Court File and Parties

Court File No.: CR-22-691 Date: 2025-08-28 Ontario Superior Court of Justice

Between: His Majesty the King – and – Markel Banks

Counsel:

• Mr. C. Bond, for the Federal Crown, Public Prosecution Service of Canada
• Ms. K. Schofield and Ms. R. Singh, for Mr. Banks

Heard: June 23, 2025

Reasons for Sentence

Conlan J.

I. The Circumstances of the Offences

[1] Markel Banks ("Banks") has pleaded guilty to and been found guilty of two offences: (i) possession of cocaine for the purpose of trafficking contrary to section 5(2) of the Controlled Drugs and Substances Act and (ii) possession of property (money, of a value exceeding five thousand dollars) knowing that the said property was obtained by the commission in Canada of a criminal offence punishable by indictment contrary to section 354(1)(a) of the Criminal Code.

[2] The quantity of cocaine involved was 682.37 grams. The amount of money involved was $30,733.00.

[3] The following is taken from the statement of admitted facts filed on the guilty pleas and from the photographs that were entered by the Crown at the time of sentencing submissions.

[4] In July 2020, the Guelph Police Service Drug Enforcement Unit was investigating two other persons and their suspected drug trafficking activity. A search warrant was executed at an address on Liverpool Street in Guelph on July 30, 2020. The two suspects were arrested inside the residence.

[5] While police were searching the residence, Banks arrived at the property in a motor vehicle. Banks was observed by the police entering the building and then entering the residential unit in question. He was arrested by the police and searched. From his person, two cellular telephones and $360.00 in cash were seized. Police also searched the motor vehicle that Banks had just driven to the location. They seized from the motor vehicle 682.37 grams of cocaine with a purity value of 98%, a total of $30,733.00 in cash, 32 percocet pills, drug packaging materials, a scale, an expandable metal baton, three cellular telephones, Banks' wallet, and 27.32 grams of fentanyl or a fentanyl and heroin mix.

[6] The same motor vehicle that Banks had driven to the location on July 30, 2020 had been seen by the police during surveillance on June 23, July 28, and July 29, 2020. Banks was identified as being associated with that motor vehicle on July 29th.

[7] Police later obtained a search warrant for the cellular telephones that had been seized from Banks and from one of the principal targets of the investigation who had been arrested inside the residence on July 30th, a man named Mascola. Police found text messages from July 28, 29, and 30, 2020 that suggested to them that Banks had delivered drugs to Mascola on those dates.

[8] If sold at the gram level, police estimate the value of the cocaine seized from Banks' motor vehicle at approximately $69,200.00.

II. The Circumstances of the Offender

[9] The following is taken from the enhanced presentence report and from the other materials that were filed by the defence at the time of sentencing submissions.

[10] Banks is a Canadian citizen and a 39-year-old first offender with no prior criminal history. He is a Black man of Jamaican descent and the father of two children – a 20-year-old daughter from a previous relationship and a 3-year-old daughter with his current girlfriend.

[11] Banks had a tumultuous upbringing. His father was verbally and physically abusive to Banks, his siblings, and his mother. On at least one occasion, Banks had to contact the police because of his father's aggression, resulting in the police having to attend at the family home to arrest Banks' father.

[12] Banks' parents were divorced when he was a young adult.

[13] Banks had his first child when he was just 19 years of age. When his relationship with the mother of that child ended, Banks continued to be actively involved in his daughter's life.

[14] Banks' 20-year-old daughter describes Banks as being reserved, hardworking, and very supportive of her. She suspects that Banks is depressed about his current legal matters, and she is worried about his mental health.

[15] Banks' current relationship began in 2020. His present girlfriend describes Banks as being an amazing and caring father.

[16] Banks' upbringing was in a low-income neighbourhood where the majority of residents were, and still are, racialized and Black. Police have always occupied a regular presence in the area. As a youth, Banks had been the subject of suspected racial profiling by the police on several occasions, including being stopped for no reason while walking home from school, being stopped for no reason and having his money after cashing his pay cheque taken away from him, and being pulled over for traffic stops that never resulted in any traffic or other charges being laid against him.

