman

Heard: February 10 and April 3, 2025
Judge: Catherine Himel

Reasons for Sentence

Introduction

[1] O’Neil Freeman entered a plea of guilty to two counts of possession of cocaine for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 as amended (“ CDSA ”). He had elected to be tried by a judge sitting alone.

[2] The plea inquiry pursuant to s. 606(1) of the Criminal Code, R.S.C. 1985, c. C-46, as amended was satisfied. Mr. Freeman confirmed that he was entering this plea voluntarily, that he understood that the plea was an admission of the essential elements of the offence, that he was aware that he was giving up his right to have a trial, that he understood the nature and consequences of the plea, and that he was aware that this court was not bound by any agreement made between counsel regarding the sentence. I was also advised that Mr. Freeman is a Canadian citizen and there are no immigration consequences for convictions on these offences.

[3] Counsel have made their submissions on sentence. The following are my reasons for sentence.

FACTUAL BACKGROUND

[4] The Crown filed an Agreed Statement of Facts which was made an exhibit. The charges against Mr. Freeman stem from a Criminal Code search warrant executed at his residence, unit 302-130 Canon Jackson Drive, Toronto, on April 27, 2023. Along with other items, police seized cocaine and digital scales in the apartment and on Mr. Freeman’s person. The specific substances possessed by Mr. Freeman are set out in the Agreed Statement of Facts and are referenced below. Toronto Guns and Gangs officers conducted an investigation and identified 130 Canon Jackson Drive, unit 302 Toronto as an associated residence and a white Jeep Cherokee as a vehicle of interest.

[5] Police conducted surveillance and obtained building surveillance videos from 130 Canon Jackson Drive for April 25 to 27, 2023. They made multiple observations of individuals who were later arrested in unit 302 and the Jeep Cherokee.

[6] Police identified and connected O’Neil Freeman (date of birth 1992-01-17) and Romane Ranger (date of birth 1992-05-23) and Brandin Tancredi (date of birth 1987-14-11) to the associated residence and vehicle of interest. Police maintained surveillance while awaiting search warrants for those locations. The warrants were issued at 11:00 p.m. on April 26, 2023.

[7] One team of officers conducted the arrest of Mr. Ranger and Mr. Tancredi. Another team arrested Mr. Freeman. Before the search warrants were executed, building video records that, around midnight on April 27, 2023, Romane Ranger and Brandin Tancredi took the elevator from the floor of unit 302 and left 130 Cannon Jackson Drive through the main lobby doors. They walked to the Jeep Cherokee and drove away under surveillance to the area where Mr. Ranger’s girlfriend lived.

[8] Officers followed the Jeep to the area of Markham Road south of the 401. When police stopped the vehicle shortly before 1:00 a.m., there were three occupants: Mr. Tancredi, Mr. Ranger and Mr. Ranger’s girlfriend. The girlfriend was released unconditionally from the scene. Mr. Ranger and Mr. Tancredi were arrested, and the vehicle was searched. No contraband was found in the vehicle or on its occupants. However, a labelled container of medication prescribed to Romane Ranger on April 20, 2023 was found. Prescription documentation corresponding to this was found in the kitchen of unit 302-130 Canon Jackson Drive during the execution of the search warrant.

[9] Police executed the search warrant on unit 302-130 Canon Jackson Drive at 12:55 a.m. on April 27, 2023. Three people were inside: O’Neil Freeman, Owayne Wynter and Lashana Ballentine-Dunkley. They were all in the living room on the couch. Earlier they were seen on 130 Canon Jackson Drive building videos with Romane Ranger and Brandin Tancredi.

[10] Unit 302-130 Canon Jackson Drive is a small two-bedroom condominium. The living room and kitchen share the same living area. The couch is close to the kitchen island and cupboards.

[11] During the search of unit 302, cocaine was found in the kitchen and a bedroom in separate bags. A digital scale was on the kitchen counter along with other items; another scale was in the cupboard. The bags of cocaine seized from unit 302 had different compositions. Some were pure; some were mixed with phenacetin; some were mixed with levamisole. Another drug cutting agent was found in the kitchen, dimethyl sulphone, a non-controlled substance. It was in a bag with a smaller bag of pure cocaine.

