R. v. Ticzon, 2016 ONSC 7299

CITATION: R. v. Ticzon, 2016 ONSC 7299

COURT FILE NO.: CR-15-90000511

DATE: 20161201

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

ANTHONY TICZON

Defendant

Arielle Elbaz for Her Majesty the Queen

Joshua Tuttle, for the Anthony Ticzon

HEARD: November 17, 2016

F.L. Myers, J.

SENTENCING REASONS

Introduction and Background

1On June 29, 2016, the court rendered judgment convicting Mr. Ticzon of possession of 64.1 grams of crystal methamphetamine for the purpose of trafficking and possession of a knife for a purpose dangerous to the public peace.

2Early in the morning on Christmas Day, 2014, police officers came across Mr. Ticzon in the stairwell of an apartment building that is known to be a place in which many drug crimes are committed. As the police officers entered the stairwell from a floor above, Mr. Ticzon rounded a corner from below climbing the stairs brandishing a small knife in front of him at shoulder level. One of the officers was sufficiently concerned that he pulled his gun. Mr. Ticzon was subdued, arrested, and found to have 64.1 grams of crystal meth on him. He was not able to speak coherently so it appears that he was high on drugs when he was heading up the stairs with a knife pulled.

3Two people had come out of the stairwell prior to the police entering to find Mr. Ticzon. He testified that he was heading to a friend’s apartment with the two others but he was delayed for a moment. As he denied having a knife, there is no explanation of why he would be coming up the stairs brandishing a knife to go to a friend’s apartment with two other friends.

4Expert evidence supporting an inference of trafficking from the quantity of drugs possessed by Mr. Ticzon was admitted by Mr. Ticzon at the trial.

5Mr. Ticzon challenged the legality of his arrest and the search. He claimed in a multi-day voir dire, in which he testified, that the police had planted the drugs and weapon on him. When the court upheld the validity of the search and arrest at common law and under the Charter of Rights, Mr. Ticzon then offered no defence to the charges.

6Subsequent to the conviction, Mr. Ticzon failed to meet with the probation officer who was asked to prepare a pre-sentence report. Counsel made sentencing submissions, but there is no sentencing evidence before the court otherwise.

Personal Circumstances of the Offender

7Mr. Ticzon is 28 years old. He has been in Canada for approximately six years. He came with his sister from the Philippines to join their mother who had been working in Canada since 2005. Mr. Ticzon has been granted permanent residency status in Canada.

8Counsel advises that Mr. Ticzon grew up in Manilla where he had a difficult childhood. He did not have a father and his mother was in Canada. He was passed around among extended family. Yet he managed to finish high school and a two year college course in information technology. He began a four year university degree in mechanical engineering when, after two years, he was forced to withdraw due to a drug addiction.

9He came to Canada around that time. He worked in a Tim Horton’s location for about one year. He worked building tractor trailers for a time. When he was laid off from that job, he went to work in home renovations with his step-father and was doing this at the time of his arrest.

10Mr. Ticzon has a 7 year old daughter in the Philippines.

11Mr. Ticzon’s drug addiction has guided his life choices. Although he started using in the Philippines, after he arrived here he stayed clean for the first year or so. He ran into difficulties here and started to use again. He has been battling his addiction ever since. In 2013 he was convicted of two counts of fraud under $5,000. He spent 42 days in pre-sentence custody on that charge and received a suspended sentence and 1 year of probation.

12Mr. Ticzon spent 13 months in pre-trial custody in this case. The Crown agrees that he is entitled to 19.5 months credit for time served. He was released on bail earlier this year only to resume his drug use and see his bail pulled by his surety. He has remained in custody pending sentencing.

13If Mr. Ticzon’s addiction is to be blamed for his criminal behavior and he has relapsed while on probation and again while on bail a few months ago, then, in my view, rehabilitation does not weigh in favour of early release at least not until Mr. Ticzon’s addiction is firmly under control.

14Counsel advises that Mr. Ticzon has spent time with a drug rehabilitation counsellor while in jail. He has plans to seek further rehabilitation if he is released and says that the counsellor has agreed to help co-ordinate his care. Unfortunately, there were no details of Mr. Ticzon’s “plans” and without an affidavit or even a letter from the counsellor, I cannot tell if she is truly managing a thorough rehabilitation process or if she just politely agreed to take his calls when he is released.

15Finally, counsel advises that Mr. Ticzon’s mother is involved in his life. She will allow him to stay with her and support him in rehabilitation. His step-father is apparently willing to have Mr. Ticzon work for him again doing home renovations.

