Court File and Parties

COURT FILE NO.: CR-16-057 DATE: 2017-03-01

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN Ms. K. Mohr, for the Crown

- and -

TRAVIS GARTH GORDON Mr. G. Joseph, for the Defendant Accused

HEARD: January 10, 2017 in Thunder Bay, Ontario

Mr. Justice J.S. Fregeau

Reasons for Sentence

OVERVIEW

[1] On November 14, 2016, the defendant pled guilty to the following charge:

On or about the 15th day of March, 2011, at the City of Thunder Bay…Travis Garth Gordon did participate in, or contribute to the activities of a criminal organization, to wit: Muzzi et al., for the purpose of enhancing the ability of the said organization to commit the indictable offence of trafficking in a controlled substance, contrary to the Controlled Drugs and Substances Act, thereby committing an offence contrary to Section 467.11(1) of the Criminal Code.

[2] The predicate offences underlying this criminal organization offence are trafficking in 197 oxycodone pills contrary to s. 5(1) of the Controlled Drugs and Substances Act and possession of proceeds of crime, being $12,100.00, contrary to s. 354(1)(a) of the Criminal Code. The defendant was found guilty of these offences following trial. On August 13, 2012, the defendant was sentenced to two months custody on the proceeds charge and 10 months custody consecutive on the trafficking charge, followed by probation for one year.

[3] The Crown and defence are in agreement that the criminal organization conviction warrants a custodial sentence. The issue is whether the term of imprisonment should be served in the community on a conditional basis.

THE FACTS

CIRCUMSTANCES OF THE OFFENCE

[4] During an investigation of mid to high level drug trafficking in Thunder Bay, the defendant was identified as a participant in the Muzzi criminal organization, Muzzi being a drug dealer who dealt in kilogram levels of cocaine, thousands of oxycodone pills and marijuana. In 2012, Muzzi pled guilty to being the director of a criminal organization, contrary to s. 467.13(1) of the Code.

[5] The defendant was responsible for picking up and processing drug shipments, transportation of drugs to and from stash locations and the collection of drug proceeds. The Muzzi criminal organization utilized PGP encrypted Blackberry phones. Evidence found on the defendant’s phone subsequent to his arrest on the trafficking and proceeds charges disclosed a March 15, 2011, conversation between the defendant and Muzzi during which the two of them discussed the movement of marijuana and oxycodone pills and the settlement of drug debts. The criminal organization charge was laid thereafter. The Crown acknowledged that the defendant’s participation in the criminal organization was limited to the 24 hour period of March 15, 2011.

CIRCUMSTANCES OF THE OFFENDER

[6] The defendant is 32 years old and lifelong resident of Thunder Bay but for intermittent absences for employment purposes. He has been in a positive common law relationship for approximately six years. He and his partner have a young child and they are engaged to be married. The defendant’s partner is a registered nurse. She is currently a stay at home mother and the defendant provides for the family financially. The defendant is described by his partner as a very good father, hardworking, supportive and a stable factor in the life of her and their child.

[7] The defendant is a high school graduate. He began working in Calgary in 2004, generally as a labourer in construction and grounds maintenance. Beginning in 2006, the defendant began to work as a driller’s helper for various drilling companies in Alberta. He returned to Thunder Bay in 2009 and worked as a labourer for a general contracting business for a couple of years. In 2010, the defendant returned to Alberta and once again found employment as a driller’s helper for approximately two years. His immediate supervisor described the defendant as a very good, punctual and reliable employee.

[8] In 2012, the defendant returned to Thunder Bay and obtained employment with a pipeline company. He has worked with this company throughout Ontario for the last four years, being subject to periodic layoffs. At the present time, the defendant is laid off, hoping to return to work sometime in mid-winter 2017. I am advised that the defendant is likely to be sent to Alberta upon being recalled this winter.

[9] The defendant’s foreman over the past two and one half years described him as a reliable and punctual employee. This party also advises that there has never been an issue with the defendant when he has been subject to pre-job or random drug tests.

[10] Alcohol abuse is not presently an issue with the defendant and has not been a significant issue in the past. The defendant did use cocaine for several years during his mid-twenties. The defendant also developed a dependency on opiate pain medication following shoulder surgery in 2011, beginning with him exceeding his prescribed dosage, which then led to the use of illegally obtained OxyContin. The defendant states that he has not used illegal drugs for over four years. This is confirmed by all collateral sources.

