Ontario Court of Justice

Date: November 28, 2017

Court File No.: Central East Region (Oshawa)

Between:

Her Majesty the Queen

— AND —

Frederick Tucker

Before: Justice F. Javed

Heard on: September 12, 20, November 15, 2017

Reasons for Sentence released on: November 28, 2017

Counsel:

• T. Jackson, counsel for the Crown
• P. Affleck, counsel for Mr. Tucker

F. Javed J.

A. Overview

[1] Frederick Tucker entered guilty pleas to four counts of breaking and entering into a dwelling home contrary to s.348(1)(a) of the Criminal Code. He was charged on a 20-count information and entered pleas to counts 1, 3, 6 and 8.

[2] The guilty pleas arose after an unsuccessful application under the Charter of Rights and Freedoms (Charter) to exclude evidence after a search warrant was executed at his residence. My reasons on that application were released separately on September 11, 2017. The parties agreed to file them as Exhibit 1 on the guilty plea.

[3] Mr. Tucker is to be sentenced for these offences.

B. The Positions of the Parties

[4] Ms. Jackson submits that an appropriate sentence is 8-10 years imprisonment minus any pre-sentence custody. In addition, she seeks free standing restitution orders. She argues that Mr. Tucker is a repeat offender and the principles of general deterrence and denunciation should take prominence in the sentencing decision.

[5] Mr. Affleck submits that a fit sentence is in the range of 5-6 years imprisonment minus pre-sentence custody. He argues that the principle of rehabilitation is not entirely lost on Mr. Tucker. As for restitution, he submits that Mr. Tucker is impecunious and has no present or future ability to pay any amount of money.

C. The Circumstances of the Offences

[6] The factual background is captured in an Agreed Statement of Facts (ASF), entered as Exhibit 2 on the guilty plea. This details the chronology of the criminal offences as well as the police investigation that led to Mr. Tucker's arrest after a search warrant was executed in his home.

[7] The ASF was supplemented by Exhibit 3 on the guilty plea which includes affidavit evidence detailing the losses of each victim. Exhibit 2 on sentence itemizes the property lost by the victims as well as the specific amount of restitution attributable to each victim. The defence does not dispute the computation of restitution or the inventory of the lost items.

[8] Mr. Tucker committed several break and enters into residential homes between September 13 and October 14, 2016. Many of them shared the same modus operandi. As part of the guilty plea, the ASF contained all the facts that were relied upon by the Crown. This was on consent: R. v. Garcia and Silva, [1970] 1 O.R. 821 (C.A.). I will briefly review all the facts below mindful that convictions were entered on counts 1, 3, 6 and 8. More importantly, all the facts can be relied upon in fashioning a fit sentence.

(i) Counts 1, 19, 20

[9] On September 13, 2016 the police investigated a break and enter at 25 Ballantine St. in Cobourg. Video footage was obtained of Mr. Tucker inside the residence between 2:42 and 2:46 pm. The crime remained unsolved until the Durham Regional Police Service (DRPS) executed a warrant at Mr. Tucker's home at 371 John St., and located clothing matching that worn by him on September 13th. They also found some items that were stolen.

(ii) Count 3

[10] On September 15, 2016, Mr. Tucker, along with a former co-accused party Robert Larocque, broke and entered into the residence at 745 King St. West. The home owner was 97 years old and was home at the time. She did not let them in. Mr. Larocque broke a basement window while Mr. Tucker stood by. The parties didn't gain entrance as there were bars on the window. No property was stolen.

(iii) Counts 6, 15

[11] On October 5, 2016, Mr. Tucker broke into the residence at 576 Reynolds St. in Whitby, by breaking a rear sliding door with a cement art piece. He ransacked the home removing several pieces of jewellery, electronics and other personal property. The police located some of this property after the search warrant at Mr. Tucker's residence.

(iv) Counts 8, 16

[12] On October 14, 2016, Mr. Tucker broke into the residence at 544 Reynolds St. in Whitby by using a 4x4 piece of wood to break a rear window. He ransacked the home removing various property, including an Apple iPhone.