[12] Police located $13,600 under a bed in a clear bag in a shoe box. It was divided into two bundles. One bundle was 200 $50 bills. The other bundle was 175 $20. bills and $10. bills. Police found in the closet of the bedroom 3 bags of cocaine: one bag contained 181.65 grams of pure cocaine, one bag contained 250.56 grams of cocaine-phenacetin mix; and one bag contained 37.01 grams of cocaine-levamisole mix. In the same closet, police found a tiger-pattern Gucci satchel. Within the satchel were documents in O’Neil Freeman’s name including mail dated October 2022 from Employment and Social Services addressed to Mr. Freeman at his previous address at 4-220 Atwell Drive, Etobicoke. The tiger satchel in the closet also contained the current lease for the premises being searched.

[13] Mr. Freeman rented 130 Canon Jackson Drive, unit 302, Toronto for $500 a month on October 31, 2022. The lease he signed was for a one-year period which began on November 1, 2022. He was the only listed occupant and paid first and last month’s rent. The kitchen of unit 302 contained identifiable documents and items belonging to O’Neil Freeman, Brandin Tancredi and Romane Ranger in the proximity of the seized cocaine.

[14] Police found paperwork in the name of Romane Ranger in the kitchen cupboard area beside the fridge. It was a prescription document dated April 20, 2023, for a filled prescription for an antibiotic, the same as the medicine found in the Jeep.

[15] A Western Union receipt dated January 20, 2023, in O’Neil Freeman’s name was found in the kitchen in a drawer across from the cupboard where the cocaine was found.

[16] The substances seized from the kitchen in unit 302 were found in a lower kitchen cupboard inside a plastic bag on the lower shelf. Inside that bag, police found 4.2 grams of pure cocaine and 35.72 grams of dimethyl sulphone. The cupboard also contained another scale, Gucci satchel, documents, and receipts.

[17] The Gucci satchel, also found on the lower shelf of the cupboard, held paperwork in the name of Brandin Tancredi. They were: a Minister of Finance receipt/vehicle transfer declaration, dated February 7, 2023 which records a vehicle transfer from Sheel Keen to Brandin Tancredi and a Minister of Finance receipt/vehicle transfer declaration dated February 14, 2023 which records a vehicle transfer from a numbered company to Brandin Tancredi.

[18] Other documents in that cupboard on the lower shelf included an airplane boarding pass and credit cards in the name of O’Neil Freeman, two current Mastercards and an expired one (2021).

[19] After Mr. Freeman was arrested, police conducted a frisk search for weapons and evidence. The search is captured by police cruiser video. In Mr. Freeman’s pant pockets, police found 4.6 grams of cocaine and a small scale coated with pink powder. The cocaine was mixed with the same substance as that found in the main bedroom. Mr. Freeman acknowledges he was in personal possession of this cocaine for the purposes of trafficking it.

[20] Of the substances seized in unit 302, O’Neil Freeman admits he was in possession of the following for the purpose of trafficking: a. the powder substances found in the kitchen of unit 302 130 Canon Jackson Drive, specifically 4.2 grams of pure cocaine and 35.72 grams of dimethyl sulphone and b. the bag containing 37.01 grams of cocaine-levamisole mix found in the bedroom.

[21] Mr. Freeman does not acknowledge possession of the other controlled substances seized at unit 302-130 Canon Jackson Drive, nor does the Crown attribute or seek to attribute possession of those substances to Mr. Freeman.

[22] While it is acknowledged that police seized a bag containing 181.65 grams of pure cocaine and a bag containing 250.56 grams of cocaine phenacetin mix from unit 302, the possession of those substances is not being attributed to Mr. Freeman in this Agreed Statement of Facts or in relation to his pleas of guilt.

[23] On the basis of these facts and the admission of the defence, I found Mr. Freeman guilty of the offences of possession of cocaine for the purpose of trafficking.

EVIDENCE ON THE SENTENCING HEARING

[24] The Agreed Statement of Facts was filed as an exhibit. Crown counsel submitted the criminal record of Mr. Freeman. On November 18, 2013, he was found guilty of trafficking in a Schedule I substance and sentenced to 18 months conditional sentence and 6 months of probation and a s. 109 order. On January 23, 2015, he was convicted of two counts of trafficking in a Schedule I substance and sentenced to 15 months consecutive to the sentence being served and 12 months of probation and a s. 109 order.

[25] Ms. Andersen also provided the court with a copy of the release order that Mr. Freeman entered into on May 8, 2024 which provided that he be released from custody with two named sureties: Shenel Keen, with a recognizance in the amount of $4,000, and Clinton Davis, with a recognizance in the amount of $5,000. The conditions included house arrest and electronic monitoring. He was permitted to leave the home for medical emergencies, while in the presence of one of his sureties and to attend court. He was not permitted to contact his co-accused, possess any weapons and not to apply for a licence or authorization to possess weapons.