Sentencing Positions and Legal Principles

16The Crown asks for a sentence of 4 years in total – 3 for the trafficking offence and 1 for the weapon. She argues that under s. 718 of the Criminal Code, the principles of denunciation and specific and general deterrence predominate in serious drug cases. She argues that an experienced police officer felt threatened enough by Mr. Ticzon’s approach with a knife to pull his service revolver. She argues that there are no mitigating circumstances on the weapon charge.

17As to the possession charge, the Crown argues that 64.1 grams is a significant amount of a very dangerous Schedule I drug. In R. v. Villanueva, 2007 ONCJ 87 MacDonnell J. noted that crystal meth is a hard drug. He said, “…it carries the potential for enormous grief and misery for individual users and for significant harm to the health and safety of the community.”

18In R. v. Copeland, 2007 CanLII 37232 (ON SC) at paras. 19 and 20, Spies J. emphasized the seriousness of this drug:

Significant adverse effects come with methamphetamine use including minor physical effects and more severe effects including seizures, convulsions, extreme anxiety, repetitive compulsive behaviours, hallucinations, paranoia, violence, psychoses, cognitive impairment and changes to brain chemistry and structure. In extreme cases methamphetamine can cause death. Recurring methamphetamine use has been associated with cognitive impairment and brain injuries. Most chronic abusers eventually develop long-term psychotic behaviour characterized by intense paranoia and visual and auditory hallucinations, which can be coupled with extremely violent behaviour.

According to the Impact Statement, methamphetamine is a highly addictive drug. Studies have shown it to produce rates of addiction similar to those of heroin and cocaine. The treatment of methamphetamine addicts is more difficult than those addicted to other substances of abuse. In addition methamphetamine abusers have unusually high rates of relapse. Withdrawal from methamphetamine results in mood disturbances and violence is easily provoked.

19In R. v. Liu, 2009 ONCJ 265, at para. 24, Bourque J. noted that in addition to its serious effects on people, crystal meth “can be created from common substances and does not require a long international chain of producers and importers to get to the streets of our communities. In that sense it can have a more severe impact.” In that case, despite the fact that the accused was a youthful first offender, Bourque J. sentenced him to 6 years imprisonment.

20In all of the cases relied upon by the Crown, the quantity of drugs in the possession of the accused was somewhat more that was found on Mr. Ticzon. I would not make distinctions on too fine a basis however. While it is one thing to sentence a major commercial dealer and another to sentence a street user who deals a bit to afford his own drugs, drawing gross distinctions based on grams, or tens of grams, or even hundreds of grams, risks creating a license fee with sentence on a per gram basis.

21Counsel for Mr. Ticzon argues that Mr. Ticzon is just a user with a drug problem and not a commercial dealer. He asks for a sentence of time served to no more than 4 ½ months (which would amount to a total of 2 years less a day with time served) plus probation for one year. Counsel rightly points out that apart from the drugs themselves, the police did not find any indicators that Mr. Ticzon was a commercial dealer. There was no packaging material, no concealment, no paraphernalia, and no cash found on Mr. Ticzon. The expert witness was not able to conclude that Mr. Ticzon was a commercial dealer.

22Counsel minimizes the weapon charge saying that Mr. Ticzon did not pull the knife on the police. He was already carrying it as he was headed up the stairs. He was plainly under the influence at the time. I am not sure if this is a mitigating or an aggravating factor however.

23Counsel argues that the cases relied upon by the Crown involve commercial dealers in the main. He relies on R. v. Paper, 2010 ONCJ 88 in which the accused was sentenced to 2 years for possess of 60 grams of crystal meth, 40 grams of ketamine, 300 oxycodone pills and a quantity of the date rape drug. In R. v. Zaryski, 2011 ONCJ 74, the accused was sentenced to serve 2 years less a day in the community for 462 grams of crystal meth plus other drugs. Counsel relies on a number of to the cases all of which have a range of sentence of between 1 and 2 years.

24In R. v. Borde, 2003 CanLII 4187 (ON CA), a case involving a 19 year old the facts of which have no particular similarity to the case at bar, Rosenberg J.A. set out an important principle for youthful offenders as follows:

[36] Aside from the gravity of the appellant's crimes, the overwhelming factor is his youth. In my view, the trial judge erred in principle in focusing almost exclusively on the objectives of denunciation and general deterrence, given the appellant's age and that this was his first adult prison sentence and his first penitentiary sentence. The length of a first penitentiary sentence for a youthful offender should rarely be determined solely by the objectives of denunciation and general deterrence. Where, as here, the offender has not previously been to penitentiary or served a long adult sentence, the courts ought to proceed on the basis that the shortest possible sentence will achieve the relevant objectives.

