COURT FILE NO.: 15-50000015-0000
DATE: 20140117
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Aaron Del Rizzo for the Crown
- and -
ANDRE TULLY
Nathan Gorham for Andre Tully
HEARD: September 20, October 31, December 16 and 18, 2013.
REASONS FOR SENTENCE
CORRICK J. (orally)
Introduction
[1] On October 11, 2012, a jury found Andre Tully guilty of the following offences:
Count #1 Possession of a loaded prohibited firearm, contrary to s. 95(2)(a);
Count #2 Possession of a firearm, knowing he was not the holder of a licence or a registration certificate for that firearm, contrary to s. 92(3);
Count #3 Possession of a firearm without being the holder of a licence or a registration certificate for that firearm, contrary to s. 91(3)(a);
Count #4 Careless storage of a firearm, contrary to s. 86(3)(a);
Count #5 Careless storage of ammunition, contrary to s. 86(3)(a);
Count #6 Possession of a prohibited device without being the holder of a licence for that device, contrary to s. 91(3)(a);
Count #10 Possession of marijuana for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act.
[2] The jury found Mr. Tully not guilty of possession of the proceeds of crime.
[3] Following the jury’s verdict, I found Mr. Tully guilty of two counts of possession of a firearm while being prohibited from doing so by two separate orders made pursuant to s. 109 of the Criminal Code; the first was made on May 4, 2006; the second was made on February 2, 2009.
[4] The matter of sentence was adjourned several times for a variety of reasons. Prior to hearing submissions on sentence, counsel asked me to rule on whether the Crown had proven certain aggravating facts beyond a reasonable doubt, specifically whether Mr. Tully had engaged in two hand to hand drug transactions on April 3, 2011, the day he was arrested and found in possession of a loaded firearm. On September 20, 2013, I ruled on the basis of the jury's verdict on the possession of proceeds of crime charge, that the Crown had not proven beyond a reasonable doubt that Mr. Tully had engaged in two hand to hand drug transactions on April 3, 2011.
[5] There is one remaining factual issue that I deal with later in these reasons.
Circumstances of the Offences
[6] Police had Mr. Tully under surveillance on April 3, 2011. They observed Mr. Tully at 3:08 p.m. pull the car he was driving over to the curb near Mildred and Eileen Streets, have a brief conversation with a male, and then drive to a house on Bluewater Trail. Mr. Tully was next observed leaving the house on Bluewater Trail at 4:30 p.m., carrying a blue canvas duffle bag. He put the bag on the passenger seat of his car and left the area. At 4:56 p.m., Mr. Tully stopped his car and placed the blue bag in the trunk. At 5:03 p.m., he pulled his car over to the curb near Oakwood and St. Clair, met briefly with a male, and then left. He then picked up his friend, Jayron Matthew, at a nearby coffee shop.
[7] Police stopped Mr. Tully's car at 5:25 p.m. at gunpoint, and arrested Mr. Tully and Mr. Matthew. Mr. Matthew was found to be in possession of 9.6 grams of crack cocaine, $20 and two cell phones. Mr. Tully was in possession of $1,015.00.
[8] The police seized five cell phones from the console area of the car, and the blue duffle bag from the trunk of the car. The following items were found inside the blue bag:
▪ a grey plastic bag, which contained smaller ziploc bags of marijuana weighing a total of 268 grams,
▪ a .40 calibre semi-automatic Glock handgun with a live round of ammunition in the ejection port, and an over-capacity magazine containing a further 14 rounds of ammunition inserted in the grip,
▪ two cell phones,
▪ a digital scale,
▪ a speeding ticket issued to Mr. Tully on March 29, 2011, and
▪ business cards, toothpaste, phone cards and scraps of paper.
[9] Mr. Tully testified that the blue bag belonged to Jayron Matthew, who had left it in the residence on Bluewater Trail the night before. Mr. Tully was simply transporting it to Mr. Matthew on April 3, 2011. Mr. Tully testified that he knew there was marijuana in the bag but did not know the bag contained a firearm. The jury rejected his testimony that he had no knowledge of the gun.