[26] Counsel for the defence filed a Sentencing Compendium which contained a number of documents concerning Mr. Freeman. Included was a news article from the New Yorker magazine entitled “A Massacre in Jamaica” which detailed the deaths of a number of persons in the neighbourhood of Tivoli Gardens in West Kingston, Jamaica in May 2010. Mr. Freeman’s father Radcliffe (Mickey) Freeman who was described as a “hardworking carpenter and a family man” was shot dead sometime between May 23 and 25, 2010. It was estimated that 74 people were killed in the operation to arrest Christopher Coke and extradite him to the United States. He was ultimately arrested in June, extradited to the United States, and held in jail. The second document was a news article from the Jamaican Star which said that a 20-year-old man was arrested for killing three people including a businesswoman at Rocky Point.

[27] The defence filed the death certificate for Radcliffe Freeman (Mr. Freeman’s father), the funeral service receipt for Mitsil Burton and a Memorial Service program for Mitsil Burton who had died in Rocky Point, Clarendon, Jamaica.

[28] Ms. Chung-Alvarez submitted letters concerning Mr. Freeman’s child, Currensy Freeman, who was diagnosed with Autism Spectrum Disorder and Attention Deficit Disorder. The school’s observations of Currensy are outlined in a letter dated February 6, 2025. Mr. Freeman arranged for an assessment to be done by Pivotal Kids Clinic on February 18, 2025. That report details Currensy’s issues which include difficulty to verbally communicate, frustration, an extremely short attention span and that he struggles with impulsive behaviours. It was recommended that he receive support with social communication and restricted and repetitive behaviours and that they consult with the Speech-Language Pathologist to advance his speech and language skills. A letter sent by Pivotal Kids Clinic on February 18, 2025 recommended referral to Applied Behaviour Analysis and placement on the waitlist for the Ontario Autism Program.

[29] Counsel for Mr. Freeman provided the court with documents that showed that Mr. Freeman completed a parenting course provided by “Up to Parents”, that he completed his high school education with the Canadian College of Business, Science and Technology and that he completed a flooring installation workshop offered by the Canadian Institute of Management and Technology. Also submitted was a letter from Tavain Hinds, owner of New Age Renovations, a company that he says has been in business since 2007 doing demolitions and renovations of commercial and residential properties. Mr. Hinds has known Mr. Freeman since 2008. He is prepared to hire Mr. Freeman and says that he would be under his supervision, would go from site to site as a general labourer/floorist. The hours would be 7:00 a.m. to 5:00 p.m. Monday to Friday. Mr. Hinds’ letter is undated, but counsel says she received it in late March 2025.

[30] Also submitted to the court are four letters of reference. The first is from Cindy Bonnick who was a childhood friend of Mr. Freeman’s mother Mitsy. She described Mr. Freeman’s very difficult childhood which is referenced below. She said that Mr. Freeman was staying with her family when they learned that his mother was shot and killed in Jamaica on May 27, 2011. After that, she says she felt Mr. Freeman was not seeing clearly or thinking clearly and that is when he had his first charge as an adult. Despite his childhood, she describes him as “thoughtful, family oriented, ambitious and very hands on with construction and other things he finds passion for…” The second letter is from Sashalee Chambers, a cousin of Mr. Freeman, who also says that Mr. Freeman “faced homelessness, poverty and many other socioeconomic challenges that often led to him ending up in high-risk neighbourhoods and situations.” She wrote that he “has shown remorse and a sincere desire to make amends.” The third letter is from Allison Holness who is also a cousin of Mr. Freeman’s, and she confirms the difficulties he faced as a child but also described that he “is a loving, caring, and hands on father” Shenel Kamariha Keen is Mr. Freeman’s partner and the mother of Currensy. She described how Mr. Freeman has become a father to her older son, that he is strong although he went through a lot of trauma and that he is very close to their son who has autism. She works for the TTC and relies on the support of Mr. Freeman to their family.

[31] Finally, Mr. Freeman wrote a letter to the court outlining his background in detail. I will discuss this information when I outline the circumstances of the offender.