[13] The following day, the iPhone was traced to Mr. Tucker's residence using the Find my iPhone software.

[14] The police located some of this property after the search warrant at Mr. Tucker's residence.

[15] Of note, Mr. Tucker was also convicted of possession of property obtained by crime in 2014 in relation to this same address.

(v) Counts 2, 12

[16] On some date between September 13 and 15, 2016, Mr. Tucker broke into the residence at 125 Pringle Dr. in Whitby by breaking a front window with the help of a cement stone. He ransacked the home removing various property, some of which was recovered by the police after they executed a search warrant at his home.

(vi) Counts 4, 13

[17] On September 15, 2016, Mr. Tucker broke into the residence at 409 Gilbert St. in Whitby by breaking a rear kitchen window with the help of a small potted plant. He ransacked the home removing various property, some of which was recovered when the police executed a warrant in his home.

(vii) Counts 5, 14

[18] On some date between September 21 and 28, 2016, Mr. Tucker broke into the residence at 570 Crimson Court in Oshawa by breaking a rear window with a wooden log. He ransacked the home removing various property and cash. Some of these items were found in his home after the police executed a search warrant in his residence.

(viii) Count 7

[19] On October 5, 2016, Mr. Tucker entered the residence at 3155 Concession Rd. 3 in Clarington and removed property of Elizabeth Sempionius. It is not alleged that he broke into the home. Some of this property was found in his home after a search warrant.

(ix) Counts 9, 17

[20] On October 14, 2016, Mr. Tucker broke into the residence at 330 Prince of Wales Dr. in Whitby by breaking a rear window with a cinder block. He ransacked the home removing various property. Some of these items were found in his home after the police executed a search warrant in his residence.

(x) Counts 10, 11, 18

[21] On October 14, 2016, Mr. Tucker broke into the residence at 102 Hialeah Cr. in Whitby by breaking a rear window. This home is divided into two dwellings. Entry was made in both dwellings. He ransacked the homes removing various property. Some of these items were found in his home after the police executed a search warrant in his residence.

[22] Mr. Tucker was ultimately arrested for the above offences. He has been earning pre-sentence custody since October 23, 2017. The parties agree that this amounts to 37 days and using the Summers formula, entitles him to pre-sentence custody at the rate of 1.5:1 amounting to 55 days. It's agreed that this should be deducted from the aggregate sentence.

D. The Victims

[23] The offences generated nine separate victims. All provided victim impact statements (VIS) under s.722 of the Criminal Code. These were helpfully catalogued in Exhibit 2 on sentence. Some of the VIS's were not in the appropriate form (Form 34.2) but the defence did not object to their content or format. I have reviewed all of them mindful of course that the law sets boundaries for a VIS. In R. v. Gabriel, [1999] O.J. No. 2579 (Ont. Sup. Ct.), Justice Hill reminded that it is not a forum to argue the facts, recommend a penalty or criticize the offender. Mr. Affleck agrees that instead of arguing the propriety of some of the VIS's a more sensible approach is to simply disabuse my mind of any inadmissible evidence contained therein. I agree. See R. v. Talbot, [1995] O.J. No. 4304 at para. 9 (Ont. Gen. Div.).

[24] I will not discuss each VIS but instead will highlight a common theme in all of them. All commented that the psychological trauma with discovering your home was broken into and personal property was taken is enduring. Many victims were elderly and lost items of sentimental value. Many of these items have not been returned or simply can't be replaced. Some have taken extra steps, at their expense, to install security measures and remain afraid that their homes will be broken into again. There is no doubt that Mr. Tucker's brazen actions of breaking into their homes and violating their sense of security will have a profound and lasting impact on them.

