Court Information

Date: April 23, 2018

File Number: CR 17-0531

Court: Ontario Court of Justice

Location: Stratford, Ontario

Parties

Her Majesty the Queen

v.

Timothy Flood

Appearances

Crown Counsel: D. Harrison

Defence Counsel: E. Uhlmann

Before

The Honourable Justice K.L. McKerlie

Reasons for Sentence

McKERLIE, J. (Orally)

Timothy Edward Flood, you are being sentenced today for the April 6, 2017 offence of possession of a Schedule 1 substance, namely methamphetamine, for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act.

The finding of guilt was made on February 6, 2018, following a focused Charter voir dire. There was no issue respecting the continuity or analysis of the methamphetamine in question. You admitted that you were in possession of the methamphetamine found on your person and in the vehicle. You also specifically admitted that you were in possession of the methamphetamine for the purpose of trafficking.

Offence Details

In the search incident to arrest, you were found to be in possession of 75 grams of methamphetamine as follows:

1. A baggie of 7.5 grams of methamphetamine, which was in your pocket;

2. Four baggies of methamphetamine which were in the centre console of your vehicle. Two of the baggies each contained 29.8 grams of methamphetamine. The other two baggies contained 7.4 grams and 1.3 grams of methamphetamine respectively.

You were also in possession of digital scales, empty dime bags and two cell phones.

Sentencing was adjourned to allow for the preparation of the pre-sentence report and then subsequently adjourned, at your request, in order for you to make child care and other arrangements.

Criminal Record

At the age of 36, you come before the Court with two prior items of record:

1. A December 9, 2011 conviction for unlawful possession of Oxycodone, for which you were sentenced to a fine and a period of probation;

2. A February 3, 2016 conviction for unlawful possession of methamphetamine, for which you were sentenced to a 45 day intermittent sentence and probation for one year.

Personal Background

The pre-sentence report indicates that your father died in 2006. Your mother entered into a common-law relationship with Adrian Dunsmore in 2008. Tragically, your mother died in October 2017. You continue to reside with Mr. Dunsmore with whom you have a positive relationship. Mr. Dunsmore was unaware of your involvement with illicit substances prior to your arrest for the current offence, although he had some concerns respecting your associates.

You were in a common-law relationship from 2005 to 2008 and are the father of an 11 year old son from that relationship. Initially, your partner had custody of your son and you exercised regular access. You report that in January 2017, the local child protection agency made arrangements with you to become the primary caregiver for your son, who now has minimal contact with his mother. You report that your son's grades, behaviour and school attendance have improved since he moved in with you and Mr. Dunsmore.

Mr. Dunsmore reports that you spend quality time with your son and use appropriate parenting methods. Your son spends weekends with his maternal grandmother, who describes you as a hard-worker and a positive father figure. Other collateral contacts also describe you as a good father who has always maintained employment.

The impact of the custodial sentence on your son will be significant, and it is a factor I have taken into account in determining the appropriate length of the sentence of imprisonment.

Employment and Substance Use

You report a stable employment history and are currently employed full time as a yard foreman at a local steel company.

You describe yourself as a functioning addict, with methamphetamine as being the most problematic and prevalent during the last three to four years. You indicate that you have been clean and sober for the past six months. You report that you use methamphetamine to help with stress and mood, here and there, but that you are not dependent on it.

As indicated in the pre-sentence report, you report that you were in possession of methamphetamine for the purpose of trafficking because of financial stress you were facing. You report that although you were employed full time, you struggled financially. You have reconnected with the local addictions agency and attend regular counselling sessions. You were described in the pre-sentence report as being more motivated towards counselling than you had been in the past.

You report that you committed the offence before the Court because you were driven by financial gain in order to support your son.

Prior Probation Compliance

During your prior periods under probation supervision, your overall compliance level was described as adequate and your reporting habits were satisfactory. You displayed limited motivation to attend counselling during both periods of probation supervision.

Pre-Sentence Report Assessment

Under the heading of "Assessment", the author of the pre-sentence report states:

The subject acknowledges that his criminality is directly related to his involvement with illicit substances. He reports that he has struggled with addiction issues intermittently during the past decade, and at the time of the interview for this report in February 2018, reported abstinence for six months. He has demonstrated the ability to be a stable and contributing member of society, having a stable employment history, being caregiver to his son and volunteering his time locally. The subject continues to have mostly positive family relationships and supportive figures in his life. Problem solving appears to be an area of concern as he identifies the reason for his actions in the current offence was for financial gain in an effort to support his son. Personal collaterals describe the subject positively and speak highly of his work ethic and his desire to help others. The subject appears to have been involved in the drug sub-culture unbeknownst to those persons he identifies as being closest to him.

The pre-sentence report indicates that ongoing counselling to address substance abuse, finances and problem solving may be of assistance to you.

Sentencing Submissions

Defence counsel emphasized the focused nature of the Charter voir dire, the positive tone of your pre-sentence report, your child care responsibilities, the impact of the sentence on your son and your good prospects for rehabilitation in support of his submission for an 18 month sentence of imprisonment. In support of his sentencing submissions, defence counsel relies on the Ontario Court of Justice decisions in R. v. Paper, 2010 ONCJ 88 and R. v. Lavcanski, 2017 ONCJ 838 and the appellate authorities referred to therein.