POSITIONS OF THE PARTIES

[32] Crown and defence counsel join in their submission to the court that an appropriate sentence in this case is as follows: for the offence of possession of cocaine for the purpose of trafficking (count #2) involving the 4.6 grams of cocaine found on Mr. Freeman’s person, the sentence should be 1 day plus credit for time served of 13 months which at 1.5:1 would be 19.5 months of custody. For the offence of possession of cocaine for the purpose of trafficking (count #1), an appropriate sentence is one of 2 years less one day served as a conditional sentence with the first 12 months being house arrest with exceptions and the next 12 months involving a curfew, that there should be a s. 109(3) order for life and an order pursuant to s. 487.051 that a sample of Mr. Freeman’s DNA be taken.

[33] Crown counsel advises the court that Mr. Freeman is not a first offender but that the previous offences took place in 2013 and 2015 and that the “gap principle” should apply. Ms. Andersen agrees with the defence that no sentencing principle would be achieved by incarcerating Mr. Freeman further. She acknowledges the gravity of the offences but recognizes that the impact on his family of re-incarcerating him would be very difficult particularly because of his role in the upbringing of his 5-year-old child who has significant challenges. Ms. Andersen also recognizes that Mr. Freeman has taken course to rehabilitate himself but hopes that he will take counselling to deal with a high parenting needs child and that he will pursue employment. While the sentence proposed is not typical for an offence of this kind, in the circumstances of this particular case, a conditional sentence is appropriate. In addition to the s. 109 order for life and the order for a DNA sample to be taken, Crown counsel asks the court to grant a forfeiture order for the contraband (gun, ammunition, scales, drug paraphernalia and drugs as well as the $13,600 found in the apartment).

[34] Ms. Andersen submits that a period of house arrest for 12 months with exceptions for work, provided that the hours and dates and places for work are outlined, the specifics of schooling, the times to take his child to school and programs are all approved in advance by the Conditional Sentence Supervisor.

[35] Counsel for the defence asks the court to impose the sentence outlined above in light of Mr. Freeman’s background and his prospects for rehabilitation. She says that Mr. Freeman has pleaded guilty to the offences and taken responsibility for his actions. Counsel submits that Mr. Freeman spent 13 months in custody at the Toronto South Detention Centre which is notorious for its harsh conditions. It is an appropriate sentence for the offence of possession of cocaine for the purpose of trafficking that he receive credit at 1.5:1 for the 13 months of incarceration and this would equal 19.5 months of imprisonment. A conditional sentence is an appropriate sentence for the other offence, particularly because Mr. Freeman has been under house arrest for 11 months and permitted to leave his house for emergencies or in the company of his surety and there have been no breaches. His counsel highlights the steps he has taken towards his rehabilitation including taking courses and becoming actively involved in his son’s life and in the life of his stepson.

[36] Ms. Chung-Alvarez submits that Mr. Freeman acknowledges the seriousness of the offences, he has shown remorse, he has pleaded guilty and relieved the court system of the necessity of extensive pre-trial motions and a jury trial where there were triable issues. She argues that he has experienced very difficult circumstances during his life and has had to overcome systemic factors. She notes that no enhanced pre-sentence report is before the court but that there is evidence showing the difficult circumstances of his background: R. v. Morris , 2021 ONCA 680 . Counsel points to the case of R. v. Goodridge , 2022 ONCJ 139 (Ont. Ct. of Justice), at paras. 35 , 36 and 43 to argue that where there is evidence of poverty, loss, homelessness, and financial pressures, that should be taken into account in imposing sentence. Mr. Freemans’s criminal record is dated, and the gap principle should apply such that it should have little, if no weight, in determining the sentence. She refers to R. v. Ahmed , 2021 ONSC 8157 , where the accused had a substantial record for serious offences including a prior possession of a gun and the court quoted R. v. Milani , 2021 ONCA 567 at para. 68 which noted that it is an error to fail to apply the gap principle where there is no conviction for several years. The court referenced the rationale for the gap principle in R. v. Singh , 2012 ONSC 30 , 286 C.C.C. (3d) at para. 182. She argues that the objectives of sentencing are better served by promoting rehabilitation in his case.

[37] Ms. Chung-Alvares requests that during the conditional sentence, Mr. Freeman should be under 12 months of house arrest but permitted to work, attend counselling, medical appointments, appointments with his lawyer, to do errands on Saturdays from 12:00 p.m. to 4:00 p.m. and on Sundays to attend religious services from 10:00 a.m. to 1:00 p.m. and to attend any other matters that his supervisor approves. She argues that he has made a genuine effort to improve his situation and to contribute to society.

[38] Defence counsel also asks the court to waive the Victim Fine surcharge given that Mr. Freeman is on Ontario Works and there would be hardship.

