R. v. Robinson, 2018 ONCJ 115

CITATION: R. v. Robinson , 2018 ONCJ 115 DATE: February 5, 2018 Information Number: 13076 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. TRAVIS ROBINSON R E A S O N S F O R S E N T E N C E ********** BEFORE THE HONUOABLE JUSTICE J. STRIBOPOULOS Monday, February 5 th , 2018, at BRAMPTON, Ontario ********** APPEARANCES : N. Cooper Counsel for the Federal Crown R. Bacchus Counsel for Mr. Robinson

MONDAY, FEBRUARY 5, 2018 R E A S O N S F O R S E N T E N C E STRIBOPOULOS, J. (Orally) Mr. Robinson pled guilty before me to a charge of possessing cocaine for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act . These are my reasons for sentence with respect to Mr. Robinson’s matter. I begin with the circumstances of the offence. On September 22, 2016, Mr. Robinson was paroled into the community on statutory release. At the time, he was serving a sentence for a firearm and a drug offence. The warrant expiry date for those sentences was October 1, 2017.

In September 2017 the Peel Regional Police were involved in an investigation, the details of which were not disclosed before me due to the Crown’s assertion of investigative privilege. From the facts that were presented, however, it would appear that, in the course of their investigation, a particular residence in Brampton came under police suspicion. The police were conducting surveillance of that residence on the morning of September 1, 2017. At 10:10 a.m., the police observed Mr. Robinson exit the residence, enter a vehicle, and drive off.

The police covertly followed him to a beer store where he was observed engaging in conduct consistent with drug trafficking. Following that, the police followed Mr. Robinson back to the same residence. At 11:41 a.m., a vehicle attended at the residence. The lone occupant then entered the home and exited only a few minutes later. The police then followed that person and, at 11:53 a.m., effected an arrest for possession of a controlled substance. During a search incident to that arrest the police discovered that the driver was in possession of 6.55 grams of cocaine.

That afternoon the police continued to conduct surveillance at the same house. At 12:49 p.m., they observed Mr. Robinson exit the residence along with his girlfriend. The couple then travelled to a mall in Brampton, where Mr. Robinson dropped his girlfriend off at a hair salon in the mall. Mr. Robinson then parked his car in the mall parking lot. At 1:09 p.m., while Mr. Robinson was still parked at the mall, the police arrested him for trafficking in a controlled substance. During a search, incident to that arrest, the police located 13.95 grams of cocaine in one of the pockets of Mr. Robinson’s pants.

They also located $2,435 in another pant pocket. In addition, the police located and seized two Apple telephones in the centre console of the vehicle. At that point, Mr. Robinson was also arrested for possession of a controlled substance for the purpose of trafficking. A search warrant was later executed at the residence that police had under surveillance. Inside that home police found two expired passports in Mr. Robinson’s name. They also found empty “dime bags”, a digital scale, and a second scale. I turn next to Mr. Robinson’s circumstances. Mr. Robinson is 30 years of age. He was born and raised in Toronto.

Mr. Robinson was primarily raised by his mother. His parents separated when he was relatively young. Although Mr. Robinson has a close relationship with his mother, he has relatively little contact with his father. Mr. Robinson has six-siblings in total, three brothers and three sisters. He enjoys a close relationship with his sisters, all of whom reside in the Greater Toronto Area. Mr. Robinson is currently in a relationship that began about 10 months ago. His girlfriend is now pregnant with the couple’s child. She is expecting to give birth this spring. The couple plans on continuing their relationship once Mr.

Robinson is released from custody; and Mr. Robinson is looking forward to becoming a father for the first time. I am told that Mr. Robinson completed high school, but did not pursue post-secondary education. While on parole, Mr. Robinson was employed through a temporary staffing agency. He apparently has a license to operate a forklift. A letter filed on sentencing confirms that employment as a “drywaller” is available to Mr. Robinson upon his release from custody. Ms. Bachus advises that Mr. Robinson does not suffer from an addiction nor does he have any identified mental health issues. However, Mr.