E. The Circumstances of the Offender

[25] Mr. Tucker's personal circumstances were documented in a pre-sentence report (PSR) filed as Exhibit 1 on sentence. I have reviewed it carefully. Mr. Tucker is an enigmatic offender filled with contradiction. On the one hand, he has been a model prisoner while incarcerated, but he's anything but in the community. The author does not recommend any further community supervision which of course is a non-issue given the agreement that a penitentiary sentence is warranted.

[26] Both parties point to the PSR to support their position. Ms. Jackson says it proves that he cannot be managed in the community while Mr. Affleck says it shows that he has the means to be corrected and requires one final chance.

[27] Mr. Tucker is a mature man. The PSR documents that he had a troubled upbringing and challenging life. His mother tragically died when he was 18 years old. There have been other instances of traumatic experiences. The author notes that Mr. Tucker has not come to grips with his grief and trauma.

[28] He has been diagnosed with Attention Deficit Disorder (ADD). Despite this, he completed his high school education while incarcerated.

[29] He has been intermittently employed when not in jail doing roofing, landscaping and construction. It appears there is employment waiting for him if and when he is released into the community.

[30] The report notes that alcohol and cocaine use have been an ongoing concern. These offences were committed as he had relapsed on opiates and needed money for drugs.

[31] The author opines that Mr. Tucker is a career criminal who commits offences "for the thrill of it". The parties seized on this passage. Ms. Jackson says it supports her position. In my view, there is some merit to the Crown's position because there is no doubt that Mr. Tucker has spent most of his adult life involved in the criminal justice system. His criminal record (Exhibit 3) starts in 1986 and ends in 2017. It is deeply troubling even appalling, with approximately 67 convictions. Notably, he has 12 prior break and enter convictions and 2 prior possession of break and enter instruments convictions.

[32] Mr. Tucker has been sentenced in the past to the penitentiary and invariably reoffends. In 1997, he was sentenced to 2 years in jail and released in 1999. Almost three months later he violated his parole. In 2006, he returned to the penitentiary and was released in 2007. Almost six months later, he violated his parole again. In 2014, Mr. Tucker was convicted of his last set of offences. These involved several break and enters. He received a 4 year jail sentence. On August 2, 2016, he was released into the community and quickly reoffended with these offences. Of note, these offences involve the same conduct for which he was imprisoned in the past. Ms. Jackson says long jail sentences have not deterred him. I agree.

[33] That said, there is some merit to Mr. Affleck's position that Mr. Tucker is not entirely incorrigible. Put differently, there is still some hope for him that he can be corrected. While in custody, he completed the National Substance Use Program (Moderate Intensity). The report notes: "he was a contributing leader in discussions and also helped others get involved". He had excellent attendance and his assignments were thoughtfully completed. He has been described as a 'leader' in the group work – but he continues to reoffend when released into the community. This has been an ongoing pattern for him and leads to an irresistible inference that jail and long periods in jail, simply do not deter him.

[34] The revolving door of prison paints a picture of an offender who has been institutionalized. This is unfortunate because Mr. Tucker has family support and the means to succeed in the community but for some reason, can't adjust to life outside of jail. The reasons for this remain unknown. Mr. Affleck says he needs a final chance to come to terms with his past trauma. With respect, Mr. Tucker has been afforded many chances in the past to do this but continues to reoffend. There is no evidence before me that anything has changed since 2014 which would elevate or even equate the principle of rehabilitation with deterrence and denunciation. I agree with the Crown that deterrence and denunciation remain the dominant sentencing principles.

F. Analysis

[35] Sentencing is inherently an individualized exercise. Section 718 of the Criminal Code dictates that the fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(1) to denounce unlawful conduct;

(2) to deter the offender and others from committing offences;

(3) to separate offenders from society where necessary;

(4) to assist in rehabilitating offenders;

(5) to provide reparations for harm done to victims and others in the community; and

(6) to promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims and the community

[36] The court must also take into account a number of principles outlined in s.718.2 of the Criminal Code including:

(1) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender;

(2) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

(3) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;

(4) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and

(5) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.