ANALYSIS AND THE LAW

[39] Before turning to the specific circumstances of this case, I first consider the general sentencing principles which apply. The fundamental purpose of sentencing is set out in s. 718 of the Criminal Code . It is to ensure respect for the law and to promote a just, peaceful, and safe society. The imposition of just sanctions requires that I consider the sentencing objectives referred to in this section which include denunciation of unlawful conduct, deterrence of the offender and other persons from committing offences, separating offenders from society where necessary, rehabilitation of offenders, providing reparation for harm done to victims or to the community, promoting a sense of responsibility in offenders, and acknowledgement of the harm done to victims and the community.

[40] A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. When imposing sentence, I am to take into account certain factors which may increase or reduce the sentence because of aggravating or mitigating circumstances. The sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. This is known as the principle of parity reflected in s. 718.2(b). Where consecutive sentences are imposed, the combined sentences should not be unduly long or harsh otherwise known as the principle of totality reflected in s. 718.2(c). The offender should not be deprived of liberty if less restrictive sanctions are appropriate and all available sanctions other than imprisonment that are reasonable in the circumstances, should be considered for all offenders, particularly Aboriginal offenders. These are known as the principles of restraint reflected in ss. 718.2(d) and (e).

[41] I now turn to the relevant jurisprudence on sentencing applicable to the offence in this case. In cases involving persons convicted of trafficking and possession for the purposes of trafficking in controlled substances, the courts have ruled that deterrence, and the protection of the public are of paramount consideration. The nature and quantity of the drug are relevant to the issue of sentencing. Whether there is a significant element of commercialism, the role of the offender and the circumstances of the offender are all relevant considerations. In passing sentence, the court may consider the well-being of younger but presently uncommitted potential users of drugs and in so doing, impose a sentence which emphasizes the protection of the public. The court will also look to the circumstances of the offender including whether the offender has an addiction to drugs.

[42] The sentencing decisions for possession for the purpose of trafficking in cocaine highlight that the quantity of the drugs involved, the nature of the transactions and the criminal antecedents of the offender are all relevant considerations. Indeed, the cases emphasize the primary objectives of denunciation and deterrence. Cocaine is a dangerous and addictive drug.

[43] In the case of R. v . Morris , at paras. 79, and 81 , the Ontario Court of Appeal highlighted the principles of denunciation, deterrence, protection of society and rehabilitation and the role of mitigating personal circumstances and the offender’s prospects for rehabilitation. The court took into account the matter of anti-Black racism as a relevant consideration. The court also highlighted the considerable discretion given to sentencing judges to decide how best to blend the various legitimate objectives of sentencing. In Morris , the court also considered the factor where an accused has experienced anti-Black racism but said at para. 97: “There must, however, be some connection between the overt and systemic racism identified in the community and the circumstances or events that are said to explain or mitigate the criminal conduct in issue.”

[44] In the case of R. v. Goodridge , the court sentenced the offender for trafficking crack cocaine and offences related to possession of a loaded firearm and breach of a firearm prohibition. Justice Dumel discussed the use of social context evidence and quoted from Morris at para. 76 which said: “Evidence that an offender’s choices were limited or influenced by his disadvantaged circumstances, however, speaks to the offender’s moral responsibility for his acts and not to the seriousness of the crimes.” The court went on in Morris at para. 79 as follows:

The social context evidence can, however, provide a basis upon which a trial judge concludes that the fundamental purpose of sentencing, as outlined in s. 718, is better served by a sentence which, while recognizing the seriousness of the offence, gives less weight to the specific deterrence of the offender and greater weight to the rehabilitation of the offender through a sentence that addresses the societal disadvantages caused to the offender by factors such as systemic racism.

DECISION

[44] Sentencing involves the exercise of discretion and requires the sentencing judge to consider the individual circumstances of the offender, the circumstances of the offence and the need for the sentence to meet the sentencing objectives outlined by Parliament. The goal of sentencing is to impose a just and fit sentence, responsive to the facts of the individual offender and the particular circumstances of the commission of the offence: see R. v. Wust , 2000 SCC 18 , [2000] 1 S.C.R. 455 at para. 44 . The sentencing process is an individualized one, but the court must remain mindful of the sentencing ranges discussed in the jurisprudence.

[45] In considering both the circumstances of the offence and the circumstances of this offender, I consider the relevant aggravating and mitigating circumstances. I must also consider that like offenders should be treated alike. I consider the following circumstances to be relevant in the case of Mr. Freeman.