Robinson does have a criminal record. The details of which are as follows: • October 19, 2007, here in Brampton, he was convicted of possession of a controlled substance contrary to s. 4(1) of the Controlled Drugs and Substances Act , as well as trafficking in a controlled substance, contrary to s. 5(1) of that Act.

For each offence he received a $100 fine. • December 14, 2007, here in Brampton, he was convicted of failing to appear in court, contrary to s. 145(5) of the Criminal Code of Canada and received a sentence of 8 days custody, which was noted as his time served. • September 6, 2011, here in Brampton, he was convicted of possession of a

schedule II substance for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act , escape lawful custody, contrary to s. 145(1) (

a) of the Criminal Code of Canada , and a further charge of possession of a

schedule II substance for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act . For the charges of possession for the purpose of trafficking and escape lawful custody he received concurrent sentences of 12 months and 2 weeks imprisonment, which was noted as his time served. He was also the subject of a

section 109 weapons prohibition. For the second count of possession for the purpose of trafficking he apparently received a $200 fine. • August 14, 2012 – in Toronto, he was convicted of possession of a

schedule II substance, contrary to s. 4(4) of the Controlled Drugs and Substances Act, and obstructing a police officer, contrary to s. 129 (

a) of the Criminal Code of Canada . For the drug offence, he received a sentence of two days imprisonment on top of 13 days pre-sentence custody, so the equivalent of a 15-day sentence. For the offence of obstructing a police officer he received a sentence of two days imprisonment, concurrent. • June 12, 2015 , once again, here in Brampton, he was convicted of possession of a

schedule II substance for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act . For that offence he received a sentence of 30 days custody, and a $10 fine. • Finally, on August 17, 2015, Mr. Robinson was convicted here in Brampton of two offences; possession of a prohibited or restricted firearm with ammunition, contrary to s. 95(1) of the Criminal Code of Canada , and possession of a controlled substance, contrary to s. 4(1) of the Controlled Drugs and Substances Act . For the firearm’s offence he received a sentence of 25 months and 15 days custody.

For the drug offence, he received a sentence of 30 days custody, concurrent. He was also the subject of a s. 109 weapons prohibition in relation to both offences.

I turn next to the positions of the parties. Although the parties are agreed that a custodial sentence is warranted in this case, they disagree on two discrete points. First, the lengthof the sentence that should be imposed. And, second, what, if any, credit Mr. Robinson should receive towards his sentence for theperiod he spent in custody from September 1, 2017, when he was arrested for this offence and had his parole revoked, to his warrantexpiry date on the sentence he was serving, October 1, 2017.

The Crown submits that in light of the aggravating and mitigating features in this case, an appropriate sentence is 15 monthsimprisonment. In advancing this position, the Crown relies upon the Court of Appeal’s decision in R. v. Radassao, (ON CA), [1994] O.J. No. 1990, wherein the Court appeared to accept that the appropriate range of sentence for the offence ofpossession of cocaine for the purpose of trafficking is between six months and two years less a day imprisonment. On behalf of Mr. Robinson, Ms.

Bachus argues that, in all of the circumstances, bearing in mind both the aggravating and mitigatingfeatures in this case, the appropriate sentence in this matter is in the range of between 9 and 12 months imprisonment. In her submission,Mr. Robinson should receive full credit for the time he spent in pre-trial detention since his arrest on September 1, 2017 to today’s date. In that regard, Ms. Bachus submits that at least some credit should be given for the one-month that Mr. Robinson spent in custody fromthe time of his arrest, when his parole was revoked, to the expiration of his sentence on October 1, 2017.

She submits that Mr.Robinson’s loss of parole is sufficiently connected to the offence for which I am sentencing him that it would be unfair not to give himsome credit in that regard. In contrast, Mr. Cooper, for the Crown, submits that it would be inappropriate to give Mr. Robinson any credit for the month he spent in custody after being charged with this offence when his parole was revoked. Heargues that Mr. Robinson was completing his sentence for an earlier offence between September 1, 2017 and October 1, 2017.