[17] From the time that he was a teenager until the COVID-19 pandemic, Banks had a fairly steady employment history. Since 2020, however, he has struggled financially. He applied for social assistance. He has been trying to obtain his General Education Diploma. He and his brother began a demolition business. That business, Mission Demolition, still exists today but has limited contracts.

[18] Banks has described that his unemployment and his financial troubles that coincided with the COVID-19 pandemic contributed to his decision to get involved with the trafficking of cocaine. He told the author of the enhanced presentence report that he regrets his decision to turn to criminality instead of waiting for another employment opportunity.

[19] Banks has struggled with alcohol abuse during his lifetime. He now attends Alcoholics Anonymous meetings.

[20] The author of the enhanced presentence report, Michelle Richards, has twenty years of experience conducting psychosocial interviews, preparing clinical assessments and recommendations, performing case management, developing therapeutic interventions, delivering equity training, and working with policy development. She has a Bachelor of Arts degree, a Bachelor of Social Work degree, a Master of Social Work degree, and she is the senior assessor with The Sentencing & Parole Project in Toronto.

[21] In the assessment of Ms. Richards, Banks was open and honest with her. He admitted to his shortcomings, accepted full responsibility for his criminal conduct, expressed genuine regret for his actions that led to the charges before the court, and expressed a willingness to continue to seek professional help in the future. He is a "good candidate for rehabilitation", in the eyes of Ms. Richards.

[22] Ms. Richards concludes her report by observing that Banks is very familiar with systemic racism given his past experiences with both the police and with anti-Black racism in the labour market. She is hopeful for his future, however, and she has outlined some specific recommendations for resources that could benefit Banks going forward.

[23] Apart from Ms. Richards' report, the defence has filed some other materials on sentencing. Those materials include:

• numerous certificates of attendance issued to Banks from 12 Step Online, a program for recovering alcoholics;
• a reference letter from Omar Francis of Mission Demolition;
• a lengthy written allocution on behalf of Banks personally;
• proof that Banks has enrolled in a civics and citizenship course in order to obtain his General Education Diploma; and
• some fifteen other references letters written by family members, friends, volunteer organizations such as Malton Moms, and other members of the community attesting to Banks' general good character and positive attributes.

[24] Finally, it should be noted that Banks spent six actual days in custody (July 30 to August 4, 2020) after his arrest and before being released on bail. He then spent 581 days on a strict house arrest bail (August 4, 2020 to March 7, 2022) and then a further 1067 days on a curfew bail (March 7, 2022 to February 6, 2025).

III. The Sentencing Positions of the Crown and the Defence, the Court's Imposition of Ancillary Orders, and the Paramount Principles of Sentencing for this Offender, on these Facts

[25] The Crown requests the following:

• forfeiture order – on consent of the defence and already signed by this Court on the date of the sentencing hearing;
• secondary DNA order – on consent of the defence and hereby issued by this Court;
• section 109 Criminal Code firearms and weapons prohibition order for 10 years and life as per the two subsections – on consent of the defence and hereby issued by this Court;
• victim fine surcharges – hereby issued by this Court for each of the two convictions, with six months granted for payment; and
• imprisonment for five (5) years.

[26] In oral submissions, the Crown focussed on the nature of the narcotic in question, cocaine being a very serious Schedule I controlled substance; the fact that Banks appears to have been a mid-level person involved in this distribution scheme and not merely a street-level dealer; the submission that there is nothing particularly devastating, tragic, or significantly problematic about this enhanced presentence report; the submission that Banks was engaged in a pattern of illegal drug trafficking activity; the submission that this criminal conduct by Banks was not because of addiction but rather for purely commercial gain; and the fact that Banks was arrested and charged with further drug offences and a breach of recognizance in February 2025.

[27] In terms of general principles in hard narcotics sentencing cases, the Crown relies upon the decision of the Supreme Court of Canada in R. v. Parranto, 2021 SCC 46, [2021] 3 S.C.R. 366.

