Court File and Parties

COURT FILE NO.: CR 6-17 DATE: 2017/06/26 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Johan THIESSEN

BEFORE: R. J. Harper

COUNSEL: Jamie Pereira, Counsel for the Federal Crown Geoff Snow, Counsel for Johan Thiessen

HEARD: June 15, 2017

REASONS FOR SENTENCE

[1] Johan Thiessen was charged with two counts as follows:

1. One count of possession of Cocaine for the purpose of trafficking contrary to section 5(2) of the Controlled Drugs and Substances Act (CDSA);
2. One count of possession of Methamphetamine for the purpose of trafficking contrary to section 5(2) of the CDSA.

[2] He elected trial by jury and after that trial he was convicted on both counts.

[3] Both offences the accused was convicted of carry a maximum sentence of life imprisonment.

Facts relating to the offences

[4] The evidence heard at the trial is summarized in the charge to the jury and in my written reasons in relation to two evidence and legal rulings that were made during the course of the trial. I will give an overview of the relevant summary in these reasons for sentencing.

[5] Justice M. A. Code considered the facts to be used at a sentencing in R. v. Duncan et al, 2016 ONSC 1319. He stated commencing at para 4:

[4] Fact finding in jury trials, at the sentencing stage, involves two distinct processes. They are set out in s. 724(2) of the Criminal Code and they are as follows: first, all facts that are “essential to the jury’s verdict” must be taken as proven and facts “consistent only with a verdict rejected by the jury” must be rejected; second, any additional facts that are relevant and necessary to sentencing may be found by the trial judge on the basis of evidence heard at trial and any additional evidence heard at sentencing. Aggravating facts must be proved beyond reasonable doubt and mitigating facts must be proved on a balance of probabilities.

[6] The central facts in this case that I am satisfied have been proved beyond a reasonable doubt for the purposes of sentencing are as follows:

1. It was an agreed fact that the police located and seized the following substances form the 1277 Lakeshore on May 13, 2014:
2. (a) six individually wrapped packages of cocaine weighing between 985, 990, 990, 991, 991 grams and 991 grams; (b) one individually wrapped package of methamphetamine weighing 990 grams.
3. It was also an agreed fact that these drugs were located in a container in a backpack behind a foundation support in a crawl space accessed through a door in the home’s furnace room.
4. A further agreed fact is that the samples of the drugs found were confirmed, after lab analysis to be cocaine and methamphetamine respectively.
5. As a result of those agreed facts, it was established beyond a reasonable doubt that cocaine and methamphetamine in the amounts specified were found in the home 1277 Lakeshore that was owned by Johan Thiessen and his wife Anna Thiessen.
6. One element of the offence that must be taken as proven by the Crown was whether or not there was sufficient evidence beyond a reasonable doubt that Johan Thiessen knew that the cocaine and methamphetamine was in his home and whether there is sufficient evidence that he had control of these substances, or that he knew someone else had possession of the cocaine and methamphetamine located in 1277 Lakeshore with his knowledge and consent.
7. One of the most significant pieces of evidence in this case was text messages that were filed in evidence. These text messages were central to the jury finding that Johan Thiessen had knowledge and control over the drugs in his home.
8. The evidence of the 2 text messages sent on May 13, 2014 were shown on the OPP Extraction Report from Johan Thiessen’s cell phone to the cell phone of Abe Klassen’s wife, Mary Klassen.

The date stamp is May 13, 2014 at 7:42:59 the text reads:

“Hey there searching my place”.

The next message was sent 5 minutes later at 7:47:41 and it reads:

Have someone get it out if possible now. See if it’s true. They had pulled Anne over and told her she would be charged for holding stuff. Then they would search the house.”

The Greymouth Investigation

The relationship with Abe Klassen and Johan Thiessen

[7] Abe Klassen and Johan Thiessen knew each other for many years. They lived in the same neighbourhood in Aylmer, Ontario. Johan Thiessen stated that he gave Abe Klassen a key to his home and that he had free access to his home.

[8] The evidence at trial established that Abe Klassen was the main target in the police investigation. He was the one who proceeded to what the police characterized as the “stash house”, being the home owned by Johan Thiessen and his wife Anna on Lakeshore Road after the cocaine buys were initiated with the undercover officer on at least two occasions in December of 2013 and May of 2014.

