COURT FILE NO.: CR-12-2158 DATE: 2016 09 29

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN Meaghan Hourigan, for the Public Prosecution Service of Canada

- and -

NORINE TULLOCH Steven Hinkson, for Norine Tulloch

HEARD: August 30, 2016

REASONS FOR SENTENCE

Justice M.G. Emery

[1] On May 26, 2016, a jury found the accused, Norine Tulloch, guilty of one count of possession of a controlled substance for the purpose of trafficking under section 5 (2) of the Controlled Drugs and Substances Act. Pursuant to an agreed statement of fact marked as Exhibit 1 at trial, the controlled substance seized was identified as cocaine. It was also an agreed fact that the amount of cocaine seized weighed 260 grams, or just over half a pound.

[2] Mr. Tulloch was remanded out of custody to August 17, 2016, on which date the court heard submissions on sentencing. A pre-sentence report was prepared and filed as an exhibit on those submissions.

[3] On August 30, 2016, I sentenced Norine Tulloch to a custodial sentence of two years less a day, to be served in a reformatory. In addition to that term in custody, I ordered that Norine Tulloch be placed on probation upon his release for another two years, and I made other orders to deter him from subsequent activity of a criminal nature. I indicated in court that my reasons would follow for the sentence handed down on August 30, 2016. These are those reasons.

Circumstances of the offence where guilt has been found

[4] The Peel Regional Police executed a warrant at Mr. Tulloch’s home at 8 Bottomwood Street in Brampton at approximately 11:04 pm on May 18, 2011. Early the next morning, at approximately 1:30 am on May 19, 2011, Mr. Tulloch was charged with possession of cocaine for the purpose of trafficking.

[5] Police executed the search warrant by making a dynamic entry into the house. Access to the house was gained through the front door. The search warrant team entered single file and consisted of 5 officers yelling “police” or “search warrant” loudly as they entered.

[6] Three people were found within or in the vicinity of the house. Police found Mr. Tulloch’s fiancé, Dominique Johnson, and his friend Duane Clifton in the living room area adjacent to the kitchen. Constable Dan testified that he saw the blinds over the back door of the kitchen moving as he entered the house. The back door of the kitchen leads to the backyard of the house. Constable Dan proceeded through the back door and observed Mr. Tulloch with his arm extended as though he just completed throwing an object. At the same time, he heard a loud bang in the direction of the backyard fence. He observed Mr. Tulloch to be outside with no shoes and socks on his feet, even though it had rained that evening.

[7] The search warrant team searched the backyard of 8 Bottomwood Street and found no object at the time. Subsequently, while extending the search to the neighbour’s yard immediately behind the Tulloch house, the cocaine wrapped in plastic was found on the grass beside the deck attached to the neighbor’s house. This property was owned by the Srikanthanajah family.

[8] After further investigation and an interview with the Srikanthanajah family, Constable Whitlock of the Peel Regional Police concluded that none of the people in that family had any connection to the package of cocaine found in their backyard beside the deck.

[9] The Peel Regional Police therefore charged Mr. Tulloch with possession of the cocaine for the purpose of trafficking under the Controlled Drugs and Substances Act.

[10] Mr. Tulloch testified that the cocaine was not his. He testified that he and his fiancé had returned to the house after bringing Ms. Johnson from Burlington, where she resided at the time. He stated that he was in the process of cooking dinner for her that evening, when he responded to a knock at the front door. The caller was a friend he knows as Jess. Mr. Tulloch explained in his evidence that he had warned Jess that he must not bring drugs into Mr. Tulloch’s house. He testified that Ms. Johnson had told him that if drugs were ever brought into the house, their relationship would be over.

[11] Ms. Tulloch testified that when he observed a packet of drugs tucked inside the jacket Jess was wearing, he grabbed the drugs and ran to the back door with them. He testified that he intended to eject the drugs from the house in order to remove them from the site. He testified that he threw the packet of cocaine through the kitchen door prior to the search warrant team storming the house from the front.

Legal parameters

[12] The offence for which Mr. Tulloch was found guilty took place in May, 2011. The amendments made to the Criminal Code in 2012 setting out minimum sentences for such an offence do not apply. Therefore, Mr. Tulloch is subject to a sentence that ranges between receiving a conditional sentence and life imprisonment.