Circumstances of the Offender
[10] Mr. Tully is 28 years old. At the time of the offence, he was living in Toronto with his aunt. He worked part-time as a general labourer with his step-father, who is a welder. He has a son, who is about 18 months old. He has a close and supportive family. Members of his family, including his mother, grandmother, and step-father, have regularly attended Mr. Tully's court appearances.
[11] He has a serious and related criminal record. In 2006, he was convicted of possession of a loaded prohibited or restricted firearm, possession of a firearm contrary to a prohibition order, possession of cocaine for the purpose of trafficking, and possession of proceeds of crime under $5,000. He was sentenced to one year in prison on each charge concurrent after receiving credit for 24 months in pre-sentence custody.
[12] In 2009, he was convicted of possession of a loaded prohibited or restricted firearm, possession of cocaine for the purpose of trafficking, and possession of a firearm contrary to a prohibition order. He was sentenced to thirteen and one-half months after being credited for twenty-six and one-half months pre-sentence custody.
[13] This then is the third time within six years that Mr. Tully has been convicted of possessing a loaded prohibited or restricted firearm, the third time he has been convicted of possessing a controlled substance for the purpose of trafficking and the third time he has been convicted of possession of a firearm contrary to a prohibition order.
Positions of the Parties
[14] Mr. Del Rizzo, on behalf of the Crown, submits that a prison term of between ten and twelve years is required to give effect to the sentencing principles of deterrence and denunciation. He asks the court to find that Mr. Tully was actively engaged in drug trafficking while in possession of a loaded handgun.
[15] Mr. Gorham, on behalf of Mr. Tully, submits that the Crown has not proven beyond a reasonable doubt that Mr. Tully was trafficking in marijuana and possessed the firearm to assist him in that endeavour. In the absence of that proof, Mr. Gorham submits that I must sentence Mr. Tully on the basis that he was transporting Mr. Matthew's drugs and firearm. In those circumstances, Mr. Gorham submits that the appropriate sentence, after giving Mr. Tully credit for 49½ months in pre-sentence custody, is one day in custody.
[16] Mr. Gorham submits that the nature and purpose of the possession of the firearm are paramount factors in determining the appropriate sentence, and that an exemplary sentence is only required in circumstances where the offender has the gun and is willing to use it. In his submission, Mr. Tully's conduct falls towards the lower end of the seriousness spectrum since there is no evidence that he used or intended to use the gun, but was simply transporting it for Mr. Matthew.
[17] I do not accept Mr. Gorham's characterization of Mr. Tully's conduct as being at the lower end of the seriousness spectrum. Based on the evidence at trial, I am unable to find beyond a reasonable doubt that the gun and marijuana belonged to Mr. Tully. However, the circumstances of this case, where Mr. Tully was transporting drugs and a loaded firearm to someone he knew was engaged in the drug trade, call for an exemplary sentence, particularly given Mr. Tully's criminal antecedents. Implicit in the jury's verdict is that Mr. Tully knew there was a gun in that bag, and knew that it was loaded.
Legal Parameters
[18] Possession of a loaded prohibited or restricted firearm is punishable by a maximum of ten years in prison. Until November 12, 2013, it was also punishable by a minimum of five years in prison upon conviction for a second or subsequent offence. On November 12, the Court of Appeal for Ontario in R. v. Charles[^1] struck down the mandatory minimum sentence of five years.
[19] Possession of a firearm contrary to a prohibition order, contrary to s. 117.01(3)(a), is also punishable by a maximum of ten years in prison. It is noteworthy that this offence is the only offence in the Criminal Code related to the breach of a court order that is punishable by more than two years imprisonment on indictment. This demonstrates how serious Parliament regards the breach of weapons prohibition orders.
Principles of Sentencing
[20] The principles of sentencing that I am bound to consider are set out in the Criminal Code. The first is the fundamental purpose of sentencing set out in s. 718, which is to “contribute to respect for the law and the maintenance of a just, peaceful and safe society” by imposing sentences that give effect to one or more of the following objectives: denouncing unlawful conduct, deterring the offender and others from committing crimes, separating offenders from society, where necessary, assisting in the rehabilitation of the offender, providing reparations for harm done to the victim or to the community, and promoting a sense of responsibility in the offender.