[9] The evidence of the expert witness called on behalf of the Crown together with at least two senior investigators described the use of stash houses by high level drug traffickers as a central feature of such trafficking. The high level trafficker uses stash houses in order to reduce the chances of theft of drugs that could yield significant sums of money. By using stash houses the chance of being detected as a high level trafficker is reduced and police investigation is made more complex.

[10] By allowing his home to be used as a stash house, Johan Thiessen had a reckless disregard to the amount of drugs that may have been stashed there. By convicting him, the jury found that he knew that the cocaine and methamphetamine were located at his home. With respect to proportionality, Johan Thiessen played a significant role as a facilitator to the high level trafficking in dangerous drugs.

The value of the drugs

[11] The contradicted evidence at the trial was that the drugs that were found, approximately 6 kilos of cocaine and 1 kilo of methamphetamine could yield substantial sums of money. One kilo of cocaine sold for approximately $42,000 Canadian and 1 kilo of Methamphetamine sold for approximately $30,000 to $350,000 Canadian. It was further established in the evidence that once the cocaine and methamphetamine were distributed further down to the street level sales, the drugs would be cut and mixed with a potential for end sales that could exceed $700,000 to $800,000 Canadian.

The Offender

[12] Johan Thiessen is 38 years of age. He was born in Mexico and came to Canada in 1995. He and his family settled in the Aylmer, Ontario area. He married Anna Thiessen in July of 2007. They have no children. His wife Anna is very supportive of him. Mr. Thiessen is described by his employer of 13 years as a very hardworking, intelligent, dependable, honest and respectful person. He is presently in an apprenticeship program to obtain a certificate as an industrial Mechanical Millwright. He is in his second year of this 3 year program.

[13] Johan Thiessen continues to profess that he is innocent of the charges that the jury convicted him of. Despite his conviction he insists that he did not know the drugs that were located in his home were there. He asserts that he simply trusted the wrong person. The jury found that he knew that the 6 kilos of cocaine and 1 kilo of methamphetamine were located in his home.

[14] Johan Thiessen does not have a criminal record.

Position of the Crown

[15] The Crown described Johan Thiessen as a caretaker of the drugs. The Crown submitted that he allowed the drugs safe storage. Safe from those who would steal them and safe from easy detection by police investigators.

[16] Franz and Abe Klassen were the main targets in the police investigation. Franz was the front end operator. He dealt with the undercover officer and made the drug sale transactions. Abe Klassen was the seasoned orchestrator of the movement of the drugs. He was the one who was found to have the more significant sums of money in his possession. He was also the one who placed and accessed the drugs at the Thiessen residence. He moved the drugs to Franz to effect the drug transactions. He also stacked out various transaction sites in order to assist in avoiding detection.

[17] Franz Klassen had a criminal record and so did Abe Klassen. They both pled guilty before a preliminary inquiry. Both Franz and Abe Klassen were given 6 years incarceration. The Crown sought 8 years for Franz Klassen and 9 to 10 years for Abe Klassen.

[18] With respect to Johan Thiessen, the Crown seeks a sentence of 8 years. He has no criminal record. The Crown is relying on the primary importance of denunciation and deterrence due to the serious and significant drugs that are involved in the matter.

[19] The Crown cited numerous cases from the Ontario Court of Appeal that provided a range of sentences that involved similar drugs and quantities of those drugs. The ranges of sentences were from 6 to 8 years. Many of the individuals had not any previous criminal records. The primary principle of denunciation and deterrence featured as a central theme in the analysis of the courts in the cases that were cited.

Position of the Defence

[20] Counsel for Mr. Thiessen submits that an 8 year sentence should not even be within consideration of the Court. He emphasises proportionality and parity.

[21] Central to defence counsel’s argument is the comments of the Supreme Court of Canada in R. v. Lacasse, [2015] 3 SCR 1089, 2015 SCC 64, commencing at paragraph 1:

I. Introduction

[1] Sentencing remains one of the most delicate stages of the criminal justice process in Canada. Although this task is governed by ss. 718 et seq. of the Criminal Code, R.S.C. 1985, c. C 46, and although the objectives set out in those sections guide the courts and are clearly defined, it nonetheless involves, by definition, the exercise of a broad discretion by the courts in balancing all the relevant factors in order to meet the objectives being pursued in sentencing.

[2] For this purpose, the courts have developed tools over the years to ensure that similar sentences are imposed on similar offenders for similar offences committed in similar circumstances — the principle of parity of sentences — and that sentences are proportionate by guiding the exercise of that discretion, and to prevent any substantial and marked disparities in the sentences imposed on offenders for similar crimes committed in similar circumstances. For example, in Quebec and other provinces, the courts have adopted a system of sentencing ranges and categories designed to achieve these objectives.

