)) HER MAJESTY THE QUEEN – v. –, 2013 ONSC 1187

CITATION : R. v. Marlon Malcolm, 2013 ONSC 1187 COURT FILE NO.: 50000746/12 DATE: 2013/02/20 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: )) HER MAJESTY THE QUEEN – and – MARLON MALCOLM Accused )) )) )) )) ))))))) George Lennox and Jay Spare for the Crown Craig Bottomley for the Accused HEARD: February 13, 2013 REASONS FOR SENTENCE A.J. O’MARRA J.: [ 1 ] Marlon Malcolm was found guilty after trial on December 12, 2012 of importing cocaine into Canada, May 3, 2010, contrary to s.6 (3) (

a) of the Controlled Drugs and Substances Act and possession of cocaine for the purpose of trafficking during the period of May 3 to May 4, 2010, contrary to s.5 (2) of the Controlled Drugs and Substances Act . He is here today to be sentenced for these offences. Circumstances of the Offences [ 2 ] The police in an investigation called “Project Corral” intercepted the telephone communications by judicial authorization of a number of parties, including Marlon Malcolm and Dwayne Johnson.

Several calls between Malcolm and Johnson from April 10 to May 3, 2010 involved discussions concerning the importation of a quantity of cocaine, approximately 750 grams, by mail delivery from Panama. Johnson, who spoke with the supplier in Panama, provided him with an address associated with Malcolm to which the drugs were to be sent. Johnson kept Malcolm apprised of all arrangements and developments. The plan was to send a small quantity initially in order for the Panama supplier to determine if the process would work.

If successful, thereafter was to be followed by more shipments of greater amounts. [ 3 ] On May 3, 2010, police conducting surveillance of the address observed Malcolm receive and sign for the package from the postman operating the Canada Post delivery van. Malcolm in turn provided the package to Johnson. They both travelled to Johnson’s residence, then to 7 John Street, a location from which Johnson and Malcolm sold drugs. Johnson was seen to meet other individuals and turn over small white packages. [ 4 ] The quantity of cocaine shipped was approximately 600 grams – an amount less than anticipated.

The discrepancy was explained by the supplier to Johnson as a result of sending the wrong package. On May 4, 2010, on execution of search warrant at the residence of Dwayne Johnson the police found approximately 112 grams of cocaine secreted in his clothes closet. Circumstances of the Offender [ 5 ] Marlon Malcolm is 34 years old. He has a criminal record which consists of having been in possession of a controlled substance, crack cocaine, on July 30, 2008. He was sentenced to a fine of $1,725 and placed on probation for two years. At the time he

was a crack addict, however, he has been sober for the past five years. [6] Mr. Malcolm is single, although he is the father of 3 children from three different relationships. His first daughter, 16, wasborn when he was a teenager. It was noted in the Pre-Sentence Report ordered in this matter that he claims to pay Court ordered childsupport payments and maintains a regular visitation with his daughter. His second daughter is 5 years old. There is no formal childsupport arrangement however; he claims to provide child care and emotional support.

His son is 2 years of age and currently in the careof the Children’s Aid Society as his mother is presently incarcerated. [7] Mr. Malcolm is originally from Jamaica and arrived in Canada at age 10 years to live with his mother who had emigratedearlier. In her absence he was raised by an aunt and uncle. Once here he lived with his mother, step-father and step siblings. [8] He left high school at 17, six credits short of obtaining his high school diploma. He is unemployed and currently in receipt ofOntario Work Benefits. There is no report of any form of past employment reflected in the Pre-Sentence Report.

At trial, CanadaRevenue Agency Notices of Assessment for 2006, 2007, and 2008 in his name, seized from the address to which the cocaine was sent,reported no income for those years. (See Exhibits # 35A, B and C.) [9] In the Pre-Sentence Report, it was reported that Mr. Malcolm had expressed remorse and acknowledged that he was notworking at the time of the offence and has sought financial gain through his criminal involvement.

Further, he explained that after thedeath of his mother in 2009 he lost all motivation and lacked any constructive engagement so he started hanging around with peopleinvolved in the street scene.