[21] The second principle I must consider is proportionality as set out in s. 718.1. Any sentence imposed must reflect the gravity of the offence and the offender’s degree of responsibility. In this regard, I do not accept that the act of transporting marijuana and a loaded firearm through the streets of Toronto to a known drug dealer is at the lower end of the seriousness spectrum.
[22] Thirdly, I am required by section 718.2 to impose a sentence taking into account any relevant aggravating or mitigating circumstances relating to the offence or the offender.
[23] Fourthly, where sentences for multiple offences are imposed, the principle of totality requires the court to craft a global sentence that is not unduly harsh or long. If the total sentence is excessive, the court must adjust the sentence so that the total sentence is proper.
[24] Finally, I must consider sentences imposed on similar offenders for similar offences committed in similar circumstances. It is those that I now consider.
[25] In R. v. Charles[^2], the Court of Appeal upheld a sentence of six years for possession of a loaded firearm and one year consecutive for possession of a weapon in breach of a prohibition order imposed following a guilty plea. The firearm was found in the accused's room in a rooming house. No drugs were found. The accused had a criminal record consisting of 23 convictions. He was subject to two weapon prohibition orders.
[26] The Court of Appeal, in R. v. Johnson[^3], upheld a nine-year prison term for possession of a loaded firearm and three counts of possession of a weapon in breach of a prohibition order. Mr. Johnson had a criminal record, including a conviction for possession of a firearm contrary to a prohibition order. He was 24 years old when he was arrested. The firearm was located in a backpack in a car in which Mr. Johnson was a passenger. He received 7½ years for possession of the loaded firearm, and six months on each breach of a prohibition order consecutive, for a total of nine years.
[27] In R. v. Ellis[^4], Justice Campbell imposed a sentence of six years for possession of a loaded firearm and one year consecutive for possession of a firearm contrary to a prohibition order. The accused was found to be driving a car with a loaded firearm in a hidden compartment. No drugs were found. The accused, who was 32 years old, had been convicted eleven years earlier of possession of a loaded firearm, possession of a firearm with an altered serial number, possession of a weapon dangerous to the public peace, possession of a Schedule I substance, and failing to appear in court. He had no other criminal record. He was subject to one weapons prohibition order.
[28] In R. v. Grizzle[^5], Justice Thorburn imposed a sentence of 6½ years for possession of a loaded firearm and one year consecutive for possession of a firearm in breach of a prohibition order following a trial. The accused, who was 24 years old, had a criminal record including two convictions for the unauthorized possession of a restricted weapon. The police located the gun in a suitcase in a bedroom in the accused's apartment where two children were sleeping.
[29] In R. v. Lambert[^6], Justice Kelly imposed a thirteen-year sentence on a 21-year-old offender for a total of 40 counts related to the possession of firearms, cocaine for the purpose of trafficking, and proceeds of crime. Although the facts of the offences and the offender are much more serious than in this case, I note that Mr. Lambert was sentenced to 18 months in prison consecutive to the other sentences for breaching a weapons prohibition order.
[30] Finally, in the case of R. v. Newell[^7], Justice Molloy imposed a sentence of 7½ years for possession of a loaded firearm and one year consecutive for possession of a firearm in breach of a prohibition order. Mr. Newell was 31 years of age, and had been convicted twice of possession of a loaded handgun. Police located marijuana in a bag in a car Mr. Newell was driving. When he was arrested, police located a handgun in the waist of his pants.
[31] A review of the cases demonstrates that a conviction for possession of a loaded firearm will attract a substantial penitentiary term. Mr. Gorham argues that the range of sentence that developed between May 1, 2008 and November 12, 2013 when the Criminal Code mandated a minimum sentence of five years for a second or subsequent offence under s. 95 is no longer necessarily applicable. He points the court to a number of cases decided prior to 2008, which established a range of sentence between four years and seven months and eight years.
[32] Sentencing is a profoundly individualized process driven by the unique facts of every offence and the unique characteristics of every offender. It is always necessary to consider and apply all of the sentencing principles under the Criminal Code, having regard for the unique circumstances of the case.
