



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Johnson, 2021 ONCA 257

DATE: 20210427

DOCKET: C67790

Watt, Hoy and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Maxwell Johnson

Appellant

Jill R. Presser and David Levy, for the
    appellant

Tracy Kozlowski, for the respondent

Heard: March 25, 2021 by video
    conference

On appeal from the sentence imposed on December
    6, 2019 by Justice Kelly P. Byrne of the Superior Court of Justice.

Hoy J.A.:


[1]

Mr. Johnson was convicted of trafficking cocaine, possession of
    marijuana for the purpose of trafficking, and possession of proceeds of crime
    exceeding $5000. He was sentenced to six months imprisonment on each count, to
    be served concurrently, less credit for pre-trial custody, followed by one year
    of probation.

[2]

He seeks leave to appeal the sentence imposed. For the reasons that
    follow, I would grant leave to appeal the sentence, allow the appeal, and
    substitute a six-month conditional sentence on each count, to be served
    concurrently, followed by one year of probation.

Background

[3]

In January 2014, two young women ended a night of partying and using
    drugs at an impromptu gathering at Mr. Johnsons apartment. Mr. Johnson was 27
    years of age at the time. At the womens request, he shared a small amount of
    cocaine with them. They did not pay for the cocaine.

[4]

The women slept at his apartment, as did his friends Rene Jean Moneus
    and Nicolas Adeyemi. In the early hours of the morning, the women were
    unconscious and non-responsive. Mr. Johnson frantically sought help and they
    were rushed to the hospital. Mr. Adeyemi fled.

[5]

Tragically, one of the women died as a result of combined heroin and
    ethanol toxicity. The other, whose adverse reaction was also caused by
    ingesting heroin, recovered.

[6]

Mr. Johnson was panicked and scared. He did not tell the EMS responders
    about any drug use and, when first questioned by police, did not mention that
    the women had ingested cocaine. However, a short time later Mr. Johnson
    provided a video statement to police and admitted giving the women marijuana
    and a small amount of cocaine. He also told them he had marijuana at his
    apartment and directed them to where they would find it. The police searched
    Mr. Johnsons apartment. They found 800 grams of marijuana, two and one-half
    grams of heroin, the remnants of a small quantity of cocaine, and $2,000 in
    cash.

[7]

The police also found approximately $54,830 which Mr. Johnson had hidden
    in the trunk of Mr. Moneus car before giving his video statement to the police,
    in the hope that the police would not find it and take it. Mr. Johnson admitted
    at trial that this was money he had saved over the three years he had been
    selling marijuana.

[8]

Mr. Johnson consented to the forfeiture of the $56,830 found by the
    police.

[9]

Mr. Johnson was charged with several offences, including possession of
    heroin for the purpose of trafficking, and manslaughter. He pled not guilty to
    all counts but, at the conclusion of the Crowns case, he conceded that the
    Crown had met its onus on the offences of trafficking cocaine, possession of
    marijuana for the purpose of trafficking, and possession of proceeds. He
    candidly admitted that he started selling marijuana in 2011 to supplement his
    income. However, he testified that he neither dealt nor used heroin and had no
    knowledge of heroin in his apartment.

[10]

The
    trial judge was left in a state of reasonable doubt by Mr. Johnsons evidence
    that he had no knowledge of the heroin in his apartment and she acquitted him
    of the charge of possession of heroin for the purpose of trafficking. The trial
    judge considered that, possibly, the heroin belonged to Mr. Adeyemi. She was
    also left in a state of reasonable doubt on the manslaughter charge. She was
    not convinced that the heroin found in Mr. Johnsons apartment, which was not
    in a form readily consumable by snorting, had any nexus to the heroin ingested
    by the two women.

Sentencing submissions

[11]

The Crown sought a global sentence of 12 months imprisonment (6 months
    for trafficking cocaine, plus 6 months for possession of marijuana for the
    purpose of trafficking and 6 months for possession of proceeds, to be served
    concurrently, but consecutive to the sentence for trafficking in cocaine),
    followed by probation.

[12]

The
    Crown noted that a conditional sentence was not available for trafficking in
    cocaine, and, typically, a custodial sentence was imposed.

