R. v. Morrison

R. v. Morrison Collection Decisions of the Court of Appeal Date 1999-07-14 Docket numbers C32042 Judges Osborne, Coulter Arthur Anthony; Catzman, Marvin Adrian; Farley, James Montague Subject Criminal Decision Content DATE: 19990714 DOCKET: C32042 COURT OF APPEAL FOR ONTARIO RE: HER MAJESTY THE QUEEN (Respondent) v. CONRAD MORRISON (Appellant) BEFORE: OSBORNE A.C.J.O., CATZMAN J.A. and FARLEY J. ad hoc COUNSEL: Leslie Pringle for the appellant Iona Jaffe for the respondent HEARD: June 15, 1999 On appeal from sentence imposed by Gonet J. on March 19, 1999. ENDORSEMENT [1] On March 19, 1999 the appellant pleaded guilty to the charges of (i) escaping lawful custody; (ii) trafficking in cocaine; and (iii) possession of cocaine for the purpose of trafficking. He had been arrested on February 27, 1999. He was sentenced to 9 months on (ii) plus 1 month on (i) and 6 months on (iii), both concurrent to (ii), with a recommendation that he be involved in the Temporary Absence Program. He has been now detained for an immigration hearing, which event will likely affect his eligibility for parole and has affected his eligibility for enrolment in the Temporary Absence Program and his ability to take any substance abuse or family life programs while incarcerated. [2] The appellant acknowledged that he is a drug addict (marijuana and cocaine). He has multiple drug convictions. His record for this and other offences span the decade: 1986 – 96. An outstanding drug charge from 1997 has not yet been resolved. [3] However within a month of being charged in 1997, he experienced a revelation which he asserts changed the direction of his life. With the support of his now wife and his mother, he appears to have abstained from drugs for approximately 20 months, before yielding to the temptations put before him by bad company and stumbling into smoking some marijuana again which quickly degenerated into the revival of his crack cocaine habit. During his drug free period he went back to school for upgrading and he also took a training program in carpentry. With the encouragement and assistance of his and his wife’s families, he opened a clothing store after fixing up the premises. It appears that his wife kept close tabs on the store’s finances so that the appellant was not able to use store money to fund his crack habit. Thus he turned to the avenue of selling crack to feed his own habit. In this respect it appears that the support of his wife and the success he was enjoying unfortunately worked to his immediate detriment. [4] At his sentencing, appellant’s counsel and his wife indicated to the court that he wanted treatment to deal with the cause underlying the criminal offences before the court. In order to enable the appellant to get treatment, his counsel proposed a conditional sentence of 12 months with strict conditions to ensure compliance. [5] The appellant also apparently spoke on his own behalf, it would seem in regard to his desire and need for assistance in rehabilitation. Inexplicably his statement was “inaudible” to the court reporter so that there is a gap in the transcript. The judge did not refer in his reasons to anything said by the appellant nor did he address the aspect of rehabilitation. [6] The appellant, his wife and his mother are concerned that he become rehabilitated. They are willing to engage in a strict regime to this end. [7] Under ordinary circumstances and without any consideration of the aspect of rehabilitation, one would not view the sentence as being out of line. However, what needs to be considered in these fairly unusual circumstances is the question of cause and effect and the distinct possibility of rehabilitation which would break the cycle. Under present conditions, the appellant has no opportunity to engage in suitable treatment. He has the support and encouragement of his wife, her family and his own family to fortify him in his expressed and semi-achieved goal of becoming drug free. That he has slipped and fallen does not end the inquiry as to rehabilitation; given the invidious evil of drugs, it is likely that this path will never be smooth nor uninterrupted. However, if he succeeds in his goal on a long term basis then our society will be the beneficiary of a recovered member and a good example for others. [8] Rehabilitation was a live issue advanced on a realistic basis but unaddressed in the sentencing below. We are therefore of the view under these circumstances, with a view towards encouraging continued dedication towards rehabilitation, that the proper sentence would be that of time served plus two years of probation. The appellant has requested that one of the terms of his probation be that he not associate with or knowingly be in the company of anyone who has a criminal record whether or not involving drugs or whom he knows to be a drug user, so that he have a reason to avoid such bad company or to disengage himself if he finds that he is so engaged. In addition, the probation conditions are: (a) to report to his parole officer immediately upon release and so often thereafter as directed; (b) to abstain from the use or possession of any non-prescription drug; (c) to forthwith enroll in a substance abuse program at the Donwoods Institution and faithfully attend; (d) to agree to be tested for drug usage at any time as required by his probation officer; (e) to be employed on a full time basis either at the subject clothing store or as permitted by his parole officer; (f) to reside with his wife; and (g) to maintain a curfew between the hours of 9:00 p.m. and 6:00 a.m. except for the purposes of work or receiving counselling. [9] Leave is granted. The appeal against sentence is allowed. The sentence is varied in accordance with these reasons.