R v Mc 2009

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Between
Her Majesty the Queen, and Mc

[2009] O.J. No. 4189

Ontario Court of Justice
Toronto, Ontario

S.R. Shamai J.

Oral judgment: September 24, 2009.

(81 paras.)

Criminal law -- Sentencing -- Non-Criminal Code and regulatory offences -- Controlled drugs and substances -- Possession -- Other substances -- Possession for the purpose of trafficking -- Other substances -- Particular sanctions -- Imprisonment -- Forfeiture -- Sentencing considerations -- Time already served -- Sentencing of Mc for possession of methamphetamine and ecstasy for the purpose of trafficking and possession of heroin -- Mc pleaded guilty -- Mc was sentenced to 18 months' imprisonment, less 16 months' credit for four months' pre-sentence custody at the Toronto Don jail -- Mc, who was HIV positive, was attacked and seriously injured while at the jail -- Conditions of overcrowding, filth and lack of staffing at the jail were extremely worrisome; enhanced credit of four-to-one was given -- Forfeiture of $2,510 and other items seized with the drugs was ordered.

Criminal law -- Prison administration -- Conditions and treatment -- Sentencing of Mc possession of methamphetamine and ecstasy for the purpose of trafficking and possession of heroin -- Mc was given four-to-one credit of 16 months for four months served in the Toronto Don jail -- Conditions at the jail, including overcrowding, lack of staff, and lack of properly hygienic environment, failed to meet minimum standards for treatment of prisoners -- Mc, who was HIV positive, had mostly slept on the floor, and was attacked by other inmates and severely injured -- Judicial notice had been taken in many prior decisions as to conditions at the jail.


Sentencing of Mc for possession of methamphetamine and ecstasy for the purpose of trafficking and possession of heroin. Mc pleaded guilty to the four counts. Mc,44, had one prior criminal conviction for impaired driving when he was 19. He claimed that he had a serious drug addiction, including to crack cocaine. Crown and defence Counsel agreed that an appropriate sentence was 18 months' imprisonment. At issue was the credit to be given for time spent in pre-sentence custody at the Toronto Don jail. Mc had been in custody for four months, most of which he slept on the floor. Mc claimed that conditions in the jail were filthy and overcrowded, and that he had been assaulted and seriously injured while in the jail. Mc was HIV positive. The Crown also sought a forfeiture order with respect to $2,510 found with the drugs, as well as drug paraphernalia and cell phones.

HELD: Mc sentenced to 18 months' imprisonment, less 16 months for time spent in pre-sentence custody. Mc was given four-to-one credit for the time spent in pre-sentence custody. The conditions at the Toronto Don jail were extremely worrisome, and did not conform to UN standards for the treatment of prisoners. This was exacerbated by the attack on Mc and the subsequent health difficulties he suffered. Therefore, enhanced credit for time spent in pre-sentence custody was warranted. Sentence: Two months' imprisonment; forfeiture order, DNA order, ten- year firearms prohibition.

Statutes, Regulations and Rules Cited:Controlled Drugs and Substances Act, S.C. 1996, c. 19
Criminal Code, R.S.C. 1985, c. C-46, s. 109, s. 718, s. 718(a), s. 718(c), s. 718.2, s. 718.2(d)

Counsel:
I. Bell, Mr.: Counsel for the Crown.
C. Fromstein, Ms.: Counsel for David Mc.

REASONS FOR SENTENCE
S.R. SHAMAI (orally):-- On September 9th, 2009, David Mc entered