[37] There are several aggravating factors in this case. They include:

(1) Mr. Tucker went on a break and enter spree. This was not just one offence but several over a short period of time;

(2) All the victims in this case were vulnerable and lost property, some of which carried sentimental value. Some of these items have not been recovered;

(3) The impact to the victims was profound and lasting as evidenced by their VIS's. In the case of one set of victims, Donald and Darla Hunt, this was the second time Mr. Tucker victimized them. In 2014, he was convicted of possessing property obtained by crime in relation to their home. Mr. Tucker saw fit to target their home again. I find this to be aggravating;

(4) Mr. Tucker has an unrelenting criminal record which includes 12 prior convictions for break and enters. Most notably, he was on parole at the time of these offences. This is also highly aggravating.

[38] In my view, there aren't any mitigating factors which bear mentioning save and except the guilty plea. Ms. Jackson says this should be afforded less weight because it came after a failed Charter motion where a conviction would have been inevitable. Mr. Affleck disagrees.

[39] I agree with the defence position. While the failed Charter application weakened the defence, the guilty plea spared a considerable amount of time and expense to the criminal justice system given the sheer volume of witnesses involved and more importantly, spared the victims from testifying about a traumatic event. Some of the victims were elderly which would have been challenging. Mr. Tucker made reasonable concessions to not dispute the property lost or restitution which would have been cumbersome to prove. Mr. Tucker apologized for his behavior and was moved by the faith that one victim had in him that he could change if he put his mind to it. I find that the guilty plea deserves some weight: R. v. Faulds, [1994] O.J. 2145 (C.A.)

[40] The parties don't dispute the controlling principles which set the range for these offences. I am mindful that a sentencing range is not set in stone: R v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089 (SCC). Ms. Jackson provided the court with a book of authorities including a very helpful sentencing chart. It reflects the following decisions and results:

Case	Sentence
R. v. Hall, 2013 ONCA 228	7 years jail after 4.5 months pre-sentence credit
R. v. Pilon, [2006] O.J. No. 5804 (CA)	8 years jail (reduced on appeal from 10 years)
R. v. Carvalho, [2006] O.J. No. 1626 (CA)	5 years jail (upheld on appeal)
R. v. Douglas, [2014] O.J. No. 1456 (SCJ)	4.5 years jail
R. v. Simoes, 2012 ONSC 550, [2012] O.J. No. 100 (SCJ)	5 years jail
R. v. Alves, [2008] O.J. No. 2597 (SCJ)	3.5 years jail
R. v. Clark, [2011] O.J. No. 3247 (OCJ)	3.2 years jail
R. v. Snow, 2007 ONCJ 426, [2007] O.J. No. 3634	3.5 years jail

[41] The offence of breaking and entering into a residential home is a serious one and must be deterred. I agree with the comments of Justice Trotter (as he then was) in Snow when he said at p.2:

In our society, the home is a place of great sanctity. Due to the robust expectation of privacy people have in their own homes, the law provides formidable protection against state intrusion. Because of the sense of security that people enjoy while in their homes, the law punishes intrusions by individuals into homes more severely than other types of break-ins. When a home is broken into, there is always the risk of physical harm to the occupants of the home. For these reasons, break-ins of dwelling houses are punishable by a maximum of life imprisonment. [Citations omitted.]

[42] The contested issue is whether and if so, how, to give effect to the jump principle given that Mr. Tucker last served a jail sentence for similar offences of 4 years imprisonment.

[43] Ms. Jackson draws heavily on the decision in Pilon to argue that an upper range of 8-10 years is appropriate. She says that the jump principle isn't applicable or alternatively less important. Mr. Affleck disagrees noting that a 4-6 year jump would not give effect to the principle which he says remains important.

[44] The step or "jump" principle in sentencing provides for a modest increase of sentences to reflect the gravity of the offence. In R. v. Q.B., [2003] O.J. No. 354 (CA), the Court of Appeal explained this principle in the following terms at para. 36:

This principle cautions a court against imposing a dramatically more severe sentence than the sentences imposed upon the offender for similar offences in the recent past. It has little application where the severity of the offender's crimes shows a dramatic increase in violence and seriousness.