[28] On the general range of sentence in this type of case, the Crown relies on the decision of the Court of Appeal for Ontario in R. v. Bajada, 173 C.C.C. (3d) 255, and further the Crown relies upon the decision of Justice Code in R. v. Graham, 2018 ONSC 6817.

[29] The following is taken from Bajada at paragraph 13:

It would appear that sentences of five to five and one half years are not uncommon for possession of a substantial amount of cocaine for the purposes of trafficking following an accused's plea of guilty or where the accused has no prior record. See e.g. R. v. Marton, [1980] O.J. No. 868 (C.A.); R. v. Molino (1987), 2 W.C.B. (2d) 391 (Ont. Dist. Ct.); R. v. Charles, [1997] O.J. No. 2247 (Gen. Div.); R. v. Cummings, [1990] O.J. No. 2747 (Dist. Ct.); R. v. Jones (1999), 133 C.C.C. (3d) 1 (Ont. C.A.). In R. v. Finlay and Grelette, [1985] O.J. No. 2173 (C.A.), referred to above, this court imposed a sentence of six and a half years on an offender with one minor criminal offence fifteen years earlier, having regard to his position in the drug hierarchy which was close to the level of an importer. Longer sentences were upheld in R. v. Boughner, [1999] O.J. No. 5449 (Sup. Ct.), aff'd, [2002] O.J. No. 2181 (C.A.) where, in addition to credit of 14 months for 5 months of pre-trial custody, the appellant was sentenced to five and a half years imprisonment for possession of 66 grams of 74% pure cocaine for the purpose of trafficking and possession of money derived from the commission of an offence. An aggravating factor was evidence that the appellant had been trafficking in cocaine over the preceding one and a half years. He also had three prior convictions for possession of a narcotic and one conviction for possession for the purpose of trafficking. In R. v. Gibson (1996), 87 O.A.C. 393 (C.A.), a sentence of eight years was upheld for trafficking in cocaine with respect to a repeat narcotics offender with a serious criminal record apart from drug convictions. More recently, in R. v. Bertucci, [2002] O.J. No. 3870 (C.A.), a sentence of seven years was considered by this court on an appeal from sentence respecting one count of conspiracy to traffic in cocaine following the appellant's trial and conviction. Concurrent sentences respecting six counts of trafficking in cocaine during an overlapping period were also imposed. The court stated that a sentence of seven years was a fit sentence for the offence of conspiracy to traffic standing alone. However, having regard to the fact that one count of trafficking was set aside the court reduced the sentence to six years.

[30] The following is taken from Graham at paragraphs 47 and 48:

[47] The well-established ranges of sentence for cocaine trafficking offences depend to some significant degree on the level in the drug trade hierarchy at which the case is situated. As explained above, the present case is situated at the "mid-level" as it involves trafficking in ounce amounts. Graham was a supplier to lower "street level' traffickers who generally deal in gram amounts. Green J. recently summarized the leading authorities on this point in R. v. McGill 2016 ONCJ 138, [2016] O.J. No. 1346 at para 54 (O.C.J.):

The Court of Appeal has, in effect, created graduated weight or amount-based categories of cocaine trafficking and sentencing ranges for each of these categories. It is undoubtedly true, as recently said by K.L. Campbell J. in R. v. Barraeiras, 2015 ONSC 7196 at para. 39, that, "[l]engthy penitentiary terms of imprisonment are regularly imposed upon offenders that [sic] possess substantial amount of cocaine for the purposes of trafficking". Indeed, the Court of Appeal has several times expressed the view that five to eight years is the "proper range" for adult offenders found in possession of approximately a half-kilogram (slightly more than a pound) of cocaine for the purpose of trafficking: R. v. Bajada (2003), 173 C.C.C. (3d) 255; R. v. Bryan, 2011 ONCA 273, [2011] O.J. No. 1581 (C.A.); and R. v. Haye, supra; affd. [2014] O.J. No. 6575 (C.A.). Higher amounts are not infrequently dealt with by way of penitentiary sentences of greater than ten years: see, for example, the detailed survey of the approach taken by the Court of Appeal to multi-kilo cases, especially where aggravated by the element of importation, in R. v. Duncan et al, 2016 ONSC 1319, at paras. 25-37. As regards cases involving much more moderate amounts of the drug, R. v. Woolcock, [2002] O.J. No. 4927 (C.A.) is generally recognized as fixing the sentencing envelope for constructive possession of an ounce or less of cocaine at "6 months to 2 years less a day". Intermediate amounts (as is the immediate case) tend to attract sentences in an intermediate range of two to four or five years.