Although associated with known gang members of the Shower Posse, the Five Point Genralz and theDriftwood Crips, he asserts that since his arrest he has cut off all ties with any persons involved in the street scene. [10] It is noted in the Pre-Sentence Report that he hopes to finish high school and pursue post-secondary education, however, hehas not pursued any educational or employment opportunities while on probation or bail release.

He has however, volunteered as a mathtutor with at risk children and youth three times a week with a community organization involved in tutoring children and providingAfrican history education since the fall of 2011. Position of the Parties [11] The Crown’s position is that the appropriate range of incarceration for the offences of the nature committed by Mr. Malcolmis 5 to 8 years. In this instance, the Crown, accepting that Dwayne Johnson was the principal, submits that Malcolm was his confederateand partner in selling drugs, as reflected in the intercepted communications between them.

The Crown submits that as a result anappropriate period of incarceration would be 6 years in the penitentiary.

Further, the Crown requests ancillary orders of a s.109 weaponsprohibition, an order requiring him to provide DNA samples, and a forfeiture order for digital scales, a quantity of marijuana and cellphone seized at Malcolm’s residence the day of his arrest, May 4, 2010. [12] The defence suggests that Marlon Malcolm should receive a sentence of approximately 3 ½ years in the penitentiary less 1month and 25 days pre-trial custody with additional credit for compliance with the strict bail conditions from the time of his release tothe date of sentencing. Mr.

Malcolm was subject to conditions of house arrest from June 29, 2010 to July 8, 2011 and thereafter, byconsent variation to the imposition of a curfew from 11:00 p.m. to 6:00 a.m. and deletion of the house arrest condition. Accordingly,defence counsel submits that the period of incarceration imposed by the Court should be reduced by approximately 6 months to 3 yearsimprisonment or less. Defence counsel took no issue with the ancillary orders requested by the Crown. Aggravating and Mitigating Factors [13] Mr.

Malcolm has a record for possession of crack cocaine, and he was on probation at the time of his involvement in thepresent offences. He has acknowledged having participated in the importation and possession of cocaine in order to derive financialgain.

In this instance, he participated knowing the pernicious affect that the use of drugs can have, having been an addict himself.Notwithstanding, he continued to participate for personal gain in an illicit drug trade that has long been recognized to sow misery anddestruction in the lives of users. [14] In mitigation, I accept his expression of remorse as reflected in the Pre-Sentence Report, as well in his statement made inCourt apologizing to his family.

There appears to be rehabilitation potential as reflected in his volunteered efforts to assist youths at riskand his expressed desire to improve himself for the benefit of his children. The Applicable Law [15] I take into account the sentencing objectives and principles set out in ss. 718, 718.1, and 718.2 of the Criminal Code. [16] In R. v. Hamilton, (ON CA), [2004] O.J.

No. 3252 (OCA) at para. 103 Doherty J.A., noted that where anoffence is particularly serious because it causes or threatens significant harm to an individual or segments of society the objectives ofgeneral deterrence and denunciation will usually dominate the other objectives identified in s.718 and imprisonment is almostinevitable. [17] The importation of dangerous drugs, such as cocaine is considered “among the most serious crimes known in Canadian law”because of the great social and economic harm it causes to society. It presents huge costs to society and it destroys lives. InPushpanathan v.

Canada (Minister of Citizenship and Immigration), (SCC), [1998] 1 SCR 982, (SCC) at 1039-1040,Cory J., speaking of the social-economic costs of illicit drug use in Canada stated the following: The costs to society of drug abuse and trafficking in illicit drugs are at least significant if not staggering. They include direct costs such as

health care and law enforcement, and indirect costs of lost productivity… These significant and often tragic consequences serve to emphasize that the harm caused by trafficking in illicit drugs is very properly amatter of grave concern in Canada, as it is throughout the world. [18] Earlier, in R. v. Smith, (SCC), [1987] SCJ No. 36 at para. 2, Lamer J., as he then was, stated: Those who import and market hard drugs for lucre are responsible for the gradual but inexorable degeneration of many of their fellowhuman beings as a result of their becoming drug addicts.