[11] The very positive Pre-Sentence Report describes the defendant as remorseful and very concerned about incarceration, the potential loss of his employment and the resultant threat to his domestic relationship. All collateral sources agree that the defendant has made significant, positive lifestyle changes over the last several years and that he is now a hardworking and reliable employee and a good partner and father.

[12] The defendant’s criminal record is not lengthy. He was convicted of driving with an illegal blood alcohol level in 2009. In 2011, he was convicted of simple possession and fail to comply with a recognizance. In 2012, he was convicted of the two offences noted in paragraph 2. The defendant was compliant and cooperative during two previous terms of probation. He also completed all probation mandated counselling in a positive fashion. The defendant has been subject to strict and comprehensive terms of judicial interim release since 2012 and has not been convicted of any breaches. The defendant is described in the Pre-Sentence Report as a “very good candidate for community supervision.”

[13] The defendant accepts responsibility for his actions, explaining that he got in with the wrong crowd and could not resist the “easy money.” When granted the right of allocution, the defendant stated that the offences occurred a long time ago and that he is now a different person. He further advised the court that his life had changed for the better and that there was no risk of him reoffending.

IMPACT ON THE VICTIM AND/OR THE COMMUNITY

[14] The Crown submits, and I accept, that drug trafficking is an inherently violent enterprise. Commenting in general terms about criminal organizations, the Manitoba Court of Appeal in R. v. Guimond, 2016 MBCA 18, [2016] M.J. No. 33, at paragraph 11, stated as follows:

The clear and present danger that criminal organizations pose to society is well-known. Fish J. explained the situation this way in R. v. Venneri, 2012 SCC 33, [2012] 2 S.C.R. 211 (at para 36):

Working collectively rather than alone carries with it advantages to criminals who form or join organized groups of like-minded felons. Organized criminal entities thrive and expand their reach by developing specializations and dividing labour accordingly; fostering trust and loyalty within the organization; sharing customers, financial resources, and insider knowledge; and, in some circumstances, developing a reputation for violence. A group that operates with even a minimal degree of organization over a period of time is bound to capitalize on these advantages and acquire a level of sophistication and expertise that poses an enhanced threat to the surrounding community.

LEGAL PARAMETERS

[15] Section 467.11(1) of the Code provides a maximum penalty of five years imprisonment for the offence of participating in or contributing to the activities of a criminal organization. There is no prescribed minimum penalty. The Crown is not seeking a period of incarceration of two years or more. As a result, all sentencing options are available to the court, including a conditional sentence if the requirements of s. 742.1 of the Code are otherwise met.

POSITIONS OF CROWN AND DEFENCE

[16] The Crown submits that the s. 467.11 criminal organization offence is the least serious of the three criminal organization offences in the Code, being directed at the bottom end of the structure of the criminal organization, with s. 467.12 being directed at mid-level members and s. 467.13 focused on directors or leaders of criminal organizations.

[17] Nonetheless, the Crown submits that the seriousness of the s. 467.11 offence is apparent, in that it is subject to a five year maximum penalty and that s. 467.14 of the Code requires that any sentence for this offence be served consecutively to any other punishment imposed on a defendant for an offence arising out of the same event. Bearing this requirement in mind, the Crown submits that this Court, in determining the appropriate sentence for the defendant, should put itself in the position of the judge that sentenced the defendant on the predicate offences in 2012.

[18] The Crown referred the Court to the 2013 British Columbia Court of Appeal decision of R. v. Mastop, 2013 BCCA 494 to emphasize the seriousness of this offence. In Mastop, at paragraph 43, the Court noted that Parliament intended the harm and danger of coordinated criminal activity to be taken seriously as evidenced by:

1. S. 743.6(1.2) of the Code, which imposes a presumption in favour of one-half parole ineligibility where an offender receives a sentence of two years or more;
2. S. 467.14 of the Code which directs that any sentence imposed under s. 467.11 must be consecutive to other punishment arising out of the same event; and,
3. S. 718.2(a)(iv) of the Code which provides that evidence that the offence was committed in association with a criminal organization is an aggravating factor upon sentencing.

