SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-12-30003

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

v.

NIKKI THORNTON

R E A S O N S F O R S E N T E N C E

DELIVERED BY THE HONOURABLE JUSTICE R. MARANGER

on July 15, 2015, at OTTAWA, Ontario.

APPEARANCES:

D. McKercher Counsel for the Crown
M. Smith Counsel for Nikki Thornton

R. v. Nikki Thornton

WEDNESDAY, JULY 15TH, 2015

MARANGER J. (Orally):

REASONS FOR SENTENCE

[1] These are oral reasons for the sentence being imposed on Nikki Thornton. I reserve the right to edit and amplify these reasons when reviewing the transcript of this decision.

[2] Nikki Thornton pled guilty to multiple counts involving his participation in the drug trafficking business, which included the trafficking of heroin, cocaine and marijuana. He specifically pled guilty to one count of participating in a criminal organization, conspiracy to traffic in cocaine, possession for the purposes of trafficking in heroin, possession for the purposes of trafficking in cocaine and possession of proceeds of crime.

[3] Nikki Thornton presented as somewhat unusual, in that his pre-sentence report disclosed that he never had substance abuse problems of any kind, that he had a normal, proper upbringing, that he had no criminal history whatever, and that he was engaged in the drug trafficking business solely for profit. In truth, I found the pre-sentence report refreshingly candid.

[4] Crown and defence counsel have agreed that a fit and just sentence for the crimes to which he has pled guilty would be eight years incarceration, with the usual ancillary orders, and I agree with that joint proposition, that eight years is a fit and just sentence for the crimes to which Nikki Thornton has pled guilty.

[5] The issue upon which I was asked to adjudicate was what credit should be afforded Nikki Thornton for the amount of time he was on stringent bail conditions up to the date of his plea of guilty. The total amount of time was calculated at 1,335 days with 46 days being actual days he spent incarcerated.

[6] Counsel representing Nikki Thornton suggested this is an appropriate case to credit Nikki Thornton with one day for each day he was on the stringent bail conditions, which would have the net effect of reducing his sentence from eight years to approximately four and a half years. The Crown suggests that credit should be given for one year total, and one year only.

[7] In the case of R. v. Downes, [2006] 79 O.R. (3d) 321, at para. 37, the Court set out the approach that a trial judge should take when examining pre-trial bail conditions in terms of what credit should be given.

In summary, credit for pre-trial bail conditions should be approached in the following manner:

-- Time spent on stringent pre-sentence bail conditions, especially house arrest, is a relevant mitigating factor.

-- As such, the trial judge must consider the time spent on bail under house arrest in determining the length of sentence.

-- The failure of the trial judge to explain why time spent on bail under house arrest has not been taken into account is an error in principle.

-- The amount of credit to be given for time spent on bail under house arrest is within the discretion of the trial judge and there is no formula that the judge is required to apply.

-- The amount of credit will depend upon a number of factors including, the length of time spent on bail under house arrest; the stringency of the conditions; the impact on the offender's liberty; the ability of the offender to carry on normal relationships, employment and activity.

-- Where the offender asks the trial judge to take pre-sentence bail conditions into account, the offender should supply the judge with information as to the impact of the conditions. If there is a dispute as to the impact of the conditions, the onus is on the offender to establish those facts on a balance of probabilities in accordance with s. 724(3) of the Criminal Code.

[8] During the sentencing hearing, Nikki Thornton and two of his sureties testified as to the nature and extent and stringency of the bail conditions. From that evidence, I am satisfied, on a balance of probabilities, as to the following:

• Nikki Thornton, in general terms, worked and stayed at home while on bail.

• The principal condition of bail was that he could not be away from his place of residence, save and except in the company of one of his sureties.

• He meticulously followed the terms of the bail order, and while it was true that Nikki Thornton could have attended social functions, the movies, restaurants, etc., as long as he was in the company of his sureties, the sureties themselves made that virtually impossible. In one case, it was because the surety had a very busy personal life with three children, and in the other case, there was a fairly significant age gap between the surety and Mr. Thornton.

• With respect to his employment, his employment consisted of working at a computer repair establishment, and he basically worked alone.

[9] While I agree with defence counsel that these were stringent conditions, I would not equate them with conditions such as being in a rehabilitation centre where your freedom to leave the centre is absolutely restricted.

[10] It seems to me that a fair and balanced application of credit for what Nikki Thornton went through while on bail is to credit him with two years of pre-trial custody in the circumstances of this case.

[11] Therefore, there will be a credit given to Nikki Thornton of two years pre-trial custody, leaving a sentence to be completed of six years incarceration. The sentence will be as follows:

• Four years for the count of possession of heroin for the purposes of trafficking;

• Two years consecutive for the count of participating in a criminal organization;

• Four years concurrent on the count of possession of cocaine for the purposes of trafficking; and

• Two years concurrent on all remaining counts.

[12] There will be a s. 109 prohibition order for 10 years, there will be the usual DNA order, and there has already been a forfeiture order executed by the Court at this sentencing hearing.

Certification

CERTIFICATE OF TRANSCRIPT

EVIDENCE ACT, subsection 5(2)

I, Lynn Carrière, Authorized Court Transcriptionist, ACT ID 2366775200, certify that this document is a true and accurate transcription of the recording of R. v. Nikki Thornton in the Superior Court of Justice held at 161 Elgin Street, Ottawa, Ontario, taken from Recording No.0411_CR33_20150715_090535__10_MARANGRO which has been certified in Form 1. *

August 3, 2015

Date Lynn Carrière

• This certification does not apply to the Reasons for Sentence which were judicially edited.

Transcript Ordered: July 29, 2015
Transcript Completed: August 3, 2015
Approved by Maranger J.: August 21, 2015
Ordering Party Notified: August 21, 2015