[46] Mr. Freeman is 33 years of age and was born on January 17, 1992. He is a Canadian citizen. He resides at 2110 Keele Street, Toronto with his partner Shenel Keen. His parents were Mitsil Burton-Whyte and Radcliffe Freeman. He lived with his father until he was 2 years old at which time, his father was deported to Jamaica. He visited Jamaica in 2009 and saw his father for the last time when he was 9 years old. Mr. Freeman’s mother was the youngest of nine children and was an orphan sent to Canada to be raised by family friends along with some siblings. She was 16 years old when Mr. Freeman was born. Mr. Freeman lived in different homes with his grandmother and later with his mother’s new husband Robert Whyte who immigrated to Canada.

[47] A number of tragedies then ensued. Following Mr. Freeman’s father’s death which occurred during violence that took place in the Tivoli Gardens in Jamaica in 2010, his grandmother died also in 2010. Then on June 16, 2010, he and his mother learned that his stepfather Robert was murdered in Clarendon, Jamaica. A cousin, Courtney Facey was murdered on Weston Road in Toronto on September 28, 2010.

[48] Mr. Freeman was left with a family friend, Cindy Bonnick, when his mother went to Jamaica in April 2011. She was shot more than 20 times at a plaza in Rocky Point, Clarendon. He was 17 years old at the time when his mother was killed. In addition to this, his father’s wife, Marjorie Hinds, was hit by a drone bomb on May 24, 2010, during the Tivoli Gardens massacre and very seriously injured. Mr. Freeman described that, “I still haven’t healed or coped or learned ways to cope because I’ve always been in survival mode since I was an adolescent. However, my time in jail has mostly let me learn and figure out who I am and what I want to accomplish in life.”

[49] Following the deaths of these family members, Mr. Freeman was homeless and left to exist in poverty. He became involved in criminal conduct around that time and has a criminal record for convictions in 2013 and 2015. He has not been convicted of any offences for the last 10 years. Ms. Chung- Alvarez asks the court to consider the factors outlined in R. v. Morris . Although no enhanced pre-sentence report was ordered (one of the concerns was that the report takes a long time to prepare), she references the cases of R. v. Ahmed and R. v. Goodridge where the courts considered the Morris f actors. As discussed above, in Morris , the court noted that where the past hardship including the factor of anti-Black racism is connected to the criminal activity, that is a relevant mitigating factor to be taken into account. In the case of Mr. Freeman, there is substantial evidence before me regarding the experience of poverty, homelessness and loss and such circumstances, in my view, led to his criminal conduct and must be taken into account in the sentencing process.

[50] Mr. Freeman was detained following his arrest in 2023 and spent 13 months in custody, mainly at the Toronto South Detention Centre. He was released from custody on May 8, 2023, with his partner Shenel and his cousin Clinton Davis acting as his sureties. He has been on house arrest with electronic monitoring and subject to strict terms for the previous 11 months. He has only been able to leave the house for medical emergencies, to attend court or while in the presence of his surety. During this time, he has taken significant steps to assist his young son who has special needs and his stepson whose father passed away. Mr. Freeman has taken a parenting course to assist him with being the primary parent for his child who has autism. His partner works for the TTC, and he has had an instrumental role in having their young son assessed. To further his own rehabilitation, he enrolled in a business skills course and a flooring course.

[51] He would like to be able to work with his friend Tavain Hinds who is prepared to hire and supervise him. In the long run, he would like to start a business as a carpenter.

[52] I now turn to the circumstances of the offences. Mr. Freeman entered a guilty plea to count # 2 which relates to possession of 4.6 grams of cocaine for the purpose of trafficking found on Mr. Freeman’s person on his arrest. The second plea is to count #1 which relates to possession of 4.2 grams of cocaine and 35.72 grams of dimethyl sulphone found in the kitchen of unit 302, 130 Canon Jackson Drive and a bag of 37.01 grams of cocaine-levamisole mix found in the bedroom. The Agreed Statement of Facts notes that Mr. Freeman does not acknowledge possession of other controlled substances seized at the apartment nor does the Crown attribute possession of those substances to Mr. Freeman. The substances that were in his possession were clearly for commercial purposes.

[53] Sentences for trafficking or possession for the purpose of trafficking in dangerous substances must emphasize that general deterrence and denunciation are of paramount concern. The effect of the drug is a relevant consideration, and the courts view the negative impact of illicit drugs on users and on society. Each case must be considered in light of its circumstances and the aggravating and mitigating factors. The accused’s prospects for rehabilitation as well as the other sentencing objectives must also be considered.

