R. v. McIntosh, 2011 ONCJ 220

Citation: R. v. McIntosh , 2011 ONCJ 220 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — JEFFREY MCINTOSH Before Justice Kathleen J. Caldwell Heard on January 4, 2011 Reasons for Judgment released on April 27, 2011 Mr. J. Andre Chamberlain ..................................................................................... for the Crown Mr. James C. Fleming ................................................................. for the accused Mr. McIntosh Caldwell J.: [ 1 ] Mr.

McIntosh pled guilty to one count of trafficking and one count of possession for the purpose of trafficking in cocaine. [ 2 ] I find that a sentence of eighteen months of incarceration, concurrent on both offences, is appropriate. I do not find that a conditional sentence is warranted in this case. The Facts [ 3 ] On February 9, 2009, Mr. McIntosh drove Mr. Derek Acorn to meet an undercover police officer. Mr. McIntosh stayed in the car while Mr. Acorn gave the undercover officer 7 grams of powder cocaine in return for $400. The cocaine was later analyzed and had a purity of 55%. Mr.

McIntosh knew that he was driving Mr. Acorn to the location for the purpose of selling the cocaine. [ 4 ] On August 14 th , a search warrant was executed on Mr. McIntosh’s home. Two large bags of marijuana were found, along with 235 grams of cocaine. The purity of this cocaine also was tested and found, in four samples, to range between 34% and 69%. [ 5 ] Mr. Acorn pled guilty to the February 9 th incident and was sentenced by my colleague Justice Melvyn Green – see R. v. Acorn , [2010] O.J. No. 1626 . That decision significantly impacts upon my decision for reasons which I will explain. Mr.

McIntosh’s Background and Character [ 6 ] Mr. McIntosh’s background and character is outlined in detail in the pre-sentence report and in a number of character letters. His childhood was not an easy one. His father was paralyzed as a result of a gun fight and passed away when Mr. McIntosh was thirteen years old. His parents had separated previously and Mr. McIntosh had an extremely difficult relationship with his mother’s new boyfriend who was abusive towards him. According to Mr. McIntosh’s cousin, Children’s Aid hovered on the periphery but never became fully involved with the family. [ 7 ] Mr.

McIntosh left home at sixteen and his relationship with his mother is not close. He has a very close relationship with his grandmother and is determined to ensure that she does not learn about these charges as he feels that she would be very disappointed in him. [ 8 ] He lives with his brother, sister-in-law, and their children. By all accounts he has an excellent relationship with these children and assists in their upbringing.

Further, he is a valued employee, and the employer, MGM Security Inc., wishes him to remain in its employ despite these offences. [ 9 ] Nineteen character reference letters were filed, all positive. These came from people at his workplace, his family, and friends. [ 10 ] Mr. McIntosh does not have a previous criminal record. Unlike Mr. Acorn, Mr. McIntosh does not define himself as an addict. This fact significantly impacts upon the sentence in this case, and differentiates him substantially from Mr. Acorn.

Factors to Consider in Sentencing [11] Determining a fit sentence involves balancing a multitude of factors. The principles of sentencing as outlined in section718 must be considered. Under

section 718.1, the sentence must be proportionate to the gravity of the offence and the degree ofresponsibility of the offender. According to

section 718.2, the offender should not be deprived of his liberty if less restrictive sanctionsare available. [12] Further, the offender’s personal circumstances and background must be considered. The fact that Mr. McIntosh pledguilty, thus showing his remorse and saving the State the time involved in prosecuting the matter are relevant considerations though Inote that this case is acknowledged to be a strong case for the Crown. [13] He was on a restrictive bail and required to live with his surety; this fact also must be considered in determining a fitsentence. [14] Finally, the issue of parity is very relevant in this case. 718.2(

b) codifies this principle, stating that sentences should besimilar in cases of similar offenders for similar offences committed in similar circumstances. [15] The Nova Scotia Supreme Court of Appeal in R. v. Chisholm (1985), (NS CA), 18 C.C.C. (3d) 518 atp. 529 noted that the purpose for such parity extends beyond equality of treatment. Similar sentences should be imposed to avoid thebitterness and resentment that can result if such parity is not achieved, thereby interfering with the chances of rehabilitation. [16] Absolute parity of sentence is not warranted in this instance, however. Mr.

Acorn was sentenced on four counts oftrafficking in cocaine; Mr. McIntosh has pled to only two counts. The volume of charges is somewhat misleading when comparing thesetwo offenders, however. Mr. Acorn trafficked a total of 95 grams of cocaine; Mr. McIntosh was involved with 7 of those grams. Mr.McIntosh, however, was found with 235 grams in his home and he acknowledged that he possessed that cocaine in order to traffick it. [17] Two factors in this case lead me to conclude that Mr. McIntosh’s actions were the more reprehensible. First, Mr.McIntosh’s purpose for trafficking was strictly commercial.