[48] In my view, the present case involves a "mid-level" trafficker and it should be situated above the Woolcock range but below the Bajada and Bryan range. In other words, two to five years is the appropriate range. Given Graham's prior sentence of two years and two months for a similar offence, a three year consecutive sentence would be appropriate in the present case for the constructive cocaine trafficking conviction.

[31] The defence requests a conditional sentence order of imprisonment for two (2) years less one (1) day in duration.

[32] As Ms. Schofield stated in her oral submissions, the thrust of the defence position is that this offender is "more than his error".

[33] The defence filed a sentencing chart that summarizes cases where sentences of less than two years' imprisonment, and conditional sentence orders specifically, have been imposed for trafficking or possession for the purpose of trafficking in significant amounts of cocaine. Those cases include but are not limited to the following (I have chosen to focus here on appellate authorities and on decisions from Ontario):

• R. v. Nesbitt, 2012 BCCA 243;
• R. v. Goncalves, 2011 ONSC 2577, [2011] O.J. No. 2029 (S.C.J.), affirmed by the Court of Appeal for Ontario at [2012] O.J. No. 1020;
• R. v. Truong, 2021 ONSC 5041 (S.C.J.);
• R. v. Katsoulis, 2022 ONCA 902;
• R. v. DiPasquale, 2023 ONSC 758 (S.C.J.); and
• R. v. Nguyen, [2023] O.J. No. 6081 (S.C.J.).

[34] This Court would observe that, in each of these cases, there were specific factors pointed to that served to justify the imposition of a conditional sentence order, and those factors (although not all present in every one of these cases) included:

• (i) a guilty plea, which factor applies to Banks;
• (ii) pre-sentence rehabilitative efforts and significant progress made by the offender, which factor applies to Banks;
• (iii) the absence of any criminal record, which factor applies to Banks;
• (iv) the offender's involvement in illegal drug trafficking activity for a relatively short period of time, which factor applies to Banks;
• (v) the offender's cooperation with the police, which factor is not present to the same degree in our case;
• (vi) the offender's narcotics addiction, which factor is not present in our case;
• (vii) the offender being at the street level or mid-level, which factor applies to Banks in the latter category;
• (viii) significant familial responsibilities on the part of the offender, which factor applies to Banks;
• (ix) expressed remorse on the part of the offender, which factor applies to Banks;
• (x) the offender's gainful employment, which factor applies to Banks although not at all in a lucrative way with Mission Demolition;
• (xi) the offender's compliance with a lengthy period of post-arrest bail, which factor applies to Banks at least up until February 2025;
• (xii) the offender's difficult personal background, which factor applies to Banks;
• (xiii) the offender's support of and support from others in the community, which factor applies to Banks; and
• (xiv) triable issues, which factor applies to Banks in terms of his "possession" of the items in question that were found by the police in the motor vehicle that he was seen operating but which was registered to someone else.

[35] In addition to the cases mentioned above, the defence relies upon the jurisprudence that reminds us that (i) sentencing ranges are primarily guidelines and not hard and fast rules that can never be departed from and (ii) a conditional sentence order is capable of achieving meaningful denunciation and both punitive and restorative objectives. R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paragraphs 58-60; R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at paragraph 44; R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at paragraphs 82, 98-100, and 105.

[36] Having reviewed all of the authorities filed by both sides, it is clear to this Court that the paramount principles of sentencing that are applicable in this case are: (i) denunciation, (ii) deterrence, both specific and general, and (iii) rehabilitation, with the latter being treated as less of a priority than the two former.