  1. It is my understanding that Mr. Mc lived in a house which was
  2. In Mr. Mc's case, counsel are agreed that 18 months is an
  3. Mr. Mc has been in custody since his arrest on May 14th. He was
  4. Mr. Mc has one prior entry on his record, an impaired count when
  5. At the time of his arrest in this matter, Mr. Mc incurred a head
  6. Mr. Mc has been sleeping on the floor for many of the 133 nights
  7. Mr. Mc's mother has become involved since the time that her son
  8. Mr. Mc testified on the hearing as to the conditions of the
  9. The evidence of Captain Raposo confirmed that each cell in the
  10. As I have indicated earlier as well, there is a disagreement in
  11. Although there is some discrepancy between the report which Mr. Mc
  12. In the case of Miller, decided in 2003, Justice MacDonnell, then
  13. In Mr. Mc's case, there is more than the seemingly chronic
  14. There is no controversy, unfortunately, as to the filthy conditions and the chronic overcrowding of the jail. It appears to be the way it is. This cannot be taken to be some acquiescence by this community to the creation of a standard however implementing these conditions. I specifically refute the incarceration by law of individuals in these conditions as to be a standard. To do otherwise, to accept those conditions as the standard prevailing in this community, would be to succumb to a rule by administration edict and not by a rule of law.
  15. The purposes of sentencing have been set out by the Criminal Code
  16. In this case the filth and overcrowding which Justice MacDonnell
  17. In this case, the consequences of the overcrowding are worsened by
  18. The consequences of violence were exacerbated by the fact of
  19. The failure to provide timely medical care for the assault
  20. Counsel commented in the course of submissions, that had Mr. Mc
  21. Mr. Mc, to sum up, has entered guilty pleas to a series of serious criminal offences. He had 50.1 grams of crystal meth. in his possession admittedly for the purpose of trafficking; he had 7.4 grams of methamphetamine, not crystal meth., in his possession admittedly for the purpose of trafficking; he had half a gram of heroin in his possession for the purpose of trafficking; and he had four pills of MDMA, which I understand to be called "ecstasy". Sorry. Have I got it wrong?
  22. MR. BELL:. Yes. I believe the counts are the heroin is not for the purpose of trafficking and the MDMA is for the purpose of trafficking.
  23. THE COURT: I am sorry.
  24. MS. FROMSTEIN: Yes.
  25. THE COURT: All right. The heroin ...
  26. MS. FROMSTEIN: ... was a simple possession.
  27. THE COURT: I beg your pardon. Simple possession of half a gram of heroin nonetheless and four pills of MDMA, or ecstasy, for the purpose of trafficking. Mr. Mc is admittedly an addict. He entered his guilty plea not at the earliest opportunity but at the earliest practical opportunity in light of the assistance of counsel from which he benefited and who tells me that even entering the plea about four months after he was arrested, she had far from full disclosure of the Crown's case. Nonetheless in these circumstances Mr. Mc entered his plea and I take that to be an indication of remorse. He is 44 years of age, he has one entry on his criminal record dating back to age 19. It was an unrelated entry. He is a man who has previously demonstrated that he is capable of rehabilitation in terms of his drug habit. While these are serious offences and the possession, with the exception of the heroin, was apparently for the purpose of trafficking, the link between addiction and offences of this sort is a mitigating factor which I take that into account.
  28. I am prepared to accept the position which is jointly offered by counsel that 18 months is an appropriate sentence in these circumstances. With respect to the 133 days pre-sentence custody which Mr. Mc has now served, I am prepared to give him enhanced credit based on the conditions which I have recited and the particular detriment which Mr. Mc has suffered as a result of the chronically outrageous conditions that this community allows to continue at the Toronto Don Jail. I am prepared to give that enhanced credit not only because of the consequence of making improper jail conditions impossible, but as well because in sentencing Mr. Mc it has become impossible to properly take into account the prospect of rehabilitation.
  29. The custom of credit for pre-sentence custody has come into some disrepute it seems in the community by the appearance of individuals serving their sentence prior to being sentenced and appearing to just walk out of jail on being sentenced for, as in this case, serious offences. It is important to look at the operation of sentencing in its context and not dispense with the purposes of sentencing. In this case while denunciation is an important purpose with Mr. Mc, there is no doubt that the horrific experience he has had at the Toronto Don Jail, given everything else I know about this man, will be a significant deterrent. He is a man who is not chronically a criminal. He has struggled with addiction and overcome it on various occasions. The community will best be served by Mr. Mc being able to access rehabilitation as expeditiously as is possible. In order to sensibly give effect to the pre-sentence custody in all of these circumstances and to recognize that his access to rehabilitation has been frustrated and will not be furthered by a further time in custody, I am prepared to impose a further 60 days in sentence in light of 133 days pre-sentence custody to be considered on an enhanced credit as equivalent to, sorry, 14 months. Thank you.