Positions of the Crown and the Defence

[13] The Crown seeks a custodial sentence for Mr. Tulloch of three years in a federal penitentiary. The Crown also seeks ancillary orders authorizing the taking of a DNA sample from Mr. Tulloch to include in the database, an order prohibiting Mr. Tulloch from possessing firearms or other like instruments under section 109 of the Criminal Code, and forfeiture of the currency and spiral notebook seized during the execution of the warrant.

[14] Mr. Hinkson seeks a conditional sentence for Mr. Tulloch. He argues that the circumstances do not justify a custodial sentence. He states that the sentencing principles will be satisfied if Mr. Tulloch is placed under house arrest when he is not working, and that he be ordered to give a DNA sample and that he not possess firearms.

Principles of sentencing

[15] The Criminal Code sets out the applicable principles of sentencing at section 718:

Purpose and Principles of Sentencing

Purpose

718. The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.

[16] In addition to those objectives, I am also mindful of the principle that less restrictive sanctions should be considered if appropriate under the circumstances. Section 718.2(d) and (e) provides that:

(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and

(e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.

[17] On balance, the sentence for the offence of possessing cocaine for the purpose of trafficking in the amount of 260 grams for which Mr. Tulloch has been found guilty must be geared to the sentencing principles set out in section 718.01 of the Criminal Code. The sentence must also be consistent with how the courts in previous cases have provided guidance on how those principles are to be applied to the facts here.

Authorities

[18] The courts have taken a tough stand on drugs and the possession of drugs for the purpose of trafficking. In cases where similar charges have resulted in convictions, the courts have provided the basis for imposing significant custodial time on sentencing.

[19] The reasons the courts have given tougher sentences for persons convicted of possessing drugs like cocaine or heroin for the purpose of trafficking is clear from the authorities. Not only are drugs dangerous to users, they foster criminal activity and induce anti-social behavior. In R. v. Datta, [2011] O.J. No. 2685, Justice H.K. O’Connell provides an insightful summary of how the courts have viewed cocaine and trafficking in cocaine at paragraphs 102 to 104:

102. Justice Beaulieu in R. v. Toms [2001] O.J. No. 4844 which I note was overturned by the Court of Appeal on the conviction appeal, [2003] O.J. No. 952, had this to say about the effects of cocaine:

…The harmful effects of cocaine in our community are twofold. Not only do families suffer when a member becomes addicted but so too does the community as a whole. Addicts often resort to criminal activity to support their habits and innocent citizens suffer losses at their hands.

103. Justice Dunnet, in the original trial judgement of R. v. Nero, (The Court of Appeal judgment is enclosed in the materials and I’ve already made reference to it wherein the Court of Appeal increased a sentence on Mr. Nero) noted the following;

…there is no issue that general deterrence and denunciation are of paramount importance. It is well documented that the use and distribution of cocaine perpetuates crimes of violence …

104. Finally, in Woolcock in 2002, the Ontario Court of Appeal states:

…there is no disputing that crack cocaine is an extremely dangerous and insidious drug with potential to cause a great deal of harm to individuals and to society. Likewise, possession of crack cocaine for the purposes of trafficking is a serious offence warranting emphasis on the principles of deterrence and denunciation. However when sentencing an offender convicted of such an offence it is incumbent upon the trial judge to consider all of the principles in sentencing including the accused’s prospect for rehabilitation. S. 718 of the Criminal Code directs the sentencing judge to consider the full panoply of sentencing objectives including but not limited to assisting in the rehabilitation of offenders.

[20] In R. v. Bryan, [2011] O.J. No. 1581 the Court of Appeal expressed the view that possession of just over one pound of cocaine for the purpose of trafficking would normally attract a sentence of five to eight years. A sentence of that length could even be given to someone without a record.

[21] The decision of Justice K.L. Campbell in R. v. Ovid [2016] O.J. No. 2303, 2016 ONSC 2974 revisits the observation of the Court of Appeal in R. v. Woolcock, [2002] O.J. No. 4927 that cocaine is an “extremely dangerous and insidious drug with potential to cause a great deal of harm to individuals and to society.” Justice Campbell goes on to observe that the Court of Appeal in R. v. Bajada 2003, 169 O.A.C. (3d) 255 remarked that sentences from five years to five and a half years are not uncommon for possessing substantial amounts of cocaine for the purpose of trafficking, even where the accused entered a guilty plea, or where the accused has no prior record.

[22] In R. v. Ovid, the accused was convicted of possessing 300 grams of cocaine for the purpose of trafficking. That amount of cocaine is similar to the 260 grams the jury found Mr. Tulloch had in his possession. The accused in R. v. Ovid was sentenced to 3 ½ years.

