NEWMARKET COURT FILE NO.: CR-09-09406

DATE: 20140717

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

GILBERT GONZALES and MARIA CHRISTINA GONZALES AND SENA DAVID SAUNDERS

Defendants

K. Dickson/J. Gevikoglu, for the Crown/Respondent

C. Bottomley/C. Sewrattan, for the Applicant

HEARD: June 11, 2014

REASONS FOR SENTENCE/FORFEITURE

McISAAC J.

[1] On June 11, 2014 I sentenced the offender to a global penitentiary term of five years less two months credit for pre-trial detention in relation to a set of firearm and drug trafficking offences. In addition, I made several ancillary orders including a DNA collection order pursuant to s.487.051(3)(b) C.C. Finally, I acceded to the Crown’s request for forfeiture orders under s.16 of the Controlled Drugs and Substances Act as well as s.462.37(2.01) of the Criminal Code in relation to drug-trafficking proceeds and his residence located in Markham, Ontario. At the time, I gave a “bare-bones” decision indicating that formal reasons for these dispositions would follow in due course. These are those reasons.

BACKGROUND

[2] On the date of his arrest, October 5, 2009, the offender operated a major marihuana processing depot out of his residence located at 41 Hislop Drive in in Markham. He was intercepted in a van near these premises that was loaded with several sealed boxes of processed, packaged and sealed bags of marihuana along with a large amount of cash. As a result of these fruits of their investigation, the police obtained a search warrant to search his residence. This execution yielded another large load of processed and packaged marihuana along with another significant amount of currency. A handgun and readily accessible ammunition was seized from the offender’s bedroom. In all, almost $130,000 in US and Canadian currency were seized from the offender’s van and residence. There is no question that he was operating a major criminal enterprise for the distribution of marihuana. He gave no explanation why he possessed this firearm nor why he had it at hand in his bedroom.

CONCURRENT/CONSECUTIVE SENTENCE

[3] The offender and the Crown made a joint proposal for a global sentence of three years which would result in the sentences on the firearms charges being concurrent to the drug trafficking offences. When I indicated some significant discomfort with this proposal, counsel were given an opportunity to provide some jurisprudence to justify their proposal. In my view, the most helpful of these authorities was the recent judgment of the Ontario Court of Appeal in R. v. Delchev, 2014 ONCA 448.

[4] In the first place, it reiterated the fundamental proposition that the decision to make a sentence consecutive or concurrent is a discretionary exercise: see para. 34. This comes from the seminal judgment of R. v. McDonnell 1997 389 (SCC), [1997] 1 S.C.R. 948 at para. 46. As well, it recognized that there was no absolute rule that drugs and weapons conviction must attract consecutive sentence in all cases: see para. 34 citing R. v. Borecky, 2013 BCCA 163 at para. 25. One critical factor suggesting that the sentence should be consecutive is whether or not the firearm in question was being used as a “tool of the [drug] trade”: see para. 35. In this case, I was satisfied that the offender possessed this handgun in his bedroom for the purpose of facilitating the operation of his criminal drug enterprise. I am satisfied of this aggravating factor beyond a reasonable doubt for the following reasons: see s.724(3)(e) C.C.

[5] First, the circumstances of the case itself on their face construct a compelling inference that the offender possessed this firearm either as a tool of enforcement of his accounts receivable or as a form of dissuasion to any rivals who may wish to help themselves to the illicit proceeds of his enterprise or the harvested marihuana itself which was warehoused in this residence. Second, there is no suggestion that the offender was a fan of target practice or that he used this handgun as a prop for a Facebook posting. This was far from a benign scenario. On the other hand, I wish to make it abundantly clear that I am not drawing an adverse inference against the offender from his failure to explain the purpose for the possession of this firearm as this case did not involve a plea of guilty in the classic sense and he may wish not to prejudice his position in case of an appeal against conviction: see R. v. Shropshire 1995 47 (SCC), [1995] 4 S.C.R. 227 at paras. 37-42. In all of the circumstances, I find that the only reasonable inference to be drawn is that this firearm was being used as a tool of the offender’s drug enterprise and, as such, is deserving of the imposition of a consecutive sentence. Taking into account the need to acknowledge the principle of totality, the following dispositions are imposed:

• Count #1 – careless storage of a firearm contrary to s.86(3) C.C. – one year imprisonment;

• Count #5 – possession of a firearm without a licence and registration certificate contrary to s.91(3) C.C. – one year imprisonment, concurrent;

• Count #7 – possession of a loaded prohibited firearm contrary to s.95(2) C.C. – three years imprisonment concurrent;

• Count #8 – possession of marihuana for the purpose of trafficking contrary to s.5(2) C.D.S.A. – two years imprisonment, consecutive.

[6] The disposition on count #8 is reduced by two months to reflect credit of 40 days pre-trial custody which was calculated on a basis of 1.5:1 as requested by the offender and as acknowledged by the Crown.

CREDIT FOR BAIL CONDITIONS

[7] The offender also sought further credit on his sentence alleging that he had been subjected to onerous bail conditions for an extensive period of time. The Crown resisted this application.