  30. MR. BELL: Fourteen months and 60 days, that's a mere 16 months. Is there -- sorry. Did Your Honour intend to say 16 and a further 60 days or ....
  31. THE COURT: Okay. You're right, Mr. Bell. I want this to reflect an 18 month sentence because I am accepting the joint position of counsel. I want the 133 days to be credited as 16 months which I understand to be, roughly, a four-to-one credit, and that is in the particular circumstances of this case. Thank you.
  32. MS. FROMSTEIN: Thank you very much for consideration of the case.
  33. THE COURT: Anything further in this matter?
  34. MR. BELL: There is -- the Crown is asking for a section 109 order which is mandatory in the circumstances, and also a DNA order being the offences are secondary designated offences. And there is a forfeiture order. I believe that the forfeiture order ....
  35. THE COURT: Ms. Fromstein?
  36. MS. FROMSTEIN: I'm sorry. I apologize.
  37. THE COURT: Yes. There are ancillary orders that the Crown is seeking.
  38. MS. FROMSTEIN: Yes.
  39. MR. BELL: I believe the forfeiture order is on consent, I believe, also on the basis that the items seized are offence-related property. The DNA order, I'm not sure what my friend's position on the DNA order is.
  40. MS. FROMSTEIN: And I didn't turn my mind with respect to whether it's required on these offences.
  41. THE COURT: It's secondary.
  42. MS. FROMSTEIN: It is secondary? I would only indicate that Mr. Mc, in light of his lack of criminal history in the particular circumstances of these offences related to his addiction, our respectful submission would be a DNA order is not required for this individual.
  43. THE COURT: I am ordering the DNA in this case. They are serious offences and Mr. Mc, unfortunately, has a long history of involvement with addiction. I am prepared to make the order.
  44. MS. FROMSTEIN: And I just want to clarify, so in terms of -- there was only ....
  45. THE COURT: And there is a 109 order the Crown is seeking.
  46. MR. BELL: A section 109 order.
  47. THE COURT: For?
  48. MR. BELL: Yes, and it's mandatory. For ten years, please.
  49. MS. FROMSTEIN: Yes, I have no problem with that.
  50. THE COURT: That order will go. The forfeiture order, I believe you told me $2,510 was found next to the drugs seized. Is that what you're asking to forfeit?
  51. MR. BELL: And there's also certain other materials which I think are, I believe, essentially paraphernalia and cell phones, and I don't believe that my friend takes issue with that.
  52. MS. FROMSTEIN: I'm not taking issue with that.
  53. THE COURT: I'm told there was a laptop -I don't know what your order indicates - just to put it on the record.
  54. MS. FROMSTEIN: Yes.
  55. MR. BELL: With respect the laptop, my concern is that there was a lawful owner identified for the laptop, and in the circumstances the laptop should not be forfeited to Her Majesty the Queen. Certainly the section (d) here requires that there be no lawful owner identified, so that I am asking essentially that Mr. Mc essentially not make any claim to the laptop.
  56. THE COURT: Okay. That's the only other item that was mentioned in the sentencing submissions, and I was told at that time that there was no claim being made by Mr. Mc to it. Is that correct, Ms. Fromstein?
  57. MS. FROMSTEIN: Yes. To that, one laptop.
  58. MR. BELL: Yes.
  59. THE COURT: And so what other property are you seeking forfeiture on?
  60. MR. BELL: I'll hand this up to Your Honour. It indicates precisely exactly what's being ....
  61. MS. FROMSTEIN: There were scales and other cell phones.
  62. THE COURT: So the package of dime bags, that's like baggies?
  63. MR. BELL: Yes. That would be drug bags essentially.
  64. THE COURT: Digital scales and baggies of biolids [ph.], a black Samsung cell phone, a black flip phone, Viagra tablets and a black leather Coach bag ....
  65. MS. FROMSTEIN: Yes.
  66. THE COURT: ... along with $2,510 to be forfeited. That order will go.
  67. MS. FROMSTEIN: Thank you very much, Your Honour.
  68. MR. BELL: Thank you.
  69. THE COURT: Anything further?
  70. MS. FROMSTEIN: No.
  71. MR. BELL: Nothing.
  72. THE COURT: The other charges?
  73. MR. BELL: The other charge to be withdrawn, please.
  74. THE COURT: The victim fine surcharge?
  75. MS. FROMSTEIN: I am asking that it be waived in the circumstances. He's in custody.
  76. THE COURT: Your client is intending to be in rehab ...
  77. MS. FROMSTEIN: Yes.
  78. THE COURT: ... so I'll waive the surcharge.
  79. MS. FROMSTEIN: Thank you very much.
  80. MR. BELL: Thank you, Your Honour. I will just wait for the forfeiture order.

 

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