I was told, and I accept, that Mr. McIntosh was opportunistic on February 9th in utilizing an opportunity to unload part of this cocaine which apparently had a lesser degree of quality than he had expected and thusproved difficult to sell. I was informed that Mr. McIntosh was simply attempting to mitigate the loss he suffered in purchasing cocainethat was of lower purity than expected and that he thus had been forced to keep it in his home for approximately a year given thedifficulty he faced in selling it. Frankly, I don’t find this factor to be mitigating. The bottom line is that Mr.

McIntosh purchased asubstantial amount of cocaine with the sole intention of selling it at a profit. The fact that Mr. McIntosh made a poor deal in purchasing drugs that were difficult to sell hardly lessens his culpability. Further, he did manage to sell part of this product on February 9th andclearly would have sold the remaining product if he had found a buyer willing to take it. [18] Mr. Acorn, on the other hand, was sentenced as an addict trafficker. Mr. Fleming, on Mr. McIntosh’s behalf, took issuewith Mr. Acorn’s designation as an addict. It is irrelevant in my view whether or not I find Mr.

Acorn to be an addict. The crucial pointis that my colleague Justice Green did make this finding and this fact was highly significant in his sentencing decision. In examining theissue of parity of sentences, I must examine the basis upon which Mr. Acorn was sentenced, and that was as an addict. [19] The second aspect which aggravates Mr. McIntosh’s actions is that he was a step up from Mr. Acorn in the traffickinghierarchy. Mr. Acorn was a street level seller; Mr. McIntosh was a street level supplier. The difference in the roles is explainedconcisely in my colleague Justice Reinhardt’s decision, R. v.

Barkow, 2008 ONCJ 84 at para. 26. I appreciate that expert evidence as tothe drug supply chain was not called in this case; however, its nature has been documented in numerous cases and, further, the differencein the roles of Mr. McIntosh and Mr.

Acorn is simply a matter of applying common sense when looking at the facts in this case. [20] The conduct is viewed as increasingly reprehensible as one moves up in the supply chain not only due to the amounts ofdrugs that are often involved but also because each individual in the chain further insulates himself from the risk of prosecution byrelying upon the increased risk that the person below him on the chain undertakes. The Ontario Court of Appeal in R. v. Bajada, (ON CA), [2003] O.J.

No. 721 refers to the fact that sentences should be reflective of the offender’s position in thehierarchy and further notes that sentences of five to five and one half years are “not uncommon” for possession of substantial amounts ofcocaine for trafficking purposes after a plea of guilt or where there is no prior record – see paragraph 13. [21] Mr. Acorn was sentenced to a 90 day intermittent sentence on one count, to be followed by a fifteen month conditionalsentence concurrent on the remaining three counts. Mr. Fleming, citing both the parity principle and Mr.

McIntosh’s personalantecedents and circumstances, submits that the same sentence is appropriate for Mr. McIntosh. Mr. Chamberlain for the Crownsubmits that a sentence of two and one half to three years in a federal penitentiary is appropriate. Analysis [22] Upon balancing all of the relevant factors in this case, I find that a sentence of eighteen months served in a custodialfacility is the appropriate sentence. [23] In reaching this conclusion, I have considered all of the factors I have cited above, including Mr.

McIntosh’s background,his good character references, his stable job, lack of a record, and guilty plea. It is these factors, combined with the parity principle, thatbring the sentence into the reformatory range as opposed to the penitentiary range. [24] The reformatory range of the sentence I am imposing allows for a conditional sentence. I decline, however, to imposesuch a sentence as I find in this instance that it would not be consistent with the purpose and principles of sentencing.

[ 25 ] I turn to the aggravating factors I have noted above – namely, his supplier role in the Feb 9 th offence, his commercial motivation and the quantity of cocaine found in his home. In my view, a sentence of “real jail” is necessary to reinforce the message that must register with Mr. McIntosh – that this is a very serious offence and must never be repeated. [ 26 ] I appreciate that the Court of Appeal stated in R. v. Woolcock , [2002] O.J. No. 4927 that a lengthy imprisonment term can “impair the rehabilitation and reintegration of [the] person as a responsible member of his community”, and Mr.

McIntosh’s rehabilitative potential must be considered. On the other hand, general deterrence and denunciation are primary factors in these cases. Balancing all of the factors in this case, and taking into consideration the significance of general deterrence and denunciation, a term of imprisonment in a custodial facility is appropriate. Released: April 27, 2011 Signed: “Justice Kathleen Caldwell”