ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-12-40000186
DATE: 20130410
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
MACKEL PETERKIN
Elizabeth Jackson, for the Crown
James Silver, for the Accused
HEARD: March 26, 2013
K.L. Campbell J.:
Reasons for Sentence
A. Overview
[1] The accused, Mackel Peterkin, has been found guilty of two offences, namely: (1) unlawful possession of a loaded restricted firearm while not the holder of an authorization, licence or registration, contrary to s. 95(1) of the Criminal Code, R.S.C. 1985, chap. C-46; and (2) unlawful possession of a controlled substance (cocaine) for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, chap. 19. Both offences were committed on August 14, 2011, in the City of Toronto.
[2] In the early morning hours of August 14, 2011, the accused was found in unlawful possession of a fully loaded firearm, a box of ammunition, significant quantities of cocaine, marihuana and cash, and two cell phones. It was just after 3:00 in the morning, and the accused had wandered into the backyard of a townhouse residence that the police had under investigation in connection with an earlier 911 emergency call. The police found the loaded handgun in the accused’s waist band, and the drugs and ammunition in his pants pockets.
[3] At the time of the offences the accused was 22 years old, and had no prior criminal record. While he is now 24 years old, he is still a youthful first offender. He spent some 6½ months in pre-trial custody prior to his release on bail, and then spent another 13 months on relatively strict judicial interim release conditions.
[4] The Crown seeks the imposition of a penitentiary sentence of approximately 4 to 4½ years duration. Defence counsel argues, on the other hand, that an appropriate sentence would be a reformatory term in the range of 22 months imprisonment. Defence counsel argues that the offences committed by the accused justify a sentence of approximately 3 years imprisonment, but once the appropriate credit is given in relation to the pre-sentence restrictions on the accused’s liberty, a reformatory sentence should result. Defence counsel notes that, if such a custodial sentence were imposed, it could be productively combined with a term of probation.
B. The Facts of the Offences
[5] In the early morning hours of August 14, 2011, two police officers with the Toronto Police Service were dispatched to investigate a 911 emergency call connected to a townhouse unit in a Toronto Housing Authority complex on Grandravine Drive. When they arrived, no one answered the door. As they waited nearby for the arrival of a security guard to let them into the premises so they could continue their investigation, the accused arrived on the scene on foot. From their nearby location, the officers watched as the accused walked into the fenced back yard of the townhouse unit under investigation. He was talking on a cell phone. When approached by the officers, the accused denied any connection to the townhouse, and explained that he was just waiting for a ride. The accused’s girlfriend arrived in her vehicle almost immediately thereafter.
[6] Not satisfied with the explanation proffered by the accused, the officers detained the accused. While they were checking his driver’s license, the accused began to act suspiciously. He was seen tapping his right hip with his right wrist, and “blading” himself to the officers so that his right side was furthest away from them. When his documentation was returned, the accused received it awkwardly by holding his right elbow tightly to his right hip.
[7] Reasonably suspecting the accused was carrying a weapon, the police decided, in the interests of their own safety, to conduct a “pat-down” search of the accused for weapons before releasing him. When the accused refused to permit this search and tried to flee, he was quickly taken to the ground by the officers and subdued. The police officers discovered, almost immediately, that the accused was in unlawful possession of a loaded firearm, ammunition and drugs. More particularly, on the person of the accused the police discovered:
• A fully loaded .22 calibre “Bersa” model semi-automatic handgun, a restricted firearm, containing 11 rounds of .22 calibre ammunition, with one bullet already in the firing chamber.
• 1.31 grams of crack cocaine;
• 7.7 grams of marijuana;
• A box of 9 mm. Remington Centerfire cartridges, containing 40 rounds of ammunition;
• Canadian currency totaling $275.
• Two BlackBerry cell phones.
[8] The Crown argued that this physical evidence, viewed in its totality, established that at the time of the offences the accused was engaged in the business of drug trafficking.
[9] On the pre-trial application to determine the admissibility of the results of the police search of the accused, Mr. Peterkin offered an alternate explanation for his possession of this collection of items. The accused testified that he had been given all of this contraband earlier in the evening by a man named “Mike.” When the accused had contacted Mike to buy some marihuana, Mike had offered to give him his marihuana purchase for free if the accused would deliver the contraband articles to another individual. The accused agreed and was, in fact, on his way to meet this nameless third party to deliver the contraband when approached by the police. He was going to ask his girlfriend to drive him to the arranged location at the back of a shopping mall. See: R. v. Peterkin, 2013 ONSC 165, at para. 42-45.
[10] I do not accept the explanation offered by the accused for his possession of this collection of contraband. Nor does it cause me to have any reasonable doubt as to why he had this contraband in his possession. Indeed, I am satisfied beyond a reasonable doubt that the accused was, in fact, engaged in the business of drug trafficking on the night of his arrest. He was certainly in possession of all of the “tools of the trade” of a drug trafficker. He was walking through a high crime neighbourhood at 3:00 a.m. in the morning, talking on one of his two cell phones. He had a fully loaded, unlicensed, restricted semi-automatic firearm in the waistband of his pants (not to mention a box of ammunition) for his protection. The accused carried with him two different kinds of illicit drugs, namely, crack cocaine and marihuana, individually packaged, in sufficient quantities for commercial sale. He also had $275 in cash in his pocket. The accused had no explanation for why he had such a significant sum of money. At the time, he was on financial assistance and admitted that he did not usually carry such a large amount of cash. While the accused denied that this $275 was from selling drugs, I find as a fact that selling drugs was precisely how the accused secured this money.
[11] Indeed, I am satisfied beyond a reasonable doubt that the entire story about “Mike” is pure invention on the part of the accused, offered to try to more innocently explain his possession of all of this drug trafficking paraphernalia. In short, I accept that the Crown has established, with the requisite degree of certainty, that at the time of these offences, the accused was, in fact, engaged in the business of drug trafficking. See: R. v. Gardiner (1982), 1982 30 (SCC), 68 C.C.C. (2d) 477 (S.C.C.).
... (continues verbatim in the same structure through paragraph [47], preserving all wording exactly)
Kenneth L. Campbell J.
Released: April 10, 2013
COURT FILE NO.: CR-12-40000186
DATE: 20130410
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
MACKEL PETERKIN
REASONS FOR SENTENCE
K.L. Campbell J.
Released: April 10, 2013