25Mr. Ticzon is a young man. But he is 28 years old and has a child of his own. He is an adult with adult responsibilities. However, he has not been sentenced to a penitentiary sentence and his criminal record is quite limited. While it is important to denounce and deter crystal meth trafficking by a sufficient baseline sentence of imprisonment, the more difficult issue in this case, in my view, is how to deal with Mr. Ticzon specifically so as to balance the need for both specific deterrence and rehabilitation.

26Counsel for Mr. Ticzon also asks the court bear in mind that a sentence under 4 1/2 months will preserve appeal rights for Mr. Ticzon under the Immigration and Refugee Protection Act. R. v. Pham, 2013 SCC 15.

Aggravating and Mitigating Factors

27The Crown submits that the following aggravating factors apply:

Aggravating Factors

a. There was no guilty plea. The voir dire was essentially the full trial and Mr. Ticzon’s position and evidence that the drugs and knife were planted by the police involved no remorse nor acceptance of any responsibility;

b. The quantity of drugs was obviously for trafficking;

c. Crystal meth is a very serious drug;

d. Mr. Ticzon’s criminal record – while for unrelated offences – shows that his prior charge was not a one-off. His anti-social behaviour has continued and escalated in seriousness. This is a minor point at best; and

e. The circumstances of the offence, brandishing a knife at police officers, in particular, or even, closely following others up the stairs while brandishing a knife, is a serious manifestation of the unlimited variants of the offence of weapon dangerous.

28Mr. Ticzon’s counsel submits that the following mitigating factors apply:

Mitigating Factors

a. Mr. Ticzon is young;

b. Mr. Ticzon did not contest the trial after his Charter challenge failed;

c. Mr. Ticzon is a drug addict who is likely selling to support his own use rather than as a commercial business;

d. Mr. Ticzon sought rehabilitation while in custody;

e. Mr. Ticzon may lose immigration appeal rights;

f. Mr. Ticzon has been subjected to 13 months of pre-trial custody in circumstances in which lockdowns have been all too common an occurrence.

Analysis and Disposition

29In my view, although he is an adult, Mr. Ticzon’s age and the lack of evidence of a commercial business weigh in his favour. I do not accept that his failure to defend was mitigating. Mr. Ticzon has expressed no remorse and accepted no personal responsibility for his serious misconduct by deed or word. His position saved little trial time as all or nearly all of the trial evidence was heard during the combined voir dire.

30In my view, Mr. Ticzon’s addiction is a double-edged sword. While illness and addiction can provide a less culpable motive for crime, left untreated they raise greater concern for recidivism and public safety. Mr. Ticzon has not been proven to be someone who is fully engaged in the business of drug dealing. But he was in a public place, with a large amount of a very serious drug for sale and he was carrying a weapon in a threatening way. If that is what he does when he is high, then the public needs to be kept safe from having him around while he is in that condition. Moreover, he has been clean for the past few months in jail. An extended sentence will provide him with more access to better rehabilitation programs. Probation and bail both led to relapse.

31In my view, a sentence of 4 years in the aggregate for both offences as sought by the Crown is fit. It is short enough, especially after time served is factored in, to leave Mr. Ticzon with a bad taste but long enough to let him build on his drug rehabilitation efforts and goal. The sentence falls between the case law offered by both sides recognizing that while 64.1 grams is not indicative of a commercial dealer, the circumstances involving an intoxicated Mr. Ticzon brandishing a knife in a public stairwell presented real a danger. Mr. Ticzon should understand from this sentence that he cannot continue his criminal behaviour and if that means he needs to get and stay clean, he has an opportunity to do so.

32The Pham case does not factor in this decision. A sentence low enough to matter to Mr. Ticzon’s immigration status is not a fit sentence for the crimes of which he was found guilty. Mr. Ticzon’s counsel advises that the Philippines is not a good place politically for criminals these days. If that is so and if Mr. Ticzon is deported due to his convictions, then he is the author his own misfortune.

33I therefore sentence Mr. Ticzon to 4 years or 48 months imprisonment less time served of 19.5 months for a net further jail term of 28.5 months. There will be an order under s. 109 of the Criminal Code, a DNA order, and an order for the forfeiture of the knife (to which Mr. Ticzon consents).

F.L. Myers, J.