And, as a result,allowing him some credit for that period towards his sentence for this offence would be equivalent to permitting Mr. Robinson to use thesame period of custody twice, in effect giving him double credit. He argues this would be unprecedented and confer on Mr. Robinson anundeserved windfall for committing an offence while on parole. Such an outcome, he argues, would bring the administration of justiceinto disrepute. I turn next to the governing principles and my determination as to the appropriate sentence in this case.

The Criminal Code provides that the “fundamental purpose of sentencing is to protect society” and to contribute “to respect for the lawand the maintenance of a just, peaceful and safe society”. See Criminal Code,

section 718. Those purposes are to be realized through the imposition of “just sanctions” that reflect one or more of the traditional sentencingobjectives: denunciation, general and specific deterrence, separation of offenders, rehabilitation, reparation to victims, and promoting asense of responsibility in offenders and an acknowledgment of the harm done to victims and to the community. See Criminal Code,subsections 718(

a) through (f). The fundamental principle of sentencing is that the sentence imposed must be proportionate to the gravity of the offence and the degreeof responsibility of the offender. This long-established tenet of sentencing law is now expressly contained in the Criminal Code. Seesection 718.1. To satisfy this requirement a sentence must “fit” both the gravity of the crime and the offender’s level of blameworthinessin its commission. See R. v. Ipeelee, 2012 SCC 13 , [2012] 1 S.C.R. 433 at paras. 36-37.

Of course, beyond such general principles, the Court must also bear in mind the specific guidance provided by our Court of Appeal withrespect to the sentencing of offenders for similar offences. With respect to possession of cocaine for the purpose of trafficking, sinceRadassao was decided, the Court of Appeal has expressly affirmed that the appropriate range of sentences for this offence is between sixmonths to two years less a day imprisonment. See R. v. Woolcock, [2002] O.J. No. 4927 (C.A.) at para. 15.

In Woolcock, the Courtmade clear that in deciding upon the appropriate sentence within that range the quantity of cocaine involved and the offender’s priorrecord are obviously both important considerations.

It is also axiomatic that in deciding upon the appropriate sentence a judge must take into account both the aggravating and the mitigatingcircumstances relating to the offence and the offender. See Criminal Code, s. 718.2(a). See also R. v. Priest, (ONCA), [1996] O.J. No. 3369 at paras. 26-27. In terms of aggravating features in this case, there are two rather significant factors in my view. First, there is Mr. Robinson long,related, and relatively uninterrupted criminal record.

Second, there is the fact that he was on parole in the community serving a sentencefor another drug offence (as well as a firearm’s offence) when he committed the offence for which I am sentencing him. By way of mitigating considerations, there is really only just one; Mr. Robinson’s guilty plea. By pleading guilty, Mr. Robinson sparedthe administration of justice the time and expense of a trial. Through that plea, as well as his comments to the Court, he has alsoexpressed some remorse for his wrongdoing.

In deciding upon the appropriate sentence in this case I am also very much mindful of the need to take into account the step-up principle. In that regard, I note that in 2011 Mr. Robinson received a sentence of 12 months and two weeks custody for the offence of possessionfor the purpose of trafficking in relation to a

schedule II substance. In sentencing him, I recognize that he has again committed the sameoffence but on this occasion involving an even more dangerous

Schedule I substance. In that regard, I am strongly of the view that acceding to Ms. Bachus’ submission and imposing a sentence in the range of 9 to 12 monthswould send Mr. Robinson the wrong message. It is essential that he come to understand, through the sentence imposed by this Court,that if he continues to traffic in controlled substances the sentences he receives will grow incrementally longer, and longer. Nothing lesswould be adequate to the important task of specifically deterring Mr. Robinson from committing similar crimes in future.

In the end, remembering throughout the principles and objectives of sentencing, including the range of sentences endorsed by the Courtof Appeal for this offence, along with the step-up principle, while also giving Mr. Robinson full credit for his guilty plea, I haveconcluded that the appropriate sentence for this offence is 15-months imprisonment. This leaves the question of the credit to which Mr. Robinson is entitled for his time spent in pre-trial detention. Mr. Robinson has beenin custody since his arrest on September 1, 2017 until today’s date, February 5, 2018. That is a total period of 157 days custody.