[54] In the case at bar, there are many factors in mitigation including that Mr. Freeman pleaded guilty to the charges and has demonstrated remorse. He is taking responsibility for his actions. He has saved valuable court resources at a time when resources are scarce because of the aftermath of the COVID-19 pandemic. Mr. Freeman became involved in possessing drugs for the purpose of trafficking clearly for commercial reasons as demonstrated by the amounts, the cutting agents, the paraphernalia, and the amount of currency found in his apartment. He has a related but dated criminal record. In keeping with the rationale behind the “gap principle”, I note that a gap of almost 10 years is relevant to Mr. Freeman’s future risk and rehabilitative potential and that it demonstrates evidence of better prospects for individual deterrence and rehabilitation in my view: see R. v. Singh , at para. 182 , per: Hill J. The circumstances of his disadvantaged background related to anti-Black racism are a mitigating factor that must be considered, and those unique circumstances render an appropriate sentence to be in the under two-year range.

[55] As a result of his arrest, he spent 13 months in custody at the Toronto South Detention Centre. The compelling evidence before me is that he has been on bail for the last 11 months subject to strict conditions and without incident. Clearly, he has the ability to follow court orders and be subject to the court’s supervision.

[56] The sentence of one day plus time served of 13 months which at 1.5:1 would be equal to 19.5 months is in the range for a conviction of possession of cocaine for the purpose of trafficking with reference to the cocaine found on Mr. Freeman’s person.

[57] Regarding the second count, there is no question that a period of imprisonment must be imposed for this offence. However, although aggravating circumstances relating to the offence increase the need for denunciation and deterrence, a conditional sentence may be imposed even if such factors are present. Each case must be considered individually: see R. v. Proulx , 2000 SCC 5, [2000] 1 S.C.R. 61, 140 C.C.C. (3d) 449. Section 742.1 of the Code provides that if the court is satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in s. 718 to 718.2 of the Code, a conditional sentence may be imposed provided it does not fall in one of the listed categories in (b) through (f). Proulx highlights that a conditional sentence is available for all offences in which statutory pre-requisites are satisfied and that a conditional sentence can provide a significant amount of denunciation and deterrence particularly when onerous conditions are imposed. As was stated by the Supreme Court, when the objectives of rehabilitation, reparation, and promotion of a sense of responsibility may realistically be achieved, a conditional sentence will likely be the appropriate sanction, subject to considerations of denunciation and deterrence.

[58] I again emphasize that it is a principle of sentencing that an offender should not be deprived of liberty if less restrictive sanctions may be appropriate and that “all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, particularly Aboriginal offenders.” I further note the comments made in R. v. Morris at para. 80 as follows: “If the sentencing judge determines that the range of sentence for the particular offence and offender includes a two-year sentence, and that probation would assist the offender’s rehabilitation, the restraint principle favours imposing a sentence of no more than two years, even if a somewhat longer period of incarceration would also fall within the appropriate range.”

[59] In light of Mr. Freeman’s role in the offences which involved being in possession of cocaine for the purpose of trafficking, that he had a dated criminal record, that he has pleaded guilty where there were triable issues and demonstrated remorse, that he had an extremely difficult childhood and a background filled with tragedy, grief, poverty, homelessness and despair, I am of the view that an appropriate sentence is one of two years less one day served in the community as a conditional sentence. There is no statutory bar to imposing a conditional sentence; it would still provide a significant amount of denunciation and deterrence and serving the sentence in the community would not endanger the community’s safety and would be consistent with the fundamental purpose and principles set out in s. 718 of the Code.

[60] As a result, for the offence in count #2, I agree that credit for pre-sentence custody should be given at 1.5:1 in accordance with R. v. Summers, [2014] S.C.R. 575 which would equal 19.5 months.

[61] With reference to count #1, Mr. Freeman has been on bail for 11 months under strict house arrest and without incident. In R. v. Downes , [2006] O.J. No. 555, (2006) 79 O.R. (3d) 321 (C.A.) Justice Rosenberg of the Ontario Court of Appeal wrote that time spent while on stringent bail conditions is a relevant mitigating factor that a sentencing judge must consider: see para. 37. The court is to look at the factors of the length of time on bail subject to the conditions, the stringency of the conditions, the impact on the offender’s liberty and the offender’s ability to carry on normal relationships, employment, and activity. The judge has discretion to determine the impact of such mitigation. There is no set formula for credit. The conditions of Mr. Freeman’s release over the past 11 months have been stringent. He has been on an ankle monitor and only permitted to leave his home in the presence of a surety or because of medical emergencies or to attend court. I consider the time spent on strict terms of judicial interim release for almost one year and his compliance with those terms as a mitigating factor. That is what leads me to exercise my discretion and conclude that a sentence of 2 years less one day served as a conditional sentence is appropriate in these exceptional circumstances.