[19] The British Columbia Court of Appeal went on in paragraph 46 of Mastop to state that “the overall objective of the criminal organization legislation is to protect society from the wide-ranging effects, violent and otherwise, of criminals who work together as a group, as well as to prevent and deter organized criminal activities. Offenders who regularly commit crimes together are a greater menace to society than an individual offender working alone.”

[20] The Crown acknowledges that the defendant’s Pre-Sentence Report is positive. The Crown further submits that, given the seriousness of both the predicate and subject offences, the applicable sentencing objectives are denunciation and deterrence, both specific and general. It is submitted that these objectives cannot be adequately addressed by a conditional sentence given the seriousness of the offence and the circumstances of this offender.

[21] The Crown submits that the Muzzi criminal organization was a sophisticated criminal enterprise that existed for the purpose of trafficking narcotics on a commercial level. The hierarchy of the organization allowed the director to remain insulated from the activities of members such as the defendant, who the Crown submits was a mid-level participant who engaged in trafficking for and at the direction of the criminal organization.

[22] The Crown further submits that a conditional sentence is inappropriate given the defendant’s circumstances. It is submitted that this Court must assume that the defendant’s imminent call back to his employment will result in him being required to reside out of the province, or in remote work camps, or both, in the near future. The Crown submits that both the supervision and enforcement of a conditional sentence outside of Ontario are problematic to the point of being unenforceable. The Crown acknowledges that conditional sentences offences can be crafted such that they adequately address both denunciation and deterrence. However, it is suggested that this is premised on the conditional sentence being properly supervised and enforced, with the very real threat of incarceration for a breach, failing which the sentence becomes nothing more than a probation order.

[23] In all of the circumstances, the Crown submits that a period of six to nine months incarceration is the appropriate sentence for the defendant on the facts of this case.

[24] The defendant agrees that the relevant sentencing objectives in this case are denunciation and deterrence and concedes that the proper application of those objectives, combined with the seriousness of both the predicate offences and the criminal organization offence require that a period of incarceration be imposed. However, the defendant submits that the fundamental purpose and principles of sentencing can be adequately addressed by way of a conditional sentence given the circumstances of the offender in this case.

[25] The defendant submits that the Pre-Sentence report is very positive. It is suggested that the defendant has completely changed his lifestyle in the last four years as follows:

1. He has had steady employment, with his supervisors describing him as a punctual, hardworking and reliable employee;
2. He is in an intimate relationship of some permanence with a supporting and loving partner and a two and one-half year old child. The defendant is described as a dedicated partner and a caring, supportive and “hands-on father”;
3. All collateral sources confirm that he has not used illicit drugs in over four years and that he has no intention of returning to that lifestyle.

[26] The defendant submits that the author of the Pre-Sentence Report describes him as a “very good candidate for community supervision.” Further to this, it is submitted that the fact the defendant has abided by the strict terms of judicial interim release for four years can provide this Court some comfort that he will abide by the terms of a conditional sentence order.

[27] The defendant submits that a properly crafted conditional sentence can be sufficiently punitive and adequately address both denunciation and deterrence. The defendant notes that Parliament could have, and did not, precluded the imposition of a conditional sentence for this offence by prescribing a mandatory minimum sentence.

[28] The defendant submits that the facts admitted in support of the defendant’s guilty plea are limited to a single 24 hour period, putting this offence at the lower end of s. 467.11 offences. It was further submitted that the defendant waived the hearing of evidence at his preliminary hearing and that his guilty plea is an indication of sincere remorse.

[29] In all of the circumstances, the defendant submits that a six month sentence, to be served conditionally in the community, is the appropriate sentence in this case.

PRINCIPLES OF SENTENCING

[30] Section 718 of the Criminal Code states that the fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions designed to achieve one or more specific objectives. In my opinion, this fundamental purpose resonates when sentencing a defendant on a criminal organization offence. It is agreed by counsel and supported by the case law, that the primary sentencing objectives when sentencing an offender on a criminal organization offence are denunciation and deterrence.

[31] In my opinion, both specific and general deterrence need be addressed in this case. While the defendant suggests that specific deterrence need not be addressed, he has acknowledged that it was the lure of “easy money” that got him into the situation he now faces. Unfortunately, such “easy money” will always be available to him and others and the defendant, together with other like-minded individuals, has to be deterred from succumbing to such temptation in the future.