[45] In Simoes, Justice Hourigan held (at para. 39) that the jump principle was not triggered in that case which called for deterrence. She cited Justice Nordheimer's (as he then was) analysis in J.G. where he held that the departure from the principle was not offended in a case where there is no prospect for rehabilitation, the offences show a dramatic increase in violence and seriousness and a modest increase would fail to achieve the sentencing objectives of deterrence and denunciation.

[46] I agree with this analysis of how to apply the jump principle in this case. In my view, while there remains slim hope for rehabilitation, the seriousness of the offences makes the jump principle less relevant. I find that a modest increase from 4 years would fail to give effect to deterrence and denunciation and in particular, the circumstances of this case.

[47] Mr. Tucker reoffended shortly after being released into the community and went back to breaking and entering into homes. He did it often and began to stockpile the property. His crimes were rather unsophisticated given how he entered the homes and the trail of evidence he left behind. It may be that the offences were committed to feed a drug addiction but in the end, it means that long jail sentences have not deterred him. While the offences were not violent, they were dramatically serious given the circumstances of the crime spree relative to his release in the community.

[48] In my view, the Crown's range of 8-10 years is not entirely unfit. However, using Pilon as a guidepost, I do not find that Mr. Tucker is "uncorrectable" or a "menace to society". Mr. Tucker clearly has some insight into his behavior and has the means to be a productive member of the public – if he tries. Mr. Pilon had 38 prior break and enter convictions. Mr. Tucker's criminal record is also appalling but relatively less serious. In Carvalho, the offender received a 5 year jail sentence, a jump from 2 years which the Court of Appeal said was "stiff" but appropriate given the circumstances. The offender was 32 years old and had 14 prior break and enter convictions and like Mr. Tucker, was on parole at the time. Mr. Tucker's circumstances are more serious than Mr. Carvalho. Moreover, I've closely examined the other cases filed by the parties as well as others. Most can be distinguished as they involve less serious criminal records or less convictions. In some cases, the offenders were much younger than Mr. Tucker. They do not assist in pushing his sentence downwards.

[49] In this case, Mr. Tucker committed several break and enters, unlike the two offences in Carvalho which justifies going beyond 5 years. The jump in Carvalho was also from 2 years which is the floor for penitentiary sentences. In cases where low penitentiary sentences are in play, a court often has to grapple with competing principles, one of which is restraint, especially for first stints in the penitentiary: R. v. Borde, [2003] O.J. No. 354 (CA), at paras. 36-37. I do not know if that was the case in Carvalho. Regardless, in this case, Mr. Tucker's last set of offences did not trigger the principle of restraint when he received 4 years. His current offences occurred almost immediately after he was placed on parole. Mr. Tucker does not appear to want to be rehabilitated despite the evidence that he can be. He is a repeat parole violator who needs to be specifically deterred. In all the circumstances, a jump of 1-2 years from his last sentence of 4 years as advocated by Mr. Affleck would be an error in principle. Similarly, a jump of 4-6 years would be crushing and may offend the totality principle. Overall, I find that a fit individualized sentence is 7 years imprisonment minus pre-sentence custody. Like Carvalho, this is a 3 year jump from the last sentence. It satisfies both general and specific deterrence as well as denunciation. Rehabilitation remains in the distant rear view.

G. Restitution

[50] Ms. Jackson submits that a free standing order totaling $28,076.54 is warranted. Exhibit 4 itemizes the restitution for each victim including the total loss suffered. With insurance proceeds, the Crown is only seeking restitution for what can be compensated. Seven of the nine victims are seeking restitution. The total loss suffered by all of them adds up to $105,719.73. Again, Mr. Affleck does not challenge these figures. Ms. Jackson says the modest amount of $28,076.54 is much less than the total loss and would not intrude on Mr. Tucker's ability to pay.

[51] Mr. Affleck submits while the amount is modest, Mr. Tucker is impecunious.