IV. The Legal Parameters, the Legal Principles, and the Aggravating and Mitigating Factors in our Case

[37] On the cocaine offence, Banks faces a maximum penalty of life imprisonment: section 5(3)(a) of the Controlled Drugs and Substances Act.

[38] On the possession of property obtained by crime offence, Banks faces a maximum penalty of 10 years' imprisonment: section 355(a)(i) of the Criminal Code.

[39] There is no minimum punishment for either offence.

[40] In terms of the aggravating factors in our case, I agree with Mr. Bond that we have among them the following: (i) the serious nature of the narcotic involved, cocaine; (ii) the sizeable quantity of cocaine that was seized; (iii) the significant amount of cash that was seized; (iv) the fact that Banks appears to have been a mid-level person involved in this distribution scheme and not merely a street-level dealer; (v) the fact that Banks was engaged in illegal drug trafficking activity that was not limited to the date of his arrest; and (vi) the fact that this criminal conduct by Banks was primarily motivated for financial gain.

[41] In my view, nothing in the enhanced presentence report is aggravating on sentence but, rather, it is a very positive report and tends to significantly mitigate the sentence that might otherwise be imposed on this offender.

[42] Further, in my view, the arrest of Banks in February 2025 is not aggravating but is something that this Court may consider, and has considered, in terms of the suitability of a community-based sentence for this offender on these facts.

[43] The mitigating factors in this case are plentiful and include: (i) the guilty pleas; (ii) the very positive enhanced presentence report; (iii) Banks' pre-sentence rehabilitative efforts and significant progress to date, as two examples, the ongoing alcohol abuse counselling and the educational course to complete his high school equivalency certificate; (iv) the absence of any criminal record; (v) Banks' significant familial responsibilities towards his two children, especially the very young one, and his partner; (vi) the expressed remorse, which I find to be genuine, on the part of the offender; (vii) Banks' employment with Mission Demolition; (viii) Bank's lengthy history of compliance with strict bail conditions; and (ix) the very positive character reference letters.

[44] It may seem bizarre to describe the enhanced presentence report as being "very positive". After all, it confirms the very difficult upbringing that Banks experienced, an upbringing that was plagued by abuse at the hands of his father, financial and food security struggles, and instances of systemic racism as a Black man.

[45] By "very positive", I mean that the said report confirms that, despite these significant hurdles, Banks has proven that he can change and has shown that he is sincerely committed to continuing to change.

V. What is a Fit Sentence for Banks?

[46] Sentencing is a highly individualized process.

[47] The judgment of Chief Justice Wagner and Justices Brown, Martin, and Kasirer in R. v. Parranto, 2021 SCC 46, [2021] 3 S.C.R. 366, put it very well at paragraphs 9 through 12, set out below.

[9] This Court has repeatedly expressed that sentencing is "one of the most delicate stages of the criminal justice process in Canada" (R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 1). More of an art than a science, sentencing requires judges to consider and balance a multiplicity of factors. While the sentencing process is governed by the clearly defined objectives and principles in Part XXIII of the Criminal Code, it remains a discretionary exercise for sentencing courts in balancing all relevant factors to meet the basic objectives of sentencing (Lacasse, at para. 1).

[10] The goal in every case is a fair, fit and principled sanction. Proportionality is the organizing principle in reaching this goal. Unlike other principles of sentencing set out in the Criminal Code, proportionality stands alone following the heading "Fundamental principle" (s. 718.1). Accordingly, "[a]ll sentencing starts with the principle that sentences must be proportionate to the gravity of the offence and the degree of responsibility of the offender" (R. v. Friesen, 2020 SCC 9, at para. 30). The principles of parity and individualization, while important, are secondary principles.

[11] Despite what would appear to be an inherent tension among these sentencing principles, this Court explained in Friesen that parity and proportionality are not at odds with each other. To impose the same sentence on unlike cases furthers neither principle, while consistent application of proportionality will result in parity (para. 32). This is because parity, as an expression of proportionality, will assist courts in fixing on a proportionate sentence (para. 32). Courts cannot arrive at a proportionate sentence based solely on first principles, but rather must "calibrate the demands of proportionality by reference to the sentences imposed in other cases" (para. 33).