Analysis
Aggravating and Mitigating Circumstances
[33] I turn now to consider the aggravating and mitigating circumstances.
[34] First the aggravating factors.
Mr. Tully is not a youthful offender, but a 28-year-old man with a criminal record for precisely the same crimes for which he is being sentenced.
Not only was the firearm fully loaded with an over-capacity magazine, there was a bullet in the chamber ready to be fired.
The gun was carried in a car that was being driven on the public streets of Toronto, creating a dangerous situation for members of the public.
Mr. Tully has demonstrated a repeated disregard for court orders prohibiting him from possessing weapons. In May 2006, he was sentenced to serve one year in jail for possessing a loaded firearm, and ordered not to possess weapons. In January 2008, he was charged with possession of a loaded firearm. In February 2009, he was sentenced to serve 13½ months for that and other offences, and again ordered not to possess weapons. According to a letter written by his mother, which is marked as Exhibit #2A on the sentencing hearing, he was released in November 2009. He was arrested in April 2011, again in possession of a loaded firearm.
This is his third conviction in six years for possessing a loaded firearm, his third conviction in six years for possession of a controlled substance for the purpose of trafficking, and his third conviction in six years for possessing a firearm when expressly prohibited by court orders from doing so.
Even giving Mr. Tully the benefit of the doubt that the gun and marijuana were not his, he was transporting them to someone he knew was in the business of selling drugs and was using the firearm in that endeavour, thereby increasing the risk of violence and harm to the community.
[35] Mr. Gorham argues in his written submissions dated December 15, 2013 that this case does not involve Mr. Tully's flagrant and deliberate decision to breach court orders by returning to a criminal lifestyle. I disagree. Transporting 268 grams of marijuana and a loaded firearm to a drug dealer is very serious criminal behaviour and Mr. Tully made a deliberate decision to engage in it in the face of two court orders prohibiting him from possessing weapons. This is a flagrant decision to breach court orders.
[36] In mitigation, Mr. Tully is fortunate to enjoy the support of his family. His mother and grandmother have been heart-broken watching him go in and out of jail. They have both written letters describing Mr. Tully's character and the devastating impact his incarceration has had on both him and his family. Unfortunately, the love and support of his family have not been sufficient to deter him from engaging in the same criminal behaviour.
[37] Mr. Gorham points out as a mitigating factor that Mr. Tully has a young son and a good relationship with the mother of his son. In 2009, Mr. Tully had a daughter who was just over a year old when he was sentenced by Justice Shaughnessy for possession of a loaded firearm, possession of a controlled substance for the purpose of trafficking and possession of a firearm contrary to a prohibition order. Having his own children has not seemed to have had any deterrent or rehabilitative effect on Mr. Tully.
[38] Mr. Gorham also submits, as a mitigating factor, that Mr. Tully was working prior to the offence and was taking steps to pursue a trade. The evidence at trial was that he worked part-time as a general labourer for his step-father. It is not clear what precise steps he had taken to pursue a trade. This submission is not unlike the one made by Mr. Tully's counsel to Justice Hamilton in 2006. At the time, according to his counsel, Mr. Tully had applied to college to study business. He did not follow through on that. Mr. Tully’s stated intention to work toward gainful employment does not seem to accord with the steps he takes to do so when he is not in custody.
Determination of a Fit Sentence
[39] In the circumstances of this case, the protection of the public, denunciation, and deterrence, both general and specific, are of paramount importance.
[40] As Justice Doherty indicated in R. v. Nur[^8], "Individuals who have loaded restricted or prohibited firearms that they have no business possessing anywhere or at any time, and who are engaged in criminal conduct or conduct that poses a danger to others should continue to receive exemplary sentences that will emphasize deterrence and denunciation."
[41] Notwithstanding this, rehabilitation cannot be abandoned altogether.