The direct cause of the hardship cast upon their victims and their families, theseimporters must also be made to bear their fair share of the guilt for the innumerable serious crimes of all sorts committed by addicts inorder to feed their demand for drugs.

Such persons, with few exceptions (as an example, the guilt of addicts who import not only to meetbut also to finance their needs is not necessarily the same in degree as that of cold-blooded non-users), should upon conviction, in myrespectful view, be sentenced to and actually serve long periods of penal servitude. [19] A poignant example of the degradation caused by the sale of drugs was the surveillance videotape taken by an undercoverpolice officer of a mother and daughter sharing a crack pipe behind 7 John St., the premises out of which Johnson and Malcolm operated. [20] What is the appropriate range? [21] In R. v.

Cunningham, (ON CA), [1996] O.J. No. 448 (OCA), a case that involved a first time offenderacting as a courier, who imported multiple kilograms of cocaine into Canada, the appeal court held that absent exceptional or extenuatingcircumstances the appropriate range of incarceration would be 6 to 8 years. [22] The Court stated at paragraph 24: [W]e are all of the view that as a general role, absent exceptional or extenuating circumstances, the range of sentence for first offendercouriers who smuggle large amounts of cocaine into Canada for personal gain should be six to eight years in the penitentiary.

Inestablishing such a range, we readily acknowledge that sentencing is not an exact science and that trial judges must retain the necessarydegree of flexibility to do justice in individual cases. We recognize as well that the suggested range will often require the imposition of asevere penalty for first offenders. We are not insensitive to this concern, mindful as we must be that in many instances, couriers tend tobe weak and vulnerable, thereby becoming easy prey to those who engage in drug trafficking on a commercial basis.

Sympathetic though we are to the plight of many couriers, such concerns must give way to the need to protect society from the untoldgrief and misery occasioned by the illicit use of hard drugs. [23] The significant factor in Cunningham appears to have been the quantity of drug imported into Canada, in that instance 5.231kilograms (approximately 11 pounds) of cocaine worth over a half a million dollars at street level. In R. v. Madden, (ON CA), [1996] O.J.

No. 376 (O.C.A.) a case decided the same day as Cunningham, involving a 23 year old first-time offender actingas a courier as well, who imported 770 grams of cocaine, the quantity was a noted factor in determining the appropriate range. [24] In that case, at first instance, the trial court imposed a sentence of 4 years being of the view that the appropriate range was 6-8years. However, Finlayson, J.A. speaking for the court of appeal suggested that a range of 3 to 5 years was appropriate for theimportation of less than one kilogram of cocaine.

In addition, there were other mitigating factors; the appellant had pleaded guilty, shehad no criminal record and she had cooperated with the police in participating in a “controlled delivery” that proved unsuccessful.Finlayson, J.A noted that the trial judge had failed to give sufficient weight to her cooperation with police.

Her sentence was reduced to 3years. [25] In Cunningham, the court acknowledged and clarified the range divergence with Madden at para. 16: [I]t is our considered opinion that as a general rule, absent exceptional or extenuating circumstances, a sentence in the range of three tofive years is warranted for first time couriers found guilty of importing a kilogram more or less, of cocaine for personal gain. [26] In R. v.

Hamilton, supra, Doherty J.A. at para. 107 stated: Because the sentencing of drug couriers presents one of the more difficult, and unfortunately more common situations in which thegravity of the offence and the personal responsibility of the offender suggest different dispositions, this Court has set out different rangesof sentence to assist trial judges in fixing appropriate sentences in individual cases. [27] Most couriers who come before the Court, as noted in Cunningham are weak and vulnerable, thereby becoming easy prey forthose who engage in the business of drug trafficking.

In order to balance the gravity of the offence with the personal responsibility of theoffender Doherty J.A. accepted in Hamilton that the range of 3 to 5 years as noted in Madden is a helpful sentence range where theimportation of the amount of cocaine is less than one kilogram. [28] Defence counsel argued that the quantity involved in this instance, 600 grams, (perhaps something less if the weight of thepackaging was taken into account), places it in the Madden range of 3 to 5 years.