[12] As to the relationship of individualization to proportionality and parity, this Court in Lacasse aptly observed:

Proportionality is determined both on an individual basis, that is, in relation to the accused him or herself and to the offence committed by the accused, and by comparison with sentences imposed for similar offences committed in similar circumstances. [para. 53]

Individualization is central to the proportionality assessment. Whereas the gravity of a particular offence may be relatively constant, each offence is "committed in unique circumstances by an offender with a unique profile" (para. 58). This is why proportionality sometimes demands a sentence that has never been imposed in the past for a similar offence. The question is always whether the sentence reflects the gravity of the offence, the offender's degree of responsibility and the unique circumstances of each case (para. 58).

[48] In the unique circumstances of this case, I am satisfied that a sentence of imprisonment of less than two years in duration is a fit disposition, and I am further satisfied that Banks' service of his sentence of imprisonment in the community, in accordance with section 742.1 of the Criminal Code, would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2 of the Criminal Code.

[49] I agree that this case is one example of a situation where the offender is more than his error.

[50] For these reasons, on both convictions, this Court imposes on Banks a conditional sentence order of two (2) years less one (1) day in duration, to be followed by 12 months of probation.

[51] With respect to the conditional sentence order, all of the compulsory terms apply as set out in subsection 742.3(1) of the Criminal Code, and the following optional conditions also apply for the entire length of the sentence:

• (i) you shall abstain from the consumption of drugs except in accordance with a medical prescription;
• (ii) you shall abstain from the consumption of alcohol;
• (iii) you shall abstain from owning, possessing or carrying a weapon;
• (iv) you shall provide for the support or care of your dependant children;
• (v) you shall attend and actively participate in any counselling or therapy or treatment program that is recommended to you by your supervisor, and you shall not leave that counselling or therapy or treatment program without the prior written approval of your supervisor, and you shall sign any releases of information demanded of you by your supervisor in order to monitor your progress with the counselling or therapy or treatment program; and
• (vi) you shall obey a curfew by remaining inside your home or on the property of your home, including any outbuildings, 24 hours per day, 7 days per week, except (a) for any reason, with the prior written permission of your supervisor, which written permission shall be carried on your person at all times, (b) for medical emergencies involving you or one of your children or your current partner or your mother or one of your siblings, (c) for required court attendances, (d) for pre-scheduled meetings with your legal counsel, (e) for meetings with your supervisor, (f) for attendance at counselling, therapy or treatment, (g) for employment on such schedule as is approved of in advance and in writing by your supervisor, which written approval shall be carried on your person at all times, (h) for a program or course of education on such schedule as is approved of in advance and in writing by your supervisor, which written approval shall be carried on your person at all times, and (i) on each Saturday, between 12:00 noon and 3:00 p.m., for obtaining the necessities of life for you and/or a member of your immediate family; and all of these exceptions include direct travel to and from.

[52] With respect to the probation order, all of the compulsory terms apply as set out in subsection 732.1(2) of the Criminal Code, and the following optional conditions also apply for the entire duration of the order:

• (i) you shall report to a probation officer within two working days of the commencement of the period of probation and thereafter as directed by the probation officer;
• (ii) you shall remain within the jurisdiction of the court unless written permission to go outside the jurisdiction is obtained from the court or the probation officer;
• (iii) you shall abstain from the consumption of drugs except in accordance with a medical prescription;
• (iv) you shall abstain from the consumption of alcohol;
• (v) you shall abstain from owning, possessing or carrying a weapon;
• (vi) you shall provide for the support or care of your dependant children; and
• (vii) you shall attend and actively participate in any counselling or therapy or treatment program that is recommended to you by your probation officer, and you shall not leave that counselling or therapy or treatment program without the prior written approval of your probation officer, and you shall sign any releases of information demanded of you by your probation officer in order to monitor your progress with the counselling or therapy or treatment program.

[53] I would like to sincerely thank Crown counsel, Mr. Bond, and defence counsel, Ms. Schofield and Ms. Singh, for their very able assistance in this quite difficult sentencing case.

Conlan J.

Released: August 28, 2025