[52] In R. v. Castro, 2010 ONCA 718, the Court of Appeal commented at para 23:

A restitution order should not be made as a mechanical afterthought to a sentence of imprisonment: R. v. Siemens, [1999] M.J. No. 285, 136 C.C.C. (3d) 353 (C.A.), at para. 10. Care must be taken not to simply add a restitution order to a sentence of imprisonment which, in itself, is a fit punishment for the crime, as this can amount to excessive punishment and offend the totality principle.

[53] The court cited R. v. Zelensky, [1978] 2 S.C.R. 940, [1978] S.C.J. No. 48, noting that there are several factors a court must consider, one of which is the offenders ability to pay. At para. 35 the court said:

To summarize, a restitution order is simply part of the determination of an overall fit sentence, and general sentencing principles apply. While consideration of the offender's ability to pay and the impact of a restitution order on an offender's rehabilitation are factors to be considered, the weight to be given to these factors will vary depending on the nature of the offence and the circumstances of the offender. When the offence involves a breach of trust, a primary consideration is the effect on the victim; rehabilitation is a secondary consideration. Furthermore, consideration of the ability to pay includes the ability to make payment from the money taken as a source of restitution.

[54] Applying the Zelensky factors to this case, I agree with the Crown that the modest amount of $28,076.54 would not be an error in principle. In this case, it gives effect to the seriousness of the offences as Mr. Tucker is a repeat offender who commits break and enters and takes property that doesn't belong to him. This isn't the first time he's committed these offences which might militate against imposing such an order. It reinforces that he has to be held responsible to the victims that he's aggrieved.

[55] Second, the purpose of the aggrieved parties is to recover their losses. The Crown is not seeking to make them "completely whole" but rather compensate them for their tangible losses. The Crown is not overreaching in their request. The amount requested is adequate.

[56] Third, Mr. Tucker's current ability to pay is perhaps problematic but the sentence that I have imposed will mean that he will be returned into the community in the distant future. He is a mature man who has shown insight in the penitentiary and is employable. This is evidenced by the PSR. I find that he does have a future ability to pay the modest amount.

[57] Furthermore, the amount does not offend the totality principle as it is tempered with the overall jail sentence of 7 years – not something drastically higher where his employability may be lessened. In short, I have exercised both restraint and caution in agreeing to the Crown's request. Both are consistent with the overall sentence.

[58] Pursuant to s. 738(1)(a) of the Criminal Code, I will impose free standing restitution orders of $28,076.54 in favor of the following victims:

(i) Darla Hunt $4,780.00

(ii) Jennifer Collins $1,000.00

(iii) Klaas Zweirs $840.00

(iv) Tracey Chiodi $2,339.55

(v) Aleya Khattab $9,700.00

(vi) June Kinniburgh $9,416.99

H. Ancillary Orders

[59] The parties have agreed to the following ancillary orders:

(i) A weapons prohibition under s.109 of the Criminal Code for life;

(ii) A DNA order on the break and enter offences as they are primary presumptive offences under s.485.051(2) of the Criminal Code;

(iii) A forfeiture order under s.490 of the Criminal Code forfeiting all the seized property; and

(iv) A victim fine surcharge totaling $800 with 11 days noted in default.

I. The Sentence

[60] The final sentence is 7 years imprisonment minus pre-sentence custody of 37 days credited as 55 days (as of November 28, 2017) leaving 6 years and 10 months imprisonment. On consent, the pre-sentence custody and remaining sentence will be imposed on each count on a concurrent basis.

[61] Separate restitution orders totaling $28,076.54 as set out in section G above.

[62] Ancillary orders as set out in section H above.

[63] A copy of these reasons will be forwarded to the federal institution to assist with classification.

[64] Finally, the court encourages Mr. Tucker to continue with his positive rehabilitative efforts in the penitentiary. As noted by one victim in this case, there is still hope for him when he returns to the community.

Released: November 28, 2017

Signed: Justice F. Javed