[42] Mr. Tully is a repeat firearms offender. His conduct in transporting a loaded firearm to a known drug dealer in a car on the streets of Toronto posed a danger to the safety of members of the public. He has not been deterred by two previous sentences of incarceration or by two weapons prohibition orders. Accordingly, before crediting him for the time he has spent in pre-sentence custody, I am of the view that a sentence of 6½ years for the possession of the firearm is required to adequately address the sentencing principles of deterrence and denunciation, and is in keeping with sentences imposed on similar offenders in similar circumstances.
[43] With respect to the two convictions for possession of a firearm in breach of a prohibition order, consecutive sentences must be imposed. The intentional violation of court orders that are made to protect the public must attract additional sanctions. Mr. Tully has violated two separate orders. This is Mr. Tully's third conviction for breaching a weapons prohibition order. It is particularly aggravating that both previous orders were made following two separate convictions for possession of loaded firearms. He has not been deterred by two prior twelve months sentences for the same offence. Mr. Tully will be sentenced to 15 months on each count consecutive to each other and to the sentence imposed on the firearm offences.
[44] In the normal course, Mr. Tully's conviction for possession of marijuana for the purpose of trafficking would attract a consecutive sentence. However, having considered the important issue of the totality of the sentence Mr. Tully must serve, I will impose a sentence of one year concurrent.
[45] In summary, before giving Mr. Tully credit for the time he has spent in pre-sentence custody, I am of the view that a total sentence of nine years is the fit and proper one in all of the circumstances. I recognize that this is a significant jump from the 40-month sentence he received in 2009. However, in my view it is the fit disposition. The application of the jump principle cannot lead to the imposition of a sentence that does not adequately address the gravity of these offences and Mr. Tully's persistent disregard for court orders.
Credit for Pre-Sentence Custody
[46] Mr. Tully has been in custody for 1021 days or slightly more than 33½ months since his arrest on April 3, 2011. Mr. Gorham argues that Mr. Tully should receive the maximum credit of 1.5 days for each of the 1021 days, pursuant to s. 719(3.1) of the Criminal Code, based on the onerous remand conditions he endured. Records from the Metro West Detention Centre, where Mr. Tully has spent almost one year, have been filed as Exhibit #4 on the sentencing hearing.
[47] Mr. Del Rizzo submits that Mr. Tully is not entitled to receive 1.5 days for each day spent in pre-sentence custody because he was detained in custody following a bail hearing primarily because of his prior criminal convictions.
[48] This issue centres around what the justice of the peace said at the bail hearing and the fact that he failed to note that he was detaining Mr. Tully primarily because of his prior criminal convictions in writing, in the record, as required by s. 515(9.1). A transcript of the bail hearing has been filed as Exhibit # 3 on the sentencing hearing.
[49] At the conclusion of a lengthy bail hearing held on May 27, 2011, Justice of the Peace N. Burgess gave lengthy reasons for detaining Mr. Tully on the secondary and tertiary grounds. He referred to Mr. Tully's criminal record, the strength of the Crown's case, and the unsuitability of Mr. Tully's proposed sureties. After the justice had concluded his reasons, Crown counsel sought a notation that Mr. Tully was being detained primarily due to his criminal record. The justice of peace responded, "All right. I can say primarily because of the criminal record. Certainly, taking a look at all those circumstances, yes."
[50] There were two informations related to Mr. Tully before the justice on May 27, 2011. Copies of them have been marked as Exhibit #5 on the sentencing hearing. Both informations were pre-printed with a section for the justice to confirm that an accused person had been detained in custody primarily because of a previous conviction. The pre-printed form had a check box for "yes" and a check box for "no" followed by a line to insert the date. The form also indicated that the justice was to initial the appropriate check box. The justice did not make a notation on either information related to Mr. Tully.
[51] Mr. Del Rizzo submits that the intention of the justice was clear and that crediting Mr. Tully with a maximum of one day for each day in pre-sentence custody is in keeping with the spirit of the legislation. Mr. Gorham submits that s. 719(3.1) must be strictly interpreted, and as the justice did not comply strictly with s. 515(9.1), this court retains the discretion to give Mr. Tully enhanced credit for his pre-sentence custody.
[52] I have concluded that I retain the discretion to grant Mr. Tully enhanced credit for the time he has spent in pre-sentence custody for the following reasons.