[23] In R. v. Nguyen, 2016 ONSC 1286 decided earlier this year, Justice Woollcombe of this court sentenced the accused who had pleaded guilty to possession of 182 grams of cocaine for the purpose of trafficking to two years less a day. Justice Woollcombe gave this sentence having regard to the cases relied upon by counsel for the defendant, including R. v. Luu, [2015] O.J. 3932 (SCJ) where the accused suffered from a drug addiction, and R. v. Marshall, [2013] O.J. 3480 (SCJ), where the accused was arrested following the execution of a search warrant where the police found him in possession of 250 grams of cocaine and 189 pills. In each of those cases, the court imposed sentence to be served in a reformatory. In each case, the trial judge referred to personal circumstances of the accused when handing down the sentence.

[24] Justice Woollcombe acknowledged that the sentence given in R v. Nguyen was at the low end of the range. However, Her Honour determined the sentence to be appropriate having regard to the particular circumstances of the accused.

[25] I was also referred to R. v. Speciale, 2011 ONCA 580, 107 O.R. (3d) 447 (Ont. C.A.) where the court overturned a five year sentence given by the trial judge on a finding of possession of 14.87 grams of cocaine. The sentence was reduced to time served of 14 months and nine days. The accused was 29 years old and although he had a prior record, the accused had expressed remorse and was taking steps at reformation.

[26] I am mindful of Parliament’s intention with respect to sentencing in section 10 (1) of the Controlled Drugs and Substances Act. The purpose of sentencing is set out in section 10 (1) as follows;

10 (1) Without restricting the generality of the Criminal Code, the fundamental purpose of any sentence for an offence under this Part is to contribute to the respect for the law and the maintenance of a just, peaceful and safe society while encouraging rehabilitation, and treatment in appropriate circumstances, of offenders and acknowledging the harm done to victims and to the community.

[27] I have kept the sentencing range provided by the authorities in mind, as well as the principles of sentencing set out in section 718 of the Criminal Code and the purpose for sentencing set out in section 10 (1) of the CDSA. However, every sentence is particular to the individual before the court and the circumstances of individual that individual as they pertain to mitigating factors and aggravating factors. These factors have a bearing on the appropriate sentence within the permitted range.

Mitigating factors

[28] Mr. Tulloch is 37 years old. He was born in Jamaica and relocated to Canada in 1985 with his father, step-mother and two siblings. He graduated with Grade 13 credits from Bramalea Secondary School.

[29] Mr. Tulloch told the court in his statement under Section 726 that he has tried to be a better person since these charges were laid. He acknowledges that he has not behaved with integrity. He confessed that the entire situation has been a great embarrassment for him. He wants his life to be different than it has been. I see this expression as a show of remorse, and a desire for rehabilitation.

[30] A pre-sentence report was prepared on Mr. Tulloch for the court to consider. This pre-sentence report was a positive reflection on Mr. Tulloch’s family life. He and Ms. Johnson have been together now for five years, and she is a supportive spouse. He has children for whom he must provide. He has his own business, Norando Reno and Painting, and that business has good prospects for long time work on a construction project in Welland, Ontario.

[31] The pre-sentence report furnishes several reasons why the court should not impose a sentence of more than two years. A term of two years less a day would enable Mr. Tulloch to re-establish his renovation and painting business, perhaps even to recapture some of the finishing work at the construction project in Welland. Mr. Tulloch would also be reunited with his children. He would also be in a position to resume his relationship with Ms. Johnson. All of these opportunities are enhanced by a sentence that is less than the three years requested by the Crown.

Aggravating Factors

[32] The fact that Mr. Tulloch chose a trial cannot be considered an aggravating factor.

[33] A conditional sentence is a possible alternative to a custodial sentence where the length of the sentence is less than two years and the prospects for the person’s rehabilitation are good. The offender in R. v. Salazar, [2000] O.J. No. 4974 received a conditional sentence of eight months after being convicted of possessing eight ounces of cocaine, even though he had a record for robbery and property offences. The pre-sentence report in Salazar impressed the trial judge; the positive outlook for the offender is reflected in the lenient sentence given.

[34] It is difficult to reconcile the conditional sentence Mr. Hinkson urges this court to consider with the reality that Mr. Tulloch received a conditional sentence of 15 months in 2010. The previous sentence did nothing to deter Mr. Tulloch from later engaging in criminal behavior.