[62] In summary, a sentence for these offences must emphasize denunciation and deterrence. The sentence must recognize that Mr. Freeman had possession of a significant amount of cocaine for the purpose of trafficking. I am mindful that there are cases that support a sentence in a higher range. Those cases may be distinguished from the case at bar. I am of the view that the objective of rehabilitation can best be met by not returning Mr. Freeman to a jail setting. His criminal record is dated and the gap principle applies: see R. v. Milani . He is needed by his children and his partner. He is capable of becoming a productive member of society. As Proulx emphasizes at para. 126 , a “carefully fashioned conditional sentence that is responsive, both to the needs of denunciation and deterrence and the rehabilitative potential of the offender” may be appropriate in some situations. Further, the determination of a just sentence is a highly individualized exercise: see R. v. Lacasse , 2015 SCC 64 , [2015] 3 S.C.R. 1089, at paras. 57 and 58 .

RESULT

[63] In summary, I consider the sentencing principles outlined in s. 718 of the Code and the circumstances of the offender and the offences. I am very mindful of the words of Justice Moldaver in R. v. Anthony-Cook, 2016 SCC 43 , [2016] 2 SCR 204, where he explained that there is good reason for acceding to the joint submissions of counsel as both the accused and Crown counsel rely on joint submissions for certainty in the resolution of a case. Joint submissions play a vital role in contributing to the administration of justice and “Without them, our justice system would be brought to its knees, and eventually collapse under its own weight”: at para. 41. In my view, this joint submission is made by experienced counsel who have arrived at a resolution which is fair and consistent with the public interest, and I endorse it.

[64] Mr. Freeman shall be sentenced as follows: for the offence of possession of cocaine found on his person for the purpose of trafficking (count #2), he shall be sentenced to one day in addition to the time served of 13 months which at 1.5:1 in accordance with R. v. Summers would equal 19.5 months.

[65] For the offence in count #1, the sentence is 2 years less one day of imprisonment which shall be served in the community as a conditional sentence. This offence is not punishable by a minimum term of imprisonment and the sentence I impose is less than two years. Thus, the statutory requirements are met. I am satisfied that the safety of the community would not be endangered by the offender serving the sentence in the community and a conditional sentence would be consistent with the fundamental purpose and principles set out in ss. 718 to 718.2. The conditions I impose are as follows: in addition to the statutory conditions in s. 742.3, Mr. Freeman must report to his supervisor forthwith and attend as often as his supervisor deems appropriate. He shall reside at 2110 Keele Street, Unit 202, Toronto, Ontario, or such address as approved by his supervisor. He shall be under house arrest for the first twelve months of the conditional sentence and shall only leave the house for the purpose of attending appointments with his supervisor, to attend counselling, to attend medical appointments for himself or members of his immediate household, to attend for school or work provided the dates, times and places are approved by his supervisor, to take his child to school or programs provided the times are approved by his supervisor, to shop once each week for four hours on a date and time approved by his supervisor and to attend on the weekend from 10:00 a.m. to 1:00 p.m. for religious services as permitted and scheduled by the conditional sentence supervisor. In any event, he shall be in the house between the hours of 10:00 p.m. and 6:00 a.m. each day for seven days each week.

[66] For the remaining months of the conditional sentence, he shall be permitted to leave his residence, but he shall be subject to a curfew between the hours of 10:00 p.m. to 6:00 a.m. each day for seven days each week. The only exceptions are for medical emergencies for himself or a member of his household or with the prior approval of his supervisor. During the entire period of the conditional sentence, he shall attend counselling, educational training or work as directed by his supervisor and sign any necessary releases; he shall abstain from owning, possessing, or carrying a weapon and he shall not apply for or possess a firearm acquisition certificate or gun licence.

[67] I further make an order under s. 109 prohibiting Mr. Freeman from possessing any weapon as defined by the Criminal Code for life. I also order that Mr. Freeman provide a sample of his DNA pursuant to s. 487.051(3) of the Criminal Code. Finally, there will be an order of forfeiture of the cash and contraband seized by police at the time of the arrest. In light of the circumstances of hardship of the offender, there will be an order waiving the Victim Fine Surcharge.

Catherine Himel
Released: May 13, 2025