His having acted only as a receiver of the cocaine andhis declared acknowledgment and remorse for his criminal behaviour places him at the lower end. [29] The cases relied on by defence counsel in support of the low end of the range all involved offenders who acted as couriers inwhich there were significant mitigating factors, absent in this instance, such as guilty pleas, the lack of criminal records, offenders whowere unemployed single mothers, drug addicts, and who offered cooperation with the authorities see R. v. AB; R. v. CD, (ON SC), [2004] O.J. No. 5220 (SCJ); R. v. Baker, [2004] O.J.

No. 2692 (OCJ), R. v. Spencer, [2003] O.J. No. 1052 (SCJ); R. v.White, [2010] O.J. No. 3618 (OCJ); R. v. Grant, [2005] O.J. No. 6129 (SCJ); R. v. Fenty, [2005] O.J. No. 5789 (SCJ) and R. v. Smith,[2005] O.J. No. 3352 (SCJ).

[ 30 ] Mr. Malcolm was not a courier. He was not a vulnerable person motivated by a drug addiction who participated to sustain a habit. He has a criminal conviction for drug possession. He was on probation for it at the time. He was more than just a receiver. He stood to gain financially. While I accept that Dwayne Johnson was the principal in that he negotiated the deal and made arrangements, Marlon Malcolm was directly involved in the deal with Johnson to obtain financial gain.

Although an addict in the past, he was at the time of his offences, a “cold-blooded non-user” as referred to by Lamer J. in Smith . [ 31 ] Mr. Malcolm meets the requirements, except for the quantity of drug involved, for a sentence at the low end of the range suggested in Cunningham . However, in my view, the “long period of penal servitude” necessary to effect denunciation and deterrence, as well as the other sentencing objectives, such as rehabilitation should be considered as a continuum from 3 to 8 years.

Where the offender is not a courier there should be no bright line between the ranges suggested by the cases. The appropriate place along that continuum should be determined not only by the quantity imported, but the characteristics of the offender, and his “personal responsibility”. Accordingly, Mr. Malcolm should be sentenced to a period of incarceration at the high end suggested in Madden . [ 32 ] In this instance, the quantity was less than one kilogram. I accept that Mr. Malcolm played a lesser role than did Johnson, who made the contacts, negotiated the deal.

However, I am satisfied Malcolm was in business with Johnson to import and traffic cocaine, based on the intercepted telephone conversations and surveillance observations. He stood to gain financially as he has acknowledged. [ 33 ] Taking into consideration the aggravating and mitigating factors, a fit sentence for Count No. 1, the importation of cocaine is 5 years imprisonment and for Count No. 2, possession for the purpose of trafficking 5 years imprisonment concurrent to Count No. 1. Mr.

Malcolm shall be credited with the equivalent of 6 months as suggested by defence counsel (2 months for pre-trial custody and 4 months for the significant restraint of his liberty as a result of the bail conditions of house arrest for just over 1 year and curfew restrictions thereafter. [ 34 ] In the result, Mr. Marlon Malcolm is sentenced to 4 years and 6 months incarceration in the penitentiary. [ 35 ] In addition, Mr.

Malcolm shall be prohibited for 10 years from possessing any firearms or other weapons or items as outlined in s.109 of the Criminal Code . [ 36 ] He shall be required to provide a sample of his bodily fluid for DNA sampling purposes pursuant to s.487.051 of the Criminal Code . [ 37 ] Lastly, there shall be an order for the forfeiture and disposition of the digital scales, marijuana and cell phone seized at the time of the offender’s arrest. A.J. O’Marra J. Released: February 20, 2013 CITATION : R. v. Marlon Malcolm, 2013 ONSC 1187 COURT FILE NO.: 50000746/12 DATE: 2013/02/20 ONTARIO SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN – and – MARLON MALCOLM Accused REASONS FOR JUDGMENT A.J. O’Marra J. Released: February 20, 2013