[35] I also consider the facts described in the pre-sentence report and those Mr. Hinkson told this court about in terms of Mr. Tulloch having a supportive family and good job prospects to work against him. I say this because those facts are as much aggravating factors as they are mitigating circumstances. Mr. Tulloch broke the law despite having those positive influences in his life. Why would he take such a risk? To be convicted and sentenced for breaking the law harms his family and his business prospects as much as it hurts him.

[36] On the evidence Mr. Tulloch gave at trial, the fact that he consorted with his friend, Jess, whom he admits he knew to be a person conversant with the drug trade, showed a disregard for the law. Whether he gave drugs to Jess, or Jess gave drugs to him that evening, Mr. Tulloch exhibited a lack of common sense. This fact is particularly egregious since the evidence at trial showed that Ms. Johnson had told him that she would end their relationship if drugs were brought into the house. Any sentence I impose must serve as a constant reminder to Mr. Tulloch to exercise common sense in the future.

Decision

[37] The cases make it clear that the courts consider drug trafficking as an insidious force on the well-being of society. The same can be said of possession of a drug or controlled substance in a sufficient quantity to be considered possession for the purpose of trafficking. The sentence for such offences must address the objectives of denunciation of the offence, and general deterrence to reinforce the message that criminal behavior of this nature will be punished.

[38] It is equally clear from the authorities that a conviction on the charge of possession for the purpose of trafficking shall result in serious consequences, generally in the form of a period of incarceration. A conditional sentence will be considered only in a case where the charges are brought against a first offender or where there are clear and unqualified mitigating circumstances. Even then, a conditional sentence may only be available if a smaller amount of the unlawful substance has been found.

[39] Mr. Tulloch was convicted for a similar offence in 2010 and received a conditional sentence of 15 months. In May 2011, less than 3 months after completing that sentence, he was arrested on the charge for which he has now been found guilty. Unfortunately, Mr. Tulloch was not deterred from reoffending when he received a conditional sentence of 15 months in 2010. His entitlement to a conditional sentence upon conviction on a similar charge is now spent.

[40] I must balance the mitigating factors and the aggravating factors to determine the appropriate sentence Mr. Tulloch should be given. The circumstances make this a borderline case between giving Mr. Tulloch a sentence which would have him serve his time in a federal penitentiary, and a sentence that would allow him to serve that sentence in a provincial reformatory. I must also ensure that the sentence reflects a denunciation of the offence, and serves as a general deterrent for others who might contemplate the same activity.

[41] I have decided that the mitigating factors outweigh the aggravating factors that would have Mr. Tulloch serve a longer sentence. Three years would be too long a sentence for Mr. Tulloch to preserve the positive aspects of his life described above. I consider Mr. Tulloch to be a good candidate for rehabilitation. I am therefore giving him to a sentence of two years less a day so that he may serve that period of incarceration in a provincial reformatory. I find that this sentence would be consistent with the principles set out in section 718 of the Criminal Code. In addition, I am placing him on probation for a further two years upon his release from custody to monitor his rehabilitation, and to give him the opportunity to show his family and the community that he is serious about turning his life around.

[42] I make ancillary orders for Mr. Tulloch to provide a DNA sample to be entered into the national database under section 487.051, to prohibit him from possessing weapons under section 109 of the Criminal Code, and an order that the money and the spiral notebook seized at the scene on May 18, 2011 are forfeited to the Crown.

Sentence and Orders made

[43] The defendant, Norine Tulloch, is therefore sentenced as follows:

1. to a custodial sentence of two years less a day, to be served in a reformatory. Mr. Tulloch was released on a promise to appear soon after his arrest, and there is therefore no credit against sentence to give him under the circumstances.

2. upon his release from the reformatory, Norine Tulloch shall be subject to a probation order for a further two-year period. In addition to the compulsory conditions set out in section 732.1 (2), the following terms of that probation order shall apply: a) to report to a probation officer within two working days after the making of the probation order and thereafter as and when required by the probation officer and in the manner he or she directs; and b) to abstain from the consumption of drugs except in accordance with a medical prescription.

[44] The following ancillary orders are also made against Norine Tulloch:

1. Norine Tulloch shall provide a DNA sample pursuant to section 487.051 of the Criminal Code to be entered into the database;

2. there shall be an order that Norine Tulloch is prohibited from possessing any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive substance for life, under section 109 of the Criminal Code;

3. the currency in the amount of CDN $1,035 and the spiral notebook seized from 8 Bottomwood Street in Brampton on May 18 2011 are forfeited to the Crown.

Justice M.G. Emery

Released: September 29, 2016