[32] Section 718.1 of the Code further requires that any sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[33] I agree with counsel that the circumstances of this offence require that a period on incarceration be imposed to properly address the fundamental purpose and the relevant objectives of sentencing. The very difficult issue for me is whether allowing that sentence to be served in the community, subject to the conditions of a conditional sentence order, can be consistent with the fundamental purpose and principles of sentencing, as required by s. 742.1(a) of the Criminal Code.

[34] The defendant’s Pre-Sentence Report is very positive. As the Crown appropriately phrased it, and as confirmed by all collateral sources and the author of the report, Mr. Gordon has done everything that has been expected of him over the last four years. His relationship with his partner was put under extreme stress as a result of his 2012 convictions. The defendant has responded in the best possible way. He has re-committed to that relationship to the satisfaction of his partner. He has abstained from the consumption of illegal drugs and successfully completed probation mandated counselling in this regard. He has maintained employment, provided for his family and earned the respect of co-workers and supervisors. Finally, he has become a father and excelled in that role, to the ultimate benefit of him, his partner and his child.

[35] I accept that a conditional sentence can be sufficiently punitive and properly address the sentencing objectives of denunciation and deterrence in a great many sentencing scenarios. However, I am not persuaded that a conditional sentence does so in the case of this offence and this offender.

[36] The close supervision and the meaningful enforcement of a conditional sentence are crucial and are what distinguishes a conditional sentence of imprisonment from a probation order. If the supervision of an offender who is the subject of a conditional sentence order is lacking, enforcement will be lacking. If effective enforcement is not possible for one reason or another, the conditional sentence is not punitive and does not sufficiently address denunciation and deterrence. It then becomes inconsistent with the fundamental purpose and principles of sentencing and is contrary to s. 742.1(a) of the Code.

[37] Mr. Gordon has acknowledged that his employment may very well require him to be out of Ontario in the near future for an uncertain period of time. This would make both the supervision and, in turn, the enforcement, of a conditional sentence problematic. Section 742.3(1)(d) of the Code prescribes, as a compulsory condition of a conditional sentence order, that the offender remain within the jurisdiction of the court unless written permission to go outside that jurisdiction is obtained from the court or the supervisor.

[38] Pursuant to this provision, the defendant could seek permission to work in Alberta, if required to do so within the time frame of a conditional sentence. If granted such permission, he would be free to travel outside the province and would remain subject to all terms of his conditional sentence. However, once the defendant is in Alberta, he cannot be effectively supervised, or supervised at all, by his Ontario supervisor. Nor will Alberta conditional sentence supervisors provide supervision of an order from an Ontario court. If there is no supervision there can be no effective enforcement.

[39] Section 742.5(1) of the Code provides for the possible transfer of a conditional sentence order to another province with the consent of the Attorney General. However, this is applicable only if the offender becomes a resident in that other province. This provision is obviously not intended, and is not a practical solution, for an offender who resides in one province and is called to work for intermittent periods in another.

[40] The sentence imposed on Mr. Gordon as a result of him being convicted of participating in or contributing to the activities of the Muzzi et al criminal organization for the purpose of enhancing that organization’s ability to engage in drug trafficking must achieve both denunciation and deterrence. The sentence imposed must also be proportionate to the gravity of this particular offence. A conditional sentence for which supervision is problematic and enforcement questionable simply does not achieve these objectives and is therefore inappropriate in the circumstances.

[41] In my opinion, a just and fit sentence in all the circumstances of this case is a period of incarceration of four months. This is below the low end of the range suggested by the Crown. The sentence imposed is an attempt to balance the very significant and positive lifestyle changes Mr. Gordon has made over the past four or five years with the need to achieve denunciation and deterrence for having committed a very serious criminal offence. It is my sincere hope that Mr. Gordon can complete this sentence and return to his partner and child and his current productive family lifestyle.

[42] The defendant, having been found guilty of the offence of contributing to the activities of the Muzzi et al criminal organization contrary to s. 467.11(1) of the Criminal Code, is sentenced to a four month period of incarceration.

___________ ”original signed by”_ ___ The Hon. Mr. Justice J.S. Fregeau

Released: March 1, 2017

COURT FILE NO.: CR-16-057 DATE: 2017-03-01 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN - and – TRAVIS GARTH GORDON REASONS FOR SENTENCE Fregeau J.

Released: March 1, 2017 /sf