[8] It has been recognized that time spent on stringent bail conditions, especially house arrest, is deserving of mitigation of the length of sentence imposed: see R. v. Downes (2006) 2006 3957 (ON CA), 205 C.C.C. (3d) 488 (Ont.C.A.). However, I am not satisfied that this offender was subjected to such conditions. He was originally released on relatively modest terms that, in my view, cannot fairly be described as “stringent”. There was no form of house arrest imposed and he only faced a minimum curfew between the hours of midnight and 6:00 a.m. He was even entitled to absent himself from his parents’ residence during those nocturnal hours if he was in the company of one of his sureties. When he testified on the s.11(b) stay application, he claimed that his terms of bail prevented him from communicating with his wife and, thus, he was prevented from residing with her. There was never any such term in his release order and it is evident to me that he misread this document. I am not prepared to reward this lack of due diligence by reducing an otherwise appropriate sentence. The offender also claimed that the restriction on his ability to leave the province compromised his ability to access renovation contracts elsewhere. However, the record does disclose that his request to leave Ontario for vacation purposes was accommodated in December 2010.

[9] In the final analysis, I am far from satisfied on a balance of probabilities that the offender was exposed to terms of “stringent bail conditions” that would attract any further credit of the sentence herein: see s.724(2) C.C.

D.N.A. ORDER (s.487.051(3)(b) C.C.)

[10] The offender resisted the Crown’s request for this ancillary order mainly on the basis of a submission, in the absence of any evidence, that he would remain offence-free for the rest of his life as a result of his experience with the present allegations. The second problem with that suggestion is that it flies in the face of experience as reflected in his stale but persistent criminal record involving ten offences between 1995 and 2002. The third problem is that a risk of re-offending is irrelevant to the consideration of a DNA collection order following conviction: see R. v. Durham, 2007 BCCA 190 at para. 11.

[11] In R. v. Hendry (2002) 2001 21168 (ON CA), 57 O.R. (3d) 475 the Ontario Court of Appeal held that, given an adult offender’s diminished expectation of privacy following conviction, the minimal intrusion into the security of the person in the ordinary case and the important interest served by the DNA data bank, it will usually be in the best interests of the administration of justice for the order to go: see para. 1. There is absolutely nothing in the record before me to suggest the contrary. Accordingly, I grant the Crown’s request.

FORFEITURE

[12] The offender wisely conceded the forfeiture of the almost $100,000 in Canadian and U.S. currency that was seized on the day of his arrest and remained after the order was made pursuant to s.462.34(4)(c) C.C. for the release of $30,000 for legal fees. The Crown also applied for forfeiture of the residence at 41 Hislop Avenue in Markham advancing a claim that it was offence-related property under s.16 of the CDSA and, alternatively, that if proceeds of crime under s.462.37(2.01) C.C. The offender’s wife had already waived any claims that she may have had from the joint tenancy with him in return for a withdrawal of those charged by the Crown.

(i) S.16 CDSA – “Offence-related property”

[13] There is no question that the main floor and basement of this residence were being used to process raw marihuana, to package it and seal it, to load it into large boxes that were themselves further sealed, all for distribution to street dealers and, eventually, the consumer. As well, there is no question that these same premises were being used to launder the enormous profits that were being generated by this enterprise. The offender did not contest this inevitable inference but sought partial relief under s.19.1(3) of the CDSA suggesting that there should be only 70% forfeiture because the upstairs of the residence was legitimately being used for residential, that is, non-commercial purposes. Except for the firearm in the master bedroom, the proposition had merit and was not strongly opposed by the Crown. Accordingly, I granted an order of forfeiture on this basis to the extent of 70% net of any third party claims that may be advanced under s.20 of the CDSA: see R. v. Van Bemmel (2010) 2010 ONCA 276, 253 C.C.C. (3d) 284 (Ont.C.A.)

(ii) S.462.37(2.01) C.C. – “Proceeds of Crime”

[14] Under this provision, there are two avenues available for the forfeiture of the proceeds of crime. Subparagraph (a) is dependent upon a pattern of criminal activity for the purpose of receiving a material benefit, including a financial benefit, within ten years before the predicate proceedings were commenced. The Crown is not relying on this provision but relies on subparagraph (b) which permits forfeiture where the court is satisfied, on a balance of probabilities, that:

The income of the offender from sources unrelated to the designated offences cannot reasonably account for the value of all of the property of the offender.

[15] This application specifically targets the residence of the offender along with the Canadian and U.S. currency located therein and in the offender’s rental vehicle on the date of his arrest. After $30,000 in Canadian funds were ordered released for legal fees by Minden J., the Crown seeks forfeiture of $94,372.04 in Canadian currency and $4,131 in U.S. currency.

[16] According to CRA records, the offender received net income of $40,480 in 2007 and $800 in 2008. The same records disclose that his spouse earned $49,774 in 2007 and $45,431 in 2008. Her bank account records disclose that in 2008 a total of $57,959.98 was deposited and $78,437.17 was paid out. In 2009 a total of $92,605.83 was deposited in this account, of which $27,632.65 came from legitimate sources. Approximately $65,000 of that amount came from unidentified sources. In the same year, $78,896.80 was paid out of this account for mainly household expenses.

[17] This scenario would strongly suggest that the income of these two individuals from legitimate sources cannot account for the wealth accumulated. As I have already stated, the offender’s spouse has already waived any claim to the subject property. In all of those circumstances, I am satisfied on a balance of probabilities that the residence and currency are subject to forfeiture under this provision. The offender has not attempted to establish that the property is not proceeds of crime pursuant to s.462.37(2.03) C.C.

[18] Accordingly, the Crown applications are allowed to the extent indicated.

McISAAC J.

Released: July 17, 2014