[13]

Citing
R. v. Woolcock
, [2002]
    O.J. No. 4927 (C.A.), and
R. v. Butters
, 2017
    ONCA 973, the Crown submitted that the range for this offence was six months to
    two years, less a day, with
one-off transactions involving
    small amounts of cocaine, other mitigating factors and rehabilitation prospects
    at the low end, and transactions involving larger quantities of narcotics,
    where the offender has a criminal record, at the higher end.

[14]

The
    defence submitted that: faced with the unavailability of conditional sentences,
    in exceptional circumstances courts had ordered non-custodial dispositions,
    by way of a suspended sentence, for trafficking in cocaine; that these were
    exceptional circumstances; and that Mr. Johnson should receive a 12 month
    suspended sentence and one years probation for the cocaine trafficking charge.
    The defence further argued that the trial judge should order conditional
    discharges for proceeds of crime and possession of marijuana for the purpose of
    trafficking. The defence also submitted that Mr. Johnson should receive
Downes
credit for his time on bail, if sentenced to a
    jail term.

[15]

No
    pre-sentence report was prepared. Mr. Johnsons background was conveyed through
    defence counsel at the sentencing hearing.

Reasons for sentence

[16]

In
    her reasons for sentence, the trial judge reviewed Mr. Johnsons personal
    circumstances.

[17]

She
    noted that he was a first offender who was 27 years of age at the time of the
    offences. He was born in Liberia and was an only child who was orphaned at the
    age of 14 because both of his parents had been killed in the Liberian civil war.
    At 16 years of age, he came to Canada as a refugee. He did well, completed high
    school, and trained and worked as a welder. In 2010, he started his own
    business. He started selling marijuana in 2011 to supplement his income as his
    business developed. He was still selling marijuana at the time of the incident
    giving rise to the charges against him but stopped doing so in 2014. By the
    time of sentencing, his business had developed to the point it had over 40
    contracts and employed 36 people. He provided multiple positive character
    references.

[18]

The
    trial judge accepted that Mr. Johnson had changed his life as result of this
    tragedy. He had extracted himself from the club lifestyle and no longer sold
    marijuana or engaged in the consumption of drugs. He had become involved with
    his church community.

[19]

The
    trial judge held that, as a first offender, Mr. Johnson was entitled to the
    most lenient sentence available based on the circumstances. But those
    circumstances included that he had been selling marijuana for three years prior
    to the incident that brought him before the court. In addition to subsidizing
    his business, he had managed to save over $50,000. She reasoned that, [t]he
    mitigation flowing from Mr. Johnsons lack of criminal record must be tempered
    against this backdrop.

[20]

Citing
R. v. Strong
, 2019 ONCA 15, an appeal book
    endorsement in a case involving large scale, prolonged trafficking for profit
    in marijuana, she held that societal and legislative changes since 2014
    regarding marijuana are directed at personal use only and do not warrant a
    reduction in sentence for possession for the purpose of trafficking marijuana,
    which, she indicated, is still considered a serious offence.

[21]

She
    noted that this was a case of social sharing of cocaine but rejected defence
    counsels argument that the circumstances were exceptional and warranted a
    suspended sentence. His sharing of cocaine was not an anomaly in an otherwise
    crime-free life. Mr. Johnson was fully immersed in the illegal selling of
    marijuana. Moreover, while the quantity of cocaine involved was small, cocaine
    is a highly dangerous and insidious drug.

[22]

While
    Mr. Johnson had not pled guilty, he had conceded that he had committed these
    crimes at the close of the Crowns case and this was deserving of significant
    mitigation. It was very much a demonstration of his remorse and willingness
    to accept responsibility for his actions.

[23]

She
    found that Mr. Johnsons compliance with his strict bail conditions for four
    years demonstrated his commitment to a crime-free life but that the conditions
    of his bail at no point caused him undue hardship that would entitle him to a
    Downes credit.

[24]

She
    found the extreme hardship that Mr. Johnson had to overcome deeply compelling
    and was confident that Mr. Johnson could, and would, rehabilitate himself.
    However, it does not override the criminal choices that Mr. Johnson made. It
    is for those choices and those crimes that Mr. Johnson is being sentenced.