At thispoint the question presented is whether he is deserving of credit for that entire period or whether the first 31 days of that period, fromSeptember 1, 2017 to October 1, 2017, should not form part of the pre-sentence custody calculation; given that Mr. Robinson had hisparole revoked during that period and was serving a sentence for an earlier offence during that timeframe? In answering that question, I have carefully considered the guidance provided by the Court of Appeal in both R. v. Wilson (2008), 2008ONCA 510 , 236 C.C.C. (3d) 285 (Ont.C.A.), and R. v. Barnett, 2017 ONCA 897 , [2017] O.J.

No. 6102 (C.A.). These decisions have sensibly taken a purposive

interpretation when interpreting the language in s. 719(3) of the Code, which referencesan offender receiving credit for time spent in custody “as a result of the offence”. As the Court explained in Barnett, at para. 27: “We do not read ss. 719(3) and (3.1) as limiting consideration of pre-sentence custody only with respect to the offence that was the immediate trigger of detention.

Rather, the Court is to assess whether a sufficient link exits between the pre-sentence detention for which credit is sought and the offence or offences for which the offender is being sentenced as to meet the ‘as a result’ requirement of s. 719(3). Even where, as here, the detention followed a later charge, the circumstances may be such that this later detention can nonetheless be considered to be ‘as a result’ of both the earlier and the triggering offences.”

As the Court went on to explain at para. 30: “What we draw from the case law is that ss. 719(3) and (3.1) require that there be some causal connection, a sufficient link or relation between the offence for which the offender is being sentenced and the pre- sentence custody. That relation or link can exist with more than one offence.

It is not limited to the offence that directly triggered the detention, but will include offences that contributed to the denial of bail or, in the trial judge’s assessment, factored into the offender’s decision to not seek bail on charges that triggered the detention order.” In my view, the Court of Appeal’s guidance has no application to the circumstances here. This is not a situation where Mr.

Robinsonwas facing multiple charges and where there would be unfairness in failing to recognize the link between the offence for which he isbeing sentenced and time spent in custody on another charge where the first charge contributed to the offender not receiving bail on thesecond. Where the link is established, an offender does not get to count time spent in pre-trial detention towards the completion of differentsentences. Rather, he is simply allowed to attribute time spent in custody on one charge to his credit on another.

This is done to avoidthe unfairness that would otherwise follow where time spent in custody on different charges is connected in some way. There is nodouble-counting. Acceding to Ms. Bachus’ submission would endorse a rule by which an offender can use time spent serving a sentence for one offence ascredit towards pre-trial custody on another. There is no precedent for this, a fact that Ms. Bachus candidly acknowledged during hersubmissions. Therefore, I have concluded that Mr.

Robinson is not entitled to any credit towards his current sentence for the time he spent in custodyprior to his warrant expiration date on October 1, 2017. This means that Mr. Robison has spent 126 days in pre-trial detention for this offence. In accordance with the

interpretation ofsubsections 719(3) and 719(3.1) of the Code by the Supreme Court of Canada in R. v. Summers, 2014 SCC 26, this entitles Mr. Robinsonto 189 days credit towards his sentence. In the end, the total sentence I would have imposed today would have been 450 days custody – the equivalent of 15 monthsimprisonment. Less his time in pre-trial detention, properly credited, of 189 days, his total sentence going forward will be 261 daysimprisonment.

There are also a number of ancillary orders: I note that the offence of possessing a controlled substance for the purpose of trafficking is a “secondary designated offence” under s.487.04 of the Criminal Code. As such, the relevant subparagraph of the Code is s. 487.051(3)(b). I have read this provision in light of the guidance supplied by the Court of Appeal’s decision in R. v. Hendry (2001), (ON CA), 161 C.C.C. (3d) 275 (Ont.C.A.). I am to make the order if I am satisfied that it is in the best interests of the administration of justice to do so. In that regard, I am toconsider Ms.