[53] In Marcotte v. Canada[^9], the Supreme Court of Canada held that, "if real ambiguities are found, or doubts of substance arise, in the construction or application of a statute affecting the liberty of a subject, then that statute should be applied in such a manner as to favour the person against whom it is sought to be enforced." The language of sections 719(3.1) and 515(9.1) is not ambiguous. However, their application in these circumstances is ambiguous, and they must be strictly interpreted in favour of Mr. Tully.
[54] Section 515 (9.1) requires the justice to note, in writing, in the record, that the accused is being detained primarily because of a previous conviction. An oral statement by the justice to the same effect is not sufficient to comply with the requirement of s. 515(9.1). The pre-printed section of the information I earlier referred to was included to facilitate compliance with s. 515 (9.1).
[55] Further support for the view that an oral statement alone is not sufficient can be seen from a review of the wording of sections 515(9) and 515(9.1).
[56] Section 515(5) requires a justice to "include in the record a statement of his reasons" for making a detention order. Subsection (9) permits a record of those reasons to be made by either a court reporter or through the use of approved sound recording equipment: see. s. 540. It reads as follows:
For the purposes of subsections (5) and (6), it is sufficient if a record is made of the reasons in accordance with the provisions of Part XVIII relating to the taking of evidence at preliminary inquiries.
[57] This stands in contrast to section 515(9.1), which reads as follows:
Despite subsection (9), if the justice orders that the accused be detained in custody primarily because of a previous conviction of the accused, the justice shall state that reason, in writing, in the record.
[58] This section specifically imposes an obligation on the justice to note something in writing in the record. In the absence of such a notation, this court retains the discretion to credit Mr. Tully 1.5 days for each day spent in pre-sentence custody, if the circumstances justify it. The Quebec Court of Appeal reached the same result in the case of R. c. Lebrasseur.[^10]
[59] The records filed from the Metro West Detention Centre document 310 days of Mr. Tully's pre-sentence detention. Throughout that time, he was often subject to lock downs. He was denied fresh air time on 110 days. He was triple-bunked in a cell for two people on 185 days.
[60] Mr. Tully spent the rest of his time at the Don Jail. No records from that institution were produced. Mr. Tully told the court that while at the Don Jail, he was attacked from behind and stabbed five times in his back. He has been diagnosed with depression as a result of that attack, and is being treated for that condition.
[61] While he has been in custody, Mr. Tully's father and great-grandmother died. He was unable to attend their funerals.
[62] In my view, Mr. Tully has demonstrated that he has endured onerous remand conditions, justifying enhanced credit for his pre-sentence custody. He will be credited for four years and two months or 50 months of imprisonment. This amounts to credit of slightly less than 1.5 days for every day he spent in pre-sentence custody. To give effect to this, the total sentence I will impose will be four years and 10 months in prison.
Conclusion
[63] In the result, Mr. Tully is sentenced to a total of four years and ten months in prison as follows:
Count 1
Possession of a loaded firearm
28 months
Count 2
Possession of firearm knowing he had no licence or registration certificate
1 year concurrent
Count 3
Possession of firearm without a licence or registration certificate
Conditionally stayed pursuant to R. v. Kienapple
Count 4
Careless storage of a firearm
1 year concurrent
Count 5
Careless storage of ammunition
1 year concurrent
Count 6
Possession of a prohibited device
1 year concurrent
Count 7
Possession of a firearm in breach of an order made by Justice Hamilton
15 months consecutive
Count 8
Possession of a firearm in breach of an order made by Justice Shaughnessy
15 months consecutive
Count 10
Possession of marijuana for the purpose of trafficking
1 year concurrent
Corrick J.
Released: January 17, 2014
[^1]: 2013 ONCA 681 [^2]: supra [^3]: 2013 ONCA 177 [^4]: 2013 ONSC 3092 [^5]: 2013 ONSC 6523 [^6]: 2011 ONSC 3906 [^7]: [2012] O.J. No. 4014 [^8]: 2013 ONCA 677 at para. 206 [^9]: 1974 CanLII 1 (SCC), [1974] S.C.J. No. 142 [^10]: [2013] J.Q. no 10426 at para. 9