[3] The credibility of the criminal justice system in the eyes of the public depends on the fitness of sentences imposed on offenders. A sentence that is unfit, whether because it is too harsh or too lenient, could cause the public to question the credibility of the system in light of its objectives.

[4] One of the main objectives of Canadian criminal law is the rehabilitation of offenders. Rehabilitation is one of the fundamental moral values that distinguish Canadian society from the societies of many other nations in the world, and it helps the courts impose sentences that are just and appropriate.

[22] Mr. Theissen told the author of the presentence report that he maintains that he is innocent and that his only mistake was in trusting a friend. Defence counsel argues that his maintenance of his innocents should not be something that is should be an aggravating factor. I agree with that submission. Mr Thiessen’s position is tempered by his statement that he will accept the direction of the sentencing court. I am of the view that this factor is neutral and any lack of remorse does not allow for Mr Thiessen to rely on admission and remorse as a mitigating factor.

[23] Defence counsel’s submissions centre upon two main themes:

1. When the court considers the issue of proportionality and parity, the role that Mr. Theissen played in this drug movement was a passive role. The main players in this drug movement were both sentenced to 6 years. Mr. Thiessen’s sentence certainly should not be anywhere near 8 years and given his role in the events any sentence should be far less that the main actors.
2. Mr. Thiessen supports in the community are superlative. Those who testified at his sentencing hearing talked of a man who was hark working, reliable and trustworthy. His wife and other family members support him. His employer and other members of his community support him and all of his supports will be there for him in order to assist him in any rehabilitation.

[24] Mr, Snow on behalf of Mr. Thiessen, further submits that a significant period of incarceration would reduce the opportunity for his rehabilitation.

[25] Mr Snow submits that the appropriate range of sentence would be 2 to 3 years of incarceration.

ANALYSIS

[26] The principles of sentencing are set out in ss. 718, 718.1, and 718.2 of the Criminal Code and I am bound by those principles.

General Principles

[27] To arrive at an appropriate sentence in light of the complexity of the factors related the nature of the offence and the personal characteristics of the offender, the judge must weigh the normative principles set out in the Criminal Code of Canada;

The objectives of denunciation, deterrence, separation of offenders from society, rehabilitation of the offenders, and acknowledgment of and reparations for harm they have done (s. 718 CCC)

The fundamental principle that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender (s 718 CCC) and the principle that a sentence should be increased or reduced to account for aggravating or mitigating circumstances, that a sentence should be similar to other sentences imposed in similar circumstances, that the least restrictive sanctions should be identified and that available sanctions other than imprisonment be considered (s 718.2 CCC)

[28] Although this is not a case of importation of drugs, certain comments made by the Ontario Court of Appeal with respect to the type of drugs that are the subject of these offences are applicable. They are even more applicable having regard to the fact that the offences that are before this court came to light within a police investigation called Project Greymouth. That Project was a major investigation into the trafficking of drugs from Mexico into Canada. The Court of Appeal stated that the proper approach to sentencing in cases involving the importation of hard drugs, like cocaine, was explained by Doherty J.A. (O’Connor A.C.J.O. and Gillese J.A. concurring) in R. v. Hamilton and Mason (2004), 186 C.C.C. (3d) 129 at paras. 104-106 (Ont. C.A.):

The importation of dangerous drugs like cocaine and others found in Schedule I of the Controlled Drugs and Substances Act, S.C. 1996, c. 19, has always been considered among the most serious crimes known to Canadian law: Sentencing Reform: A Canadian Approach, Report of the Canadian Sentencing Commission, Ottawa Ministry of Supply and Services (1987), p. 205. The immense direct and indirect social and economic harm done throughout the Canadian community by cocaine is well known: Pushpanathan v. Canada (Minister of Citizenship and Immigration) (1998), 160 D.L.R. (4th) 193 at 235-37 (S.C.C.), per Cory J., in dissent on another issue; R. v. Smith (1987), 34 C.C.C. (3d) 97 at 123-24 (S.C.C.). The use and sale of cocaine kills and harms both directly and indirectly. The direct adverse health effects on those who use the drug are enormous and disastrous. Cocaine sale and use is closely and strongly associated with violent crime. Cocaine importation begets a multiplicity of violent acts. Viewed in isolation from the conduct which inevitably follows the importation of cocaine, the act itself is not a violent one in the strict sense. It cannot, however, be disassociated from its inevitable consequences. Unlike the trial judge (para. 224), I characterize cocaine importation as both a violent and serious offence: see R. v. Pearson (1992), 77 C.C.C. (3d) 124 at 143-44 (S.C.C.).

