2013 ONSC 3180

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

• v. -

TERRY THEO THOMPSON

S E N T E N C I N G

BEFORE THE HONOURABLE JUSTICE SPROAT

On February 15, 2013, at BRAMPTON, Ontario

APPEARANCES:

Chris Walsh Counsel for the Crown.

Terry Theo Thompson the defendant in his own behalf.

(i)

SUPERIOR COURT OF JUSTICE

T A B L E O F C O N T E N T S

Sentencing

3

Transcript Ordered: .....................March 1, 2013
Transcript Completed: ...................May 25, 2013
Ordering Party Notified: ................June 3, 2013

FRIDAY, FEBRUARY 15, 2013

S E N T E N C I N G

SPROAT J. (Orally) :

I have obviously had some opportunity to think about this before coming here today, and I am familiar with all of the authorities that have been cited so far, so I am going to provide my reasons on sentencing at this time.

Circumstances of the Offence:

First of all, in terms of the circumstances of the offence, Mr. Thompson imported 4.2 kilograms of cocaine concealed in his luggage when returning to Canada, plus a credit card writer machine.

Circumstances of the Offender:

While I ordered a pre-sentence report, Mr. Thompson refused to cooperate in the preparation of it. He has maintained his earlier position that as a free sovereign or for some other reason he is not going to speak in court or present any evidence on his own behalf.

Mr. Thompson does have a dated but very serious criminal record, with offences in 1993 involving robbery, possession of a weapon, and use of a firearm during the commission of an offence. A further very serious criminal record in 1998, use of a firearm during commission of an offence and aggravated assault.

Positions of the Parties:

In terms of the Crown position, it is that nine years on the importing and one year concurrent on the possession of the credit card writer would be appropriate.

Mr. Thompson has not advanced any position on his behalf.

The Law:

R v Cunningham, (1996) 1996 1311 (ON CA), 104 CCC 3rd 542 (OCA) suggests a range of sentence for first offender couriers who smuggle large amounts of cocaine for personal gain of six to eight years. On the analysis in R v Holder (1998) 1998 14962 (ON SC), O.J. No. 5102, it would not be appropriate to treat Mr. Thompson as merely a courier. I agree with Justice Hill that one starts with the proposition that a person is a principal. That makes perfect sense given that Mr. Thompson, on the facts of this case, was found in possession of 4 kilograms of cocaine.

It is typical in importing trials that there is significant evidence to the contrary and that very often the evidence does point in the direction of the person being simply a courier. In this case there is no evidence to the contrary.

I also note that Mr. Thompson is older, he has a very serious criminal record, and he was also in possession of a credit card writer. All of those factors are inconsistent with the typical profile of a drug courier.

It is also a matter of some concern that Mr. Thompson maintains the position that he really is either above the law or outside the law, and that certainly doesn’t hold out any great prospect for rehabilitation. There is no indication of any remorse, which would be a mitigating factor.

The Supreme Court of Canada in Smith versus The Queen (1987) 1987 64 (SCC), 34 CCC 3rd, 97 explained why persons in the position of Mr. Thompson are subject to stiff sentences. Justice Lamare??? said:

“Those who import and market hard drugs for lucre are responsible for the gradual but inexorable degeneration of many of their fellow human beings as a result of their becoming drug addicts. The direct cause of the hardship cast upon their victims and their families, these importers must also be made to bear their fair share of the guilt for the innumerable serious crimes of all sorts committed by addicts in order to feed their demand for drugs. Such persons, with few exceptions (as an example, the guilt of addicts who import not only to meet but also to finance their needs is not necessarily the same in degree as those of cold-blooded non-users) should upon conviction, in my respectful view, be sentenced to and actually serve long periods of penal servitude.” (As read.)

Our Court of Appeal has also recognized the very close relationship between cocaine trafficking and guns. Persons who are in possession of hundreds of thousands of dollars of cocaine as a practical matter typically do resort to guns to protect that. That raises the spectre of gun violence which is seen with all too great frequency in our community.

In my view, the appropriate sentence on the cocaine importing is nine years. Mr. Walsh is a very experienced counsel so I am certainly not second-guessing his submission, but I think that, if anything, that may be at the low end of the range. One could probably justify a bit more time for Mr. Thompson in the circumstances, but the Crown has submitted nine years, and Mr. Walsh is a very good counsel, so I am going to impose that. I think that is completely proportionate to Cunningham, and when you consider that Mr. Thompson is a principal, and he is also a principal with a serious criminal record.

Secondly, the Crown has submitted that there should be a one-year concurrent sentence on the credit card writer. And again I think one could advance an argument that it should be consecutive and that the totality would still be reasonable, but in light of the Crown’s submission I will impose that as a concurrent sentence.

Mr. Thompson is entitled to, or has 398 days of pre-trial custody. On the authority of R. v. Summers 2013 ONCA 147, and given the lack of programs in pre-trial detention and the inability to earn remission, I am going to give him 1.5 days credit for each day of pre-trial custody, or custody to date. That would be 600 days. So, by my arithmetic, that would be one year and seven months credit.

So the sentence on Count 1 is nine years, less one year seven months credit for custody to date. As such, Mr. Thompson is sentenced to seven years and five months in the penitentiary. Count 2, one year concurrent to the sentence imposed on Count 1.

Does that deal with it, Mr. Walsh?

MR. WALSH: Yes, Your Honour. There is two ancillary orders. He already is subject to a lifetime weapons prohibition, but is mandatory under section 109, so redundant though it may be, I think it is appropriate anyway.

And the second is a secondary DNA order that I would be requesting.

THE COURT: All right, so I will make the section 109 lifetime weapons prohibition, and I have signed the DNA order.

MR. WALSH: Thank you, Your Honour.

THE COURT: All right, thank you.

ADJOURNED (10:08 a.m.)

FORM 2

Certificate of Transcript

Evidence Act, Subsection 5(2)

I, Chris A. Charles, CVR-CM, certify that this document is a true and accurate transcription of the recording of, R. v. Terry Theo Thompson in the Superior Court of Justice held at 7755 Hurontario St., Brampton, Ontario, taken from Recording No. 3199_404_20130215_075446, which has been certified in Form 1.

(Date) (Chris A. Charles)

Photostat copies of this transcript are not certified and have not been paid for unless they bear the original signature of Chris Charles and accordingly are in direct violation of Ontario regulation 587/01, Courts of Justice Act, January 1, 1990