The Court imposed a 12-month conditional sentence on a 50-year old Indigenous man who pleaded guilty to possession of a controlled substance for the purpose of trafficking. Gladue factors, including victimization in residential school, as well as particular vulnerabilities to COVID-19 supported a community-based sentence. The Ontario Court of Appeal’s decision in R v Sharma made a conditional sentence available for this offence.
Mr. Ashamock has pleaded guilty to one count of possession for the purpose contrary to s 5(2) of the Controlled Drugs and Substances Act. He was arrested after the RCMP were investigating allegations that drugs were being trafficked to First Nations communities by staff who accompany patients on flights for treatment. A search warrant was issued at the hotel where Mr. Ashamock was residing and a bottle with 52 percocets on a night table was seized along with a paper containing a list of names and phone numbers.
The Court concludes that a conditional sentence of one year is appropriate having regard to the availability of such a sentence now, especially in light of the global COVID-19 pandemic and the increased risk of infection faced by inmates in Canadian jails (R v Sharma, 2020 ONCA 78)
Mr. Ashamock is a 50 year old Indigenous man who is in his fifth year awaiting a kidney transplant. He resides in a hotel in Kingston, leaving only to receive dialysis three times a week. Mr. Ashamock uses a wheelchair, is a large man, weighing about 340 pounds. He developed an addiction to opioid pain killers after having them prescribed for him. His physical condition causes him considerable pain.
The mitigating factors are his plea of guilt. The Court has also given consideration to the relevant Gladue factors. Mr. Ashamock’s family has suffered as a result of residential schools. Unfortunately, a Gladue report was not available at the time of sentencing. Mr. Ashamock provided some information regarding his background when requested that he do so. The aggravating factors includes Mr. Ashamock’s association to an organized trafficking ring that arguably exploited other Aboriginal individuals, and that he has a criminal record, including a prior conviction involving drugs.
In regard to COVID-19, recommended social distancing and frequent hand washing, which are required as protection from transmission of the virus, are not readily available when a person is in custody (R v JS, 2020 ONSC 1710 (Ont SCJ)). All prisoners are at a greater risk of infection when compared to someone who is not incarcerated, due to the inability to physically distance. Mr. Ashamock is at grave risk of dire consequences should he contract the virus while imprisoned (R v Hearns, 2020 ONSC 2365 [“Hearns”]). Fitness is a related concept to proportionality, but not co-extensive with it. While proportionality mandates that a given sentence should be no more than necessary to reflect the gravity of the crime and the moral blameworthiness of the offender, fitness has regard to a broader array of factors (Hearns).
Conditional sentences are intended to assist in reducing society’s reliance on incarceration (R v Proulx, 2000 SCC 5). During a public health crisis such as the one we are currently facing, the availability of a community based sentence is an effective tool where appropriate, for reducing prison population. A conditional sentence would permit Mr. Ashamock to avoid imprisonment, but not punishment (Proulx). In the circumstances of this case, the criteria which would permit the imposition of a conditional sentence have been met: 1) the lack of a minimum term of imprisonment; 2) imprisonment of less than two years; 3) no danger to the community posed by the offender serving sentence in the community; and 4) the imposition of a conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in ss 718 to 718.2.