Cocaine is not indigenous to Canada. Without the cocaine importer, whatever his or her motive or involvement, there would be no cocaine problem. Both before and after the amendments to the sentencing provisions in Part XXIII of the Criminal Code and the introduction of the sentencing provision (s. 10) into the Controlled Drugs and Substances Act, S.C. 1996, c. 19, this court has emphasized the gravity of the crime and, therefore, the need to stress denunciation and deterrence in sentencing all drug importers, even vulnerable first offenders. In Cunningham, supra, at pp. 546-47, the court, in fixing a range of six to eight years for couriers who smuggle large amounts of cocaine into Canada, said:

We recognize as well that the suggested range will often require the imposition of a severe penalty for first offenders. We are not insensitive to this concern, mindful as we must be that in many instances, couriers tend to be weak and vulnerable, thereby becoming easy prey for those who engage in drug trafficking on a commercial basis.

Sympathetic though we are to the plight of many couriers, such concerns must give way to the need to protect society from the untold grief and misery occasioned by the illicit use of hard drugs [Emphasis added by Doherty J.A.].

[29] This court has repeatedly reiterated the approach set out in Cunningham, e.g. see R. v. H. (C.N.) (2002), 170 C.C.C. (3d) 253 (Ont. C.A.); R. v. Wilson, (2003), 167 O.A.C. 351.

The reason for giving primacy to denunciation and general deterrence, when sentencing in this kind of case, was explained by Rosenberg J.A. (Doherty and Cronk JJA. concurring) in R. v. C.N.H. (2002), 170 C.C.C. (3d) 253 at paras. 35-6 (Ont. C.A.). He stated that “general deterrence as the animating objective of any offence must be approached with caution” but that “there are, however, offences that are more likely to be influenced by a general deterrent effect” and that “importing large quantities of cocaine for personal gain” is one of those offences because they “ordinarily require some degree of planning”. It is apparent that there was considerable planning and preparation in this case over an extended period of time.

[30] Although denunciation and deterrence is a prime consideration, it is not the only consideration. I must also consider and balance all of the aggravating and mitigating circumstances. I list those as follows:

Aggravating

[31] The nature of the offence. The possession for the purposes of trafficking in dangerous drugs that have a serious negative impact on members of our society. Such drugs lead to serious addiction, health and mental health issues, crime and all too often these drugs are at the centre of child abuse both physical and mental and subsequent pain and suffering incurred by these children.

Mitigating

[32] Johan Thiessen has a supporting family, friends and social supports.

[33] He is a hard worker who has used the time since his arrest to better himself in his career endeavors. He is now in his second year of a 3 year apprenticeship as a millwright.

[34] He is supported by his employer who testified at the sentencing hearing that despite his conviction for this serious offence and knowledge that he will be incarcerated for a period of time, he is willing to take him back as an employee.

[35] I am of the view that denunciation and deterrence are a prime consideration when dealing with drugs that wreak so much having on our society. Mr Thiessen played a role in this high level drug trafficking scheme. By allowing his home to be used as a stash house, he was a facilitator to the main players who were the orchestrators of the sale of these drugs. He had a reckless disregard for the impact of his role in this scheme.

[36] He recklessly disregarded the quantity of drugs stashed in his home. This disregard is a significant component of his disregard of the serious impact on society these drugs would ultimately have.

[37] I must also consider proportionality, parity. The main players and the orchestrator of this trafficking scheme were Abe and Franz Klassen. They had criminal records. They pled guilty prior to a preliminary hearing. Both were given a sentence of 6 years.

[38] With respect to mitigating factors, I find that Johan Thiessen has substantial supports within the community and those supports would most likely be in place for him after a period of incarceration. He has no criminal record.

[39] In balancing all of the above considerations, I sentence Johan Thiessen to a period of incarceration of 4 and a half years.

Ancillary Orders

[40] There will be a Section 109 weapons prohibition for 10 years and a DNA order will issue. With respect to the surcharges, Mr. Thiessen will be granted five and a half years to pay.

The Honourable Mr. Justice R. J. Harper Date: June 26, 2017