[25]

She
    concluded that each of the three offences warranted a minimum of six months
    incarceration. However, considering the principle of totality, Mr. Johnsons
    personal circumstances, and his sincere and demonstrated desire to lead a
    pro-social life, she was persuaded that the sentences should be served
    concurrently to one another. She appreciated that the sentences would normally
    be served consecutively, but this was not a typical case. Mr. Johnson persuaded
    her that he was fully committed to rehabilitating himself and she had every
    confidence he would succeed. As such, he was entitled to the least restrictive
    sentence available.

[26]

She
    gave Mr. Johnson nine days credit for time served and imposed a one-year term
    of probation.

The issues raised on appeal

[27]

Counsel
    for Mr. Johnson argues that the trial judge erred in principle by: (1) applying
    the sentencing range for street level cocaine traffickers when he had just
    shared a small amount of the cocaine he had acquired for personal use with two
    persons on a social occasion; (2) failing to adequately consider that he was a
    relatively youthful first offender; (3) distinguishing his admissions at trial
    from a guilty plea; (4) applying a range appropriate to a large-scale marijuana
    organization or grow-op for the marijuana offences, resulting in a sentence
    that was excessive and demonstrably unfit; and (5) declining to apply
Downes
credit for his time under restrictive bail
    conditions.

Analysis

[28]

I
    conclude that the sentencing judge made two errors in principle which affected
    the sentence imposed.

(1)

The trial judge erred in applying the range in
Woolcock


[29]

I
    agree that the trial judge erred in principle in applying the sentencing range
    in
Woolcock,
urged by the Crown, to this case
    of share trafficking, and that that error had an impact on the sentence
    imposed.

[30]

Mr.
    Woolcock was found in possession of 5.3 grams of crack cocaine. Police had
    received information that Mr. Woolcock was dealing crack cocaine from a
    residence and observed several instances of individuals visiting the residence
    for a short time. One of the individuals observed leaving the residence was
    arrested and found to be in possession of 0.5 grams of cocaine. During a search
    of Mr. Woolcocks residence, the police found 5.3 grams of crack cocaine.

[31]

In
    the context of that case - a case involving selling crack cocaine for profit at
    street level - this court, at para. 15, said that:

The range for this type of offence appears to be 6 months to 2
    years less a dayHowever, many of the cases that fall at the higher end of this
    range involved either larger quantities of narcotics or offences committed
    while the accused was still on probation for a similar offence. Those
    circumstances to not exist here.

[32]

This
    court reduced the sentence imposed by the sentencing judge from two years less
    a day to 15 months.

[33]

In
Butters
, the sentencing judge had imposed a
    sentence of 12 months for a one-off transaction for a very small amount of
    crack cocaine - 0.2 grams - for $20, apparently as a favour for a friend and
    for no profit. This court considered that a sentence of six months, which was
    at the low end of the
Woolcock
range, would
    have been appropriate, but for the immigration consequences of a sentence of six
    months or more. The court reduced the sentence to 160 days.

[34]

As
    counsel for Mr. Johnson submits, this offence was not the type of offence at
    issue in
Woolcock
where crack cocaine was sold
    at street level for a profit. Or even that at issue in
Butters
,
    where, although the transaction was not at a profit, the cocaine was
    nonetheless sold. This was an instance of share trafficking, where a host
    shared cocaine, acquired for his personal use, with guests to his home, who
    were not minors or first-time users, at their request, at no charge, and not as
    part of a business transaction. While the trial judge found the women were regular
    users of cocaine, she did not find they were addicts. It is less morally
    blameworthy than the type of trafficking in
Woolcock
:
R. v. Lloyd
, 2016 SCC 13, [2016] 1 S.C.R. 130,
    at paras. 28, 32. As this court has recently held, the absence of commercial
    motive is a relevant mitigating factor in sentencing for trafficking:
R. v. Spagnola
, 2020 ONCA 638, at para. 2.

[35]

Ranges
    of sentence are only guidelines, and there may well be circumstances where a sentence
    for share trafficking within the range identified in
Woolcock
is appropriate. However, the trial judge did not engage in that analysis. As
    this court has said, it is an error to treat guidelines as constituting a
de facto
minimum sentence:
R. v. Jacko
,
    2010 ONCA 452, 101 O.R. (3d) 1, at para. 82. The trial judges error in
    principle was to accept the range in
Woolcock
as generally applicable to share trafficking.

