Hartman defence showcases complicated factors in determining appropriate sentence

Law360 Canada (March 13, 2025, 10:23 AM EDT) --

John L. Hill

Judges in criminal cases often say that sentencing is the most challenging part of their work. It requires them to balance a dichotomy and find harmony and effectiveness when dealing with seemingly opposite or contradictory ideas or concepts.

Section 718 of Canada’s Criminal Code sets out the purpose of sentencing and the factors a court must balance to arrive at a fair punishment. The section itself sets up the dichotomy to be balanced: public safety requires denunciation and deterrence, reflecting a “tough on crime” stance. Yet the section also preaches restraint and requires that imprisonment be the last possible alternative in sanctioning illegal behaviour.

The difficulty in finding a proper balance faced Justice Mabel Lai of the Ontario Court of Justice in the sentencing of 34-year-old Edward Dooley. On April 22, 2024, Dooley pleaded guilty to one count of trafficking cocaine, one count of trafficking fentanyl, four counts of transferring a firearm and one count of unauthorized possession of a loaded firearm. Dooley had argued he was subject to entrapment, but that defence was dismissed when the stay application had been brought on May 15, 2024. The crown stressed the seriousness of the charges and sought a global sentence of 13 years imprisonment less pre-trial credit.

Jeffrey Hartman of the Toronto law firm Lockyer Zaduk Zeeh represented Dooley. In one of the finest submissions I have had the honour to observe, Hartman carefully enumerated the factors that Justice Lai should consider to arrive at a just outcome.

Edward Dooley was a black man with no criminal record. His mother was only 16 years old when he was born in Jamaica. When Edward was 2, his father immigrated to Canada, leaving him and his baby brother, Randal, with his aunt and grandmother. At 7, Edward and Randal came to Canada to live with their father and stepmother. The stepmother subjected the boys to physical and psychological brutality. The authorities did nothing to protect them. Randal died nine months after coming to this country. The father and stepmother were charged and convicted of second-degree murder. Edward was called upon to testify against his parents and taken away from his brother’s funeral. He was returned to Jamaica, but his mother blamed him for Randal’s death and relocated to England without him. He returned to Canada but with limited education, he strived to find employment to support his two children.

The trauma Dooley experienced growing up transformed him into a different person. He turned to alcohol and drugs to suppress his emotions. Letters from friends and family evidenced community support.

If social agencies neglected Dooley as a child, he faced more of the same upon entering Ontario’s jails. He was arrested on July 28, 2022, and placed at the Central East Correctional Centre, Maplehurst Correctional Centre and Toronto South Detention Centre. In all three jails he experienced numerous lockdowns, unsanitary and unhygienic facilities, overcrowding and assaults by fellow inmates. Hartman posed a question during his submissions, asking why we expect accused people to obey the law when state agencies disregard their responsibilities with impunity.

The position advanced by Hartman was for a global sentence of eight years less pre-trial credit.

Justice Lai considered the aggravating factors. These included the fact that cocaine and fentanyl are hard, addictive drugs, and the province has experienced an epidemic of overdoses (R. v. Forrest, 2024 ONSC 4851, R. v. Gordon-Brown, 2024 ONSC 1300). Handgun trafficking is particularly malignant (R. v. Cass, 2019 ONSC 7313). The combination of guns and drugs poses a real and immediate danger to the public (R. v. Wong, 2012 ONCA 767; R. v. Simon, 2010 ONCA 754). Finally, the offences were profit motivated. The drug trafficking was not at a “low” level and Dooley was not a user. Rationally premeditated commercial crimes are amenable to deterrence (R. v. Owusu, 2024 ONSC 671).

These aggravating factors must be balanced with several mitigating factors, the first of which was his age and lack of criminal record. He was in his early 30s when arrested. Secondly, he pleaded guilty and appears remorseful. He remains concerned about the impact his behaviour will have on his children.

Justice Lai was critical that anti-Black racism is evident by the failure of authorities to protect him and his brother from abuse and his educational struggles despite his intellectual potential. The judge wrote in her March 6, 2025 decision, “But, as defence counsel correctly notes, his choices were not made in a vacuum, but while surrounded by violence and criminogenic factors, and in the context of unfathomable trauma.” She cited R. v. Morris, 2021 ONCA 680 and R. v. Stewart, [2024] O.J. No. 186.

Dooley has strong reintegrative and rehabilitative prospects. In perhaps the most potent words that have emanated from the bench, Justice Lai agreed with defence counsel that his confinement since arrest amounted to a suspension of the rule of law. She wrote, “The state is demanding legal compliance from Mr. Dooley while flouting the basic guidelines for the humane treatment of prisoners.” She cited R. v. McPherson, 2023 ONCJ 160 that was also critical of Ontario’s remand facilities.

In balancing the dichotomies of this case, Justice Lai found a fit sentence of six years and a month with credit for pretrial custody.

John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and an LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.   

Interested in writing for us? To learn more about how you can add your voice to Law360 Canada, contact Analysis Editor Peter Carter at peter.carter@lexisnexis.ca or call 647-776-6740.