The Federal Prosecutor submits that a sentence in the range of 36 to 42 months is required to denounce and deter those motivated by financial gain who would choose to possess a significant quantity of methamphetamine for the purpose of trafficking. He points out that unlike the offenders in the Paper and Lavcanski decisions, you are not a somewhat youthful first time offender without a prior record, nor did you plead guilty to the offence before the Court.

You were in possession of more than two ounces of methamphetamine, a dangerous and highly addictive Schedule 1 substance. You were in possession of the methamphetamine for the purposes of trafficking for financial gain. By doing so, you were bringing methamphetamine into the community and preying upon vulnerable members of the community who struggle with their addiction to this insidious and dangerous drug. As such, a clear message of denunciation and deterrence, both specific and general, is required.

It is an aggravating factor for sentencing that you come before the Court with a prior related record, including a recent conviction in February 2016, some 14 months before the April 6, 2017 offence date, for possession of 3.5 grams of methamphetamine.

Relevant Case Law

In R. v. Graham, 2017 ONCA 245, the Ontario Court of Appeal considered the three year sentence imposed on a 29 year old offender, in possession of two ounces of methamphetamine for the purpose of trafficking, who entered a very early guilty plea ten days after his arrest. The Court noted that it was a very early guilty plea, which is to be given "substantial credit in the sentencing process." Mr. Graham had a significant criminal record, but no record for drug offences. His longest previous sentence was two and a half years. The Court observed that three years is at the high end for this quantity of methamphetamine and the sentencing judge erred in principle by failing to give any real credit for the early guilty plea. The Court of Appeal determined that a two year penitentiary sentence was a fit sentence, having regard to the early guilty plea, the offender's difficult background including sexual abuse by his step-father and early drug addiction, and his prospects for rehabilitation.

In R. v. Ticzon, 2018 ONCA 198, the offender appealed a total sentence of four years following his convictions for possession of methamphetamine for the purpose of trafficking and possession of a weapon dangerous to public safety. Mr. Ticzon was found guilty following trial and was in possession of 64.1 grams of methamphetamine for the purpose of trafficking. Mr. Ticzon was 28 years old and had a criminal record consisting only of a suspended sentence for two counts of fraud. The Court of Appeal accepted the Crown's submission on appeal that a sentence of three years on the possession for the purpose of trafficking offence and one year concurrent on the weapons offence was a fit sentence.

Sentencing Analysis

In determining the appropriate sentence, I have considered the quantity and nature of the Schedule 1 substance, namely 75 grams of methamphetamine, the timing and circumstances of the offence as it relates to your prior record, your personal background and circumstances as set out in the pre-sentence report, your motivation, which was financial gain, the sentencing submissions of counsel, and the case law relied upon by counsel in support of their respective sentencing provisions.

I have also considered the purpose and principles of sentencing in ss. 718, 718.1 and 718.2 of the Criminal Code, and s. 10 of the Controlled Drugs and Substances Act. I note that none of the aggravating factors set out in s. 10(2) of the Controlled Drugs and Substances Act are present in these circumstances.

As explicitly set out in s. 718 of the Criminal Code and s. 10 of the Controlled Drugs and Substances Act, the fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society. The applicable sentencing objectives are to denounce unlawful conduct and the harm done to victims or to the community, to deter the offender and other persons from committing offences, to separate offenders from society where necessary, and to assist in rehabilitating offenders.

Pursuant to s. 718.1, the fundamental principle of sentencing is that a sentence be proportionate to the gravity of the offence and the degree of responsibility of the offender. Section 718.2 provides that in addition to taking into account relevant mitigating and aggravating circumstances, the sentence should also be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.

In this case, it is common ground that there is no alternative to a sentence of imprisonment. The sentence imposed today must denounce and deter possession of dangerous, addictive Schedule 1 substances for the purposes of trafficking where offenders, such as yourself, are motivated by financial gain.

The sentence must reflect the harm done to victims and the community. Those who choose to possess methamphetamine for the purpose of trafficking are preying upon the most vulnerable members of our community who struggle with addictions and daily life. The insidious nature of this dangerous, addictive Schedule 1 substance has a pervasive negative impact on the entire community.

The mitigating circumstance for sentencing is the impact of a custodial sentence on your young son for whom you have been the primary caregiver since January 2017. You emphasize that your motivation of financial gain was in order to support your son. I note, however, that at the time of committing this offence you were employed full time and residing with your mother and her common-law partner. You knew you had child care responsibilities and yet chose to jeopardize your ability to fulfill those responsibilities by deliberately engaging in serious criminal conduct related to your prior record.

Seventy-five grams of methamphetamine is a significant quantity of this dangerous and addictive Schedule 1 substance. Your degree of responsibility for the offence is high. Placing significant weight on your child care responsibilities, the impact of a sentence of imprisonment on your son, the positive tone of the pre-sentence report and your good prospects for rehabilitation, I impose a sentence of 30 months imprisonment.

Ancillary Orders

In addition, I impose the following ancillary orders:

1. A secondary DNA order, which requires you to provide samples of bodily substances for DNA databanking purposes prior to 4:00 p.m. today;

2. A weapon prohibition order pursuant to s. 109 of the Criminal Code, which prohibits you from possessing any firearm, crossbow, prohibited weapon, restrictive weapon, explosive device or ammunition for a period of ten years; and

3. A victim surcharge of $200 which is required to be paid in 60 days.

Thank you.

...WHEREUPON THE MATTER WAS ADJOURNED.