(2)

The trial judge did not give proper effect to Mr. Johnsons status as a
    first offender

[36]

I
    agree with counsel for Mr. Johnson that the trial judge also erred in principle
    in reducing the weight she accorded to the fact that Mr. Johnson was a
    first-time offender
because
he admitted he had been trafficking in marijuana
    for several years before the incident that brought him before the court. This
    was the first time that Mr. Johnson had been before the court. Aside from the
    charges below, Mr. Johnson had never been charged, let alone convicted, of any
    offences in relation to trafficking marijuana. He was a first offender and was
    entitled to be treated as such for sentencing:
R. v.
    Barclay
, 2018 ONCA 114, at para. 44. Other than his admissions at
    trial, there is no evidence of his involvement in the drug world, as the trial
    judge put it.

[37]

Moreover,
    the evidence before the trial judge did not suggest Mr. Johnsons history
    selling marijuana was relevant to specific deterrence. The trial judge stated
    that she was confident that Mr. Johnson can and will fully rehabilitate
    himself. A criminal record is relevant in sentencing to the extent that it
    rebuts good character and because of what it tells the trial judge and society
    about the need for specific deterrence, the chances of successful
    rehabilitation, and the likelihood of recidivism:
R. v.
    Taylor
(2004)
,
189 O.A.C. 388 (C.A.), at para. 39.

[38]

In
    my view, this error led the trial judge to give undue weight to general
    deterrence and to impose a harsher sentence for all the offences than she
    otherwise would have. Individual deterrence and rehabilitation are the primary
    objectives in sentencing a first offender:
R. v. Priest

(1996), 30 O.R. (3d) 538 (C.A.), at p. 9.

[39]

Given
    this conclusion, it is unnecessary to address Mr. Johnsons further arguments
    that the sentences imposed for the marijuana charges were excessive and that
    his admissions at trial should have been treated as a plea.

(3)

The
Downes
credit

[40]

Finally,
    I see no error in the trial judges conclusion that a
Downes
credit was not appropriate in the circumstances. The decision as to whether to
    give
Downes
credit is a discretionary one:
R. v. Downes

(2006), 79 O.R.
    (3d) 321 (C.A.), at para. 37. And, contrary to counsel for Mr. Johnsons
    assertion, the trial judge explained her reason for declining to give credit:
    the conditions of his bail at no point caused Mr. Johnson undue hardship. He
    was able to continue to work while on bail and after a short period during
    which a relatively strict curfew applied, his curfew was loosened to 11:00 p.m.
    to 6:00 a.m. The trial judges decision is entitled to deference.

(4)

A fit and appropriate sentence

[41]

In
R. v. Sharma
, 2020 ONCA 478, 152 O.R. (3d)
    209, leave to appeal granted, [2020] S.C.C.A. No. 311, this court struck down
    ss. 742(c) and 742(e)(ii) of the
Criminal Code
,
    R.S.C. 1985, c. C-46, which eliminated the availability of conditional
    sentences for drug trafficking.

[42]

In
    my view, a six-month conditional sentence of imprisonment for each of the
    charges, to be served in the community, concurrently, and followed by one year
    of probation, is a fit sentence, having regard to all the circumstances of the
    offence and the offender. Indeed, had this option been available to the trial
    judge, I suspect she would have availed herself of it. This will permit Mr.
    Johnson to continue the productive and pro-social life that he has built over
    the last five years and best ensure the future of the employees of his business
    in this time of wide-scale economic disruption caused by the COVID-19
    pandemic.

Disposition

[43]

I would grant leave to appeal sentence, allow the appeal, quash Mr.
    Johnsons sentence of six months incarceration (concurrent) and impose a
    six-month conditional sentence on each count, to be served concurrently, followed
    by one year of probation. I would order that in addition to the conditions
    which are compulsory pursuant to s. 742.3(1) of the
Criminal
    Code
, during the term of his conditional sentence the conditions in
    paragraphs 6, 9, 11, 12 and 13-19 of the Release Order of van Rensburg J.A.
    dated March 10, 2021 shall apply and the appellant shall not change his address
    without the prior approval of his supervisor.

Released: April 27, 2021 D.W.

Alexandra
    Hoy J.A.

I
    agree. David Watt J.A.

I
    agree. I.V.B. Nordheimer J.A.