Robinson’s criminal record, the nature of the offence and the circumstances surrounding its commission, and the impact onhis privacy and security of the person. Here, I note that Mr. Robinson’s criminal record contains a number of prior offences for commercial drug crimes, as well as two prior

firearms offences. Our Court of Appeal has rightly emphasized the close connection between drug trafficking and violence. I am also mindful of the Court of Appeal’s observation in Hendry that, “given an adult offender's diminished expectation of privacy following conviction, the minimal intrusion into the security of the person in the ordinary case and the important interests served by the DNA data bank, it will usually be in the best interests of the administration of justice for the judge to make the order.” See Hendry at para. 1 .

In light of all that, I am satisfied that is in the best interests of the administration of justice for an order to issue for the taking of a DNA sample from Mr. Robinson for inclusion in the National DNA Databank. Further, given that Mr.

Robinson has previously been convicted of trafficking in a controlled substance and possession of a controlled substance for the purpose of trafficking, pursuant to s. 109(3) of the Criminal Code , I am required to make an order that he not possess any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive substance for the remainder of his lifetime. Mr. Robinson, could you please stand up sir. Do you understand that order that I have just read out? MR. ROBINSON: I do. THE COURT: You will follow it? MR. ROBINSON: Pardon me?

THE COURT: You will follow it? MR. ROBINSON: Yes sir. THE COURT: And I have to warn you, failure to follow it is a separate and serious crime for which you can go to jail. Finally, under

section 16 of the Controlled Drugs and Substances Act , the forfeiture of property requires that I be satisfied, “on a balance of probabilities, that any property is offence-related property”. If I am so satisfied, the property it is to be ordered forfeited to the Crown. Here, I am indeed satisfied to the required standard that the $2,435 found on Mr. Robinson’s person at the time of his arrest, and the scales retrieved from the residence, were offence related property. As a result, I will sign an order forfeiting that property to the Crown. Lastly, there is a Victim Fine Surcharge of $200 for this offence.

Ordinarily, Mr. Robinson would have 30 days to pay that amount. Ms. Bachus, given that he is going to be remaining in custody for some time, do you wish to bring an application to extend the time to pay? MS. BACHUS: Yes I do Your Honour. THE COURT: How much time do you need? MS. BACHUS: Let me just check with Mr. Robinson. THE COURT: Sure. MS. BACHUS: Your Honour he’s asking if you can extend it please to 12 months? THE COURT: He’ll have 12 months to pay the Victim Fine Surcharge. MS. BACHUS: Thank you very much. THE COURT: Thank you counsel. MR. COOPER: I do have an order for disposition of property.

THE COURT: You can hand it up Mr. Cooper. MR. COOPER: Your Honour can we hold down the property for a second? THE COURT: Sure. I see that the forfeiture order that has been handed up by Mr. Cooper includes property beyond that which I made reference to in my reasons. MS. BACHUS: Mm-hmmm. THE COURT: The Crown has also included one small Apple IPhone and the empty dime bags and the two expired passports. Expired passports, how is that property “offence related property”? I don’t see that. MR. COOPER: Because the Crown’s thinking was that ID’s can be used to fashion new ID’s in another name.

Sometimes that’s seen in the drug trade. THE COURT: Seems a bit speculative to me. MR. COOPER: I’m fine with them being returned then. THE COURT: All right. I am going to cross those out and insert them into the return category. Any issue with the addition of the one small Apple IPhone Ms. Bachus? MS. BACHUS: No Your Honour. THE COURT: That is on consent? MS. BACHUS: That is. THE COURT: All right. I will sign the order as I have amended it. Thank you. MR. COOPER: Thank you Your Honour. **********

Transcript Ordered: .......February 5, 2018.... Transcript Completed: .....February 14, 2018... Ordering Party Notified: ..February 14, 2018... FORM 2 CERTIFICATE OF TRANSCRIPT (SUBSECTION 5(2)) Evidence Act I, Lori Summers, certify that this document is a true and accurate transcript of the recording of R. v. T. Robinson in the OCJ COURT held at BRAMPTON, Ontario taken from Recording No. 3111-207-201800205-083450-30-STRIBOJ which has been certified on Form 1. February 14, 2018 .................................... Lori Summers